Case Facts
The case concerned the posthumous diaries of Richard Howard Stafford Crossman, a Cabinet Minister between 1964 and 1970, who had kept his diary with the knowledge of his Cabinet colleagues and with a view to eventual publication. He died in April 1974. Volume one of the published work, Diaries of a Cabinet Minister, covered the years 1964 to 1966 and was submitted to the Secretary of the Cabinet for approval before publication. The Cabinet Secretary rejected it on the ground that publication was against the public interest: it would harm the doctrine of collective Cabinet responsibility by disclosing details of Cabinet discussions, revealing differences of opinion between Cabinet members, and disclosing advice given by and discussions regarding the appointment of senior civil servants.
In July 1974, the literary executors — Anne Patricia Crossman, Graham Carlton Greene, and Michael Foot — gave an undertaking to the Treasury Solicitor not to publish without prior notice. Notwithstanding this undertaking, in January 1975 the first extracts from the diaries were published in the Sunday Times without the Cabinet Secretary's consent. Two sets of proceedings followed. The first action (writ issued 18 June 1975) was brought against Jonathan Cape Ltd and Hamish Hamilton Ltd as publishers, together with the three literary executors. The second action (writ issued 24 June 1975) was brought against Times Newspapers Ltd, the publishers of the Sunday Times. The case was heard in the Queen's Bench Division on 22, 23, 24, 25, 28, and 29 July and 1 October 1975, with judgment delivered on 1 October 1975.
The Attorney-General's statement of claim identified three categories of information said to attract the duty of confidence: first, details of Cabinet or Cabinet committee discussions and related papers; second, details of communications between Ministers and between Ministers and advisers on matters of policy development; and third, details of communications concerning the appointment and transfer of senior members of the public service. The Attorney-General further contended that Ministers and former Ministers were under an obligation to submit any text describing events during their term of office to the Secretary of the Cabinet prior to publication. The defendants denied that any such obligation was enforceable at law.
Held
Both actions were dismissed. The court held that it had jurisdiction, on the ground of public policy, to restrain publication of information imparted in confidence. The court accepted that the maintenance of the doctrine of joint Cabinet responsibility is in the public interest and that the opinions of individual Ministers expressed during Cabinet discussions attract a duty of confidence. However, the court concluded that volume one of the diaries, which dealt with events that had taken place some ten years prior to the litigation, disclosed no details of Cabinet discussions which remained confidential at the time of the proceedings in the sense of being capable of undermining future free and open discussion within the Cabinet. The requisite harm necessary to sustain an injunction had not been demonstrated on the facts.
Additionally, the court held that there was no ground in law which required the advice given by senior civil servants, or ministerial observations on their capacities, to remain confidential. This was a distinct and separate limb of the holding, rejecting one of the three categories of information advanced by the Attorney-General.
Ratio Decidendi
The ratio of the case is that Cabinet Ministers' opinions expressed during Cabinet discussions are confidential until such time as their disclosure would no longer undermine the doctrine of joint Cabinet responsibility. This is a functional test, not a fixed temporal rule. The court does not hold that Cabinet discussions are protected for a specific period of years; rather, the question is always whether, at the time publication is sought to be restrained, the material is still of such a character that disclosure would damage the constitutional convention of collective ministerial responsibility. On the facts, material relating to events a decade old did not satisfy that test, and the court therefore declined to grant the injunction.
The court confirmed that the equitable jurisdiction to restrain breaches of confidence extends beyond purely private relationships and is capable of applying to government information where disclosure would cause real harm to a recognised public interest. The court treated the public interest in the proper functioning of Cabinet government as a legitimate foundation for the duty of confidence.
The holding also confirmed, as a matter of law, that no enforceable obligation exists requiring civil servants' advice or ministerial observations on civil service appointments to be withheld from publication.
Obiter Dicta
The court's discussion acknowledged the broader tension between the principle of open government and the need to protect the confidentiality of executive deliberations. Although the court dismissed the actions on the facts before it, it left open the possibility that an injunction could in principle be granted in an appropriate case where the publication of Cabinet discussions would cause current and demonstrable harm to the functioning of collective Cabinet responsibility. The judgment therefore implicitly recognised that Cabinet confidentiality is not merely a political convention but a matter capable of attracting legal enforcement through the court's equitable jurisdiction — a proposition of considerable constitutional significance, even if not strictly necessary to the outcome on the facts of volume one of the diaries.