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CONFIDENTIAL
3. Unless a claim can be made for breach of the duty confidentiality, I regret to say that there is practice very little that can be done by way of legal action to require Sir Percy to comply with the Cabinet Secretary's advice. There are obligations on serving civil servants to seek authority before publishing texts which draw on official information or experience (paragraph 9913 of the Code) but these obligations cease when the civil servant leaves Crown employment. There are of course the Radcliffe Rules which deal with the publication of memoirs of Ministers and officials. There is certainly a case for arguing that Sir Percy's memoirs breach those Rules. If the Rules were incorporated either expressly or by implication in Sir Percy's letter of appointment, the case for taking legal action would of course be stronger. Unfortunately this is not the case. The Rules are described as "conventions" and it would be difficult to argue that they form part of the terms and conditions of service in force in the Civil Service referred to in paragraph 3 of the letter of 16 January 1984. In any event any implecation that they were to be so regarded would be displaced by the specific reference to paragraphs 9910 and 9911 of the Civil Service Pay and Conditions of Service Code in paragraph 10 which, as I have pointed out above, are limited in their scope.
4. I have assumed that the passages in Sir Percy's memoirs to which we take exception all concern the time when he was employed as Foreign Policy Adviser at No. 10. If they concern any period when Sir Percy was a serving member of the Diplomatic Service, then the matter would be governed by Diplomatic Service Regulations rather than the terms of his letter of appointment to No 10. Unfortunately DSRS are of not much help either. Paragraph 15 of DSR13 states that officers who leave the Service "should, in the interests of the Service, consult" the FCO and they are "urged to do so" if they contemplate publishing any memoirs based on their experiences. As seen the wording of this paragraph is hardly couched in mandatory language and I think we would have an uphill task in convincing a Court that it imposes a legal obligation which the Court should enforce.
I am sorry not to be in a position to give a more helpful reply.
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نشاد
K J Chamberlain, Deputy Legal Adviser.
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