Attorney General v Jonathan Cape Ltd [1976] 1 QB 752 is a foundational case in UK constitutional law that explores the limits of governmental power in enforcing confidentiality over Cabinet proceedings. This case is crucial for law students as it addresses the conflict between public interest and the preservation of governmental confidentiality, providing a nuanced view of how constitutional conventions operate within the legal framework.

  • In the case of Attorney General v Jonathan Cape Ltd [1976] 1 QB 752 (QB), it was found that the court can give redress where there has been a breach of a non-legal convention particularly where the convention is protected by the common law duty of confidentiality.

Facts of the Case

  • Richard Crossman (Former Cabinet Minister) recorded detailed discussions of the Cabinet in a diary which was kept to be published in a book in the future.
  • Volume I of the book was given to the Secretary of the Cabinet in 1974. The Secretary, however, rejected the book.
  • In the absence of the Secretary’s approval, the first part of the book had been published in January 1974.
  • C, the Attorney General, applied for an injunction to stop the publishers and literary executors of Richard Crossman from publishing the entirety of the book. C’s arguments were that the doctrine of collective ministerial responsibility meant that an overriding public interest persisted to keep the details of Cabinet discussions confidential.

Issues

  • Can the court resist the publication of the book and the Cabinet details within it on the argument of public policy?

Held by the Queen’s Bench

  • The Court dismissed the actions and held that they did not hold the power to resist publishing the details of the discussions of the Cabinet given that such information dated as far as 10 years, which meant that the information itself lost its confidential element.

Lord Widgery CJ

  • Protecting confidential information is a cause for concern for the judiciary which the courts do not take lightly. As such, the court appreciates that where information attracts the principle of confidentiality, it will undergo its best endeavours to ensure such information is protected.
  • “The law recognises that an injunction may be granted to restrain the publication of information if it is of a confidential nature; if it is communicated in circumstances which impose confidentiality and if there is an intention revealed to make an unauthorised disclosure. All three tests are satisfied in the present case. The doctrine of confidentiality is an expanding one. The origin of the doctrine is found in Prince Albert v. Strange (1849) 1 H. & T. 1 , where it was said that breach of confidentiality gives rise to a remedy on its own and it is not necessary to found it on breach of contract or another established remedy.” [756]
  • “The onus is on the Attorney-General to show that Mr. Crossman accepted information received in Cabinet on the basis that he would keep it confidential. No one has given evidence that anyone said something in Cabinet on express terms that it would be treated in confidence and that that confidence was breached.”

Significance of the Case on the Development of the Law

The case of Attorney General v Jonathan Cape Ltd has significant implications for the development of constitutional and administrative law, particularly in relation to the enforcement of non-legal rules or conventions:

  1. Conway v Rimmer [1968] AC 910: This case established the precedence that the public interest in maintaining the confidentiality of government documents could be outweighed by the public interest in administering justice. It set a foundational standard that was considered in Jonathan Cape in terms of balancing interests.
  2. Council of Civil Service Unions v Minister for the Civil Service (The GCHQ Case) [1984] AC 374: This case further explored the limits of executive power and the judicial review of administrative decisions, citing the need for public authorities to act within legal confines, respecting established conventions unless overridden by national security.
  3. R (Miller) v Prime Minister [2019] UKSC 41: In this recent case, the Supreme Court held that the government’s advice to prorogue Parliament was unlawful as it prevented Parliament from carrying out its constitutional role without reasonable justification. This case echoes the principles from Jonathan Cape regarding the necessity for governmental actions to adhere to legal standards and public expectations.

Exam Questions and Answers

Below you will find answers to questions that are most commonly asked based on this case.

How does the doctrine of collective responsibility evolve post-Jonathan Cape regarding confidentiality of cabinet proceedings?

Post-Jonathan Cape, the doctrine of collective responsibility has been reinforced to maintain the confidentiality of Cabinet proceedings, emphasizing unity in public while allowing for free debate in private. This doctrine underpins the confidentiality essential for effective governmental operation, as seen in BBC v Harmann [2001], where the courts upheld the principle that Cabinet documents are generally exempt from disclosure under the Freedom of Information Act due to the public interest in preserving collective ministerial accountability.

What are the implications of this ruling for the transparency and accountability of the government?

The ruling in Jonathan Cape underscores a critical balance between government transparency and the need to protect sensitive information. While it supports the confidentiality of Cabinet discussions to ensure uninhibited deliberation, it also sets a precedent that such confidentiality cannot be absolute. Cases like R (on the application of Evans) and another v Attorney General [2015] reflect the tension between public interest in transparency and the need to maintain governmental confidentiality, pushing for greater openness unless there is a compelling reason for secrecy.

In what ways have subsequent legal interpretations expanded or constrained the scope of constitutional conventions discussed in Jonathan Cape?

Since Jonathan Cape, subsequent legal interpretations have cautiously expanded the scope of constitutional conventions, particularly relating to the disclosure of government documents. In R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002], the House of Lords recognized that legal advice privilege is a fundamental condition on which the administration of justice as a whole rests. This illustrates a judicial tendency to respect conventions unless overridden by a stronger public interest, subtly expanding the boundaries of when conventions might yield to transparency demands.

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