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 any examples of a disclosure which would not prejudice the convention of collective decision-making, would not prejudice the work of the Assemblies in Northern Ireland or Wales, would not inhibit free and frank discussion, would not inhibit the free and frank exchange of views but would nevertheless prejudice the effective conduct of public affairs. In Committee, my noble and learned friend the Minister was frank enough to admit that the provision was a "catch-all".