¹ The papers were bought on behalf of the specially-constituted Sir Winston Churchill Archive Trust. The papers can now be resold only with the consent of the trustees of the National Heritage Memorial Fund and of the Charity Commissioners or the courts. See the Prime Minister's explanation at 261 H.C. Deb. col 24 w (6 June 1995).

² The action had been started in 1993 between the Government and the Churchill Trustees. The Attorney-General sought a declaration that the “relevant state papers” in the archive were the property of the Crown and should be delivered up.

³ 258 H.C. Deb. col. 978 (27 April 1995)Google Scholar.

⁴ Ibid.

⁵ 259 H.C. Deb. col. 283 w (4 May 1995).

⁶ Mr. Tony Benn has told me that he received 1,800 different Cabinet and Cabinet committee documents in one year alone as a Cabinet Minister in the late 1970s.

⁷ These were previously referred to as Cabinet committees, the change in nomenclature having been made officially to underline the fact that non-Cabinet Ministers are regularly full members of such committees.

⁸ There is nothing in the description of the administrative system as set out in the Act which itself throws light on the type of document which is to be preserved. For a description of current practice within departments in relation to transferring records to the Public Record Office, see Open Government, Cm. 2290 (1993), ch. 9Google Scholar.

⁹ Section 10(1) and First Schedule.

¹⁰ “Records” includes not only written records, but records conveying information by any other means whatsoever: 1958 Act, s. 10(1). The Public Records Act 1967 amends the 1958 statute, but in no sense that is material here.

¹¹ The section notoriously created 2,324 offences (see Report of the Committee on Section 2 of the Official Secrets Act 1911, Cmnd. 5104 (1972), vol. 2, p. 262)Google Scholar. It protected notes and documents made or obtained in contravention of the Act, or which had been entrusted in confidence to the defendant by any person holding office under the Crown or which had been obtained owing to the defendant's position as a person who holds or had held office under the Crown. But the phrase “notes or documents” was not defined. Section 2 of the 1911 Act was repealed by the Official Secrets Act 1989, s. 16(4).

¹² 1989 Act, s. 12(1).

¹³ In any case, Ministers are permitted under the 1989 Act to provide lawful authority for disclosure of such information in accordance with their official duty: Ibid., s. 7(1). That point will be returned to later when considering that Act more generally: see below, section V.

¹⁴ [1976] Q.B. 752.

¹⁵ See especially ibid at 764–765, 767–768.

¹⁶ 86 H.L. Deb. col. 527 (21 December 1932).

¹⁷ [1976] Q.B. 752 at 766.

¹⁸ Cabinet Office, 1992. Each Prime Minister issues that document, revised as he or she wishes, to new Ministers, and it amounts to a rule book for Ministers.

¹⁹ Op. cit., respectively paras. 14, 15, 6, 10, 12.

²⁰ 259 H.C. Deb. col. 566 w (11 May 1995).

²¹ The very next question asked the Parliamentary Secretary, Lord Chancellor's Department, in what circumstances state papers may be held in private hands. He replied that such papers were normally held by the Crown, although in very rare circumstances they might be held in private hands, normally only when permission exceptionally had been given to a former Minister or public servant to retain possession of them.

²² A document written by officials for a Minister for use in his or her official duties must be within the notion of a state paper, just as if the Minister had written it personally.

²³ An Official Committee is made up entirely of civil servants.

²⁴ See the last sentence of his answer, given above at the text associated with note 20.

²⁵ That approach has been reinforced by the recommendations of the Nolan Committee, which recommends that reliance should continue to be placed on non-statutory requirements to uphold official good conduct: see First Report of the Committee on Standards in Public Life, Cm. 2850 (1995)Google Scholar, passim.

²⁶ There are, however, legal rules as well: they will be examined below in sections III and V.

²⁷ See generally Hankey, Lord, Diplomacy by Conference: Studies in Public Affairs 1920–1946 (1946), pp. 52, 62–69Google Scholar.

²⁸ SirJennings, Ivor, Cabinet Government (3rd ed., 1959), p. 273Google Scholar.

²⁹ Lloyd George's wish to use his papers eventually to write lucrative war memoirs must have been a factor in that decision.

³⁰ Jennings, op. cit., p. 273.

³¹ Churchill told the Cabinet Office that he had executed a deed governing the custody of his papers after his death.

³² It should be recalled that Churchill was in poor financial shape for most of his life, and had to be bailed out by well-wishers from time to time: see Cannadine, David, Aspects of Aristocracy: Grandeur and Decline in Modern Britain (1994), pp. 143–150Google Scholar.

³³ Churchill, Sir Winston, The Second World War (1951), vol. vi, p. 644Google Scholar.

³⁴ “Cabinet Procedure”, C.P. (45) 99 (8 August 1945).

³⁵ See Hennessy, Peter, Cabinet (1986), p. 11Google Scholar. Hennessy sets out the 1952 version of Questions of Procedure for Ministers, of which paragraph 18 is relevant here.

³⁶ He wrote no account of his 1951 Government.

³⁷ Op. cit., note 18 above, para. 14. Because the document is written for the guidance of Ministers, there is nothing in it about civil servants' obligations in relation to state papers.

³⁸ The rest of para. 14 will be considered below: see note 54 and associated text.

³⁹ Letter to me from Sir Robin Butler of 3 July 1995.

⁴⁰ Letter to me from Sir Robin Butler of 2 August 1995.

⁴¹ See his “Access to a Previous Government's Papers” [1982] P.L. 514Google Scholar.

⁴² Ibid., p. 517. For access to the papers of a Government of another party, see below note 55 and associated text.

⁴³ 259 H.C. Deb. col. 281 w (4 May 1995).

⁴⁴ Letter to me from Sir Robin Butler of 3 July 1995.

⁴⁵ Lady Thatcher did as most of her predecessors had done and removed copies of her prime ministerial papers when she left No. 10 in 1990. They would undoubtedly be worth millions of pounds on the open market, if she were at liberty to sell them—on which see below sections III and V.

⁴⁶ 259 H.C. Deb. col. 281 w (4 May 1995).

⁴⁷ Since 1918 all 14 retired Prime Ministers have published autobiographical accounts except Bonar Law and Chamberlain (who both died soon after their resignations), Baldwin, MacDonald, Attlee, and Sir Edward Heath (who is still working on his).

⁴⁸ As did, e.g., Clement Attlee (to the University College, Oxford), Winston Churchill (post– 1945, to Churchill College), Sir Anthony Eden (to the University of Birmingham), and Harold wilson (to the Bodleian Library, Oxford).

⁴⁹ As with Churchill's pre-1945 papers, and Lloyd George (some of whose papers were sold by his widow in 1951 to Lord Beaverbrook, who donated them to the House of Lords Library).

⁵⁰ The most notorious example comes from the United States, in Richard Nixon's attempts to keep his presidential papers (including the notorious tapes) secret after his resignation.

⁵¹ Op. cit., note 18 above, para. 15.

⁵² Op. cit., para. 16.

⁵³ The limitations, or purported limitations, on the publication of ministerial memoirs are not of direct relevance here. The guidelines in the Radcliffe report (Report of the Committee of Privy Counsellors on Ministerial Memoirs, Cmnd. 6386 (1976)) do, however, impose restrictions on the information which former Ministers may properly publish: see below, section V.

⁵⁴ Op. cit., note 18 above, para. 14.

⁵⁵ They were explained by Lord Hunt of Tanworth (see above, note 41).

⁵⁶ Some specified types of paper are excluded from the rules, and may be seen freely, such as papers which are in the public domain: see LordHunt, op. cit., p. 516.

⁵⁷ See below, section V.

⁵⁸ Copyright has been protected by legislation which went back to the eighteenth century, most of which was consolidated in the Copyright Act 1911. In its turn that Act was replaced by the Copyright Act 1956; the governing statute is now the Copyright, Designs and Patents Act 1988.

⁵⁹ 1988 Act, s. 163(2). Crown copyright was enshrined in statute long before that Act, which altered, and indeed cut down, the scope of such copyright.

⁶⁰ 1988 Act, s. 163(3)(a).

⁶¹ Using the term state papers as defined by the Government: see above, note 20 and associated text.

⁶² See especially the 1988 Act, s. 3(1).

⁶³ 1988 Act, s. 3(1); the expression can also apply to a table or compilation, and to a computer program: Ibid.

⁶⁴ See, e.g., British Oxygen Co. Ltd. v. Liquid Air Ltd. [1925] Ch. 383Google Scholar.

⁶⁵ For the purposes of the 1988 Act, the Crown includes the Crown in right of Her Majesty's Government in Northern Ireland or in any country outside the United Kingdom to which the Crown copyright provisions of the Act applies, and to the Channel Islands, the Isle of Man, and any colony, if those provisions are extended to any of them by Order in Council: 1988 Act, s. 157.

⁶⁶ See, e.g., 1988 Act, s. 11(2) (employer is the first owner of work made by an employee in the course of employment).

⁶⁷ 1988 Act, ss. 165, 166.

⁶⁸ 1988 Act, s. 163(6).

⁶⁹ The methods of enforcement are all considered together below, in section V.

⁷⁰ See the reply by the Secretary of State for National Heritage at 259 H.C. Deb. col. 169–170 w (2 May 1995). Copyright in the personal papers in that archive remains in the Churchill trustees: see the same Secretary of State at 259 H.C. Deb. col. 327 w (5 May 1995).

⁷¹ The owners of the copyright in the personal papers in the Churchill archive have granted such a licence, as has the Crown in relation to the state papers in it: see the answer by the Secretary of State for National Heritage at 259 H.C. Deb. col. 326 w (5 May 1995), and by the Prime Minister at 259 H.C. Deb. col. 283 w (4 May 1995).

⁷² See also section 48 of the 1988 Act, which allows the Crown to issue copies of works communicated to the Crown (which includes a Minister) in the course of public business, by or with the licence of the copyright owner.

⁷³ See, e.g., Oliverv. Oliver (1861)Google Scholar 11 C.B. (N.S.) 139.

⁷⁴ On that, see section V below.

⁹⁴ Such ex-Ministers include Michael Heseltine and Nigel Lawson: see Brazier, op. cit., p. 302. There is no reference to the convention in Questions of Procedure for Ministers.

⁹⁵ See the White Paper, Open Government, Cm. 2290 (1993)Google Scholar.

⁹⁶ Theft Act 1968, s. 1—the dishonest appropriation of property belonging to another, with the intention of depriving that other of it.

⁹⁷ For the decision on whether an accused was dishonest is a question of fact for the jury: see, e.g., R. v. Ghosh [1982] Q.B. 1053Google Scholar.

⁹⁸ Information so protected is described in the Act, ss. 1–4, and concerns security and intelligence, defence, international relations, and crime.

⁹⁹ 1989 Act, ss. 7(1), 12(1).

¹⁰⁰ While in office it would be a bold (but possibly correct) argument that “briefing” by Ministers (the respectable form of leaking) is done in accordance with their official duty, because it is the routine practice of governments of both political parties.

¹⁰¹ See 1989 Act, ss. 2(1), 3(1), 4(1).

¹⁰² Indeed, that Act could have a linked effect: any former Minister who published a manuscript without submitting it to the Secretary of the Cabinet for vetting in accordance with the Radcliffe guidelines would risk committing an offence if he or she were to make a disclosure which the Act forbade. If a draft were submitted the Secretary would insist that any such information be deleted.

¹⁰³ 1989 Act, s. 8.

¹⁰⁴ ibid., s. 8(l)(a).

¹⁰⁵ It is a defence for the Crown servant to prove that he believed that he was acting in accordance with his official duty and had no reasonable cause to believe otherwise: Ibid., s. 8(2).

¹⁰⁶ 1989 Act, s. 9.

¹⁰⁷ Torts (Interference with Goods) Act 1977, ss. 1, 3.

¹⁰⁸ These remedies are set out in ss. 96–115. The Act confirms that actions for damages, injunctions, and accounts are available (s. 96), and specifies how enforcement may be sought (ss. 99–100). Criminal offences exist of dealing for gain contrary to copyright (s. 107).

¹⁰⁹ See generally Gurry, Francis, Breach of Confidence (1984)Google Scholar; Wacks, Raymond, Personal Information: Privacy and the Law (1989)Google Scholar; Feldman, David, Civil Liberties and Human Rights in England and Wales (1993), pp. 642–666Google Scholar.

¹¹⁰ After the Spycatcher case the law was changed to make it an offence for a member or former member of the security and intelligence services to disclose information relating to security or intelligence: Official Secrets Act 1989, s. 1.

¹¹¹ [1976] Q.B. 752. On that case, see Young, Hugo, The Crossman Affair (1976)Google Scholar.

¹¹² [1990] 1 A.C. 109; (1991) 14 E.H.R.R. 153Google Scholar. On this case, see Williams, D.G.T., “Spycatcher” [1989] C.L.J. 1Google Scholar; Yvonne Cripps, “Breaches of Copyright and Confidence: The Spycatcher Effect” [1989] P.L. 13; Barendt, Eric, “Spycatcher and Freedom of Speech” [1989] P.L. 204Google Scholar; Ian Leigh, “Spycatcher in Europe” [1992] P.L. 200; Birks, Peter, “A Lifelong Obligation of Confidence” (1989) 105 L.Q.R. 501Google Scholar.

¹¹³ The events described in the Crossman Diaries had taken place 10 years earlier, and no issue of national security arose; in Spycatcher, the book had already been published around the world, and the contents were no longer confidential—although the House of Lords held that the Sunday Times must account for profits in relation to an article which it had published before the book became widely available and which was based on information from Peter Wright which had not been published before.

¹¹⁴ [1990] 1 A.C. 109 at 256.

¹¹⁵ See also Commonwealth of Australia v. John Fairfax & Sons Ltd. (1980) 32 A.L.R. 485: “It is unacceptable, in our democratic society, that there should be restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action”: per J, Mason. at 492–493Google Scholar.

¹¹⁶ [1990] 1 A.C. 109 at 262–263, 266, 275–276, 288; and see Cripps, op. cil, at 14–15.

¹¹⁷ The Crown had disclaimed any intention of relying on copyright during the hearings, and so the point was not fully argued. In any case, where the publication complained of was of an original literary work made by a former Crown servant, it would be more difficult to trace Crown copyright to it.

¹¹⁸ Lion Laboratories v. Evans [1985] Q.B. 526Google Scholar.

¹¹⁹ Of course, it might not necessarily be easy to distinguish the two in a particular case.

¹²⁰ This follows from the Spycatcher case, and is a recognised form of remedy: see, e.g., Peter Pan Manufacturing Corporation v. Corsets Silhouette Ltd [1964] 1 W.L.R. 96Google Scholar.

¹²¹ See Edwards, J. LI. J., The Law Officers of the Crown (1964), chapters 10, 11Google Scholar, and The Attorney-General: Politics and the Public Interest (1984), chapter 11Google Scholar. The Attorney-General did not take the opinion of other Ministers when deciding whether to initiate a prosecution against Clive Ponting in 1985: see 73 H.C. Deb. cols. 737–830 (18 February 1985).

¹²² See above, note 43 and associated text.