§ '.—(1) Information is not exempt information if it is substantially similar to any disclosed information.
§ (2) In this section "disclosed information" means any information which has been lawfully disclosed in accordance with the provisions of any statutory or other scheme requiring or authorising the disclosure of information within any administration in the United Kingdom, but does not include personal data relating to the individual to whom it was disclosed.
§ (3) In this section "administration in the United Kingdom" has the same meaning as in section 26.'.—[Mr. Shepherd.]
§ Brought up, and read the First time.
§ Mr. Shepherd
I beg to move, That the clause be read a Second time.
The House will see that the new clause is in my name and that of my right hon. Friend the Member for Haltemprice and Howden (Mr. Davis). Its purpose is to learn from the experience of others. It highlights the fact that we may have three freedom of information regimes within this island. The basic, simple, bottom-line argument is that, if a piece of information is available, albeit under the different regime of the devolved authority of the Scottish Parliament, for example, that information should become available in the United Kingdom. Let us remember that we are talking primarily about things such as education and local government, so the processes are common throughout the island. The new clause highlights the fact that Scotland seems, in its White Paper, to be using stronger tests and giving greater accessibility, and it would be profoundly inconsistent if information were available in Scotland that was ruled to be unavailable in England. I suggest that the new clause would strengthen the comity of the island, help us to learn from the experiences of other places and reinforce unity. In a spirit of comity, therefore, I commend the new clause to the House and hope that hon. Members will see value in it and support it.
§ Mr. Quentin Davies
My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) explained that when drafting the new clause he had in mind the extraordinary anomaly that would arise if information were disclosed under Scottish freedom of information legislation which could not lawfully be disclosed in another part of the United Kingdom. Clearly, that would contribute to the loss of any sense of legitimacy that the Bill will have if it becomes an Act. It would be one of many aspects that will undermine the Bill's credibility.
If, however, the new clause were adopted, it would have a wider impact, because subsection (1) makes it clear that it would be possible to argue that a Department should disclose information if it was substantially similar to information that it, or another Department, had already disclosed. One can easily foresee situations in which a Department might regret having disclosed information or might subsequently seek to detract from the effect of a disclosure, so it might well refuse to confirm its original disclosure or to release other documents that would confirm it.
The new clause would be extremely useful in preventing any Department even from being tempted to do that, because once information had been disclosed, that would be the end of the matter. That would clearly be part 1115 of the jurisprudence, because if all the papers relating to a subject had been disclosed and other information emerged which was substantially similar—to use the phrase in the new clause—that would automatically be disclosed without further let or hindrance. That would clarify matters and increase the scope of freedom of information, and one would like to think that that was the Bill's purpose.
§ Mr. Mike O'Brien
I entirely agree with the hon. Gentleman's sentiments, and if he will allow me to do so in a moment, I will explain to him precisely how the Bill delivers what he and the hon. Member for Aldridge-Brownhills (Mr. Shepherd) want.
§ Mr. Davies
In the light of the Minister's assurance, which is one of the more encouraging assurances that he has given during our proceedings, I certainly do not want to keep the House in suspense, so I shall immediately terminate my contribution.
§ Mr. Hawkins
I would advise my hon. Friend the Member for Grantham and Stamford (Mr. Davies) not to be too confident, because we have not yet heard the Minister. I shall not detain the House for long, but, before the Minister replies, it is only right that Labour Members who have supported the Campaign for Freedom of Information should be aware that it has expressed several concerns.
In particular, the proposed Scottish freedom of information Act will allow Scotland's information commissioner to make legally binding rules on disclosure in the public interest, where harm-tested exemptions are involved. The campaign has shared with Opposition Front-Bench Members its concern about the precise issue that my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and my right hon. Friend the Member for Haltemprice and Howden (Mr. Davis) are raising via the new clause.
The fact that we may have two different regimes is a cause for concern. Now that Scotland has issued its own proposals for freedom of information, which we suggest—so does the Campaign for Freedom of Information—will enable much more information to be released than under the Bill, and which will positively encourage the release of factual information on policy making, we feel that there is a severe danger that the whole system will be brought into disrepute if information that is secret in England is available to the public in Scotland. I do not know whether the Minister will be able to square the circle, but it seems that once again the Government are tying themselves in knots.
§ Mr. Mike O'Brien
There is no circle to square. The amendment is unnecessary because the Bill would prevent the withholding of information that had been released by another Administration. It is quite simple. A balance must be struck in respect of the public interest in disclosing information in any case where an exemption applies. I can think of no circumstances in which it would be possible to maintain an argument for the public interest in withholding a particular piece of information if, in practice, that information had already been placed in the public domain under the scheme operating under another 1116 Administration. Nor, I suggest, would the Information Commissioner be convinced by any argument that the public interest in withholding minor or trifling details of substantially similar information would justify maintaining the exemption in the public interest. The information would enter the public arena in any case.
The new clause is ambiguously worded. It includes the phrase "substantially similar" information. However, if despite the substantial similarity there were additional information, not already disclosed but which if disclosed would be contrary to the public interest, it should be capable of being lawfully withheld. Therefore, not only is the new clause unnecessary because the Bill will deliver what the hon. Member for Aldridge-Brownhills wants, but the ambiguity in its wording could cause some mischief that I am sure he would not intend. On that basis, I hope that the hon. Gentleman will feel able to withdraw the motion.
§ Mr. Shepherd
I am grateful to the Minister. I did not intend to delay the House, but he brings an interesting fact to our attention. There may well be different harm tests, so it may be easier to secure information under regimes in Scotland or Wales. That puts a question mark over the purpose of some of the arguments behind the Bill.
I am glad that the Minister believes that the provision I was seeking is already available. I shall read his remarks carefully; in those circumstances, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.