A judgement for more open government
Despite its many peculiarities of detail, Lord Widgery's judgement in the case of the Crossman Diaries represents a major advance for the principle of freedom of speech, and his rejection of the Attorney General's attempt to ban publication of the diaries an important victory for all those who feel that we need more open government, not less. The judgement may yet be overturned in this particular case, if the Attorney General should decide to appeal against it. But the Lord Chief Justice has laid down a number of important principles which must inevitably carry considerable weight in any future litigation — or legislation, for that matter — centring on the question of the confidentiality of government.
The main principle laid down is that, while government confidentiality can be protected by the courts, it is up to the government to prove to the court's satisfaction, in every case, that the arguments against publication are stronger than those in favour. It is not enough, that is, for the Attorney General to claim that members of the Cabinet are bound by their obligation of secrecy or their oath as Privy Councillors; he must also show that the public interest case for continued secrecy is greater than the public interest case for publication. In other words, a would-be publisher is innocent until proved guilty.
It cannot be said that Lord Widgery has Provided any generally useful rules for weighing the two`kinds of public interest; on the contrary, he specifically admits the difficulty of establishing any such general rules, and the very notion that the courts must decide in each case underlines the elusiveness of general rules. In this particular case, the clinching consideration appears to have been that so much time has now elapsed since the events related in the diaries — ten years and three general elections — that publication can no longer do any damage. Other judges in other cases might feel that five years was long enough, or alternatively that twenty years was too short, to permit publication. But the Crossman judgement must represent an important breach in the general principle of a thirty-year rule on Cabinet papers.
There are several oddities in the judgement, starting with the extrapolation from the principle of confidentiality between man and wife (in Argyle v Argyle) to the Principle of confidentiality in public affairs. No ordinary layman would consider 'private' secrets as being on all fours with 'public' secrets, and it is a little difficult to see why the courts should. But the chief peculiarity is the way in which . the judgement mingles legal arguments with purely political considerations which are, by definition, not susceptible of legal enforcement. The courts can uphold the princple of confidentiality; it is difficult to see how they can play any meaningful role on the question of collective Cabinet responsibility; yet in Lord Widgery's Judgement the two considerations are deeply entwined. He finds "overwhelming evidence that the doctrine of joint responsibility is generally understood and practised, and equally strong evidence that it is on occasion ignored. The general effect of the evidence," he goes on, "is that the doctrine is an established feature of the' English form of government, and it follows that some matters leading up to a cabinet decision may be regarded as confidential."
Surely not; the government's remedy for a prospective breach of the principle of confidentiality is through the courts, but its remedy for a breach of the principle of collective responsibility is to sack the Minister. However much the Lord Chief Justice may be attached, and rightly, to the idea of Cabinet solidarity, there is no way that the courts can, or should even attempt, to enforce it. This is a principle which is purely political in character, and it is up to Prime Ministers to make sure that they can form Cabinets which are willing and able to practise it. It is of course in the public interest that Cabinet Ministers should abide by Cabinet decisions; but the principles at stake here are those which are concerned with effective government and with parliamentary democracy, not those of the law courts. Indeed, it is debatable whether the primacy of political over legal considerations should not also apply to the question of confidentiality, as well as to that of collective responsibility. According to the Lord Chief Justice "it is unnecessary to elaborate the evils which might flow if at the close of a Cabinet meeting a Minister gave the press an analysis of the voting." Perhaps so, but perhaps not. It is difficult to imagine an account of a debate and vote in Cabinet which did more than confirm the existence of differences of opinion which were already widely known. It can reasonably be held that one of the weaknesses of our present political system is that Parliament is, in practice, the helpless creature of the executive; if the differences of opinion which are plain but ineffective in the House of Commons were more transparent in the Cabinet, the cause of democracy might be better served.
Naturally, there are areas where greater transparency would be against the national interest: questions affecting national security, for example, (though these are already covered by the Official Secrets Act), or budget decisions. But on less sensitive issues, it is difficult to find conclusive arguments that a greater openness about the process of government decision-making must necessarily militate against the public interest — or even against the real interest, soberly assessed, of the government of the day (which is a very different thing). Sweden has a system of government which is, by law, far more open than ours; even Cabinet discussions, not of ten years ago but of today, are immune to the kind of restraints invoked by the Attorney General, and any citizen can inspect the Prime Minister's official correspondence. Yet if Sweden has not, apparently, been engulfed by the 'evils' on which Lord Widgery found it unnecessary to elaborate, it is because these evils are phantasmagoric. Most Ministers and all bureaucrats have a natural tendency to, because a natural self-interest in, secrecy; the fact that Sweden is an open society does not prevent Swedish ministers and civil servants from maintaining secrecy when it serves their careers or the national interest to do so. In practice, in Sweden as in Britain, the real danger is not excessive openness, but excessive secrecy.
It is sometimes claimed that civil servants are especially vulnerable and need special protection against breaches of confidence; they cannot be expected to give frank advice, it is said, except under conditions of secrecy, and they cannot defend themselves if their advice or their actions are criticised. There is some force to this argument, but it must be set against the remarkable record of economic misgovernment which this country has endured for the past thirty years. It is time that the general public had more opportunity to find out whether this is due to consistently bad advice or in defiance of consistently good advice from the Treasury. A more open system of government in the civil service would both help to expose those who have consistently been wrong in terms of government policy but consistently successful in terms of bureaucratic warfare, and might even help to ventilate conflicting views within the bureaucracy which are otherwise stifled. To suggest, as the Financial Times did in its leading article on the judgement last week, that the law should be changed specifically to protect civil servants is clearly outrageous. It is also absurd; for it conjures up the idea of Sir Douglas Wass going to court to prevent Mr Denis Healey from telling lobby correspondents that he has had some more bad advice from the Treasury.
Civil servants are already too well protected against the consequences of their advice, and too well concealed from the public gaze, for the good of the nation. Lord Widgery has struck a blow for more open government, and if there is to be any new legislation on the subject it should reinforce, not undermine, the general thrust of his judgement.