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Lord Falconer of Thoroton: My Lords, how is it covered by confidentiality if the examiners are all part of the same body?

Lord Norton of Louth: My Lords, it was dealing with preparation for exams; that is why I referred to Clause 21.

Lord Falconer of Thoroton: My Lords, Clause 35 is obviously an important provision which requires serious consideration. Its effect is to cover matters not covered by Clause 34. In particular, it covers information held by public authorities other than central government.

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Once one accepts in relation to Clause 34 that in regard to the formulation of policy there should be some protection to enable open and frank conversations to take place between officials and Ministers or decision-makers, and that that applies to central government, it seems right that the same protection should be given to public authorities which are not part of central government. That is one important part of Clause 35.

The other important part of Clause 35 concerns the fact that the Government readily acknowledge that around 50,000 bodies will be covered by the Bill; they will be under an obligation to give people the right to know. But situations may arise which one cannot quite envisage and cannot quite cover by a specific exemption, but in relation to which one would assume, if one was a reasonable person, that some sort of exemption should be given. It seems sensible in that regard that there should be some test which provides protection. That is the purpose of Clause 35.

Although I gave examples, the main purpose of Clause 35 is to cover those 50,000 bodies in relation to situations where not every eventuality can be covered. Why does one refer to,

    "the reasonable opinion of a qualified person"?

It is because if one is dealing with a situation that is not targeted in the way that the other exemptions are with that same degree of identification, it is right that, instead of it simply being a matter about which the anonymous public body should make up its mind, an individual of high standing and great responsibility in the organisation should personally make the decision as to whether or not Clause 35 should be invoked. That seems to me to be a sensible protection.

All of Clause 35 is subject, as the noble Lord, Lord Goodhart, rightly said, to Clause 2; namely, the balancing of the public interest. The noble Lord, Lord Goodhart, rightly said in relation to the phrase,

    "in the reasonable opinion of a qualified person",

that the information commissioner cannot interfere unless there has been some procedural irregularity in the exercise of the discretion or the judgment is so perverse that no reasonably qualified person could have come to it. However, when it comes to Clause 2, the information commissioner is entitled to substitute her view for that of the public authority as regards where the balance lies between the exemption on the one hand and the public interest and disclosure on the other. In the light of the amendments put into the Bill by the Liberal Democrats earlier tonight, the balance will start in favour of disclosure unless there is a good reason against disclosure.

It seems to me that there is a reasonable structure. A reference to,

    "the reasonable opinion of a qualified person"

provides sensible protection. It is sensible that there should be a clause such as Clause 35 to cover bodies other than central government and to deal with 50,000 public authorities which may have particular concerns in relation to it.

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Finally, the noble Lord, Lord Norton, asked why Clause 21 does not deal with the issue. As an academic, he will know that the proposed examination questions may not ultimately be published because changes may be made to them or that different questions may be asked.

Lord Hunt of Chesterton: My Lords, is the Minister saying that the important issue is that a person who one knows is issuing the information? Is it correct that the burden of the Minister's argument is that it is an identified person?

Lord Falconer of Thoroton: My Lords, I was making a number of points but I am saying that when Clause 35 is invoked it is very important that instead of the body being anonymous--for instance, the Meteorological Office--an individual of great seniority in the body concerned, as defined in subsection (5), must take the decision that there would be prejudice, for example, to the free and frank provision of advice, or the free and frank exchange of views, or the effective conduct of public affairs. An identified person of seniority must put his or her reputation or position--

Lord Hunt of Chesterton: My Lords, would not "an identified person of seniority" be a better form of words?

Lord Falconer of Thoroton: My Lords, the Bill as drafted provides for

    "the reasonable opinion of a qualified person",

and then the qualified person is identified as a Minister, the Speaker of the House, the First Secretary of the National Assembly for Wales, the Mayor of London and so forth. They are all sufficiently identified.

Lord Lucas: My Lords, was I right in understanding the noble and learned Lord to say that the information commissioner, if she comes to review a decision under this clause, will be entirely unrestricted in how much weight she chooses to give to the prejudice? In other words, she could entirely discount the views of the qualified person as to the quantum of the prejudice.

Lord McNally: My Lords, perhaps I may make a related point. The noble Lord, Lord Williamson, appeared to imply that the qualified person would be so awe-inspiring as to make the information commissioner almost powerless. Is that a fair assumption?

Lord Falconer of Thoroton: My Lords, not from what I know of the information commissioner. The point made by the noble Lord, Lord Lucas, relates to Clause 2 and not to Clause 35. Under Clause 35, the information commissioner could interfere with the reasonable opinion of the qualified person only if there were some procedural irregularity in the exercise of the

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discretion or if it were such a perverse conclusion that no reasonably qualified person could have reached that conclusion.

However, that would then be subject to the public interest balancing test and in relation to that the information commissioner would be entitled to substitute her own view for that of the public authority's in relation to the balancing act in Clause 2.

Lord Lucas: My Lords, that was not quite what I asked. I understand she can do the balancing act, but can she also determine the quantum of the prejudice rather than just its existence?

Lord Falconer of Thoroton: My Lords, unlike the position in relation to Clause 35, she is entitled to substitute her view of the balance for that of the public authority.

Lord Norton of Louth: My Lords, before the noble and learned Lord sits down, my point in relation to Clause 21 remains valid. One devises exam questions only if there is a likelihood that they will be published, if not at the time of the next round, at some future date. Clause 21 is drawn in such a way that it covers that. Is the noble and learned Lord saying that he and his advisers have been so intellectually lazy, so to speak, that they have been unable to think of any examples that would be caught by paragraph (c) but would not be caught either by other specific clauses or by subparagraph (b)(ii)? I should have thought that, given the resources at the disposal of the Minister, he would have been able to come up with a few more examples.

Lord Falconer of Thoroton: My Lords, I am not sure that it is worth while to continue to debate the question of exams. The most obvious example is that all of the public authorities which are not central government are caught by Clause 35. I believe that the noble Lord must first deal with that great collection of public authorities. The noble Lord will agree that they are covered by Clause 35, not Clause 34. For example, as to full and frank exchanges of view, there is no other provision in relation to non-central government departments apart from Clause 35. The noble Lord nods.

Lord Bach: My Lords, the House has been very patient. This is not Committee stage.

Lord Archer of Sandwell: My Lords, I am most grateful to all noble Lords who have participated in this debate. If I attempted at this hour to answer every contribution I would not go to the head of the popularity stakes. We make two criticisms of this clause. First, the judgment to be made is subjective, not objective, and depends on the opinion of a

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qualified person. We see no reason why the question should not be addressed directly by the commissioner, who can decide what she believes to be the case.

More and more in these debates those of us who move amendments find ourselves answering the noble Lord, Lord Goodhart, rather than the Minister on the Front Bench. The noble Lord said that one did not have to worry about it, because when one decided whether the matter fell within the clause, there remained outside the question of the public interest override which the commissioner would be free to address. I believe that the noble Lord answered that question in Committee. He poured out a great deal of sympathy for the unhappy commissioner who had to accept, first, the decision of the qualified person as to where the prejudice lay and then proceed to weigh the amount of prejudice which she did not believe existed. By the end of that process the commissioner will be a case for a psychiatrist.

This matter is still subject to Clause 52; no deal has whittled that problem away. My noble and learned friend produced a further argument. He asked one to think of the number of public authorities which would be concerned about this matter. Surely one needed to identify someone; namely, a qualified person. But we need a qualified person only because the Government have introduced this into the Bill as part of a subjective test. We do not need any person at all, identified or not, if the test is an objective one and the commissioner can simply look at it. In the course of debates on this Bill my noble and learned friend has augmented the respect in which we have always held his powers of advocacy, but I believe that the prediction of my noble friend Lord Brennan tonight has been fulfilled: this matter has extended even the powers of advocacy of my noble and learned friend.

The second criticism of the Bill is the catch-all about the conduct of public affairs. I believe that that has been answered by so many contributions that it is rather a pity to labour it. As my noble friend Lord Brennan said, it is caught by the general law of confidentiality. Anyone who has ever served on an examination board knows that confidentiality becomes almost an obsession. I recall that when I was part of an examination board I received envelopes marked "Strictly private and confidential". I opened the envelope. Inside was a further sealed envelope which said, "To be opened only by Mr Archer". When I opened it, I found a note which said, "Thank you for the letter you sent us yesterday". That is the degree of confidentiality with which we are dealing. I cannot believe that the courts would not be able to deal with that problem.

I shall not labour the matter. On this occasion my noble and learned friend has not been able to satisfy us. Late as the hour is, I am bound to seek the opinion of the House.

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10.45 p.m.

On Question, Whether the said amendment (No. 45) shall be agreed to?

Their Lordships divided: Contents, 22; Not-Contents, 81.

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