8.136The convention on access to documents of a previous administration allows Ministers of the current government to consult the Cabinet records of a previous government on a confidential basis. It also gives former Ministers ongoing access to Cabinet records dating from their time in office. The convention therefore emphasises the continuity of government, even though changes in the parties in government may occur.
8.137The convention has been in place since 1957, when the incoming and outgoing Prime Ministers agreed to some arrangements concerning access to, and use of, Cabinet records of the outgoing government in an exchange of letters. Since that time, the convention has been modified by legislative changes, and the practical arrangements that reflect the convention have continued to develop.
8.138There are two elements to the convention. They provide respectively:
Documents covered by the convention
8.139Only documents that form part of the Cabinet record are covered by the convention. The Cabinet records of each government comprise Cabinet papers, memoranda, agendas, minutes, and other documentation relating to the formal business of Cabinet and Cabinet committees. Other official information, such as agency briefing papers, is not covered by the convention.
Access to Cabinet records by incumbent Ministers
8.140Recognising that government is a continuing process and to ensure that decisions can be made in the light of precedent, incumbent Ministers are entitled to consult the Cabinet records of a previous administration on the basis that the confidentiality of the papers is respected (see paragraph 8.150). These Cabinet records may be accessed through the Minister's agency or through the Cabinet Office.
8.141Various constraints apply when incumbent Ministers are contemplating the release (including tabling in the House) of any Cabinet records of a previous opposition administration (see paragraph 8.151).
8.142Agency papers are not covered by the convention on access to Cabinet records. Incumbent Ministers do not, therefore, have an automatic right to copies of agency papers or briefings prepared for a previous Minister.
8.143A Minister may, however, need to gain an understanding of the advice given by the agency to their predecessor, in order to understand fully the nature of an issue. When making a request for information of this kind, a Minister should be cognisant that such information can be politically sensitive.
8.144Accordingly, officials who receive requests from Ministers for agency papers dating from a previous administration should advise their chief executive. The chief executive will, in consultation with the Minister, determine how to meet the Minister's need for information without compromising the political neutrality of the agency or its ability to maintain the confidence of both present and future Ministers. Options may include:
- supplying the material that has been requested; or
- providing a briefing summarising the advice given to a previous Minister and the decisions taken.
8.145Each request by a Minister for information held by an agency should be individually assessed by the chief executive in relation to the Minister's needs and the sensitivity of the information, the currency of the information and the issue to which it relates, and other associated factors.
8.146As with Cabinet records, information held by an agency is supplied to the Minister on the basis that the confidentiality of the information is respected.
8.147Former Ministers are allowed access to those Cabinet records to which they would have had access when they were Ministers. Former Ministers should respect the ongoing confidentiality of those documents.
8.148Former Ministers should contact the Cabinet Office if they wish to obtain copies of Cabinet records after leaving office. The Cabinet Office will endeavour to respond promptly to requests from former Ministers, subject to the demands of Cabinet business, which must take precedence. The Cabinet Office is required to inform the Prime Minister's office and the relevant Minister's office when it provides Cabinet records to former Ministers.
8.149If a former Minister wishes to disclose Cabinet records dating from their time in office, they must first check whether there are reasons why the document should not be publicly disclosed (see paragraphs 8.132 - 8.135).
Releasing Cabinet documents of a previous opposition administration
8.150The convention on access to documents of a previous opposition administration requires Ministers to keep the Cabinet documents of a previous administration confidential.
8.151The convention is, however, unenforceable in a legal sense and relevant laws and rules governing the disclosure of information (for example, the Official Information Act 1982, the Standing Orders, the High Court Rules) must prevail over the convention. Where documents covered by the convention are requested and are required to be released by law, the convention requires that the Opposition be consulted about the proposed release, so that they can contribute their views (for example, as to whether there is good reason for withholding the documents). The following procedure must be observed in this situation.
- When a Minister's office or a government agency receives an Official Information Act 1982 request for Cabinet records dating from a previous administration currently represented in the Opposition, or is considering releasing such documents for any other reason (for example, a select committee request), the Cabinet Office should be advised as soon as possible.
- The Minister's office or agency should give the Cabinet Office a copy of the request and copies of the papers requested, together with the view of the Minister or agency concerned on whether there is any reason for withholding the papers sought.
- The Cabinet Office, on behalf of the Prime Minister, will then consult the Leader of the Opposition about the proposed release.
- The Leader of the Opposition will have an opportunity to express any concerns about the proposed release, in terms of the Official Information Act 1982 or other laws or rules. The Cabinet Office will pass on any such concerns to the relevant Minister or agency, so that they can be taken into account when the Minister or agency decides whether or not to release the information.
- The Minister or agency that is considering the release should not release the relevant documents until the Cabinet Office has finished consulting the Opposition, unless required to release the documents by law. If necessary, the time limit for responding should be extended on the basis that the consultation necessary to make a decision on the request has yet to be completed.
Further guidance is set out in Cabinet Office circular CO (17) 9 Access to Information of a Previous Administration.