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 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.