The foreign policy of the United Kingdom is improving, while the domestic policy remains clownish or cruel

14th March 2023

If one tries to look objectively at the current government of the United Kingdom as a government then a balanced view would say that it was doing certain things better than others.

In foreign policy, for example, the government is beginning to look almost normal.

Here is a former senior official at the foreign office:

And this thread is very interesting on that integrated review.

But.

But, but, but.

In domestic policy the government is still either clowning around and/or being cruel with its culture war stuff.

The illegal migration bill is being forced through parliament without any proper scrutiny.

The outstanding Dr Hannah White of that fine squadron of analysts at the Institute of Government has set out the dangers of this reckless speed – and how it is becoming too common a feature of modern legislation.

It does not need to be this way.

And the new almost-normality of the international policies of the government shows that the government is able to shift its approach – when it wants to do so.

Unfortunately the government ministers in charge of domestic policy appear to be wedded to culture war antics because they cannot think of anything else to do.

Yet, it is not inevitable – and perhaps the government will drop this and other awful Bills – on retained EU law and the Bill of Rights – as well as dropping the ministers who promote such bills.

Perhaps.

It is unlikely, of course – but then a few months ago, it seemed unlikely we would have a grown-up approach to foreign policy.

***

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The BBC and impartiality – a sideways glance from the courtroom

13th March 2023

What follows is an analogy – and all analogies in human affairs are inexact, and this is because no two situations involving people are identical absolutely.

If your mind starts racing along the lines of “they are not the same” – I agree, and I can think of many points of contrast too.

But bear with me, as the points of comparison may be interesting and even thought-provoking.

(And any comments underneath which just list differences will probably not get through moderation.)

*

Imagine a court judgment – in a civil case where there has been a trial.

That there was a trial implies there was more than one side – and this in turn means that on at one least issue there was a difference of view.

Imagine reading that judgment.

The judge sets out the applicable law.

If there is a dispute as to the applicable law the judge sets out the submissions of the parties and why one view of the law was preferred instead of another.

(Sometimes a judge may provide their own view of the law and why that is to be preferred instead of the views of the parties.)

If there is a dispute as to the applicable facts then the judge will often set out why the evidence of one party was to be preferred to another.

If the factual dispute is complex then a good part of the judgment will be devoted to setting out why one set of facts was preferred to another – whether the evidence is witness evidence, or in the form of exhibits, or contested expert evidence.

And the judge is required – by the rules of natural justice no less – to decide the dispute impartially and having given each side a fair hearing.

What the judge will not do – even though they are duty-bound to be impartial – is to treat both sides as having equal weight and not make any material decisions at all.

This is because the obligations of impartiality and to hear each side go to how the judge approaches their task of exercising their judgement, rather than being reasons to not make any evaluation at all.

*

Now let us turn to the BBC.

The BBC charter provides (among other things) that the purpose of the corporation is “to provide impartial news and information to help people understand and engage with the world around them: the BBC should provide duly accurate and impartial news, current affairs and factual programming to build people’s understanding of all parts of the United Kingdom and of the wider world. Its content should be provided to the highest editorial standards.”

The charter also states “the BBC should provide high-quality news coverage to international audiences, firmly based on British values of accuracy, impartiality, and fairness”.

And:

“The Mission of the BBC is to act in the public interest, serving all audiences through the provision of impartial, high-quality and distinctive output and services which inform, educate and entertain.”

Under section 319 of the Communications Act 2003, the Ofcom code must ensure “that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with”.

Section 320 of the same Act provides that the impartiality requirements include “the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters”.

The 2022 framework agreement between the government and the BBC provides that the BBC board should “ensure in particular that any such guidelines set appropriate standards to secure the fairness, due impartiality, due accuracy and editorial integrity”.

You get the message.

*

The obligation of “impartiality” is as (ahem) enshrined in the instruments that govern and regulate the BBC as much as they are for any judge.

But impartiality does not necessarily mean facile both-sides-ism.

For these instruments also refer to the following (emphasis added):

“The BBC must be independent in all matters concerning the fulfilment of its Mission and the promotion of the Public Purposes, particularly as regards editorial and creative decisions […]” (The Charter)

“the desirability of maintaining the independence of editorial control over programme content“ (section 319 of the Communications Act)

“The UK Government will continue to recognise and respect the editorial, creative and operational independence of the BBC, as set out in the Charter.” (2022 framework agreement)

And so on – there are many more.

*

None of the instruments that govern and regulate the BBC provide that impartiality should mean an absence of editorial judgment.

Indeed, for like a judge who approaches their task with impartiality, the editor of a news programme also should exercise their editorial judgement with impartiality.

But there is still an exercise of judgement.

Impartiality – at least in the courtroom – does not mean that each side should be treated as being equally compelling.

And it should not in a newsroom either.

***

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The prehistory of referendums in the United Kingdom – this week’s Substack essay on legal history

11th March 2023

Over at my Substack, this week’s essay on legal history for paying subscribers is on the prehistory of referendums in the United Kingdom.

The essay begins as follows:

For Philip Larkin a certain kind of intercourse began in 1963 – between the Lady Chatterley obscenity trial and the Beatles’ first LP.

Similarly referendums can appear to have started, at least in the United Kingdom ten years later in 1973 – not long after the Oz obscenity trial and the Beatles’ last LP.

For 1973 was the year of the border poll in Northern Ireland, which is usually considered to be the first referendum in the United Kingdom; and 1973 is also the year that the United Kingdom joined the European Economic Community (EEC), the membership of which was then to be subjected to a referendum in 1975.

For many of us in 2023, fifty years later, the most notable referendum was the one in 2016 on whether the United Kingdom should depart the successor to the EEC, the European Union.

Others are preoccupied with other referendums. Some are seeking a further Scottish independence referendum, to reverse the result of the result of the 2014 vote. And there is also the real prospect of a further border poll in Northern Ireland which may, in turn, lead to Irish unification.

Our recent politics are dominated by one referendum in particular, and the future of the United Kingdom itself may depend on two referendums yet to come.

And this is in addition to the referendums which led to the current devolved settlements in Scotland, Wales and Northern Ireland, all of which are now fundamental parts of our constitutional order.

But there was once a time before any of these referendums had been mooted or taken place or were even contemplated.

A time when 1973, and what then followed, was decades in the future.

And so this essay tells the story of the early history of referendum issue in the constitutional and political affairs of the United Kingdom.

*

You can read the rest of the essay here.

*

These essays are on topics to do with legal history and legal lore – and they are in addition to my free-to-read topical law and policy commentary here and at Substack every weekday.

Other essays include:

The lore of Lady Justice.

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign.

The 1712 case of Jane Wenham and the last of the English witch trials.

Taff Vale (1901) – perhaps the most important case in trade union history.

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness.

Malone (1979) – perhaps the most significant constitutional case of the last 50 years.

How the courts improvised legal solutions in the hard case of George Blake between 1990 and 2000.

When William Rees-Mogg and James Goldsmith in 1993 asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty

*

If you are not yet a paying Substack subscriber, please consider becoming one.

The subscriptions help support my daily free-to-read law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

Anyone who donated money on PayPal to this blog in 2022 can have a free one year complimentary Substack subscription – just leave a comment marked “Private” saying when you donated below, with your email address.  (It is important that nobody pays twice for my drivel.)

If you are a regular reader of this blog and are currently not able to afford a paying subscription, also leave a comment below marked “Private” saying so, with your email address, and I will consider providing a short-term complimentary subscription.

Libraries and books

10th March 2023

I recently spent a few days in some wonderful, world-famous academic libraries, and I noticed two things different from when I was an undergraduate a few decades ago.

The first was that the library was full of working students and researchers – packed – with either almost no or no desks available.

This, on the face of it, is a good sign.

In the early 1990s I remember the same libraries being fairly empty, and you could have a whole row – sometimes a whole room – to yourself, and not just a desk.

Libraries are (ultimately) instruments and not ornaments, and so they ought to be busy and not empty.

But.

If you looked carefully, you also noticed that almost none of those working in the libraries were using any of the books from the shelves or from the stack.

Indeed, almost every student and researcher was working on a laptop (or at least staring at one).

A librarian explained to me that while they are delighted that libraries are being used more than before, they are sad that it rarely for any of the library stock.

It was more about ambiance, it seems: the librarian mentioned that students say they work better when surrounded by books, even if they are not using any.

The reason I was there was to look at some volumes from the shelves or brought up from the stacks – books which one could not get anywhere else.

And so I waited with my pile of books for a desk to become free.

And waited.

Standing there, with nothing more advanced than a pad of A4 paper and a pencil case, feeling like a dinosaur or time traveller; wondering about the paradox of book-lined libraries being more used than before, but with the books themselves as ornaments, even if the library was itself being used as an instrument.

And then I realised I was just as “culpable” – for in the olden days, one would have written a letter to a newspaper or made a private journal article about such an observation – and I am posting an electronic blogpost instead.

***

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Sovereignty, again

9th March 2023

In law and policy commentary – especially since 2016 – we go from the general to the particular, and from the particular to the general.

We swing constantly between the grandest constitutional concepts – the separation of powers, the rule of law, sovereignty – to the exact wording of particular clauses and other texts.

It really should not be this exciting, but it is.

Today we will look at sovereignty again.

And some of you will complain about who I am about to quote, but it is an example of a frame of mind which still has not gone away.

*

Sovereignty is generally about the ability of states to decide things as they wish and to do things (or attempt to do things) as they want.

More exactly, it is about the autonomy, capacity and legal personality of states.

One general feature of sovereignty is therefore about the ability of states to enter into agreements with other states, or not.

Just as it is a general feature of adulthood to enter into various legal relationships, or not.

(And please note, the uses of “general[ly]” means, yes, there are exceptions, so no need to scroll down to list them in a comment.)

It is thereby an exercise of sovereignty to enter into treaties and to become a member of various international organisations.

That is what sovereign states do.

And they do it, in part, because they can.

As such, to say that a state being party to an international agreement is a negation of sovereignty is to fundamentally misunderstand what sovereignty means.

The very fact that the United Kingdom is a party to the United Nations shows that it is a sovereign state.

Indeed, one useful working definition of what is a sovereign state is whether it is (or is capable of becoming) a member of the United Nations.

And membership of an organisation will generally confer rights and impose obligations.

If a state does not want to have those rights and obligations then it can leave, either by an agreed exit process (such as the once-famous Article 50 of the Treaty on European Union) or by treaty or even by denunciation.

One of the most telling passages in the story of Brexit was in a government white paper before departure:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

Membership of the European Union has “not always felt like” we had sovereignty.

This suggested Brexit was an exercise in political therapy: so as to make us feel that we had (and have) sovereignty.

But we had sovereignty all along.

We could have left the European Economic Community and then European Union at any point – though before the treaty of Lisbon (which introduced Article 50), it would have had to have been by treaty (as happened when Greenland left) or by denunciation.

And we could have, at any time, repealed the European Communities Act 1972 without asking any one’s permission.

What Farage and others mean by “sovereignty” is isolationism.

Their ideal is for the United Kingdom not to be bound by any unwanted international obligations, or indeed by any international obligations at all.

But treaties generally require those who enter into them to limit or forego certain rights in return for some benefit.

For that is the nature of international agreements.

Yes, we can – ultimately – always walk away.

And we should be careful which obligations we accept when we enter such agreements.

But such obligations are the essence of the dealings of a sovereign state.

And that sovereignty is always there, even when it does not feel like it.

***

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Legislation as an annual or biennial virility event

8th March 2023

In times past, communities used to come together every year or so to assert and celebrate rebirth and virility.

Nowadays, our politicians do something similar – although instead of costumes and spectacles they pass legislation.

Consider these two lists.

First, here are the Acts of Parliament since 2000 which have migration/immigration/borders/nationality in their short title:

This list, of course, excludes statutory instruments and other legislation that may have amended the law on migration and related aspects.

But it is about an Act every other year.

And here is a second list, of primary legislation since 2000 with terrorism or “investigatory powers” in the title:

Again, an Act of Parliament on average every couple of years or so.

Amusingly, our legislature cannot make its mind up whether the statutes should be title “terrorism” or “anti-“ or “counter-terrorism”.

(Perhaps one reason we have so many is because they keep cancelling each other out.)

Taking the two lists together, this means that the Home Office has had since 2000 about an Act every year on immigration or national security, or both.

An annual (biennial) legislative event which shows the Home Office is doing something.

We are told this year, like before, that the migration-related Bill is needed to solve the perceived borders issue.

We are told that those against this latest Bill are against the national interest:

One suspects similar sentiments could have been expressed (and indeed were) about those who may have had reservations about each of the previous Bills on borders and/or national security since 2000.

And like an addict, the Home Office will say in 2024 and 2025 that just some more Bills will be needed to show how serious we are about borders and/or national security.

Perhaps one day the Home Office will think it has enough legislation in place on borders and/or national security.

But until that happy day, Home Office ministers will pass a new Act every year or so to show that they are virile and that they are doing things.

Then they will hope we will forget the alarmism so that they can do it all over again in the next year or two.

The legislation will accumulate on the statute book, with different variations of the same few words in the titles.

Until perhaps they are all one day consolidated in a Terrorism, Anti-Terrorism, Counter-Terrorism, Borders, Migration, Immigration and Nationality Act.

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The Illegal Migration Bill is about political theatre, not serious law-making

 7th March 2023

Today we were supposed to see the government’s new Illegal Migration Bill.

According to today’s Order Paper, the Bill was to be presented to Parliament:

A minister told peers that the Bill was to be introduced today:

And there was even a Commons statement by the Home Secretary.

But.

There is no Bill – at least by mid-afternoon today.

This is odd.

That there is a delay was indicated by part of the Home Secretary’s statement:

“Mr. Speaker, I won’t address the bill’s full legal complexities today.  Some of the nation’s finest legal minds have been – and continue to be – involved in its development.”

And why would the “nation’s finest legal minds” still be “developing” something which was supposed to be published today?

The ministerial letter above provides a possible explanation:

Section 19 of the Human Rights Act 1998 provides:

Nothing much of legal significance turns on section 19 statements either way – whether a minister views a Bill’s provisions as compatible or otherwise.

The lack of a compatibility statement will not make a statutory provision breach the ECHR, and the presence of a compatibility statement will not save a statutory provision from being found incompatible.

Section 19 is an ornament not an instrument.

Lord Hope in a 2001 House of Lords case said the following about one such statement of compatibility (emphasis added):

“It may be noted in passing that a statement of compatibility was attached to the Bill before second reading that its provisions were compatible with the Human Rights Act 1998. Statements to that effect are now required by section 19 of the Act, which was brought into force on 24 November 1998. But Mr Pannick QC for the Secretary of State did not seek to rely on this statement in the course of his argument. I consider that he was right not to do so. These statements may serve a useful purpose in Parliament. They may also be seen as part of the parliamentary history, indicating that it was not Parliament’s intention to cut across a Convention right […]  No doubt they are based on the best advice that is available. But they are no more than expressions of opinion by the minister.  They are not binding on the court, nor do they have any persuasive authority.“

That was just after the Human Rights Act was passed – but it is pretty much the conventional wisdom of the courts and practitioners on such statements.

Of course, ministers will want to assure waverers in the Commons and the Lords that this is not yet another piece of legislation which will break international legal obligations.

More concerning will be the substance of the Bill, which may face heavy amendment in the Lords and litigation in the Courts.

But we cannot know what the Bill says, as it has not been published.

What we do know, in addition to the Home Secretary’s statement (and ignoring the media briefing) is this from the Order Paper:

And this on the Home Office website:

*

The emphasis on media briefing for this Bill indicates that these proposals are more to do with political theatre, not law-making.

For the one thing which would do the most to stem any abuses of our asylum regime would be to have an adequately resourced and competent asylum system.

And until and unless we have an adequately resourced and competent asylum system, then everything else proposed by this government on asylum is hogwash.

The impression this Bill gives is that the government is not engaged in serious policy making and legal implementation, and it wishes to use its remaining months in office to play to various galleries and to evade any blame.

And this can be done by leaks, briefings, announcements and press releases – again, political theatre – with any actual legislation an afterthought.

***

STOP PRESS

The Bill has now been published.

***

 

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Why the appointment of Sue Gray is both a mistake and not a mistake

6th March 2023

The senior civil servant Sue Gray has been appointed by the leader of the opposition as his chief of staff.

This, as you no doubt are aware, is the stuff of political controversy – not least because of Gray’s famous (infamous?) role in compiling the Partygate internal report.

From a policy perspective, however, is this controversial appointment a mistake?

Tactically and politically the appointment is an error.

It raises questions of propriety and timing for the leader of the opposition, and it opens up the  question of whether her role in the Partygate report was politically motivated.

It also distracts from any focus on the wrongdoing of Boris Johnson over Partygate.

But.

Strategically and governmentally the appointment is sensible.

If the leader of the opposition becomes prime minister then he needs aides who (genuinely) know the Whitehall machine, who are used the glare of the media, and who are unafraid of speaking truth to power, or at least to Prime Ministers.

As such Gray’s appointment can be compared to that of Margaret Thatcher’s aides, the recently deceased Bernard Ingham and Charles Powell, and Tony Blair’s appointment of Jonathan Powell.

Such appointments are a mark of taking government and policy seriously.

The timing of the appointment is dreadful, and it may be politically counterproductive in March 2023, but it may look less problematic if Labour win the next general election.

And in the run up to the next election, it means the party (currently) most likely to win that election will have guidance which enable it to better prepare for the realities of implementing manifesto promises and translating policy into practice.

***

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Johnson’s choices, Johnson’s choice

3rd March 2023

Nobody knows for certain if the privileges committee of the House of Commons will find if Boris Johnson lied to the house and, if so, whether that constituted a contempt.

(Or whether he is on contempt for not speedily correcting the record, which where I and others think he may be vulnerable.)

Nobody also knows whether Johnson will suffer any sanction if he is found to have been in contempt.

And so because nobody knows, then there is an element of risk in how Johnson approaches the investigation.

He is currently adopting a bullish and legalistic approach, as if by force of nature he can prevail against this nuisance.

Such approaches do work and probably have worked for Johnson in the past.

He may well be cleared, or he will be able to boast to those with short attention spans that he was “cleared”.

But.

He does not know that for certain.

And so his decisions so far in taking such a robust and argumentative approach may not be now help him.

*

There often comes a point in litigation when the loudly assertive party realises that things have gone against them.

It usually happens when that party has sight of the evidence.

This is because many cases are decided not on legal points, and still less on advocacy (sorry, barristers), but on the preponderance of evidence.

If the evidence is against you, you may bluster or search for procedural technicalities, or even invoke human rights arguments, but those things will rarely save you.

Of course, a certain type of individual will shrug and put their head down and charge anyway.

And sometimes that actually works.

But it is a high risk strategy.

What therefore often happens is there is a sudden pivot.

We go at a stroke from (affected) outrage and incredulity to (similarly insincere) “lessons learned” and “lines drawn” and “moving on”.

The prima facie evidence against Johnson (a summary of which has been published today, and is worth reading in full) looks strong.

He certainly has a case to answer.

And he also has a decision to make.

Will he charge?

Or will he change tack so as to avoid a more onerous sanction?

***

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NDAs and the Public Interest – a beginner’s guide for Matt Hancock and others

2nd March 2023

The publication this week by the Daily Telegraph of the WhatsApp messages of Matthew Hancock with several third parties was unusual and striking.

It was so unusual and striking that the first response of many was: surely there must be a law against this sort of thing.

And no doubt Hancock himself thought he was legally protected, having entered into (we are told) a Non Disclosure Agreement (NDA) with Isabel Oakeshott, the ghost writer of his recent book about his experiences as health secretary in dealing with the pandemic.

On available information, it appears the ghost writer has in turn disclosed the messages to the Daily Telegraph, and the newspaper then published a selection of these messages (we are told) without prior notice to Hancock or to any of the third parties with whom Hancock messaged.

The messages are certainly of interest to the public and, given the insights they provide into how government (and the media) dealt with the pandemic – especially in respect of what happened with care homes and testing – the publication of the messages can plausibly be said to be in the public interest.

*

This post now sets out the general law of England and Wales in respect of NDAs and the public interest, and it then will apply that general law to what appears to be the facts of this incident.

In doing so, I have not had sight of the actual NDA which was signed between Hancock and his ghost writer – and, as will become apparent, a great deal can turn on the terms of a NDA.

For although NDA sounds as if it should be an acronym for a generic thing, there are many ways of framing a NDA.

NDA is not, in and of itself, a legal term of art, but instead a label of convenience.

*

To understand NDAs you must first understand what it means not to have a NDA.

If there is not a NDA between two parties there will still be the law of confidentiality.

(Technically, confidentiality is not law but what is called “equity”, which is a set of doctrines and rules which complement law, but I hope I may be permitted to call it law for the purposes of this post.)

Confidentiality usually works as follows: person (A) imparts information to person (B) and when that information has (i) the quality of confidentiality and (ii) been imparted so that it is plain that it is considered confidential, the courts will protect that confidential information when they can.

If tests (i) and (ii) are met then person (B) will be bound to keep the information confidential.

This means that if person (B) wrongly discloses that information to another, or misuses the information, then (A) can obtain an injunction against (B).

(A) can also, depending on circumstances, obtain another remedy against (B) such as an “account of profits” of the monies made by (B) in wrongly disclosing or misusing that information.

Generally, the law of confidentiality is about the remedy of injunctions.

This is because injunctions are the supposed means that confidential information can remain confidential: the cork is put back into the bottle.

*

So given there is already a general law of confidentiality, why do parties have NDAs?

There are many reasons.

First, NDAs can serve to identify and list the information which is confidential, so that there is no need to rely on the general test of whether the information has the quality of confidential information.

Second, the NDA will show beyond serious doubt that the parties were aware that the information was imparted on a confidential basis.

These two reasons supercharge the basic law of confidentiality so that the wronged party can show a court the two tests are met at law.

But there are other reasons why parties may want a NDA.

NDAs can provide the financial terms of the parties: in essence how much is being paid to the parties in respect of the exchange of information.

A strong NDA will also provide the financial consequences of what will happen if a party breaches the NDA, such as an indemnity or damages.

A NDA can also provide for the intellectual property position of the imparted information – for example, whether the receiving party also has a licence to use the information and for what purposes.

But.

Generally NDAs are signed as a ceremonial act of trust between the parties, a rite of passage.

Often people will ask for and sign NDAs without much consideration of their contents, so that they can progress with a commercial or media relationship.

NDAs also often suit both parties as a convenient shield, and a NDA can be used as the complete reason not to disclose something.

*

NDAs, however, are not magical devices.

They do not, in and of themselves as signed pieces of paper, stop an unwanted disclosure – especially if trust breaks down.

*

If party (B) wants to breach a NDA then there will often be little that (A) can do to stop them.

This is especially the case if (A) is not given notice of the breach.

For, as set out above, the law of confidentiality is generally about the remedy of an injunction.

And as injunctions are discretionary remedies of the court, they will not usually be granted if the court order would be futile or academic.

It would be too late to put the cork back in the bottle.

*

So if (A) cannot obtain an injunction to restrain publication or some other wrongful disclosure by B, what is there for (A) to do?

Well.

This will come down to the other terms of the NDA – and often with NDAs there will not be other terms.

Sometimes, especially when it is foreseeable that party (B) will breach the NDA, there can be financial terms that would deter (B) from doing so.

For example, there could be structured payments that would not be payable in the event of any breach.

Or there can be an indemnity against the costs of dealing with the consequences of a breach.

But often the NDA will be silent, for – as set out above – the NDA is usually a convenient shield or a ceremonial ornament.

*

And now we come to the public interest.

Even if (A) has been given notice of an imminent breach, if (B) pleads the public interest, then the court may not give (A) an injunction.

All (A) would then have, if they have been careful, would be other terms of the NDA.

The legal position was recently summarised by a judge:

“The modern (i.e. post-[Human Rights Act 1998]) approach as to the public interest defence is set out in the Court of Appeal’s judgment in Associated Newspapers Limited v HRH Prince of Wales […].

“The four main tenets can be summarised as follows:

“(1)  There is an important public interest in the observance of duties of confidence since those who engage employees, or who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential (ibid at [67]).

“(2)  The modern approach as to the circumstances in which the public interest in publication can be said to override a duty of confidence is whether a fetter of the right of freedom of expression is, in the particular circumstances, “necessary in a democratic society”.  The test is one of proportionality: the court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public (ibid at [67]).

“(3)  It is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement; but the extent to which a contract adds to the weight of duty of confidence arising out of a confidential relationship will depend upon the facts of the individual case (ibid at [69] citing Campbell v Frisbee [2003] ICR 141).

“(4)  Thus, in essence, the Court must consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public.”

*

Applying these four tests in the instant case, Hancock would say that as the messages had been disclosed to the ghost writer under a contract, this “carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement”.

Hancock would also say there was an “important public interest in the observance of duties of confidence since those […] who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential”.

But.

The ghost writer would say “having regard to the nature of the information and all the relevant circumstances […] it is in the public interest that the information should be made public”.

Here the ghost writer would also be able to point to the material being supplied for a book on the pandemic, as well as to the contents of the messages.

*

The Daily Telegraph did not sign the NDA and so would not be bound by its terms.

Hancock’s remedies, if any, against the Daily Telegraph would be under the general law of confidentiality, or perhaps under the law of misuse of private information, data protection law, or even copyright.

But whichever way he framed the claim, he would face (in some form) a public interest defence.

The position of third parties with whom Hancock messaged, however, may be stronger.

And one expects the Daily Telegraph legal team has been very careful in respect of third party information it is disclosing from the messages.

The Daily Telegraph must have had very bullish and robust legal advice on the public interest.

They also felt confident enough in their public interest defence not to give Hancock notice of publication.

*

Hancock is today quoted as saying:

“There is absolutely no public interest case for this huge breach.  All the materials for the book have already been made available to the inquiry, which is the right, and only, place for everything to be considered properly and the right lessons to be learned.  As we have seen, releasing them in this way gives a partial, biased account to suit an anti-lockdown agenda.”

If Hancock sincerely believes that there is absolutely no public interest defence then presumably there is no bar to him seeking some form of legal remedy against either the ghost writer or the newspaper – for example to restrain publication of messages so far unpublished.

He could even seek to obtain an account of profits from the ghost writer or the newspaper if he believes they are acting uncocionably.

So far it appears that he may not take legal action, he also has said today (emphasis added):

“I will respond to the substance in the appropriate place, at the inquiry, so that we can properly learn all the lessons based on a full and objective understanding of what happened in the pandemic, and why.”

If he believes that, one may wonder why he published a book seeking to give his side of what happened before the inquiry.

*

NDAs are usually ornaments or shields.

Unless they are tightly drafted and prudently structured, they offer little protection in practice to an imparting party if the other party deliberately breaches the NDA without notice.

As such NDAs are often articles of trust.

And here is the paradox: given NDAs often depend on trust, they usually are not needed, and if there is lack of trust, then the NDA can make little difference.

On the available information, Hancock was naive to believe a NDA would give firm, still less absolute, protection against onward disclosure of the messages.

And on the available information, there does appear to be a public interest in disclosure to the public of the messages – at least to the extent that they show public policy making and implementation in action.

As Hancock himself has published a book which has been described as misleading based on the same material, then he may struggle to get redress in respect disclosures which expose his own misleading account.

*

We do not know what were the terms of the NDA – and so we cannot pass comment on whether the NDA was well drafted for its purpose or not.

But we can evaluate the wisdom of Hancock in thinking any NDA, on any terms, would protect him against onward disclosure of the messages by a counter-party willing to breach the NDA on the basis of the public interest.

It was a daft thing for him to do.

***

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