The Thirty Year Rule (but subject to exemptions…)

As stated by the fictional character of Sir Humphrey Appleby in Yes Minister ‘Open Government is a contradiction in terms. You can be open, or you can have government. The Thirty Year rule is a good example of this situation.

The thirty year rule allows for the release of Cabinet Documents after the efflux of a thirty year period from the year in which they were created. Section 10 of the National Archives Act allows for the inspection of records except where they are less than 30 years old (s.10.1 (a)) or older than 30 years where their release may be contrary to the public interest, breach of statutory duty or cause damage or distress to living persons (s. 8.4). The documents which are the subject to the provisions of s 8.4 can be reviewed after a period five years by a member of the Government Department responsible for the records. Furthermore, under s.10.6 a Minister, or member of Government, is entitled to grant access to departmental document prior to the elapse of this thirty year time period.  This section was used in 1992 to allow for the release of Cabinet Documents in the wake of the confusion of the Hamilton Judgment.

In England, the release of Government and Public Documents is governed by the Public Records Acts 1958 and 1967. The original time limit for the retention of Government documents without exceptional circumstances was 50 years. However, the Public Records Act 1967 changed it to the Thirty Year Rule as known today.  The release of documents is further controlled by the ability to further restrict documents on grounds similar to the Irish National Archives Act 1986. These grounds restricted the release of information which could cause distress or embarrassment to living persons or their descendants, information received in confidence by the Government, certain papers relating to Ireland and certain Commonwealth documents and papers of a sensitive nature to the State.

However, Freedom of Information has changed the position slightly. In England the changes are not as dramatic as the Irish Situation. In the Original Freedom of Information Act 1997 cabinet papers could be the subject of an FOI (Freedom of Information) request after five years. Of course the request would be subject to the usual restrictions but it was an element of progress. However, the amendment act of 2003 pushed this time limit to 10 years. Therefore documents relating to Cabinet Records from April 1998 could be requested in line with general Freedom of Information Requests[1].

The English procedures with regard to the release of Government Information were not the only aspect of Whitehall style cabinet procedures that turned Merrion Street into a carbon copy of Whitehall practices. The adoption of the procedures of the nearest and closest relative to a jurisdiction is fine and well at the embryonic stages of democracy. However the point must be asked if the English system which is controlled by the over arching principal of Parliamentary Soverenity is the most apt for a representative democracy, like Ireland, that is founded on the people being the source of power. Therefore in a broad context of political reform the information relationship between the citizens and the Government is developing but should be under constant review.

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5 thoughts on “The Thirty Year Rule (but subject to exemptions…)

  1. @Jennifer,
    “However the point must be asked if the English system which is controlled by the over arching principal of Parliamentary Soverenity is the most apt for a representative democracy, like Ireland, that is founded on the people being the source of power. Therefore in a broad context of political reform the information relationship between the citizens and the Government is developing but should be under constant review.”

    Following your statement that we are the source of power in our Republic (as set down in Art 6 of our Constitution), I prefer to start discussion on this topic by looking to other countries eg Sweden

    “Sweden’s Freedom of Information laws are a beacon to the world….In 1766, when a new young radical government came to power convinced that only transparency could deal with the corruption that was looting the Swedish state and society Freedom of Information Act was passed…All documents within the public sector are in the public domain so people can actually check and hold the people in power accountable for their actions…. Freedom of Information… is still a bedrock for transparency and accountability in Swedish democracy…You don’t have to tell why they want to see a document or you don’t even have to give a name…You can even read official letters before they arrive in politicians’ intrays………Yea, Freedom of Information does mean you sacrifice some personal privacy…Of course, Freedom of Information isn’t universal in Sweden. If you really want to hide information you can. But you have to work quite hard to keep things secret. The exemptions are limited and very specific.”

    Dan Lucas, London correspondent for the Swedish Dagens Nyheter newspaper, gave an overview of Swedish-style Freedom of Information(FoI) laws, in a talk on BBC R4.
    see my other postings on this issue
    https://politicalreform.ie/2010/06/21/freedom-of-information-and-corruption/#more-579

    also my Open Letter to all TDs and Senators asking them to simply repeal the 2003 FoI as set out in the Programme for Government
    https://politicalreform.ie/2011/09/09/open-letter-to-tds-and-senators/

    and this
    https://politicalreform.ie/2011/09/30/seanad-public-consultation-committee/comment-page-1/#comment-6037

    and this letter in 2003, (which also appeared in the IIndependent)
    http://www.businesspost.ie/archives/2003/0316/a-basic-right-for-citizens-182315047.html

    It is way past time to go beyond the Sir Humphreys and trust ourselves to govern ourselves, openly.

  2. “[Is] the English system which is controlled by the over arching principal (principle?) of Parliamentary Soverenity (sovereignty?).. the most apt for a representative democracy, like Ireland, that is founded on the people being the source of power?”

    Oh please. Not more of this mythic and transcendental Republic here. The British people are as much, if not more, the source of power there as Irish people are in Ireland. At general elections they delegate their ultimate authority to MPs in the same way as Irish people delegate theirs to TDs. It’s simply via the flummery of a constitutional monarchy that the Queen graciously accepts the will of the people expressed in a general election and appoints ‘her’ government. Although successive UK governments have progressively eroded the primacy of the UK Parliament they still live in fear of it and so they should. And they are more in fear of it than governments in Ireland are of the Oireachtas.

    The most effective FoI is for the Oireachtas to compel government to fully present the basis, context and evidence for public policy proposals and proposed executive actions prior to the drafting of legislation or the issue of SIs or the promulgation of what are effectively ‘decrees’ that allow for no scrutiny or amendment.

    But I can guarantee you that this is the last thing Irish citizens will get because they don’t seem to want it. It is, perhaps, because they don’t understand that they are entitled to it and should demand it. And one can be sure that the political classes have no incentive to deliver it to them – and every incentive not to.

  3. Whether they are released after 30 years or 10 years doesn’t make much difference to the dullness they contain and the complete and utter lack of any intellectual combat at cabinet level.

  4. Did I miss the official announcement? Did posts end on this site at the end of last year?

    Maybe people are holding their breaths in anticipation of the up-coming major Government announcement on political reform – constitutional conventions and all that? Or maybe sense has prevailed, the realisation has dawned that this will be the dampest of damp squibs and people have folded their tents and retreated quietly back in to academia?

    And why not? It’s dry and it’s warm and reasonably well-rewarded. Probably beats going around the country whipping up apathy.

  5. Suspend for a little, the political implications of witholding executive information, and ponder the cultural psychological implications, Surely this `sends out the message’ that suppression/repression is ok…
    It is this disposition,reinforced by Church dogma, bolstered by psychiatric medicine and copperfastened by the adversarial legal system, that facilitates the default witholding of openess, inherent in the common preface ‘to be honest’.and goes to the heart of our cultural loss of soul.
    The abolition of this though would require us to embrace a much more person-centred psychological and spiritual dispensation, a deeper and richer understanding and compassion for all.Sadly this paradigm is still resolutely resisted.

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