My Lords, Amendments 80A and 83A are in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Arbuthnot, and come from the Bar Council. In their unavoidable absence, I have again been asked to speak to the amendments. The Government have amendments also to paragraph 5 of Part 1 of Schedule 2—and no doubt we will be asked to agree them shortly. These amendments deal with other aspects of that paragraph and relate to legal professional privilege. The paragraph, as amended, refers to the disclosure of data but disclosure is only one of the acts of processing. The Bar Council is concerned that we need to deal with processing more widely so as not to disrupt the activities of the court and to protect privilege, which is something we have debated on many occasions and which we all agree is not only important but a fundamental right for persons and organisations.
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The Bar Council tells me:
“When courts are carrying on judicial business and lawyers are advising and representing clients they also need to collect, record, amend, consult and use personal data”,
and that lawyers,
“cannot inform all persons that they are doing so without infringing on the legal privilege of their clients”—
of course, the privilege is that of the client, not the lawyer. The Bar Council adds:
“It would also cause great disruption to court proceedings and increased burden on the Courts acting in their judicial capacity if these obligations were not removed. There is no effect on any potential adequacy decision because these derogations are given effect under the provisions of the GDPR which contemplate and permit derogations”.
In short, “disclosure” would be replaced by “processing”.
Amendment 83A would take out the limiting words at the end of the relevant paragraph:
“to the extent that the application of those provisions would prevent the controller from making the disclosure”.
The Bar Council states:
“The protection of legal professional privilege is absolute. The only basis for removing its protection is where the claim is falsely made and privilege does not apply. Similarly, the benefit of simplicity in the application of the law to the Courts acting in their judicial capacity would be lost if the derogation was limited to conflicting situations”.
I am not entirely sure that I read paragraph 5 in the way that the Bar Council does as I think those words make the matter clear and do not have the limiting effect that clearly others are reading into them, but even if I am right if there is a confusion it needs to be cleared up.