A common theme in the news at present is the strikes across various industries including the rail network and, more recently, criminal barristers.
In a previous blog, we covered some rights that employees have in such circumstances. In a recent publication, the Law Society reported that the Criminal Bar Association (CBA) believes that the Ministry of Justice (MoJ) is collecting data on those criminal barristers taking part in the strike action.
The Chair of the CBA, Jo Sidhu QC, is reported to have said:
“Members were understandably concerned to hear reports that the Ministry of Justice had instructed Court staff to name all barristers who do not attend Court hearings because they are participating in the CBA’s days of action, involving criminal defence advocates. The CBA takes these reports extremely seriously. We have taken advice from solicitors and specialist counsel to consider whether this amounts to unlawful processing of personal data.”
The MoJ is reported to have said in response:
“It is categorically untrue that the Justice Secretary or Ministry of Justice has requested the names of any barristers. We are monitoring the number of disrupted cases due to strike action by the Criminal Bar Association to assess the impact on the justice system.”
The question, therefore, arises as to whether there could be any unlawful processing of data in either of the above scenarios. The Data Protection Act 2018 confirms that the processing of data is “an operation or set of operations which is performed on information, or on sets of information, such as—
(a) collection, recording, organisation, structuring or storage,
(b) adaptation or alteration,
(c) retrieval, consultation or use,
(d) disclosure by transmission, dissemination or otherwise making available,
(e) alignment or combination, or
(f) restriction, erasure, or destruction…”
How can someone’s data be processed?
In a previous blog, we discussed the lawful bases upon which data can be processed. Clearly, in the usual course of events (i.e. when a strike is not taking place) the MoJ would have the right to process the names of the barristers in question for the purposes of noting that they were intending to/did attend a certain hearing and it is likely that such processing would be lawful on the basis of:
- Compliance with a legal obligation (i.e. the requirement that justice be seen to be done); and
- Carrying out a public function (i.e. operation of Court hearings).
Consent most likely will also have been given expressly as part of the tendering process for the legal aid contracts that the barristers conducting that work would have signed up to. The writer has not had sight of a copy of the legal aid contract but it would be surprising if it did not have a section setting out how the data collected, pursuant to that contract, was to be used, especially when set in the context that a data controller must confirm to a data subject information about the purpose for which the data is processed and the legal basis for the same before the data is collected.
It would further be surprising if the contract made it clear that one of the purposes for which the data was being processed, pursuant to the legal aid contract, was to determine who was taking part in a lawfully organised strike. Accordingly, if Mr Sidhu QC’s claims about the Court staff providing the individual names of the criminal barristers taking place in the strike are found to be true, it is clear that a claim may well be available to those barristers affected under the Data Protection Act 2018 (obviously subject to what the exact wording of the legal aid contract and/or any other notices given to the barristers in question prior to their data being processed).
Whether the position adopted by the MoJ that they were simply collecting data for the purposes of determining the effect of the justice system is something that the MOJ would be permitted to do in the absence of an express right in the contract would depend on how they set about achieving this goal.
Comment
Clearly, if the MOJ’s stated goal is limited to analysing the effect on the justice system, that is a reasonable and responsible thing for the MOJ to do but it is difficult to see why the MOJ would need to know the names of individual barristers to achieve this aim.
In a previous blog, we discussed ways of disguising data for the purposes of lawful processing. This appears to be a perfect scenario where either anonymization or pseudonymisation could strike an effective balance between the MOJ’s stated objective and the rights of the individual barristers taking part in the strikes.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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