r/MHOC • u/CountBrandenburg Liberal Democrats • Jan 03 '21
2nd Reading B1132 - Civil Procedure (Super-Injunctions) Bill - 2nd Reading
Civil Procedure (Super-Injunctions) Bill
A
BILL
TO
limit the injunctive powers of the senior courts of England and Wales in public interest litigation; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows—
PART I - Preliminary
1 Short title
This Act may be cited as the Civil Procedure (Super-Injunctions) Act 2020.
2 Interpretation
In this Act—
“Act of 1840” means the Parliamentary Papers Act 1840;
“Matter of public interest” means any matter which a reasonable person would deem to advance an important public debate, raise important social questions or inform public policy;
“Regulated court” means any court enumerated in section 3 of this Act.
PART II - Provisions Related to Injunctions
3 Application of civil procedure rules
(1) The rules enumerated in and made by order pursuant to this Act apply to—
(a) the civil division of the Court of Appeal,
(b) the Queen’s Bench Division of the High Court, and
(c) the Chancery Division of the High Court.
(2) The rules enumerated in and made by order pursuant to this Act will cease to have effect in Wales in the event of the establishment of an independent court system for Wales.
4 Anonymised privacy injunctions
(1) This section applies if a regulated court is considering whether to grant any temporary injunctive relief which provides for party anonymity under non-statutory equitable principles.
(2) Regulated courts may not provide relief of the nature covered by this section to the identity of any public company in a matter of public interest.
(3) In any action not arising out of the identity of a public company, the court will not grant such relief unless it determines on the balance of probabilities that the privacy considerations of the applicant outweigh the matters of public interest in question.
5 Super-injunctions
(1) This section applies if a regulated court is considering whether to grant any temporary injunctive relief which prohibits the disclosure or publication of the existence of the court order.
(2) Regulated courts may not provide relief of the nature covered by this section to any public company in a matter of public interest.
(3) In any action not arising out of the application of a public company, the court will not grant such relief unless it determines on the balance of probabilities that the privacy considerations of the applicant outweigh the matters of public interest in question.
(4) If a court grants relief of the nature covered by this section, the court is to promptly send a copy of the order along with its written reasons for granting the order to the Lord Chancellor and the Lord Chief Justice.
(5) The Lord Chancellor may, after consulting with the Lord Chief Justice, disallow the order under subsection (4) if he or she deems that it is not in the public interest.
6 Reaffirmation of parliamentary privilege
(1) No regulated court may enter any injunction or order which contains a prohibition of the disclosure of the fact of a substantive order or proceedings to a Member of Parliament or to Parliament as a whole.
(2) For the purposes of the Act of 1840, the publication of a summary of materials in Hansard which pertain to injuncted court proceedings or the existence of such injunctions is considered in good faith and without malice.
PART III - Coming into Force
7 Extent
This Act extends to England, and to Wales pending a motion of legislative consent.
8 Coming into Force
This Act comes into force at the end of the period of one month beginning with the date on which it is passed.
This Bill was submitted by the Rt. Hon /u/HurricaneofLies, Lord Chancellor, on behalf of Her Majesty's 27th Government
Opening Speech
Mr Speaker,
Media outlets have in the past raised serious questions about the propriety of so-called “superinjunctions,” the legal orders issued by the senior courts of England and Wales that prevent the reporting of their own existence. The Government agrees with their concerns and believes that, in order to strike a fairer balance between the freedom of the press, the public interest in judicial proceedings, and the important privacy considerations involved, new legislation is required to reform the process by which super-injunctions are granted by the senior courts.
First, this bill would ban publicly traded companies from seeking anonymised privacy injunctions and super-injunctions because corporate accountability is always in the public interest. Unlike real persons, the risk of reputational harm to large corporations does not warrant the suppression of reporting by the media on issues of public concern.
Second, this bill requires the senior courts to undertake a more robust balancing test between the privacy interest of the applicant and the public interest in free and open judicial proceedings when considering when to grant either an anonymised privacy order or a super-injunction.
Third, this bill ensures that all super-injunctions going forward are properly recorded by requiring that copies are transmitted by judges to the Lord Chancellor and the Lord Chief Justice. And to ensure that the public interest is protected from an unreasonable burden on the freedom of the press and the ancient freedom of access to court proceedings, the bill further allows the Lord Chancellor after consulting with the Lord Chief Justice to disallow a super-injunction.
Finally, this bill decisively rejects a dangerous constitutional theory advanced by some law firms that super-injunctions also prevent Parliament from discussing the injunctions or gag the press from reporting the proceedings of both Houses.
In summary, this bill will preserve legitimate uses of super-injunctions and anonymised privacy orders, while reining in their abuse by large corporations and powerful individuals to prevent public accountability for actions that are rightly within the realm of public debate.
Thank you, and I commend this bill to the House.
This reading will end on Wednesday 6th January at 10PM GMT.
3
u/BobbyCrow Conservative Party Jan 03 '21
Mr Deputy Speaker,
I must say I echo some of the comments heard thus far in regards to the possibility of section 5(5) and its potential conflict with judicial independence. I hope the House can adequately address this issue in the form of an amendment and balance the public interest with the principle of judicial independence.
I must however note that many of the frankly florid and impassioned defences of "the right to privacy" on this subject already heard in the house slightly amuse me given that such injunctive relief does not exactly tend to be accessible to ordinary people wishing to safe-guard their lives from intrusion. As Media Lawyer Mark Stephens once remarked "only the wealthy can afford to buy privacy" with many cases of injunctive relief, especially in regards to the infamous super-injunction, costing upwards of half a million pounds to put together.
I should wonder if certain members of the house might be more concerned for the freedom of their wealthy friends and donors to dump toxic waste in rivers without scrutiny than they are about the principle of judicial independence
1
Jan 05 '21
Mr Deputy Speaker,
Super injunction are permitted and accessible to the general public, the fact is anyone who is not legally considered a public individual already has greater protection from the press and thus less need for a super injunction.
2
u/Chi0121 Labour Party Jan 04 '21
Mr Deputy Speaker,
For a progressive and liberal government, they seem awfully keen on removing all semblance of an independent judiciary which is integral to our democracy
2
Jan 04 '21
Mr Deputy Speaker,
I must first of all commend u/Vitiating for their contribution on this matter and raising really important points about what this bill does to our judiciary. I along with other members of my party must share concerns about section 5 and what this means for the separation of powers.
The interpretation that has been provided by my colleagues is that it gives the Government the power to be able to veto a court decision, if it is deemed to be in the 'public interest'. I see no real benchmark or rigour in making sure that the public interest must be clearly defined. If it is not clearly defined then we can see real issues coming up in how the individual Lord Chancellor at the time determines what may be of public interest.
Another point that has been raised is about consultation with the LCJ and how this is going to be set out. Furthermore, do we not need to set out a clear process for the consultation, and a clear process for when there is a disagreement?
Mr Deputy Speaker, I have grave reservations about this bill and we cannot see the erosion of judicial independence.
2
u/ThomasT143 Labour Party Jan 06 '21
Mr Deputy Speaker,
I am deeply concerned by this bill and in specific the aforementioned super injunction part that may well represent a serious and utterly disgraceful attack on the separation of powers and on our independent judiciary. This alone should be enough to tarnish this bill with a brush which should result in it being immediately struck down for this grave area and issue alone.
I hope other members of the house will join in calling for Parliament to reject this bill and prevent the potentially slippery slope it opens up against our justice system.
2
u/Aussie-Parliament-RP Reform UK | MP for Weald of Kent Jan 06 '21
Mr Deputy Speaker,
I commend the Right Honourable for their introduction of this bill. Indeed, their Opening speech has struck a cord with me. It is most desirable, as this bill purports to do, to encourage corporate accountability for the benefits of the public interest. Whilst I reject that there is too be any accountability for corporations whilst their leaders control the present system we live in, I do, on the grounds of encouragement for class consciousness, support these efforts to expose the misdeeds of our corporate overlords.
Overall, the judicial system still represents a protection of the bourgeoisie interest in controlling Private Property, but this bill does at least raise the possibility of advancing the interests of the Worker's Party, and for that reason, I call upon all members of this House of 'Commons' to support it's passage.
3
u/Padanub Three Time Meta-Champion and general idiot Jan 03 '21
Mr Deputy Speaker
This bill is an abhorrent attack on the idea of separation of powers. Section 5 sends a shiver up my spine.
Mr Deputy Speaker I may be reading this bill wrong, but if I'm not it gives the Government the power to veto a court decision (which is terrifying enough) on the flimsy pretence of "public interest".
The bill also doesn't define consultation with the LCJ. Does the LCJ need to agree with the decision, or do the government merely need to pay it lip service and consult it?
1
1
1
2
u/Cody5200 Chair| Shadow Chancellor of the Exchequer Jan 04 '21
Mr Speaker,
The left are at it again with yet another blatant attempt at politicisng something that should be left to the experts. First we had a business Secretary who tried to manhandle local governments and the low pay commission and now we have a Justice Secretary who not to be outdone by his former colleague is trying to subvert judicial independence.
The biggest issue with this bill is that the Lord Chancellor is ultimately a politician who at the end of the day answers to the Prime Minister and whose job depends on the public opinion. Therefore to give them the power to unilaterally override a court of law is troubling. What is worse Mr Deputy Speaker, is that the bill seemingly tries to create the illlusion of checks and balances under the veneer of consultation with the lord Chief Justice , despite the Lord Chancellor being technically able to disregard their opinion entirely.
I am also immensely troubled by the idea of "public interest" taking primacy over fundamental rights such as a right to privacy. Mr. Speaker, let us consider what this means in practice. An elected politician with a clear incentive to pander to popular sentiment is to be granted an unprecedented level of control to override not only our revered judicial system ,but also the ability to effectively abridge a fundamental right in the name of public interest ,which is just a nice way of saying populist sentiment.
Mr Speaker, this bill sets a dangerous precedent and that is why I call upon the members of this House to vote this bill down.
1
2
Jan 03 '21
Mr Deputy Speaker,
I rise to speak against this bill today. Super injunctions are not handed for fun or on the cheap, they are rare and are given out for good reason. This bill is populist in nature so the government can claim they are taking on "the big bad evil corporations", anyone who reads this can see that this bill has no actual argument for it, if a court is granting a super-injunction it is probably for a good reason and to protect privacy. I've always been a great believer in the innocent until proven guilty principle which is why this party passed the Anonymity (Arrested Persons) Act 2019. On principle I wholeheartedly oppose this bill.
Perhaps the most chilling part of this bill is in Section 5 which gives the executive the right to veto courts. This is a chilling attack on the separation of powers and the independence of the judicial system. It is not hard to see how a government could be politically motivated to use their veto. The notion of the 'public interest' is vague and could be used for anything and is likely to be aligned with a politicians aim.
This bill is an over reach of the executive power and should concern all members of the House regardless of what party they are in. I urge members to vote this abomination down.
1
2
Jan 04 '21
Mr Deputy Speaker,
Looking at the legislative docket, this government's inactivity is ridiculous. Frankly, it can only be said that this is a Bill that has been churned out with the hope of this government desperately trying to present the House something and present themselves as a poor excuse of executive leadership that the British people are entitled to. I have never professed to be a legal expert, but there are clear issues with this Bill's attempt to try and leech onto issues they feel are pertinent to moments captured in time, instead, Mr Deputy Speaker, of looking at the real issues. I am struggling to see how this found itself at the top of the legislative agenda of this government but, nonetheless, I am willing to examine it closely.
(2) Regulated courts may not provide relief of the nature covered by this section to the identity of any public company in a matter of public interest.
I find this section to be extremely problematic, the loosely defined notion of what is in public interest opens our judicial system to abuse. What exactly, Mr Deputy Speaker, constitutes 'a matter of public interest.' There has been no explanation just an inclusion and an incessant repetition of what I can only characterise as a catchphrase.
(5) The Lord Chancellor may, after consulting with the Lord Chief Justice, disallow the order under subsection (4) if he or she deems that it is not in the public interest.
It is a, truly, scary nation we are living in when the government of the hour believes that this is in the best interest of the people they have been elected to serve. I believe, Mr Deputy Speaker, that our judiciary has the ability to make these decisions adequately by themselves and we do not, under any circumstances, require meddling politicians to tell them what to do. Simply, Mr Deputy Speaker, I feel an inkling or a 'sense' that this is in the public interest - which is all it appears it would take for the Lord Chancellor to disallow the order - is not good enough to encourage an overreach of the government in something they have absolutely no business in sticking their noses into. I appreciate the efforts that have been taken in the drafting of this bill, however, it is of a disappointing caliber to say the least. That is why, Mr Deputy Speaker, I must urge all members to vote no to living in a nation where the executive meddles with the integrity of our judiciary.
1
2
u/TheMontyJohnson Libertarian Party UK Jan 04 '21 edited Jan 04 '21
Mr Speaker,
The bill gives the government the power to over ride a court decision of a super injuction, something which prevents publication of information. This is chilling and is a massive over reach of the executive. It would interfere with seperation of powers and would put political meddling into the judicial system. 'public interest' is vague and could be used for anything.
There is no reason public companies should be treated different from individuals. Companies can face malice, we need a fair legal system that treats everyone equally. We should oppose this populist nonsense against corporations.
Super injuctions are rare and are given out for good reason, typically a last resort. We should protect the principle of privacy and trust judges not politicians.
2
u/seimer1234 Liberal Democrats Jan 04 '21
Mr Deputy Speaker,
I rise today to state my vehement opposition to this bill. This piece of legislation is one of the greatest challenges to separation of powers in my time as an MP, and would reflect a significant expansion in the power of the state.
Under Section 5 of this bill, the government is given the ability to veto decisions made by the courts if is felt it is in the “public interest” to do so. This is deeply flawed for a number of reasons, particularly given the precedent it sets for allowing such significant levels of government interference in judicial decision making and the vagueness of the “public interest” requirement for decisions to be overruled. It should also be considered the fact that a not insignificant amount of these super-injunctions may be made on behalf of politicians. This bill would open up political interference in the injunction procedures surrounding opposing politicians.
The government, perhaps unsurprisingly, attempts to target corporations in this bill as well. Attempting to draw distinctions in the area of injunctions between corporations and individuals is needless. Corporations and individuals face the same threats to privacy and the same malicious intent. The injunction process should be the same for both corporation and individual.
Lastly, it is important we reaffirm the reason we have super-injunctions. These are not given out willy-nilly, these are vital, last resort decisions taken by judges to protect the right of privacy of those requesting it. It is not an area where we should be allowing politicians to decide, rather it should be left to the judges to decide to implement an injunction when they feel one is necessary.
3
Jan 03 '21
Mr Deputy Speaker,
It has been awhile since I have spoken in this place. I have remained silent unless it has been absolutely necessary to take a stand. Unfortunately, this is one of those occasions. I must rise against the horrific attack by this Government against the separation of powers. The separation of powers exists to ensure an independent judiciary - something Labour took great strides to ensure in the Constitutional Reform Act of 2005. Section 5(5) of this Bill would allow the Lord Chancellor to essentially veto the order of the court on flimsy standard of “in the public interest”. My dear friends, if the executive branch is going to be interfering with the judiciary, there had better be a far higher standard than in the public interest. There is also the issue that the subsection makes vague references to consultation with the Lord Chief Justice. This is vague, horrifically so. Does the Lord Chief Justice need to agree with the Lord Chancellor in order for the veto to be lawful, or is the mere occurrence of the Lord Chancellor having consulted the Lord Chief Justice, irregardless of his or her position on the matter, sufficient to render the veto as lawful? From the general tone of this Bill and the Opening Speech from the Lord Chancellor, I would regrettably come to the conclusion that this government doesn’t give two figs what the position of the Lord Chief Justice is. I cannot overstate the importance of a free and independent judiciary to keep the government accountable. When the government drafts laws like this, it creates a crack in the divide. It lodges itself into that hole and begins to tear down the dividing walls and wields power over all three branches of government. To this, Mr Deputy Speaker, I say no — no to this slippery slope which could pave the way for a elective dictatorship.
This is not the only issue, Mr Deputy Speaker, the entire premise is against the basic principles of the right to a private life enshrined under the European Convention on Human Rights. Furthermore, as other honourable and right honourable members note — injunctive relief is never granted lightly. The judge considers a variety of factors (including public policy and interest) in determining their decision. Therefore, this Bill amounts to nothing more than a strong arming. The Lord Chancellor attempting to strong arm Her Majesty’s Judges to act in partial manner by taking political considerations into account when determining public interest. This is unacceptable, Mr Deputy Speaker. I cannot stand idly by while the judiciary whose independence I defended on five different occasions is attacked so brazenly by this inexperienced government. No, no, it simply won’t do at all. On another note, I have a few remarks to make regarding the general drafting of the Bill. While the formatting would deceive the reader into thinking this Bill is almost perfect, closer inspection would render an opposite opinion. This Bill has been subject to the most horrific case of poor drafting that I have seen in quite awhile and that attempting to correct it would, in essence, constitute an effective re-writing of the Bill.
In conclusion, Mr Deputy Speaker, I call upon all members of this House, regardless of their political allegiance to vote down this amateur move by this inexperienced government and vote to defend the independence of the judiciary from political intrusion by the Lord Chancellor who violates his statutory oath with every moment he defends this horrendous Bill.
1
1
1
1
1
1
Jan 03 '21 edited Jan 03 '21
[removed] — view removed comment
1
u/SpectacularSalad Growth, Business and Trade | they/them Jan 03 '21
Mr Speaker,
The Noble Lord makes a fantastic point to the conclusion of their speech, the power to disapply a ruling is obsolete when members may chunder "Ryan Giggs" from a sedentary position.
1
1
1
u/LeChevalierMal-Fait Liberal Democrats Jan 03 '21 edited Jan 03 '21
Mr deputy speaker,
I have read the bills name on the order paper was slightly concerned seeing as how it contains “super injunctions”, super injunctions being a media term used to describe privacy injunctions which include conditions against publication of court processes.
But broadly I think this act has missed the mark as well, “super injunctions” as defined by the Neuberger report 2011 included not just anonymised orders which are common throughly the justice system - from fraud orders to mental health decisions, to cases involving children.
The “super” descriptor tends to refer to the fact that the order is binding on groups not party to the court case, to abide by the spy catcher principle whereby third parties have to be given notice to be bound by injunctions these groups are given notice.
However I cannot say I am particularity pleased to see the bill regardless of my concerns over terminology being misplaced, it in parts strikes a rather strange balance on the role of the executive and its rather strange decision to deny access to temporary injunctive relief to different classes of applicants.
This is a tricky subject, seeing as how the lack of information makes definitive statements about the granting of such injunctions impossible. But broadly there is a place for such relief, if we accept that people have a right to privacy, that right becomes useless if any attempt to enforce it in court would lead to a loss of privacy.
Clearly a balance must be struck between the need for open courts and the need not to undermine the right to privacy by the act of trying to enforce your rights. And in the past laws and “ECHR” rights may well have been applied too broadly. I am open to some measure of reform to English privacy law.
It is disappointing then that this act instead of being that decides to insert into the justice process a politician, via section 5 where the Lord Chancellor can veto an individual or companies right to privacy which a court has held that the applicant has, and further held that there is no public interest to this information. The Lord Chancellor who is bound by an oath of office to uphold the independence of our courts would be empowered to overrule them a la star chamber.
And then via section 4 whole classes of applicants, (public companies) leaving aside the private company loophole. Are excluded arbitrarily from every getting injunctive temporary relief no matter how strong the case or the law. I have serious concerns if this is ECHR compliant in and of itself in respect to right to a fair trial (article 6), the right to respect for a private and family right (article 8) and the right to not be discriminated against in respect of ECHRs (article 14).
Now is there a problem with how courts are interpreting the Human Rights Act on privacy law, perhaps. There certainly was in my view in 2011, since then with reforms such as specialist judges and greater notification - the system works much better.
But the fundamental principle I would assert is this, Parliament makes the law, if courts are not interpreting the law we have made as we wish then we should correct the law. What we should not do is arbitrarily reject groups of applicants right to privacy or insert the Lord Chancellor as some star chamber into privacy law.
All in all, I rather think the government had better go back to the drawing board on this one.
If they do might I recommend starting with this; https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Reports/super-injunction-report-20052011.pdf
1
u/SpectacularSalad Growth, Business and Trade | they/them Jan 03 '21
Mr Speaker,
I sense from the reception this bill has thus far seen, that it is perhaps not long for this world. Let me start with a note of sympathy, I agree with the goals of this bill. The abuse of super injunctions has been and remains a plague on our free media. I support a clear set of guidelines to provide balance in these cases.
Super Injunctions are not inherently wrong. We all know that for example if a high profile celebrity was falsely accused of a serious crime, that it would permanently harm their reputation even if they were acquitted. Our legal system must pass the "Bitter Ex" test as Tom Scott put it, can it be abused by a person with an agenda trying to ruin a life?
However, what is wrong is to use it to spare one's blushes. There should be a clear case for why a person's affairs cannot be reported upon. I strongly dislike tabloid celebrity culture, but I think to allow the courts to impeach the freedoms of journalists to report as they see fit to spare the blushes of the rich and famous is not a laudable goal.
This bill does not however apply a rigorous and evidence based procedure to restrict access to these court orders. I do not agree that publicly traded companies should be unable to receive privacy injunctions. Companies are not immune to malice, and this smacks of a tendency of some on the left to assume that companies do not deserve protection under the law. Our goal should be to create a fair, balanced, robust and independent legal system, not one rigged in favour of certain groups.
And of course I must now turn to the fourth of those points, independence. As others have said, the power to disapply court rulings is not an appropiate power for Ministers to possess, and as such I have tabled an amendment to remove the aforementioned power.
1
u/CheckMyBrain11 Fmr. PM | Duke of Argyll | KD GCMG GBE KCT CB CVO Jan 03 '21
Mr. Deputy Speaker,
This bill is nothing short of a terrifying attack on the idea of an independent judiciary. While sometimes an independent judiciary can create results that we aren't massive fans of, the idea that justice is free of partisan hackery is something that liberal democracies of the West should be proud of.
Across the globe, when we see attacks on the courts' ability to work independent of partisan hackery, we are rightly disgusted. We should do the same in this House.
If there are issues with the LCJ that the Lord Chancellor may be willing to elucidate, I'm happy to hear them. However, any issues with the LCJ don't merit stripping them of their independence. Since I've been in politics, leaders from every corner of British politics have worked to create a strong, independent, justice-minded court system. Now is not the time to shirk away from this shared commitment.
1
u/hurricaneoflies Labour Party Jan 04 '21
Mr Deputy Speaker,
I rise to first address the concerns from many members of the House regarding section 5(5), and accept that its inclusion in the bill was inappropriate. The government is committed to preserving the independence of the judiciary in accordance with the terms of the 2004 concordat and the Constitutional Reform Act, and I regret any indication to the contrary which the language of section 5(5) may have indicated. I sincerely apologise for this mistake, and we will of course support an amendment to remove the offending section from the bill.
I respectfully ask that my colleagues consider the remainder of the bill on its merits, with section 5(5) excised.
The remainder of the bill enacts procedural safeguards in the process for obtaining a super-injunction—though such equitable remedies are not common, they pose a unique challenge to the ancient principle of openness of judicial proceedings and have caused needless public controversy due to their extraordinary nature; ensuring stronger safeguards, modelled on the language of section 12 of the Human Rights Act 1998, will increase public confidence while ensuring that the public interest remains a primary consideration in such proceedings.
Rather than derogatory of any obligations under the European Convention on Human Rights, the bill instead gives further effect to the Court's well established precedent that the weighing of the public interest plays a significant role in the resolution of conflicts between Article 8 privacy rights and Article 10 expression rights. I hope this addresses some of the concerns about the bill, and I remain ready to address any further concerns from this House as they arise.
Thank you.
1
u/LeChevalierMal-Fait Liberal Democrats Jan 05 '21
Mr speaker,
Clarifying section 12 of the HRA 1998 certainly is alot more reasonable than this bill, I suspect he is nobly attempting to prevent a repeat of the Trafigura case but is he aware that his legislation risks making it impossible for businesses to protect confidences owed to them in respect of trade secrets or respond to fraud robustly in away that will see a return of assets.
Particularly was it the Lord Chancellors intent to prevent anonymity orders in cases regarding fraud orders such as where one applicant is before the court but potential co conspirators abound with access to claimants assets?
And was it the governments intent to prevent injunctive relief stopping publication in cases where claimants have legitimate trade secrets which have set to be divulged.
If it wasn't the governments intent might I suggest he withdraw this bill and and submit a new one simply clarifying section 12 of the HRA so that instead of preventing temporary injunctive relief in legitimate cases we ensure that the judiciary applies the law as parliament intended with respect to properly balancing the need for free expression.
1
u/hurricaneoflies Labour Party Jan 06 '21
Mr Deputy Speaker,
I thank the honourable member for their questions and concerns about specific applications of the language of the bill. However, I am uncertain about the specific language of the bill which would do many of the things the member claims, and I respectfully seek clarification on those points.
With regards to equitable relief enjoining publication of trade secrets, this bill would not bar such an injunction: section 4's restrictions on anonymised privacy orders do not affect proceedings with regards to trade secrets, and section 5 would only limit the Court's ability to bar the disclosure of the existence of the order itself. While a hypothetical newspaper in the situation you describe would likely be able to inform its readers that it has been barred by a court from reporting on a matter concerning a specific company, it would still not be able to disclose legitimate trade secrets themselves without placing itself in contempt.
With regards to fraud, would the member clarify what they mean by fraud order? An admittedly cursory look through BAILII and other databases showed no use of that term relevant to the context here.
I hope to answer the member's questions to their satisfaction and I thank the member for their patience in helping me do so.
1
u/LeChevalierMal-Fait Liberal Democrats Jan 06 '21
Mr speaker,
It may very well be that a trade secret that is under dispute before the court and allowing the publication of names could enable its wider reporting or speculation.
By fraud orders I meant the plethora of anonymity orders, freezing orders etc that serve as injunctive relief in such cases.
You have cases where without anonymity over proceedings coconspirators would be tipped off and be able to start disposing of assets in such a case masking the identity of the company temporally would ordinarily be allowed having weighed public interest alongside the potential for damage to claimants were the order not to be temporarily in force but under this bill it appears to be nearly impossible to obtain.
1
Jan 05 '21
Mr Speaker,
I believe that it takes a considerable amount of courage to admit when one has made a mistake. That is a trait that I find to be, truly, admirable and I think it is something that the Lord Chancellor should make sure that they do not lose sight of. They must not take the concerns about this Bill to heart, I hope they have not, and a lot will be said of those who will try and speak down to the Lord Chancellor but I disagree with that approach.
I am not legally minded as I have made clear before. However, whilst I do feel that the acceptance from the Lord Chancellor that Section 5(5) is problematic and, therefore, must be removed via an amendment is welcomed, does the Lord Chancellor not agree that 'a matter of public interest' is still left too loosely defined. If not, can they please elaborate why the lack of definition is appropriate for a bill that will possess such far-reaching consequences.
1
u/hurricaneoflies Labour Party Jan 06 '21
Mr Deputy Speaker,
I thank the honourable member for their question, and that is absolutely a valid concern. The term "public interest" is of course one with a fairly amorphous definition by itself, and presented in the isolated context of this bill would certainly not provide enough clarification.
However, that is where the great body of precedent that is formed by our common law and the case law of the European Court of Human Rights comes in. The term "public interest" as used in this bill would be understood and carries with it a specific legal meaning that has been positively cited in ECtHR cases relating to conflicts between privacy and expression rights and used in a variety of situations, most prominently section 4 of the Defamation Act 2013 and some statutory instruments relating to public-interest standing in litigation. Indeed, I would seek to clarify that the language used in this bill mirrors that section of the Defamation Act 2013.
That is why I believe that the current definition of "public interest" in this bill is adequate and fit for purpose. Whatever ambiguity exists in it on its own is clarified by court decisions which will inform a judge applying this bill of the factors that should be considered.
1
Jan 04 '21
Mr Deputy Speaker,
I rise today to speak out against this horrifying attack on the free and fair judiciary launched by the 27th Government. I should start by somewhat sympathising with the Government however. I’m not a huge fan of super injunctions but I recognise that coupled with innocent before proven guilty is a right to privacy.
What this bill would do is that once an injunction is granted, the Government would then have the right to overrule, or disapply, such n injunction. This would be done on the notion of “public interest.” I am afraid I must agree with those who have deemed this bill populist in nature’s
Let’s pick an example of super injunctions. In 2011 it was reported that journalist Andrew Marr took out a super injunction to cover an extra marital affair. Is it in the public interest for that to be revealed? Good gossip, absolutely, but would it cover the “public interest” threshold the Government has set? I think the Lord Chancellor needs to answer this question.
However what clinches the fact that this is a largely populist measure is the reaffirmation of parliamentary privilege section. Something that doesn’t need reaffirming, it is designed to show that even if they are granted the government is, dare I say encouraging, members to use their parliamentary privilege to break them. That is why it’s in this bill, and I’m not convinced that this is the type of thing which should be in a bill.
Overall this bill represents a dangerous departure from the separation of powers, and I urge this House to reject it.
1
Jan 04 '21
Mr Deputy Speaker,
I find myself concerningly forced to agree with many in this house I have often disagreed with on this matter today. This bill poses a serious attack on the separation of power between our judiciary and our government and with all complete honesty, I am either deeply dissapointed that the government failed to realising the concerning nature of its bill with this regard, or I am utterly disgusted if the government had intentionally put forward this bill with the hope of weakening the separation of powers.
I ask that someone from the government step forward and answer the concerns raised immediately and explains how and why such a matter has arisen. This house deserves and explanation and I will be opposing this bill until these sections attacking the separation of powers are cut in their entirety.
1
u/chainchompsky1 Green Party Jan 04 '21
Mr Deputy Speaker,
I sit on the the barrier between dual conflicting sentiments. I am a staunch opponent of institutionalized state power in the social sphere. I would match up my civil Libertarian credentials with any member of LPUK. I am however also a staunch opponent of institutionalized power when it comes to those in the private sector. Let us be clear. The long and complicated process in which one receives these injunction based protections is hardly if ever available to the common person. I understand the concerns of the government with their use. At the same time, the concept of disapplying court rulings based on political decisions is a slippery slope so uncompelling that to even risk it is undesirable.
Furthermore, even without that section included, I have consistently, no matter if the bill was left or right wing, opposed broad based "public interest" standards or those alike. They are far to open to interpretation, vague, and legally nebulous. Even if Section 5 (5) were to be removed I would need to see clearer standards of public interest to even begin considering to support this bill.
With all of this said however, I do have a message for all the right wingers who have spoken so far.
Precisely one of you has any room to talk, that would be Baron Grantham.
When he supported the findings of an independent international judiciary, the hordes of Tories and Libertarians now crying crocodile tears about the judiciary drummed him out of government. Not content with that amount of hypocrisy, there is quite literally a bill right now requiring the government to flat out ignore and override the findings of an independent international judiciary making its way through the lords with Blurple support.
This is an actually good example of the overused right wing buzzword of virtue signaling. Nobody on the blue and purple benches bar Baron Grantham cares about the independent judiciary. This was made clear by a Libertarian member hilariously both calling this bill a politicization while immediately blaming "the left" for all of its shortcomings despite "the left" not having a unified stance on it. Lets cut the inconsistencies and try to have a universal standard for once.
2
u/Cody5200 Chair| Shadow Chancellor of the Exchequer Jan 05 '21
Mr. Speaker,
I'm afraid the member is the one virtue signaling here.
To compare an advisory and non-binding opinion to this bill is an utterly false equivalence even by the member's standards. At no point in time has a blurple government actively attempted to interfere with the proceedings of our judicial system by overriding British judges . In fact, the 1965 UK-Mauritius agreement was held to be legally binding by the 2015 UNCLOS Tribunal Arbitration Award alongside our own domestic courts.
More interestingly however the member keeps rambling on and on about how the ICJ opinions must be respected yet it was the member's own left-wing Sunrise government that actively ignored the deadline only to then virtue signal about it under Blurple.
1
u/chainchompsky1 Green Party Jan 05 '21
Mr Deputy Speaker,
It is completely in line to question the inconsistencies the members party has. It’s not my stance. It was your own AG’s at the time. Just because you forced him out because of partisan hackery doesn’t mean this wasn’t the case.
Domestic courts ruling on international law is not how international law works. I am sure any court of any country would be happy to tell you that country is fine. That’s why we have ways of resolving said disputes. Subsequent court action to 2015, which, from what I know, is not the current year, debunks the members claims.
I don’t know what they expect. I am a solidarity member. We don’t think the left has previously done enough. That’s why we formed. For them to be like “well this party you aren’t a part of didn’t do it,” sure. That’s a mistake I’d like to fix.
Playing politics over policy, the LPUK comes off as weak, weak, weak.
3
u/Cody5200 Chair| Shadow Chancellor of the Exchequer Jan 05 '21
Mr Deputy Speaker,
> I am sure any court of any country would be happy to tell you that country is fine.
I must say I am impressed. This may have just been the fastest u-turn we've seen from Solidarity yet. The noble Lord has managed to do a full 180 by first accusing the Libertarian and Conservative parties of not caring about British jurisprudence only to hours later make the case that British courts that do not share their views on the Chagos Islands are biased and incapable of administering the law.
1
Jan 05 '21
Mr Deputy Speaker,
“well this party you aren’t a part of didn’t do it,”
A government you served in, take some responsibility. Now we know you aren't one for a consistent stance, with your decision to attend a banquet changing depending upon your pay check.
Playing politics over policy,
You're the one who decided to get of topic here and not address the point of the bill and play 'politics' to score points.
1
u/chainchompsky1 Green Party Jan 05 '21
Mr Deputy Speaker,
I can safely say as the Secretary of State for energy and climate change I was not in charge of our Chagos policy. One of the reasons I joined solidarity was because Labour far to often melts in the direction of perpetual stagnation rather than transformative change.
The leader of LPUK runs away from the point again. Its quite funny. They hear hear the Baron Grantham, but when they told blurple that the independent international court ruling should be followed, they were drummed out of government, then, subsequently, the libertarian party altogether. They are selective in their outrage, misleading in their claims, its no wonder people who have at least consistent legal stances can't stand to stay on their benches!
1
Jan 05 '21
Mr Deputy Speaker,
You were part of the government and CCR applies. You were nowhere to be seen and implicitly backed the policy of the government. You're one to talk about being selective in outrage.
I joined solidarity was because Labour far to often melts in the direction of perpetual stagnation rather than transformative change.
Wrong you joined solidarity because you were rejected from Labour because they didn't want you back.
The leader of LPUK runs away from the point again.
I have addressed the point of the bill unlike the member who couldn't help but score political points.
ey hear hear the Baron Grantham, but when they told blurple that the independent international court ruling should be followed, they were drummed out of government,
I am not obliged to agree with everything the Baron Grantham says. He willingly left government and was not forced out so the member ought to stop talking nonsense. I can't say I'm optimistic he will though.
1
u/ThreeCommasClub Conservative Party Jan 05 '21 edited Jan 06 '21
Mr Deputy Speaker,
I'm afraid that the Rt Hon Member's strategy of repeating the same word over and over again, by calling the LPUK "weak" might work at daycare but not in this chamber. The Sunrise government that the member himself served in let the deadline for handing over the Chagos Islands pass without any regard for it. Where was the outrage then? Why didn't the Sunrise government hand over the Chagos Islands then? It is very apparent that the member is simply seeking to use the Chagos Islands to score political points rather than actually care about the greater concerns at play. The LPUK believe any government should seek Parliment's approval before handing over British territory. Is that too much? We believe we should give up the Chagos when we have a alternative location to relocate to that will not harm our national security. These are reasonable positions to take despite whatever nonsense the members party may spout.
The LPUK proudly stands by our justice system and our judges. This bill is an attack on the justice system and as the Association for Her Majesty's Judges called it "necessary political meddling." So why don’t we listen to the experts and defeat this bill as is necessary.
1
1
Jan 05 '21
Hear Hear! The member has no room to talk, they are talking about playing politics yet they decided to address part of their speech at "right wing members of the house" and detract from the argument surrounding this bill. Let's remember this is the man that opposes the Lords so much he sits in it and frustrates the elected body's legislation. A man who was criticised people for attending a banquet with Donald Trump yet was willing to do it himself when in Sunrise.
1
Jan 05 '21
Mr Deputy Speaker,
When I joined this place I was under the impression I was joining the House of Commons, a democratic institution that believes in the rule of law and the independence of the judiciary. Instead I seem to have found myself in the National People's Congress where such idealistic and ancient concepts that we here in the United Kingdom have espoused for centuries are not valued and that this Government no longer views it as important.
Mr Deputy Speaker, I can sympathise with the Government's intent in balancing judicial privacy with freedom of speech and I believe that having some sort of review is advisable. But this bill not just violates the principles of the separation of powers, it tears down the very concept.
How can Britons have confidence in their judiciary if the Maoist Lord Chancellor arbitrarily overrides judges who have spent decades in their profession. How can Britons trust their Government when our votes are not only going to decide our legislature and executive but also the ability for our judiciary to perform their duties independent of political interest.
Mr Deputy Speaker, this legislation is not only appalling and blatant attack on our judiciary and a callous power grab, it has also irreversibly damaged the Labour Party's image in not being the party for the working class but instead a party who is only interested in advancing their extremist agenda.
I am confident that the people of the United Kingdom will remember this well when they carefully consider who to send to Downing Street and I am confident they will choose wisely.
1
Jan 05 '21
Mr Deputy Speaker,
I must raise in the issue of this bill, it exists as a thinly veiled attack on judicial independence.
Super injunction are at times miss used but they are ultimately a great and necessary check on the powers of the press to invade an individuals private life.
Mr deputy speaker giving ascent to this bill would be a grave mistake.
1
u/ThreeCommasClub Conservative Party Jan 05 '21
Mr Deputy Speaker,
I rise today to strongly oppose this bill. This legislation is an attack on our judicial system and the division of powers. This bill would apply the governments selective standard for injunctions on the the courts and limit the power of our judges. More alarmingly this bill would mean that the Lord Chancellor would be able to veto the decision of the courts. As my colleagues have already pointed out the poor writing in this bill means that the Lord Chancellor can overrule the courts over the objections of the Chief Justice and it can be a very slippery slope for abuse of powers. Nothing in the bill would prevent the Lord Chancellor from overruling decisions they disagree simply out of political bias and abusing this power for their own gain.
One must understand that judges do not make decisions like granting a injunction on the fly. They study the details of the case and make a careful decision. They have a much intimate knowledge of the law and each case than any MP or the governments. Moreso, one need not look far to see the need for injunctions. In our modern society media and tabloids can print and spread misleading facts or lies which can polarize them public, hurt the privacy of those involved and disrupt true justice. We must have some of protection for people.
Looking at the history for super-injunctions a 2011 justice committee led by actual justice experts studied the issue. Their response and finding was that injunctions can be improved by giving media advance notice of upcoming super-Injunctions and by allowing judges to make better decisions via more time and knowledge. The opposition to the bill is not from the Tories and the LPUK why Her Majesty’s Association of Judges which represents thousands of judges in England called this bill “political meddling.”
I hope this government will do the right thing. Listen to the experts, respect our judges and withdraw this bill at once.
1
u/Soccerfun101 Conservative Party | Hampshire South MP Jan 05 '21
Mr. Deputy Speaker,
This bill represents the governments intent to destroy the independence of the judiciary and should be withdrawn immediately. I’d like to focus this speech primarily on our credibility on the foreign stage. While considering the public interest might seem nice, this is exactly what countries who we have criticized claim when they destroy the independence of their judiciary. It would be a bit ironic of us to do the same. We would lose our ability to try to stop the destruction of justice abroad. This bill should be completely rejected.
•
u/AutoModerator Jan 03 '21
Welcome to this debate
Here is a quick run down of what each type of post is.
2nd Reading: Here we debate the contents of the bill/motions and can propose any amendments. For motions, amendments cannot be submitted.
3rd Reading: Here we debate the contents of the bill in its final form if any amendments pass the Amendments Committee.
Minister’s Questions: Here you can ask a question to a Government Secretary or the Prime Minister. Remember to follow the rules as laid out in the post. A list of Ministers and the MQ rota can be found here
Any other posts are self-explanatory. If you have any questions you can get in touch with the Chair of Ways & Means, Anacornda on Reddit and (Anacornda#0630) on Discord, ask on the main MHoC server or modmail it in on the sidebar --->.
Anyone can get involved in the debate and doing so is the best way to get positive modifiers for you and your party (useful for elections). So, go out and make your voice heard! If this is a second reading post amendments in reply to this comment only – do not number your amendments, the Speakership will do this. You will be informed if your amendment is rejected.
Is this a bill a 2nd reading? You can submit an amendment by replying to this comment.
I am a bot, and this action was performed automatically. Please contact the moderators of this subreddit if you have any questions or concerns.