Central Bank (Individual Accountability Framework) Act 2023

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Insertion of Part 3A in Act of 2013

82. The Act of 2013 is amended by the insertion of the following Part after section 34:

“PART 3A

Voluntary disclosure of privileged legal material

Voluntary disclosure of privileged legal material

34A. (1) In this section—

‘disclosed material’ means information produced, or to which access is given, under a disclosure agreement;

‘disclosure agreement’ has the meaning given by subsection (2);

‘privileged legal material’ means information which a person is entitled to refuse to produce on the grounds of legal professional privilege;

‘specified person’ means a person specified in a disclosure agreement as a person to whom disclosed material is to be produced or to whom access to disclosed material is to be given under the agreement.

(2) This section applies if, for the purposes of the performance by the Bank of its functions under financial services legislation, the Bank enters into an agreement (referred to in this section as a ‘disclosure agreement’) with a person entitled to waive legal professional privilege in respect of privileged legal material, under which the person agrees to produce or give access to the material, to the Bank and any specified person, for the purposes specified in the agreement.

(3) Section 33AK of the Act of 1942 applies to disclosed material in the same manner as it applies to confidential information, and a reference in that section to confidential information shall, where the context admits, be construed as a reference to disclosed material.

(4) The production of or giving of access to information to the Bank or any specified person under a disclosure agreement, and the report or disclosure of disclosed material to any person under section 33AK(3)(a) or (5) of the Act of 1942—

(a) does not constitute a waiver of legal professional privilege in respect of information other than the disclosed material concerned, and

(b) does not constitute a waiver of legal professional privilege in respect of disclosed material to any person other than the Bank or a specified person, or for a purpose other than the purposes specified in the agreement.

(5) Where the Bank or a specified person proposes to give disclosed material in evidence in proceedings under financial services legislation, the proceedings or any part of the proceedings may be heard otherwise than in public in order to maintain the confidentiality of the disclosed material.

(6) The following do not apply to disclosed material:

(a) section 47 of the Central Bank Reform Act 2010 ;

(b) the Freedom of Information Act 2014.

(7) Where information is the subject of a disclosure agreement, nothing in the agreement or this section affects any power of the Bank to require a person to produce or give access to the information otherwise than under the agreement.

Determination by court as to whether legal professional privilege applies

34B. (1) In this section—

‘Court’ means the High Court;

‘privileged legal material’ means information which, in the opinion of the Court, a person is entitled to refuse to produce on the grounds of legal professional privilege;

‘relevant person’ means the Bank or an authorised officer.

(2) If a person refuses to produce information or give access to it, pursuant to a requirement imposed by a relevant person under financial services legislation, on the grounds that the information contains privileged legal material, the Bank may, at any time within 6 months (or such longer period as the Court may allow) of the date of such refusal, apply to the Court for a determination as to whether the information, or any part of the information, is privileged legal material where—

(a) in relation to the information concerned—

(i) the Bank has reasonable grounds for believing that it is not privileged legal material, or

(ii) due to the manner or extent to which such information is presented together with any other information, it is impossible or impractical to extract only such information,

and

(b) the Bank has reasonable grounds to suspect that the information contains evidence relating to the commission of a prescribed contravention or an offence under financial services legislation.

(3) A person who refuses to produce information or give access to it, pursuant to a requirement imposed by a relevant person under financial services legislation, on the grounds that the information contains privileged legal material shall preserve the information and keep it in a safe and secure place and manner pending the determination of an application under subsection (2) and shall, if the information is so determined not to be privileged legal material, produce it in accordance with such order as the Court considers appropriate.

(4) A person shall be considered to have complied with the requirement under subsection (3) to preserve information, where the person has complied with such requirements as may be imposed by an authorised officer under paragraph (g) or (h) of section 27(1).

(5) Where an application is made by the Bank under subsection (2), the Court may give such interim or interlocutory directions as the Court considers appropriate including, without prejudice to the generality of the foregoing, directions as to the appointment of a person with suitable legal qualifications, possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the Court considers to be appropriate for the purpose of—

(a) examining the information, and

(b) preparing a report for the Court with a view to assisting or facilitating the Court in the making by the Court of its determination as to whether the information is privileged legal material.

(6) An application under subsection (2) shall be by motion and may, if the Court so directs, be heard otherwise than in public.”.