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     overview

This note considers bans (or partial restrictions) on publication of diaries, memoirs and letters by politicians, their advisers, senior officials, spies or disenchanted lovers.

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 of confidentiality.

The note covers -

• this overview - an introduction to debate about the need for restrictions and the scope for restriction in Australia, the US, the UK and elsewhere
• issues - why is there a debate about banning publication and what mechanisms are used?
• incidents - selected incidents that illustrate conflicts about practice and principle in restricting information from politicians, senior administrators, spies and other celebrities
• studies - major academic works, government studies and other accounts.

It supplements discussion elsewhere on this site regarding matters of censorship, secrecy, whistleblowing and defamation.

     introduction

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 royal household.

     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 Beaverbrook 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 government papers.

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 of memoirs.

Attempts to stop publication of Crossman's diaries (eg on the basis of a breach of confidence) were ineffective. Anthony Howard commented

Any 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 discussions.

That 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 government

Had 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

I 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.

After 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 rights).

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.





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