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Lord Mackay of Ardbrecknish: My Lords, I think that the Minister is now answering my question: that
Lord Bassam of Brighton: My Lords, we believe that it is right that they should be in that position. The effect of the definition as drafted is to ensure that there is no ambiguity about whether these bodies are included within the provisions of Clauses 34 and 52. They are clearly bodies exercising statutory functions on behalf of the Crown: that is the key point.
It is not clear to us that by amending the definition as proposed would in practice limit the definition in the way intended by the noble Lord, Lord Mackay. However, removing that part of the definition would remove the certainty we believe to be necessary if the public and the bodies themselves are to be clear exactly when and how the freedom of information will apply.
To put it simply, we believe that these amendments are wrong in principle and would prove ineffective in practice. The noble Lord may not like, or perhaps not even accept, our interpretation of this or the principles behind it, but that is how it is, and I invite him to withdraw the amendment.
Lord Norton of Louth: My Lords, before the noble Lord sits down, could I draw his attention to Clause 35(1)(b)? Are not the authorities that would be excluded by my noble friend's amendment actually caught by that particular provision?
Lord Bassam of Brighton: My Lords, I do not know the answer to that question. I shall have to study the matter and will happily write to the noble Lord on that point.
Lord Mackay of Ardbrecknish: My Lords, I am not entirely sure that I received a satisfactory defence of the position. I received an explanation, but it was hardly a defence of the decision that government Ministers would be able to use their veto when it comes to bodies like the Health and Safety Executive. As time rolls on, I actually think that people will find, if that is ever used, that it is a very puzzling proposition. I think that maybe the Government ought to have thought a bit harder about what to do about this matter. I am almost tempted, by the nature of the reply given by the noble Lord, Lord Bassam, to offer the opportunity to exercise our legs by going through the Division
Amendment, by leave, withdrawn.
Clause 35 [Prejudice to effective conduct of public affairs]:
Lord Archer of Sandwell moved Amendment No. 45:
The noble and learned Lord said: My Lords, the objections to Clause 35 have been well rehearsed at earlier stages of our discussions and I can refer to them very briefly. First, is the fact that the test to be applied is not an objective one. It is the reasonable opinion of a qualified person. In Committee, lawyers actually reached a consensus on one matter at least: we all agreed that no one can second-guess the opinion reached by a qualified person. Provided that he asked himself the proper questions and the conclusion was one which could have been reached by a reasonable person then his conclusion is unassailable.
In Committee, in moving an amendment to leave out those offensive words, the noble Lord, Lord Goodhart, pointed out that people making decisions naturally tend to prevent others examining the background to those decisions, because that would facilitate any criticisms which someone might wish to make. He asked what was wrong with leaving the decision to a commissioner--someone with wide experience in applying such tests and with no obvious axe to grind.
He also pointed out another difficulty: the harm test and the prejudice test here will be by different people. The noble Lord, Lord Goodhart, pointed out that, having considered the decision about disclosure and perhaps having decided that no prejudice would result from the disclosure of the information, the commissioner must say, "That is not the test I have to apply. If the qualified person has properly applied his mind to the question it is his opinion which must prevail, so I must deem that prejudice would result from disclosure."
Then, as my noble and learned friend so often points out, the question arises as to where the balance of public interest lies unless, in relation to this clause, it is in the possession of one of the Houses of Parliament. The commissioner may find himself weighing not the prejudice that he believes would arise from disclosure but that which he is required to assume would arise. By what convoluted mental process must he weigh in the balance a prejudice that he does not believe exists? The noble and learned Lord, Lord Goodhart, is kind enough to nod assent to my paraphrase of what he said.
Even if the decision on disclosure survives all that, just when it thinks that it is about to pass "Go" and collect £200, there is another trap lying in wait. The authority may say, "Even though it might not fall foul of any of the tests, it might prejudice the effective conduct of public affairs". I do not remember hearing
Lord Falconer of Thoroton: My Lords, I think that the noble and learned Lord is referring to subsection (2)(c). Two examples were given in Committee. One related to the communication between a chief examiner and other examiners on the content of exam questions. The other was on proposals to list particular buildings. Having to make public proposed exam questions would clearly prejudice good government without in any way inhibiting advice given. Disclosing the fact that a building might be listed and giving the reasons for listing it before an announcement was made might affect the value. It is not correct to say that no examples were given.
Lord Archer of Sandwell: My Lords, my recollection sometimes leaves something to be desired these days. I fully accept what my noble and learned friend says. But appropriate provision can be made in the Bill for such specific examples. Indeed, I am not sure that there is not already appropriate provision--that is, for information that is to be disclosed at a future date. There are a number of provisions that may already catch those examples. If they do not, it is not difficult to make appropriate provision. If one is trying to catch one particular hare, it is not appropriate to spread a fence across 40 miles of countryside and catch every animal in sight. That is what I understood my noble and learned friend to mean when he said that the provision was a "catch-all".
The provision has been condemned from the Conservative Front Bench, the Liberal Front Bench and the Conservative and Labour Back Benches. Repeating the arguments would make no great contribution to the debate. I have explained the purpose of the amendment, which I think is self-explanatory. I beg to move.
Lord Goodhart: My Lords, I agreed with everything that the noble and learned Lord, Lord Archer of Sandwell--he is indeed learned, unlike me--said about the reasonable opinion of a qualified person, not least perhaps because he referred to some similar remarks that I made in Committee. I still hold the view that I expressed then.
In the deal which we arranged with the Government on this matter, we agreed not to press for the removal of the reference to the reasonable opinion of a qualified person. We did so because we do not believe that it makes a significant difference. That is because, as the noble and learned Lord, Lord Archer, pointed out, what matters here is not the initial decision that prejudice is shown--a decision taken by the qualified
That being so, we regard the reference to the reasonable opinion of a qualified person as being effectively almost pointless rather than significantly damaging to the right to freedom of information. Although we would prefer those words to be deleted, we are willing not to press for their removal in view of the important amendments which the Government have already agreed to accept.
Baroness Thornton: My Lords, I rise to support my noble and learned friend in this amendment. I am bemused by what the noble Lord, Lord Goodhart, said because I did not really understand it. However, I understand that he must say something and I believe that that is the explanation: he must say something under these circumstances and that is what he chose to say. Perhaps later he could explain to me what he said in relation to it not mattering. It seems to me that this part of the Bill matters enormously. I believe that the words,
The Bill appears to place no limit on the matters that can be caught by this exemption. Therefore, I understand that, by giving legal weight to a Minister's opinion, the decision is then protected from review by the commissioner. I hope that I am wrong in that and that someone will correct me.
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