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.
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.
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.