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Lord Falconer of Thoroton moved Amendment No. 178:



(""government policy" includes the policy of the Executive Committee of the Northern Ireland Assembly and the policy of the National Assembly for Wales;").

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 179 to 182:


    Page 19, line 7, leave out from second ("communications") to ("and") in line 9 and insert--


("(a) between Ministers of the Crown,
(b) between Northern Ireland Ministers, including Northern Ireland junior Ministers, or
(c) between Assembly Secretaries, including the Assembly First Secretary,").


    Page 19, line 10, leave out ("and").


    Page 19, line 11, at end insert ("and proceedings of the executive committee of the National Assembly for Wales").


    Page 19, line 15, at end insert ("or any part of the administration of the National Assembly for Wales providing personal administrative support to the Assembly First Secretary or an Assembly Secretary").

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The noble and learned Lord said: I have already spoken to these amendments. I beg to move Amendments Nos. 179 to 182.

On Question, amendments agreed to.

Clause 33, as amended, agreed to.

Clause 34 [Prejudice to effective conduct of public affairs]:

Lord Falconer of Thoroton moved Amendment No. 183:


    Page 19, line 20, after ("department") insert ("or by the National Assembly for Wales").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Baroness Nicol): I must inform the Committee that, if Amendment No. 184 is agreed to, I shall be unable to call Amendment No. 185.

11 p.m.

Lord Goodhart moved Amendment No. 184:


    Page 19, line 23, leave out (", in the reasonable opinion of a qualified person,").

The noble Lord said: In moving this amendment, I wish to speak also to Amendment No. 189, which stands in my name and that of my noble friend Lord Lester. Amendments Nos. 193, 200 and 201 also stand in our names and those of others.

The purpose of this amendment is to leave out in Clause 34 the reference to,


    "the reasonable opinion of a qualified person".

If the amendment is accepted, the decision on whether or not prejudice exists will be taken by the information commissioner and not by the so-called "qualified person". As matters stand, Clause 34 provides the only exemption where in cases of dispute the existence of the prejudice test is decided by someone other than the information commissioner. Subsection (6) of Clause 34 states:


    "A certificate signed by the qualified person referred to in subsection (4)(d) or (e) above certifying that in his reasonable opinion--


    (a) disclosure of information held by either House of Parliament".

The effect of Clause 34 is that the decision of the qualified person cannot be replaced by the discretion of the commissioner, unlike all other cases where a prejudice test applies, as we were told by the noble and learned Lord on the first day in Committee. Effectively, all the commissioner can do is judicially to review the decision of the qualified person and reverse it if it is irrational. But that is as pretty hard test to satisfy.

Furthermore, the list of qualified persons is very large. For example, subsection (4)(n) provides that,

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    "in relation to information held by any public authority not falling within any of paragraphs (a) to (m)"--

a qualified person means,


    "a Minister of the Crown,


    "the public authority, if authorised for the purposes of this section by a Minister of the Crown, or


    "any officer or employee of the public authority who is authorised for the purposes of this section by a Minister of the Crown".

That is potentially a large number of people. In Clause 52, a government amendment will reduce a similar list of people entitled to override the decision of the commissioner to a smaller list. There is no such amendment here.

Why are the Government proposing that the qualified person should take the decision on Clause 34? There is a natural tendency of people who are involved in decision making to stop others looking at the background to their decision because that makes it easier for people to question that decision. Therefore, the decision whether the exemption is available under Clause 34 will be taken by the persons most likely to take the view that the exemption does apply. It is, of course, not a judicial decision and cannot be appealed against on the merits. It can only be reviewed.

The information commissioner will have extensive experience of taking decisions of this kind because on all other cases of prejudice the prejudice test will be decided by the commissioner. Indeed, it seems to me that the information commissioner will be more qualified than the so-called qualified person to take the decision whether or not the prejudice test is satisfied.

I raise another point. If the qualified person decides that the information is exempt, that is not the end of the matter. The exemption is not absolute except in relation to information held by the House of Commons or your Lordships' House. That is a small category. The balancing operation then has to be carried out under new Clause 2 if a complainant makes a complaint under Clause 49. Who carries out that balancing exercise? It is of course the commissioner. How does she do it? Because of the opinion of the qualified person, she has to assume that the release of the information will cause prejudice. She then has to decide what weight to give to that prejudice when weighing it against the public interest in disclosure. That is, frankly, an absurdity. It is plain that the person who decides whether there is prejudice should be the person who also decides what weight to give that prejudice when carrying out the balancing exercise. It is plain that that person should be the commissioner. It is not appropriate for the qualified person to decide the balancing exercise. Indeed, the Government have not suggested that it should be.

The decision-making process should not be divided up in the way proposed by Clause 34. The whole process should be in the hands of the commissioner. Both the Select Committee on Public Administration in another place and the ad hoc committee of your Lordships' House chaired by the noble and learned

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Lord, Lord Archer, recommended that the commissioner should be entitled to test the claim to the exemption.

The argument that it should be the commissioner who tests the claim under Clause 34, as she does in every other case of exemption which is not an absolute exemption, seems to me to be overwhelming. I ask the noble and learned Lord to take this back and look at it again, because I believe that Clause 34 in its present form is indefensible. I beg to move.

Lord Falconer of Thoroton: The Government feel in certain circumstances that it may be necessary to exempt from disclosure information the disclosure of which would be likely to prejudice the effective conduct of public affairs in the way specified in Clause 34 or otherwise, which may not be so sensitive as to justify being considered under the class exemption at Clause 34.

The exemptions at Clause 34 reflect the particular nature of the information to which the Government believe protection must be afforded. They take the view that a simple prejudice test would be insufficient in such cases. None the less we recognise that this is an area in which it is right for the commissioner to have a significant role in determining when the exemption applies.

The Bill therefore provides that a public authority may rely upon an exemption under this part of the Bill only where that exemption is considered to apply in the reasonable opinion of a qualified person. As the noble Lord has seen from the Bill, the qualified person is, unlike other exemptions, an identified individual--a Minister or similar person. The commissioner may review whether the qualified person has exercised his judgment reasonably. The noble Lord said that it was absurd to include that provision because of the role held by the information commissioner. But the information commissioner must analyse the basis on which the qualified person has taken the decision and then decide whether the qualified person has acted reasonably.

If, for example, the information commissioner considered that no reasonable qualified person could have identified any prejudice in the circumstances posited, he or she would be entitled to say "I come to a different view" or that the view was irrational or perverse. In such circumstances the commissioner can intervene and overturn the decision of a qualified--

Lord Archer of Sandwell: Would my noble and learned friend forgive me? Is it within his recollection that in their own background material published in 1999 the Home Office agreed without shame that the commissioner could intervene--and I quote--


    "only if he or she could show that the minister's action was unreasonable, in the sense of being irrational or perverse".

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Lord Falconer of Thoroton: The case I was positing was exactly that. I was giving as an example a situation in which the information commissioner considered that no reasonable Minister or qualified person could have identified any prejudice. We think it is essential--


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