8.124 The 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.
8.125 The 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.
- for incumbent Ministers to access Cabinet records of a previous administration (see paragraphs 8.128 – 8.129); and
- for former Ministers to access Cabinet records to which they had access when they were Ministers (see paragraphs 8.130 – 8.132).
Documents covered by the convention
8.127 Only 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 documents, such as departmental briefing papers, are not covered by the convention.
8.128 Recognising 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 8.133). These Cabinet records may be accessed through the Minister’s department or through the Cabinet Office.
8.129 Various 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 8.134).
8.130 Former 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.
8.131 Former 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.
8.132 If a former Minister wishes to disclose Cabinet records dating from his or her time in office, he or she must first check whether there are reasons why the document should not be publicly disclosed (see paragraphs 8.120 – 8.123).
Releasing Cabinet documents of a previous opposition administration
8.134 The convention is, however, unenforceable in a legal sense and relevant laws and rules governing the disclosure of information (the Official Information Act, the Standing Orders, the High Court Rules, and so on) 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 department receives an Official Information Act request for Cabinet records dating from a previous opposition administration, or is considering releasing such documents for some other reason (for example, a select committee request), the Cabinet Office should be advised as soon as possible.
- The Minister's office or department should give the Cabinet Office a copy of the request and copies of the papers requested, together with the view of the Minister or department 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 or other laws or rules. The Cabinet Office will pass on any such concerns to the relevant Minister or department, so that they can be taken into account when the Minister or department decides whether or not to release the information.
- The Minister or department 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.