Attorney General v Jonathan Cape Ltd [1976] 1 QB 752 (QB)

Key point

The court may provide redress for the breach of a non-legal convention, where such a convention is indirectly protected by the common law duty of confidentiality

Facts

  • Former Cabinet Minister, Richard Crossman, kept a diary which detailed Cabinet discussions to be published in a future book
  • In May 1974, volume one of the book was sent to the Secretary of Cabinet (S), but was rejected
  • In January 1974, the first extract was published in the “Sunday Times” without S’s approval
  • In the first action, the Attorney General (A) applied for an injunction against the publishers and literary executors of Crossman, arguing that the principle of collective ministerial responsibility meant that there was a public interest in keeping Cabinet details confidential
  • In the second action, A applied for an injunction against “Sunday Times” to restrain them from publishing extracts of the book

Issue

Is the court authorised, on grounds of public policy, to prevent the publication of information in breach of confidence?

Held (Queen’s Bench)

Both actions were dismissed; The court was not authorised to restrain the publication of information that was from as far as 10 years prior and as such, had lost its confidential character and would no longer undermine the doctrine of joint Cabinet responsibility.

Lord Widgery CJ

On collective ministerial responsibility and duty of confidentiality in general

  • The convention of joint Cabinet responsibility means that ‘any policy decision reached by the Cabinet has to be supported thereafter by all members of the Cabinet whether they approve of it or not’ (p.764)
  • Such a convention is not enforceable at law, being ‘an obligation founded in conscience only’ (p.765)
  • Ministers owe a common law ‘duty of confidence in respect of his own views expressed in the Cabinet’ (p.770), which is enforceable in tort
  • Where the individual opinions of Cabinet Ministers are published in breach of this duty of confidence, the court can restrain such publication where this is in the public interest

On the current case

  • There is a public interest in protecting the convention of collective ministerial responsibility, and ‘the application of [the] doctrine might be prejudiced by premature disclosure of the views of individual Ministers’ (p.771)
  • However, since there had been a time period of 10 years, the confidentiality of the information in the diaries had lapsed and therefore also the court’s ability to restrain publication
  • In any case, the publication of the diaries would not ‘in any way inhibit free and open discussion in the Cabinet hereafter’ (p.771)

Commentary

This case confirmed the existence of collective ministerial responsibility as a convention and its position as an ‘established feature of the English form of government’ (p.770)