This note considers bans (or partial restrictions) on
publication of diaries, memoirs and letters by politicians,
their advisers, senior officials, spies or disenchanted
Such restrictions may be justified on the basis of national
security, commercial confidentiality or merely political
expediency. They may involve discrete 'official secrets'
legislation, administrative protocols and appeals to personal
honour or conscience, contract or common law recognition
The note covers -
overview - an introduction to debate about the need
for restrictions and the scope for restriction in Australia,
the US, the UK and elsewhere
- why is there a debate about banning publication and
what mechanisms are used?
- selected incidents that illustrate conflicts about
practice and principle in restricting information from
politicians, senior administrators, spies and other
- major academic works, government studies and other
supplements discussion elsewhere on this site regarding
matters of censorship, secrecy, whistleblowing and defamation.
Official memoirs and correspondence, whether disinterred
from the archives after years of obscurity or published
on a 'kiss and tell' basis when the author has made a
carefully stage-managed exit from government, have tended
to be drearily soporific rather than a threat to good
governance and public order. Few have the charm of UK
Prime Minister Herbert Asquith's letters to his mistress
(penned during Cabinet meetings as Britain lurched into
war), the diaries of
Thatcher acolyte Alan Clark or the cabinet paper marginalia
of Bismarck. Fewer still offer the insights into policymaking
processes and personalities provided by diaries from figures
such as Richard Crossman, Edward Hamilton or Lord Granville.
In the UK, Canada, Australia and elsewhere governments
have, however, sought to inhibit publication by ministers
and other politicians, advisers, senior officials, spies
and others with privileged access to 'nationally sensitive'
information. Restrictions have encompassed both release
of information while those figures are in office and,
more contentiously, once they have relinquished power
or their heirs decide to cash in on dear papa's renown.
Some restrictions have been based on secrecy
legislation, for example the UK Official Secrets Act,
on contracts or on legislation covering the behaviour
of officials (eg the federal Public Service Act
and Crimes Act 1914 in Australia). Others have
embodied informal understandings or administrative protocols
such as the 'Radcliffe Rules' in the UK.
They have been defended as necessary for the provision
of forthright, cogent advice to ministers and for effective
public administration. Critics, to varying degrees, have
acknowledged the need to preserve confidentiality
about particular matters (eg national security and justice)
but argued that restrictions should 'fade' with the passage
of time, commenting that information is sometimes suppressed
to prevent personal, party or institutional embarrassment
rather than because release jeopardises continued existence
of the state.
Others have called for more open government, noting a
tendency to exploit secrecy through selective or systematic
leaking - notably 'off
the record' briefings by advisers and MPs - in contrast
to restrictions on public criticism by officials.
Some observers have thus supported an absolute ban on
the release of information about the shape of cabinet
discussions (with only outcomes to be published) during
the life of a cabinet and for a finite time afterwards,
beyond which politicians would be free to recount what
was said behind the closed doors. Some have similarly
supported release of memoirs by officials after retirement,
subject to editing in order to protect information of
particular and ongoing sensitivity (eg that enables the
identification of personnel in security forces).
Moves to suppress particular information - or particular
memoirs - have thus been contested and on occasion embarrassing,
with the Thatcher government for example experiencing
international humiliation over failed action against Spycatcher
and its successor encountering difficulty in dealing with
'what the butler saw' exposes from former staff in the
matters of state
Expectations about government secrecy, personal privacy
and professional confidentiality have evolved unevenly
over the past two hundred years. Frameworks for managing
the memoirs, diaries and correspondence of those 'in the
know' have become more systematic - with a move away from
tacit gentlemen's agreements - and to a substantial extent
more pragmatic, particularly in dealing with senior figures
rather than middle-rank officials.
Prior to 1914, Westminster system Cabinets - along with
most households - operated on the basis of personal confidentiality.
Recordkeeping was surprisingly informal. Officials and
some ministers for example lamented that it was sometimes
unclear what decisions had been taken (or why), that figures
such as UK Prime Minister Lord Salisbury had a tendency
to absent-mindedly take key documents home in their coat
pockets and that it was difficult to apply the 1849 precedent
provided by Prince Albert v Strange in which
Queen Victoria's husband took action over unauthorised
release of family etchings.
Perceptions that official documents were personal property
and that politicians were entitled to special use during/after
service were exemplified by Winston Churchill's appropriation
of Admiralty memoranda, reports and other documents during
the 1914-1918 War (the basis of today's Churchill Archive,
sold for £12.5 million in 1995). In 1922 Churchill
persuaded his Cabinet colleagues that they be allowed
to "vindicate their actions" by publishing "necessary"
official documents, an agreement gleefully exploited by
and others. Stanley Baldwin, closing the gate during 1927
after the departure of horses such as Churchill, banned
ministers in office from engaging in journalism (with
exceptions for writing about "historical, literary
or scientific" issues) and sought to retrieve post-1919
Churchill 'reminded' his ministers in 1945 to return documents,
with the important proviso that they could retain items
that they had authored or signed. Churchill's memoirs
- like those of his successors Anthony Eden and Harold
Macmillan - were cobbled together from official material
and acclaimed as history. There was no such welcome for
insider accounts such as that from Elizabeth II's nanny.
Two decades on publication of the backbench and cabinet
diaries of UK Minister Richard Crossman provided information
about deliberations within the Wilson government, resulting
in greater formalisation of what ministers and officials
should do (notably the 'Radcliffe Rules', indicating that
ten years or three elections was sufficient for the confidential
nature of most Cabinet information to lapse) and a spate
Attempts to stop publication of Crossman's diaries (eg
on the basis of a breach of confidence) were ineffective.
Anthony Howard commented
back-bench MP is perfectly entitled to record his daily
observations and life in parliament and then, if he
is lucky enough to find a publisher, to communicate
them to a wider public. The problem with Crossman, so
far as the Cabinet Office was concerned, arose from
his determination to give what Sir John Hunt, the cabinet
secretary of the time, described as 'blow-by-blow' accounts
of what actually went on within the Wilson cabinet.
The authorities of the period were probably right in
regarding this as setting a most disagreeable precedent - a
precedent, incidentally, that was soon to be followed
by two of his cabinet colleagues, Barbara Castle and
Tony Benn (and much later, from within the ranks of
the Conservative Party, by the junior minister Alan
Clark). Where the guardians of tradition erred was in
lacking the nerve to reach for the ultimate Domesday
weapon, the then still fully extant Official Secrets
Act. Instead, they sought to extend the law of confidentiality
(with a rather arcane pedigree reaching back to some
Victorian etchings) to cover the content of cabinet
fumbling approach was reflected in responses to accounts
by members of the intelligence services and servants.
Disgruntled UK agent Peter Wright divulged information
in 1986 through his book Spycatcher, published
in Australia despite legal action in Australia and the
UK. A decade later former MI5 operative David Shayler
provided information to the Mail on Sunday in
breach of the Official Secrets Act, fled to France
and was arrested on his return to the UK in 2000. MI5
czar Stella Rimington released an autobiography.
Sundry Windsor servants spilled the beans on life behind
the gold doors, although the tittle tattle offered few
resounding revelations. Nations with a tradition of lèse
majesté have gone further in seeking to crimp
publication of intimate details about current or former
heads of state, for example the French president's medical
history, appetite for delicacies made from endangered
species or amatory exploits.
In Australia former federal/state ministers such as Peter
Howson, Paul Hasluck, Bob Hawke, Peter Walsh and Neil
Blewett have discussed Cabinet processes and decisions
in their memoirs or interviews.
Blewett colleague John Dawkins commented of his 1999 A
Cabinet Diary: a personal record of the first Keating
Michael Keating - the Cabinet Secretary during the period
covered by this diary - written this book he would have
been charged under Section 70 of the Crimes Act. It
appears that former ministers can reveal cabinet secrets
while former public servants cannot.
Blewett had dismissed fears of prosecution, commenting
think that the rules are absurdly restrictive in this
country. I mean, the fact that cabinet minutes, which
are just simply the decisions of cabinets are not available
to historians for 30 years, that the description of
cabinet debates are not available for 50 years. That
is all out of kilter with the sort of open government
of late 20th-century democracy.
2000 former UK government advisers, ministers and officials
such as Jeremy Greenstock, Robin Cook, Christopher Meyer
and Derek Scott provided candid accounts of contemporary
deliberations about the Iraq War, relations with the US
and infighting within Whitehall.
Others, such as Lance Price, were advised that publication
was "completely unacceptable" - leading to claims
that suppression was arbitrary, driven by personal animus
or intended to deter publishers.
butlers and lovers
As the following pages note, unhappiness about disclosure
is not restricted to the private sector.
Nongovernment organisations and individuals have resorted
to nondisclosure agreements under contract law or duties
of confidentiality under
statute and common law, inhibiting former corporate directors,
executives, servants and disenchanted lovers of celebrities
from spilling the beans to the tabloids, to a competitor
or even to regulators.
Some individuals have sought to use privacy
law, particularly in jurisdictions influenced by the von
Hannover decision, aguing that courts can and should
differentiate between a person's public and private lives
(with unauthorised reporting or surveillance of the latter
on occasion infringing an individual's human
In the UK, for example the High Court of Justice granted
an injunction (and damages for an alleged breach of confidence)
to Canadian folk singer Loreena McKennitt during 2006
after she complained that Travels With Loreena McKennitt:
My Life As A Friend, a self-published book by former
close friend Niema Ash, disclosed intimate details of
her private life. The decision by Justice Eady under the
European Convention on Human Rights (ECHR) was upheld
by the House of Lords in 2007.