The Fifty-Year Rule

By ROBERT RHODES JAMES

Iis evident that a deliberate and carefully 'planned assault is being prepared on the official restrictions covering the inspection of documents in public archives, which at present are not generally available to historians for fifty years after they come into existence. So much heat is likely to be engendered about 'the fifty- year rule' in forthcoming months that a dis- passionate examination of some of the problems and difficulties involved is particularly appro- priate now. The background to the present campaign is the shortage of 'original' material at the disposal of modern historians. Perhaps inevitably, this situation in which a great number of people are quarrying among a strictly limited amount of documents has had some unhappy conse- quences. To a distant observer, the scene has at times resembled less historical gold-diggers earnestly delving in an overworked Klondyke than jackals ,fighting for carcase-scraps. There have even been cases of some historians securing exclusive access to papers by what can only be described as sharp practices, and then refusing any assistance whatever to other workers in the same field.. The very welcome interest now being shown in post-1914 English political history has exacerbated this problem, since the operation of the fifty-year rule imposes a barrier on State Papers which only a few historians have managed to circumvent. Indeed, one of the factors behind the current campaign is the fact that the fifty- year rule has not proved to be absolutely rigid, with resultant ill-feelihg between the favoured few and the barred majority.

At the outset, it is important to realise that there, is more than one 'fifty-year rule.' The law of copyright, for example, covers a document for fifty years after the death of its author. This gives trustees of papers and public depositories the opportunity of withholding collections of papers almost indefinitely should they so decide. In addition, the period of fifty years has been generally agreed to cover the interests of all living persons, so that papers are often presentcd to thf British Museum, the Public Record Office,

or to universities, with a fifty-year embargo stipulated by the donors. Yet another 'fifty-year rule' is sometimes imposed by the authorities of the British Museum and other public institutions in pursuance of the discretionary powers which they possess. My experience is that it 'is this last 'fifty-year rule' which arouses the greatest indignation and is the least excusable.

The statutory fifty-year rule is enshrined in the Public Records Act of 1958. This Act generally followed the recommendations of the Committee on Departmental Records chaired by Sir James Grigg, 'which reported in 1954 (Cmd. 9163). The Grigg Committee, in recommending a fifty-year period, went on to say that 'this is not a subject on which we would wish to make a final pro- nouncement,' and suggested that the matter might be reviewed after a period of about five years. The Public Records Act gave the Lord Chan- cellor discretion to reduce or extend this period, but it also gave him powers to withhold certain papers indefinitely if they included information whose disclosure 'would or might constitute a breach of good faith on the part of the Govern- ment or on the part of the persons who obtained the information.'

Before historians cry 'Scandalous!' I might inject the views of one who has himself been a public servant for nine years. The Grigg Com- mittee was rightly concerned by what it called 'the preservation of unselfconsciousness' in the writ- ing of official papers. There is no doubt whatever that the possibility of future publication has made Ministers and officials wary of committing too much to paper. Fifty years sounds a very long time, but, to take three examples which at once come to mind. Mr. Wilson, Sir Edward Boyle and the editor of the Spectator might live to rue the enthusiastic outpourings of young Ministers in the 1940s and 1950s. An unsparing confidential report by a commanding officer on a young subaltern could well cause acute embarrassment to a field-mashal in his early seventies.

These points assume even greater significance when Cabinet Papers are concerned. It is now

such an article of faith that the establishment of the Cabinet Secretariat in 1916 was a Good Thing, that any mild suggestion to the contrary produces violent reactions. But it was the very strong con- viction of Lord Beaverbrook— expressed in con- versation with me several years ago—that the whole function and character of the Cabinet had changed, and changed for the worse, between 1916 and 1940. It was true that Sir Maurice (later Lord) Hankey was present at Cabinet meetings from 1916 to 1918, but Hankey was unique. He was very much part of the political world, and was a close personal friend of Ministers. His relationship with the Cabinet was very similar to that which often exists between a Select Committee of the House of Commons and its Clerk. But the introduction of established civil servants into the Cabinet Secretariat has had results which no one could possibly have foreseen. Lord Beaverbrook considered that the presence of virtual strangers in the Cabinet Room perpetually taking notes of everything being said had a very dampening effect upon discussion. 'They have in front of them foolscap folio books with ruled lines,' Lord Morrison of Lambeth has written of the Secretaries to the Cabinet. `They are busy writing, writing, writing all the time.' It was Lord Beaverbrook's view that, as a result, Ministers tended to have their rows else- where, and to seek resolution of them by the Prime. Minister privately, so that an agreed solu- tion could be submitted to the Cabinet.

It could be argued by constitutionalists that not only may this have affected the role of the Cabinet, but also may have increased the power of the Prime Minister. It was certainly Lord Beaverbrook's conviction that the presence of detailed notes of Cabinet discussions constituted 'a terrible hostage to fortune.' But the impor- tant point which arises from this concerns the usefulness to historians of the Cabinet Minutes and Memoranda themselves. Some Ministers and officials have always written with an eye cocked on posterity, and there has always been some fixing and manipulation between contestants before the Cabinet stage is reached, but the present system certainly greatly encourages these practices. It is, furthermore, an open secret that Cabinet Minutes are sometimes drastically amended, so that the filed version is deliberately incomplete; there have been other occasions on which the Cabinet Secretary has had a pressing engagement elsewhere. There are accordingly sometimes 'official' and 'unofficial' Cabinet meet- ings, and it does not require much shrewdness to conclude that the deliberations of the latter are of far greater importance and interest. The historical validity of Cabinet Papers therefore seems to me to be suspect, and I am inclined to think that the effects they have had on freedom of argument and discussion in the Cabinet over- weigh any substantial future gain to historians. In these circumstances, I do not fully accept the view of the Grigg Committee that 'the Cabinet Office records . . . comprise the most valuable single collection of modern material for historical purposes that can be obtained from official sources.'

So much attention has been paid to the Cabinet Papers that there has been a tendency to overlook what is, I am sure, the most promis- ing source of important material, Departmental Records. But the trouble here is that these archives are even more replete with highly confidential personal papers which were written in the belief that they would never be seen by any other than official eyes. It is probable that the records of the Service Departments in particular contain information of this nature about individuals and military units whose disclosure. even fifty years later, 'would or might constitute a breach of good faith on the part of the Government' within the meaning of the Act.

It can therefore be seen that the problem fairly bristles with difficulties about which many historians are sublimely unaware. I have heard it frequently argued that the American custom of publishing some State Papers within ten or fifteen years demonstrates the futility of the British system. But for my part, if I were engaged on a highly secret top-level discussion with the President of the United States or the State De- partment, I would see to it that everything pos- sible was conveyed by word of mouth and that no hostages to fortune were put down on paper, so that the records of discussions, when pub- lished, would be virtually meaningless.

What, then, is the way out of this maze? Like all historians, I am particularly unhappy about the privileged treatment which certain ex- Ministers have enjoyed with regard to papers covered by the fifty-year rule. By skilful selec- tion of documents one can prove almost any- thing, in the happy knowledge that it is going to be a long time before a wholly independent analysis will be undertaken. It is whispered that the present Prime Minister is taking a tough line on this very subject, and, if true, is warmly to be welcomed.

Another kind of infiltration should be closely watched. There have been isolated cases of official historians, given the free run of secret papers but strictly censored as to what they publish, establishing such a foothold that they have gained a substantial advantage over other workers in the same field, and have thus estab- lished themselves with very little effort as authorities. It is even said that there have been some cases of leakage of information to privi- leged students from this source. If true, this would be really intolerable, but the only answer would appear to be that official historians would have to keep all their notes and papers in a Government Department under the rigorous supervision of an official, and no self-respecting historian would work under such conditions.

Some historians favour the institution of a `thirty-year rule.' Others propose that if the fifty-year rule is maintained, historians should be given access to papers covered by the rule only after being personally vetted by a kind of tribunal, `to keep out journalists, thesis-writers and other riff-raff,' as it has been put to me by one advocate of this system. I can only give my opinion that if there is to be such a tribunal, great care must be taken about having historians with a direct personal interest on it. The amount of blackballing, lobbying and anti- lobbying which might go on could be truly appalling if there were a tribunal wholly of per- sonally interested historians giving the thumbs-up or thumbs-down. In any case, I do not agree that academic historians have any greater right than responsible journalists to inspect these papers. Would an Oxbridge Tribunal call Correlli Barnett an historian or a journalist?

There is, in fact, one tribunal of a kind in existence. It is the Lord Chancellor's Advisory Council on Public Records, which is chaired by the Master of the Rolls. It consists of eleven other distinguished gentlemen, but of whom only three—Professor Butterfield, Professor Habakkuk and Sir Goronwy Edwards—are historians. The other members are the President of the Trans- port Tribunal, a High Court judge, a QC, a retired diplomat, an eminent Welsh classicist, the inevitable Lord Normanbrook and two lawyer-MPs; the latter were conceivably chosen for their impartiality, as in a division in the House of Commons on the report stage of the Public Records Bill on July 4, 1958, one voted for the reduction of the fifty-year rule to forty years, and the other voted for its preservation. The Council is charged to advise the Lord Chan- cellor on 'matters concerning public records in general and, in particular, on those aspects of the work of the Public Record Office which affect members of the public who make use of the facilities.'

The solution to this vexing and important problem seems to me to lie in the hands of this body.'If so, I think that some injection of younger blood (its average age is well over sixty) and some change in its composition would be desir- able. If it decided to preserve a 'blanket' restric- tion, it should then consider classification of State Papers into certain categories, so that some could become available very quickly, and others be spaced out up to the outside limit that the Coun- cil decided upon. The really important point which should be stressed again and again is in- spection. Officials—and even some historians— tend to think that the right of examination means the right of publication.

This body, if it is to function effectively, should include a wider cross-section of official, legal, political and historical life than it does at present, and should be prepared to work very hard. It should set its face firmly against giving anyone exclusive rights to the inspection of State Papers, save in very exceptional circumstances indeed. It should, of course, have the right to bar from all future access anyone who has be- trayed the confidence placed in him, and have the power to insist that its approval must be given to all published works based on official papers. The Council should also include the Keeper of the Public Records, the head of the Department of Manuscripts at the British Museum and the custodian of the Royal Archives, so that greater consistency could be maintained, par- ticularly in relation to those papers which lie in the twilight zone between State and private papers.

Above all, a serious and determined effort must be made by •historians and officials to see the point of view of the other side. As one who is both an official and an historian, I am fre- quently depressed by the mutual antipathy, mistrust and incomprehension which so often exists. Historians must realise that they have no God-given right to see official papers; for their part, officials must realise that they cannot sit upon the raw material of history indefinitely. My proposals would, I think, safeguard the legitimate interests of everyone.