Government gags retired diplomats

This post brings together one item in a recent collection of unconnected jottings in this blog and two comments so far made on it.  As it raises a surprising and important issue of principle, involving an attempt by government to abridge the right of freedom of expression of former public servants who in many cases have much to contribute to the national political debate, it seems to me on reflection to deserve a piece of its own.  So I don't apologise for repeating myself.

In my earlier post I wrote:
>>We owe an extraordinary and so far unremarked revelation in the New Statesman of 6 September, headed "The gagging of the Mandarins", to Sir Edward Clay, formerly British High Commissioner in Kenya where he was famous for his hard-hitting public denunciations of corruption at the highest level in that now sad country ("the evidence of corruption in Kenya amounts to vomit, not just on the shoes of donors but also all over the shoes of Kenyans and the feet of those who can't afford shoes").  Clay, now retired, has exposed a new example of corruption in high places:  the Foreign & Commonwealth Office, for which he (and I) used to work, has now gagged its diplomats to prevent them from publicly expressing their personal views on political and international issues, not only while they are still in the public service (which is perfectly reasonable), but even after their retirement, for the rest of their lives!  In Clay's words,

[The FCO has] enlarged the scope of rules inhibiting serving diplomats from speaking, writing, or otherwise expressing any view, without prior clearance. Retiring mandarins are now warned that the rules bind them for life.

If enforced, this new prohibition will deprive public debate on international issues of the benefit of the input of, eventually, hundreds of former diplomats with unrivalled collective experience of international affairs and the ways of government in conducting them.  There will be no more fascinating insights on Iraq from the successors to the always judicious Sir Jeremy Greenstock;  no more open letters to the prime minister critically analysing government policy in the middle east from 52 former ambassadors or their equivalents, of the kind that rattled the bars of the government's cage in April 2004 to salutary effect.  (I declare an interest as one of the signatories.)  If the new gag had been introduced before I retired, I would have been unable to make many of the comments on public affairs that I have contributed, for whatever they have been worth, in articles, interviews and letters in the press and indeed on my website and this blog (of course some might well say that this would have entailed no great loss). 

>>It's hard to see any conceivable justification for this attack on the freedom of expression of people with potentially so much to contribute to political debate.  Its only possible objective is to spare ministers and their officials embarrassment:  no threat to national security or the proper conduct of public business can be said to arise.  I wonder if it would survive a challenge under the Human Rights Act and the European Convention?  It would surely be unconstitutional in the US. 

>>It's reminiscent, incidentally, of the FCO's equally indefensible recent ban on ambassadors and high commissioners writing 'valedictory despatches' immediately before leaving a post, and especially just before retirement, such despatches having often been the occasion for swingeing criticisms of the way the Diplomatic Service is run and major decisions of foreign policy are taken.  (Admittedly such despatches have sometimes had a funny way of getting into the public print.)  Instead of taking these documents seriously as constructive analysis, based on experience, of the way the FCO operates, with potentially useful indicators of desirable reforms, the Office has chosen instead to ban them altogether.  Our diplomats are now reduced to establishing a samizdat system for the dissemination of their views in defiance of the censors of King Charles Street.  Unbelievable!<<
[End of original post]

This has elicited an interesting comment from an old forum and blogosphere friend in Los Angeles, Carl Lundquist.  After quoting part of my original post, Carl wrote:

As a foreigner,  I am puzzled.  Just how does the Foreign Office muzzle a RETIRED ambassador or high commissioner?   Surely barring the disclosure of classified material, such comment is the exercise of freedom of speech.   I know of more than a few retired general officers in the US that a sucession of White Houses would have liked to muzzle.  No chance tho.

I replied in a separate comment:

>>Thanks for your comment, Carl.

>>There's no mystery about "how" the government could prevent a retired diplomat from expressing personal opinions on public affairs:  the Foreign Office has the power to terminate a retired officer's pension if there has been a breach of the officer's contract, including his/her duty under the Official Secrets Act not to make public without prior authority information obtained in the course of his/her public service.  As the terms and conditions of public servants' employment are determined under the Royal Prerogative (more or less the equivalent of 'executive privilege' in the United States, I think), not by statute, the FCO would probably try to argue that a decision to stop a retired officer's pension could not be challenged in court, although a good lawyer would probably win on that point and succeed in applying for judicial review, or a hearing by some tribunal or other.  

>>But the rights and wrongs of this in equity and under our Human Rights Act and its parent, the European Convention on Human Rights [pdf], are a different matter.  Actually to stop the pension of a retired diplomat for expressing personal opinions (while not in breach of the Official Secrets Act) would be highly controversial and should entail a heavy political and media penalty from which ministers might well shrink.  Moreover on the face of it, the gag would be in breach of Article 10 of the Convention, which allows certain limited exemptions, but none that (so far as I can see) gives the government the right to stifle expressions of opinion on public affairs by retired public servants:

   Article 10 — Freedom of expression

    1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

    2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

>>I hope a challenge will be mounted sooner or later and that it will succeed!

>>PS:  A very senior retired diplomat, formerly Dame Pauline (now Baroness) Neville-Jones, is now a front-bench member of the opposition Conservative Party in the House of Lords and Cameron's shadow spokesperson on national and international security matters.  It's interesting to speculate whether, if the gag had been imposed before she retired from the Diplomatic Service, the FCO would have tried to prevent her from going into politics and expressing her hostile views of government policy as a member of the official opposition in the upper house of the national parliament.  On a much humbler level, if the gag had been imposed on me before I retired, would the FCO have forced me to close down this blog?   I have no craving for political martyrdom, but…<<

Comments on all this, from other retired diplomats (the still un-gagged, anyway) and anyone else, will be even more than usually welcome.

Brian