My Lords, I speak also to the other amendments in this group. All these amendments are suggested by the Bar Council and stand in my name and those of the noble Lord, Lord Arbuthnot of Edrom, and the noble Baroness, Lady Neville-Rolfe. All concern legal professional privilege, a subject which the Committee and the House have frequently debated. I know I do not need to stress its importance or remind noble Lords—but obviously, I am just about to—that the confidentiality and privilege are those of the client, not the lawyer.
The Bar Council comments that the powers of the commissioner to have access to the information and systems of data controllers should be limited where the data controller is a legal professional or anyone subject to the requirements of client confidentiality and legal professional privilege. It reminded us that there are exceptions in the 1998 Act which deal with this. Legal professional privilege cannot be waived by the lawyer but is subject to contractual or other legal restrictions. In the clauses in question, legal professional privilege seems to be overridden in circumstances where the commissioner considers that she needs to look at the data to perform her functions. Clause 128(1) refers to use or disclosure,
“only so far as necessary for carrying out those functions”—
that is, the commissioner’s functions. I suggest that this is inappropriate given the provisions elsewhere in the Bill which we now seek to amend.
Amendments 161A, 161B, 161C and 161D deal with confidential legal materials which it is proposed should be inserted and covered. These are defined in the last of these four amendments as “materials brought into being”, as distinct from documents which are communicated between an adviser and a client, and thus would be wider, and include materials brought into being,
“for the purpose of establishing, exercising or defending legal rights”,
which is wider than the Bill provides.
The Bill does not contain directions as to the purpose of the guidance on protection of privileged material. Amendment 161C would give a direction to the commissioner as to the purpose. Amendments 162A, 162B, 163ZA and 163ZB would again extend the protection. Clauses 138 and 141 are limited to documents that relate to data protection legislation. These amendments would widen the protection to all documents protected by legal professional privilege.
Clause 138(5) does not cover the right of self-incrimination of other persons, such as the client of a legal representative or a family member of a client, who would not be entitled to rely on privilege. Amendment 162C would widen the class of persons to others. Since the client may well be seeking advice or representation in relation to a matter which might incriminate him, the Bar Council asks us to point out that this is particularly important.
Amendment 163B reflects provisions in Clause 138, on information notices, and in Clause 141, on assessment notices, and extends the restrictions to enforcement notices. The clauses I have mentioned provide that a person is not required to give the commissioner privileged material—I beg your Lordships’ pardon; a bracket has been opened and I am seeking where it closes—in response to such a notice. As I say, this would extend that restriction to enforcement notices.
Finally, on Amendment 164B, professionals may be restricted in providing information to the commissioner in respect of their processing, because of privilege or an obligation of confidentiality, compliance with the Bar code of conduct, or rules or orders of the court. The Bar Council wishes the Committee to be aware that a barrister,
“may wish to disclose information in mitigation or explanation for a breach of the GDPR provisions, but be unable to do so because disclosure would place”,
counsel,
“in breach of professional conduct rules or other confidentiality obligations, or in breach of data protection obligations because it is not possible to obtain consent for”,
the processing.
Compliance with the profession’s rules might have the result of exposing a barrister to a higher penalty to be imposed by the commissioner as a result of that inability, which does not seem fair. The amendment would provide that circumstances of this kind may be taken into account by the commissioner when assessing the penalty by adding a paragraph to the mitigating circumstances in the list. As the Bar Council points out, none of these points would prevent the commissioner effectively carrying out her duties. Even if she were,
“prevented from seeing privileged and confidential material, this … would be a justified and necessary consequence of … proper weight being given to the citizen’s fundamental right to consult a lawyer and to maintain the confidentiality”.
However, if unamended, there could be a conflict between the legal regulators and the commissioner. I beg to move.