Strategic Litigation Against Public Participation Bill
Friday 23rd February 2024
(9 months ago)
Commons ChamberRead Full debate Strategic Litigation Against Public Participation Bill 2023-24 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Wayne David (Caerphilly) (Lab)
I beg to move, That the Bill be now read the Second time.
I have been a Member of Parliament for nearly 23 years. [Hon. Members: “No!] I know it is difficult to believe for some, but it is true. This is the first occasion on which my name has been drawn in the private Member’s Bill ballot; I am pleased to say my name was drawn fourth. I thought long and hard about the most appropriate and best piece of draft legislation to bring forward. I decided on this Bill, because I genuinely think it is incredibly important, and I will set out to the House why that is.
The Bill tackles strategic litigation against public participation cases, widely known as SLAPPs, in all their forms. Last year, I and the Labour Opposition welcomed the measures enacted in the Economic Crime and Corporate Transparency Act 2023 that ensured that SLAPPs relating to economic crime can be tackled. I am pleased to bring forward a Bill to expand on that. Reform to protect freedom of speech and the public interest is something that all parties in Parliament hold dear. In all debates in this House and the other place there has been a broad consensus about the need for reform to tackle the pernicious effect of SLAPPs. However, in both Houses it has been clear that the Economic Crime and Corporate Transparency Act does not go far enough.
SLAPPs have taken and do take many forms. It is vital to bring forward legislation that genuinely tackles the issue in a holistic and rounded sense. There are many examples of SLAPPs. I will refer to a few high-profile cases that have reached court and received some publicity, and to others that have not received that much publicity.
I begin with a case that I am sure hon. Members will be aware of, because it has attracted a great deal of attention. In 2022, a defamation case was reportedly brought against the journalist Tom Burgis, the Financial Times and publishers HarperCollins by a Kazakh mining company. The case concerned a book by Burgis entitled “Kleptopia: How Dirty Money is Conquering the World”.
A defamation case was brought by Roman Abramovich against journalist Catherine Belton and HarperCollins regarding her book “Putin’s People”. It is an excellent book and well worth reading. There was a legal assault on the book through a number of lawsuits in quick succession, justifiably provoking a group of campaigners for free expression to state that London’s courts were becoming the venue of choice for legal action designed to “quash critical journalism”. Catherine Belton, the author of “Putin’s People”, has called for the introduction of reforms to tackle this global industry, based here in London. Hopefully, the Bill will begin to address this significant problem seriously.
Then there is the case of Amersi v. Leslie. A British business owner, Mohamed Amersi, brought a defamation case against Charlotte Leslie, a former Conservative MP and managing director of the Conservative Middle East Council. I am familiar with the case, because I am the shadow Minister for the middle east and north Africa. The case concerned a memo on Amersi’s background and dealings with Russia. It was put together in response to his attempt to become the chair of CMEC. The claim by Amersi was struck out, because he had failed to show how the memo caused serious harm to his reputation.
It is not only high-profile cases that involve SLAPPs. There is the case of Nina Cresswell who named a person who violently sexually assaulted her after her original report was dismissed by the police. She commendably wanted to alert other women who may become victims of sexual assault. The man who was named sued her for defamation. Ms Cresswell won a landmark judgment last year, but the very fact that she had to fight the case at all demonstrates the huge gaps that SLAPP claimants are only too ready to exploit, and we need to address that fact.
I have also heard stories of patients who have left negative reviews for botched plastic surgeries being issued with SLAPP claims by the surgeons. I have heard of tenants who have spoken out about their uninhabitable housing being issued with SLAPP claims by their landlords. That is wrong and it must be stopped.
I have given a few examples of relatively high-profile cases, and also of some that are not so well known. There are many cases that do not attract any attention in court and there are many more that we do not know about because individuals are intimidated before legal proceedings actually commence. The data that the Government have is only the tip of the iceberg. As I have suggested, SLAPPs are extremely pernicious before any action reaches court. Pre-action letters and legal pressure are applied well before proceedings are initiated. This often results in the search or the investigation being withdrawn before publication, or, in some cases, in a whole variety of different areas, the effectiveness of threats and intimidation are such that the cases never see the light of day. Accordingly, that will never be reflected in available data.
Then we come to the press in this country. Let us remember that, as a country that champions freedoms both here and abroad, we must ensure that our free press, which is a real pillar of our democracy, never feels so vulnerable that it self-censors on vital matters in the public interest. No one in the United Kingdom is above the law. Furthermore, no one should be above proper scrutiny on a matter of public interest.
As to the data we have, the provision of figures from the Coalition Against SLAPPs in Europe are deeply concerning in themselves. It estimates that there were 29 SLAPPs in England and Wales in 2022. That is up from 25 in 2021 and 11 in 2020. CASE’s August 2023 report recorded that the total figure in Europe over the past decade was 793.
Richard Foord (Tiverton and Honiton) (LD)
The hon. Member mentions the Coalition Against SLAPPs in Europe. I wonder whether he agrees with the Anti- SLAPP Coalition that the proposed Bill, as drafted, would introduce a subjective test, requiring a court to infer the state of mind and purpose of the filer. Does he agree with me that that would create complexity, costs and delay, which would potentially make the Bill ineffective?
Wayne David
It is an issue that has to be considered carefully, and, indeed, it has been given a great deal of consideration and much debate.
Chris Clarkson (Heywood and Middleton) (Con)
On that point, will the hon. Gentleman give way?
Wayne David
May I just respond to the other point that has been made? It is vital that this issue is considered properly and deeply. I hope very much that, if we are successful today, the debate will continue into Committee, so that further consideration may be given to that issue. At the moment, I am erring on the side of what is suggested by my private Member’s Bill. I think the Bill strikes a balance. It is not quite accurate to talk about subjectivity and objectivity, because a judge will have to make a determination on the facts that are presented and his knowledge of how the case is being conducted. At the moment I err in favour of saying that there is a false dichotomy, but it is something that should be considered further in Committee.
Chris Clarkson
I join in concordance with the hon. Member for Caerphilly (Wayne David). This is an excellent piece of legislation and I am very broadly in support of it. I just wanted to respond to the comment from the hon. Member for Tiverton and Honiton (Richard Foord). Subjectivity is actually a fundamental part of our legal system already: we talk often of the man on the Clapham omnibus. It is the reasonableness test, so I do not think there is anything in the Bill that is out of scope or inappropriate.
Wayne David
I am inclined to agree with that comment, as my Bill suggests, but it is something that needs to have more airing and more consideration. Detailed consideration in Committee would be an appropriate place for that to happen.
As others have said many times, most SLAPP-related activity takes place below the radar before a formal court case and court claim is issued. There are a number of reasons why SLAPPs are so bad, and why SLAPPs claimants are so successful in their warped objective of perpetrating them. Commonly, the comparatively modest means of a defendant are leveraged against them to encourage retraction or the abandonment of the important research that would shine a light on questionable behaviour. Bullying tactics can include huge threatened litigation costs and damages, and all of the unbearable consequences such as bankruptcy and loss of homes and livelihoods, as well as the emotional distress that entails. All of that can cause huge hardship and psychological pressure.
Sadly, many people are not able to withstand all of that. So many of the cases are like David and Goliath, but if David had no slingshot. I should be clear about why the unfairness of a legal system that allows all of that has to be challenged and changed. That is why I am bringing forward the Bill today. We must eradicate the harms caused by that kind of aggressive litigation. We must protect publishers, authors and advocates from spurious claims and empower them to forge ahead with publishing legitimate stories. Grounded, well-researched investigative reporting must be protected, not reined in for fear of colossal legal costs. We must do our utmost to protect and empower ordinary people, and give them the confidence to use the legal system of this country to ensure fairness in the public interest.
Of course, protecting journalists or anyone else cannot be at the expense of denying claimants their rights of access to justice. But at present, the fact that claimants can wrongly exploit the justice system to obfuscate the transparency that is essential in a healthy democracy means that an important balance must be struck. As things stand, that is clearly not the case, and that is why I call for urgent reform today. Robust action to counter SLAPPs in all their forms is needed and it is needed now.
I have sought to work alongside the Government to ensure that the approach underpinning the Economic Crime and Corporate Transparency Act—which was positively received across civil society, media and the legal professions, including the regulators—remains largely intact in the Bill as it achieves what is necessary. The Bill will therefore keep, for the most part, the definition of a SLAPP claim in the Economic Crime and Corporate Transparency Act, but it will also broaden the scope and capture all SLAPPs in future. In future, any SLAPPs cases in which speaking out is in the public interest, including for publications on economic crime, will be caught.
Let me address the components of the definition. First, the claimant will have acted to restrain the defendant’s exercise of their right to freedom of speech. Secondly, the exercise of that right will have been in the pursuit of the public interest, or exposing potential wrongdoing or other bad behaviour, such as illegality or untruths, or matters to do with public health and safety or the climate and the environment. Thirdly, the claimant will have misused litigation for its threat to cause harm to the defendant, specifically through harassment, stress or expense, which is beyond that which can be ordinarily expected in properly conducted litigation. The last point includes an important distinction. Legal cases almost always bring a measure of stress and expense to the parties involved, given their serious nature.
As I have said, SLAPP claims are often designed to generate excessive stress and expense in pursuit of a remedy that is a mere fig leaf, or excuse to allow the real harm that the claimant wishes to cause. One thing that distinguishes a SLAPP claim is that the legal action is not pursued for the appropriate remedy, but as a means, in its own right, of bringing oppression to bear. To safeguard against that harm in an effective and proportionate way, including by ensuring that legitimate claims can proceed, the Bill will introduce a new early dismissal test. Claimants will have to show that they are more likely than not to succeed at trial. Where they cannot do so, the case will be struck out.
In addition, much of the harm in SLAPP claims lies in the risk of adverse costs that defendants face. A properly functioning early dismissal mechanism will assist in removing many of the risks to the defendant. However, for SLAPP claims that are not dismissed early, the Bill will introduce a new costs regime that protects defendants from costs that they would usually pay if they lost the case. That will ensure that defendants can defend themselves properly and that the risk of costs does not force them to settle claims unnecessarily. The underpinning principles of that new cost regime are included in the provisions, but the detail will be introduced under the usual cost regime-making powers through rules of court.
Together, those provisions will initially require only new civil procedure rules to give them shape and maximise their effectiveness, as the evidence available shows that SLAPPs are focused on civil proceedings. However, the provisions can be extended by regulations to any other proceedings as necessary, such as the online procedure rules. I trust that the Government will make necessary regulations when claimants who are well resourced and able to exploit any perceived loophole choose other courts in which to pursue SLAPPs. That will also help to ensure that the Bill is future-proofed. SLAPPs are likely to evolve, and we need legal infrastructure to be robust enough to meet future challenges.
As a result of the Bill, the courts will have the necessary tools and guidance to deal swiftly with all SLAPPs, which aim to stifle freedom of speech. Investigative journalists will also be empowered to expose wrongdoing in all its forms, whatever that may be. It is my hope that defendants in such cases will, as a consequence, feel safe from attempts to wrongly exploit our legal system. Journalists and others will be empowered to shine a light on criminal misconduct wherever they find it, whatever form it takes, without fear of spurious claims being made against them.
Unscrupulous individuals or corporations brazenly misuse our courts and legal system to further their agendas, to the detriment of the public interest, though it is wrong to do so as a matter of principle. The public must know about wrongdoing and corruption, so that our democratic society can function and the rule of law can be preserved. This Bill recognises the breadth and depth of SLAPPs; currently, the law focuses solely on economic crime, but SLAPPs can be found in all areas of the law. This all-embracing legislation against SLAPPs is, I believe, a truly significant step in ensuring freedom of speech and removing a clear abuse of our legal system. I therefore urge colleagues across the House to give the Bill their full support.
Nicola Richards (West Bromwich East) (Con)
We in this House should all be proud of this country’s international reputation for upholding the rule of law. In the current global climate, and following the recent murder of Russian opposition leader Alexei Navalny, that is a freedom that we cannot take for granted. Navalny was an incredibly brave man, and his wife should be an inspiration to us all. Navalny wanted the world to know the truth about what kind of man Putin is, and today, we are helping him in that aim. The protection of our legal system must be a priority for all in this House, ensuring that this country’s reputation continues long into the future. For that reason, I thank the hon. Member for Caerphilly (Wayne David) for bringing this Bill before Parliament today, and I urge all colleagues to support it. We are here because we have to beef up the law to further ensure that we do not allow our legal system to be manipulated and abused by bad-faith actors wishing to shut down freedom of the press and freedom of speech.
In 2021, an investigation by The New York Times found that in four of the six prior years, litigants from Russia and Kazakhstan had been involved in more civil cases in England than any other foreign nationals. Those cases sought orders to freeze the assets of people worldwide. Individuals and corporations—many from countries where the freedoms we enjoy in this country do not exist—use strategic litigation against public participation claims to harass and intimidate journalists and authors out of sharing information that those parties do not want seen or known. The prime example is a case brought by multiple Russian billionaires, including former Chelsea owner Roman Abramovich, who attempted to sue the author and publisher of the book “Putin’s People”. That book delved deep into the relationships between those oligarchs and Russian President Vladimir Putin—a relationship that those individuals cared deeply about when it suited them, but journalists can face legal action for pointing that out.
As has been mentioned, a Kazakh mining company brought a case against another journalist, Tom Burgis, over the contents of a book that he published about illegally gained money in the global economy. Thankfully, that attempt to silence a journalist failed. I have raised the issues surrounding “Putin’s People” before in this Chamber, alongside many colleagues from across the House, including my hon. Friend the Member for Isle of Wight (Bob Seely), whose work on this issue I commend. The point of these lawsuits is to threaten the defendants with colossal legal costs—we are talking about amounts that no normal person can afford—and harass and intimidate them into capitulating. “Putin’s People” author Catherine Belton and her publisher were left with a staggering £1.5 million legal bill following the case brought against them.
Today’s Bill presents us with the opportunity to further prevent such attempted silencing of authors and journalists by Russian billionaires, or any other bad-faith actor. It would put in place new rules, so that claims deemed to be SLAPPs could be dismissed and defendants could be protected from paying the claimant’s legal costs, unless that was justified. The Government have been strong in their condemnation of SLAPPs, and I was proud to see the Economic Crime and Corporate Transparency Act 2023 recently receive Royal Assent. That Act allows judges to throw out SLAPPs relating to economic crime, which is a good first step: at least 70% of the SLAPP cases identified by the Foreign Policy Centre in 2022 were connected to financial crime and corruption. However, we cannot and must not stop there, so I welcome the fact that the Government are supporting the Bill. We need to prevent all forms of SLAPPs once and for all, and this Bill is the mechanism for doing that.
The urgency of this issue cannot be overstated. The Coalition Against SLAPPs in Europe found that 820 SLAPPs took place in Europe in 2023, compared with 570 in 2022—a 44% increase. The United Kingdom was named a SLAPP hotbed, and the forum of choice for would-be SLAPP initiators. A Birmingham Law School professor has said that the high costs of defamation litigation and the ability of foreign claimants to resolve disputes in the UK has made this country an ideal location for SLAPPs.
Other legislatures have already taken action. Several US states have introduced similar laws, and the European Parliament is expected to approve similar anti-SLAPP directives next week. As a result, if we do not pass this Bill today, Britain risks being left behind in an area in which we should be proudly leading. As more places prohibit SLAPPs, the chance that more cases will be brought in the UK increases further.
We must be clear that the only purpose of SLAPPs is to silence critics; they have no legal merits. We must act to protect this country’s international reputation for upholding the rule of law, and our hard-fought freedoms of speech, justice and the press. We must ensure that journalists and publishers can publish information, backed by sources and facts, concerning any individual, no matter the size of their bank account.
We in this country are proud of the leadership we have shown following the bloody Russian invasion of Ukraine, and passing this Bill would be a small but important way of contributing to that leadership. I again thank the hon. Member for Caerphilly for bringing this Bill to the Chamber, and I look forward to supporting its passage through the House.
Apsana Begum (Poplar and Limehouse) (Lab)
I commend my hon. Friend the Member for Caerphilly (Wayne David) for his work in bringing this Bill to the House, and I thank campaigners for what they are doing to prevent the misuse of litigation to suppress freedom of speech. Democratic and press freedoms are fundamental to our rights and to challenging corruption and the abuse of power. When whistleblowers speak out and journalists and a free press report the truth, society is better for it.
Just this week, Julian Assange’s extradition appeal closed at the Royal Courts of Justice. It is concerning to hear that he is unwell and unable to appear in court. I am conscious that the proceedings are ongoing, but I want to say that human rights are central to what is happening in his case. The issue is not just how he has been treated, simply for telling the truth; if extradited, he could be at risk of treatment amounting to torture, and other forms of ill-treatment and punishment, including the death penalty.
Julian Assange’s case has profound consequences for press freedom and democracy around the world. We cannot say that we stand for press freedom if that freedom exists only if it does not challenge certain powers, or go beyond what they want. As my hon. Friend said, our freedoms are undermined when the rich and powerful use the threat of costly legal action to suppress public criticism. That is why, last year, many of us welcomed amendments to the Economic Crime and Corporate Transparency Act 2023 that gave UK judges new powers to dismiss lawsuits that attempt to silence those speaking out about economic crime. However, given the limited scope of the Act and certain shortcomings in its text, those amendments fell short of providing meaningful protection against SLAPPs.
There is inequality under the legislation for those subject to SLAPPs that do not relate to economic crime and corruption. We know that powerful men use their power and the law to silence women. The purpose of such proceedings, often described as gagging orders, is to silence, intimidate, discredit and further disempower survivors. Some campaigners call it gendered censorship. It happens in the UK, but it is also a global phenomenon.
Although I welcome the ambition of the Bill, I believe there may be scope for further amendments about the definition of a SLAPP, so that domestic abuse is fully covered, particularly in the understanding of “public interest”. I say that because we all know of a series of libel cases in which wealthy men have sought to protect their reputation when women accuse them of abuse. Current legislation puts survivors at a disadvantage. For example, under the Defamation Act 2013, the defendant in libel cases can argue a public interest defence, but that is not available to survivors. I appeal to the Government to look at that carefully, and at how the Bill can be extended beyond the civil courts to the family courts.
In January 2022, I participated in a Backbench Business debate on the use of lawfare and strategic litigation against public participation by those seeking to suppress public debate, bully people into submission and conceal vital information that is in the public interest. I described my experience of lawfare being used against me. The House will be aware that I was completely cleared and vindicated in Snaresbrook Crown court after what I and many others in my constituency and around the UK viewed to have been vexatious litigation, pursued with the purpose of shutting down my public participation as a democratically elected socialist Member of Parliament and a survivor of domestic abuse.
The use of lawfare by abusers to pursue their current or ex-partner is coming to light more and more. I am aware that the occurrence of civil litigation cases of this nature has drastically increased, particularly following the widely publicised Amber Heard versus Johnny Depp case in the US. The most common proceedings we see brought are by men accused of sexual misconduct and/or domestic violence launching vexatious cases in relation to defamation, libel, the misuse of private information, harassment and press injunctions.
The UN special rapporteur on freedom of expression, Irene Khan, writing in a dedicated report on gender censorship in 2021, said:
“In a perverse twist in the #MeToo age, women who publicly denounce alleged perpetrators of sexual violence online are increasingly subject to defamation suits or charged with criminal libel or the false reporting of crimes. Weaponising the justice system to silence women feeds impunity while also undermining free speech.”
In addition, barristers Jennifer Robinson and Dr Yoshida make the argument in their book that the current situation strikes an unfair balance between his right to reputation and her right to freedom of speech. What is missing in the legislation in the UK as it stands is a recognition of the importance of her additional rights: her right to live a life free from gender-based violence and her right to equality.
The practice of abusers weaponising civil litigation against survivors is a continuation of abuse, as well as additional trauma. I often find myself asking, “If we cannot speak about violence against women and girls, how can we even tackle it?” By their nature, these cases misuse the courts and are brought against survivors to silence them and re-victimise them emotionally and financially. I urge the Government to look at the situation in the family courts, as well as the civil courts. No one should suffer domestic abuse, and anyone in such a situation should be supported in speaking out. It is a matter of public good and public interest.
Chris Clarkson (Heywood and Middleton) (Con)
It is a pleasure to follow the hon. Member for Poplar and Limehouse (Apsana Begum). May I start by congratulating the hon. Member for Caerphilly (Wayne David)? He has brought forward an excellent private Member’s Bill, and this is entirely what we should be doing with Friday sittings. I love Friday sittings; I have outed myself as a geek on multiple occasions. For me, this is what the job is about—coming here and talking at length about stuff that is important to people.
I also out myself as a lawyer and wave my LLB about. I am passionate about our legal system and believe keenly in it. It is the jewel in the crown of our state. It is par excellence and second to none. It deeply grieves me when something so important is perverted for the narrow interest of a small cadre of people who have rightly deduced that a technical flaw is available to them, and they have enough money to exploit it. The system should not be exploitable purely because someone has the financial resource to do it. We should not be able to purchase justice in this country—but people do that.
I will speak to two main issues only that I have deduced from reading this private Member’s Bill—which I will support fully, I hasten to add. The first is a matter for when the Bill reaches Committee, and that is how we address the serious problem of forum shopping. This country has a particularly robust approach to defamation legislation. Imagine that I publish a book like “Putin’s People”, for example: it could be the case that it is published in 18 different countries but that I only get sued in this one, because this country is the one that is most technically adept at allowing somebody to get money out of me and keep me quiet. That will then prevent me from being able to publish that book in other places; effectively, that process in one country will gag me in other countries. I think we can do something in that space. The hon. Gentleman has put together an excellent Bill. It is one for the pinstripe-suited—I am actually not wearing a pinstripe suit today—geeky bods to get into. We will have to drill down into the Bill to ensure that it is as robust as possible, but I am happy with its direction.
My second point is about addressing what the Bill is really about. It is about not technical amendments to the legal system—as much as I love those—but freedom of speech. Freedom of speech is one of the most fundamental rights in every democracy. The United States constitution starts with:
“Congress shall make no law respecting an establishment of religion, or prohibiting…the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
That is an incredibly powerful and potent set of clauses that prevents the situation we are discussing from happening in the United States. We have to rely on article 10 of the European convention on human rights; and I will say now, for the avoidance of doubt, that you will get me through a wood chipper faster than you will get me through a Division Lobby to take us out of that.
Article 10 is incredibly important, but it is not adequate for the task ahead of us, and that is why this is such an important Bill. As a Member of Parliament, I want to be able to go out and talk about what is correct, right, proper and decent, without having to rely on the fact that I have immunity in this Chamber, but I cannot do that without fear or favour at the moment, because this lawfare system—I think the hon. Member for Poplar and Limehouse coined that term, which is an effective way of describing what is going—is basically being used to destroy one of the fundamental principles of our democracy.
The hon. Member for Caerphilly is entirely right and proper to bring us this Bill. I will enthusiastically support it; if he needs people for Bill Committee when it gets to that stage, I will be there—and I am afraid I will be talking a lot.
Andy Slaughter (Hammersmith) (Lab)
It is a pleasure to take part in the debate, particularly with you in the Chair, Mr Speaker. This is essentially a debate about free speech, which I know is of great concern to you not only in this Chamber but outside it. It is also of particular concern to my hon. Friend the Member for Caerphilly (Wayne David), and I congratulate him on bringing the Bill forward. He is quite busy with his other hat on, as the shadow Minister for the Middle East, so it is good that he has time to be here on a Friday to promote his Bill. I hope he has the Government’s support.
I would say that this became a live issue for the House when the right hon. Member for Haltemprice and Howden (Sir David Davis) held his January 2022 debate on lawfare and the UK court system; as with everything American, the terms “SLAPPs” has taken over the language here, but lawfare is effectively the same thing. On that day, which was really the issue’s first run-out, I replied for the Opposition. There were many strong contributions, and the debate put the issue on the map, including on the Government’s map.
Let us give the Government a little bit of credit, although not too much; there has been some progress. We have heard about what is in the Economic Crime and Corporate Transparency Act 2023, dealing with the issue of SLAPPs, but in a particular way and for a particular type of offence—that is, around economic crime—and the anti-SLAPPs taskforce also meets, but it is somewhat disappointing that the Government have not brought forward their own comprehensive legislation on the issue. I hope they will use the agency of my hon. Friend the Member for Caerphilly to get something on the books in the time available in this Parliament. Nevertheless, we have not done the entire job. That is no criticism at all of my hon. Friend, and I do not know whether that is an invitation for me to be on the Bill Committee as well.
I will deal with three points that need slightly further attention. The first, which my hon. Friend mentioned, is the issue of SLAPPs taking place in the dark—pre-issue, as it were. There has been some attention by the Solicitors Regulation Authority to that in issuing guidelines, but there is still quite a strong feeling that many SLAPPs were effective long before getting to the courtroom because of the intimidation—which we should not underemphasise—placed on individuals. They may be authors or journalists, but they may just be individual members of the public. The intimidation may even be of corporations, and yet they cannot take the risk because they are up against people with not just deep, but bottomless, pockets. We heard about the £1.5 million cost for Catherine Belton in relation to “Putin’s People”. That was pocket money for Abramovich, but for a publisher—let alone a journalist—it is a significant sum of money. A more comprehensive view of how SLAPPs act is important in relation to resources.
I do not want to disagree with my hon. Friend, but we need to look at the point that the Anti-SLAPP Coalition and the NUJ have raised—and the hon. Member for Tiverton and Honiton (Richard Foord)—about a subjective or objective test. That is not easy. Obviously, there are subjective as well as objective tests throughout the legal system. Nevertheless, there is a real fear that the need for a defendant to show subjective elements will be a path for the claimant to tie proceedings up in knots, complicate things and drag them out. I do not know what the solution is, but we should at least explore that and listen to the expert organisations, particularly the National Union of Journalists and the Anti-SLAPP Coalition, which are urging us to take that course.
Richard Foord
Does the hon. Member think that a minor amendment could be introduced to add an objective test based on observable features of abuse, to help prevent litigation from being misused to suppress freedom of speech?
Andy Slaughter
It sounds like the hon. Member wants to be on the Bill Committee and is drafting his amendments in his head. I have never known a private Member’s Bill Committee to be so popular. I am not a legal draftsman and I do not know the answer to his question, but we need to bottom out this issue, because it seems to be attracting the most attention.
Other issues have been raised about overlaps with the Defamation Act, and costs. There are provisions on costs in the Bill, but it is about whether they are driving down costs as far as they can, and about public interest. A number of areas could be further explored, even in this short Bill. Costs are a vital but often neglected part of the legal process. This is a hobby-horse of mine. We have just discussed the Media Bill in the House, and the repeal of section 40 of the Crime and Courts Act 2013, which in effect takes Leveson part 1 out of the equation with regard to having a level playing field for victims of press abuse—if I can put it that way.
On SLAPPs, the Government appear to support legislation such as this to prevent costs being used as a weapon to prevent people getting their just deserts and their day in court, but there is a different situation when it comes to the media itself—I cannot for the life of me see the difference. Of course, Leveson cuts both ways; Leveson also provided a formula for protecting small publishers against exactly the sort of people who take part in SLAPPs—indeed, he could have used the word “SLAPPs” in his report. It also protects the innocent victims of press abuse because the press magnates—not journalists and small publishers but major publishers—also have bottomless pockets.
In his response or during the passage of the Bill, could the Minister think again, at the very least, about how the Government will approach the issue of small publishers and journalists being sued in order to protect the so-called privacy—often the nefarious activities—of very wealthy individuals and corporations. This can affect anyone, including journalists like Tom Burgis, who won his case. The experience did not discourage him, because next week I am hoping to go to the launch of his latest book, “Cuckooland: Where the Rich Own the Truth”. Let me give him a little plug—it will soon be available from all good bookshops. It takes huge courage for someone to risk everything simply in the course of prosecuting their employment, when there is the risk of bankruptcy or being dropped by their publisher—although that was not at risk, I have to say, in Tom’s case.
We heard about the case of Charlotte Leslie, a former colleague of ours, who was effectively persecuted through the courts. We are lucky; we have the protection of privilege here. However, when we step outside this place, we can become a victim in that way, just like anybody else who is, with good intent, simply trying to tell the truth.
This even affects organisations such as the Serious Fraud Office, which is still being prosecuted through the courts by the Eurasian Natural Resources Corporation. The Serious Fraud Office launched the action in good faith, and there was what I would call retaliatory SLAPP action. Although the original action by the SFO has been discontinued, the SLAPP continues. It really does look like a topsy-turvy world when organisations that we should rely on to regulate society—in which I include investigative journalists, Members of Parliament, and certainly criminal investigation organisations—themselves become the victims of those they wish to call out.
That is why we urgently need a much more comprehensive approach to SLAPPs, and that is why I fully welcome the Bill and will support it today. However, I think we can do more work on this. In responding today, I hope the Government will express their strong support and their desire to go further.
Kevin Brennan (Cardiff West) (Lab)
This could be quite a big day for the Welsh, with my hon. Friend the Member for Caerphilly (Wayne David) introducing his Bill and my hon. Friend the Member for Newport West (Ruth Jones) introducing hers later, I hope. I also hope to move from the Front Bench to the Back Benches to introduce my own Bill later in proceedings, so that is three Welsh Bills this morning. Of course, on the Front Bench we also have my right hon. Friend the Member for Alyn and Deeside (Mark Tami) from the Opposition Whips Office, so it really is a big morning for the Welsh.
My hon. Friend the Member for Caerphilly and I came into the House together in 2001—it is hard to think that that is nearly 23 years ago. I congratulate him on his first outing in all that time promoting a private Member’s Bill this morning. I am glad he was successful in the ballot, as it is an important Bill. For years, strategic lawsuits have enabled the wealthy and powerful to weaponise their wealth to sue critics into silence. As hon. Members have said, it is important that this House votes to put an end to these tactics that gag the press and intimidate people asking legitimate questions by threatening them with enormous legal costs—lawfare, as it has been referred to today.
I thank those who have participated in the debate: my hon. Friends the Members for Poplar and Limehouse (Apsana Begum) and for Hammersmith (Andy Slaughter), and the hon. Members for Heywood and Middleton (Chris Clarkson) and for West Bromwich East (Nicola Richards). They all spoke extremely effectively in support of the Bill, but also raised appropriate questions about how it should proceed in Committee. I am pleased that the Bill has cross-party support, and I understand the Government are in full support of it. I can confirm that it has the support of those on the Labour Front Bench as well.
It is a step forward that the scope of protection provided for in the Bill is not limited, as is currently the case, to economic crime. SLAPPs, often masquerading as defamation or privacy claims, are not really about seeking justice, but about imposing silence—exploiting the financial and emotional strain of proceedings to discourage individuals from exercising their right to speak on matters of public interest.
Labour has long recognised the danger posed by SLAPPs to our democratic values. We have already committed to introducing legislation to halt the ability of Russian oligarchs and the super-wealthy such as Roman Abramovich, who has already been mentioned today, to use their wealth as a weapon against those who dare to scrutinise their actions. The background to my hon. Friend’s Bill is rooted in a disturbing trend of legal harassment. From aggressive pre-action letters to the targeting of vulnerable financial defendants, SLAPPs undermine the foundations of accountability and freedom of speech. The enormous legal costs threatened by SLAPPs serve not justice, but the suppression of truth.
The Bill is not merely a response to a growing trend of legal harassment, but a declaration of our values as a society that cherishes free speech and the rule of law. It broadens the scope beyond economic crimes, offering protection across all public interest discourse to ensure that no avenue is left for the misuse of our legal system to suppress legitimate scrutiny and accountability. The legal reforms proposed by my hon. Friend in his Bill are both necessary and timely. They reflect a deep understanding of the challenges posed by SLAPPs, as outlined in the evidence sessions of several parliamentary Committees. By providing mechanisms for early dismissal and costs protection, and extending protections to all courts and tribunals, we are fortifying our defences against the abuse of legislation.
As we consider the provisions of the Bill, let us remember the individuals—and, indeed, institutions—who have been unjustly targeted by SLAPPs. Their struggles underscore the imperative for this legislation. I acknowledge the efforts of campaigners, including the UK Anti-SLAPP Coalition, for their tireless work in bringing this issue to light. We must ensure that our legal system serves justice, not the interests of those who seek to wield it as a tool of oppression.
I acknowledge the issues that have been raised about the Bill. I am sure they will be rehearsed in Committee when we will have a deeper discussion on them. In addition to the concerns that have been raised, we need to make sure—although I am sure it does not—that the Bill does not prevent ordinary people who wish to restrain the publication of libels and intrusions by wealthy publications from being able to do so in law. As my father always used to say, in life we should help the weak against the strong. I know that that is my hon. Friend’s intention in bringing forward his Bill.
I urge all hon. Members to support the Bill. In doing so, we are taking a stand against the tactics that gag our press, intimidate our citizens and erode our democracy. It is a step forward in an ongoing effort to protect freedom of expression and to ensure that those who seek to report on wrongdoing can do so without fear of retribution. In the fight for justice and accountability, there is no room for silence. The Bill can help to end the scourge of SLAPPs and reaffirm our dedication to the principles of democracy and freedom.
The Parliamentary Under-Secretary of State for Justice (Mike Freer)
I congratulate the hon. Member for Caerphilly (Wayne David) on bringing forward the Bill, and the numerous campaigners who have been pressing this issue for many years. As we have heard, SLAPPs are an abuse of our courts and our laws by corrupt individuals who seek to stifle free speech and a free press—two of the linchpins of our democracy.
I cannot talk about the specific case that the hon. Member for Poplar and Limehouse (Apsana Begum) raised, but I can reassure her that the Bill widens the scope beyond what is in the Economic Crime and Corporate Transparency Act 2023 and that it now talks about all kinds of behaviours. I am more than happy to discuss the specific issues with the hon. Member for Caerphilly, as it is his Bill, to see what we can do to ensure that we either reassure or accommodate her on the specific issues she wishes to see covered.
This issue became increasingly pressing when the Russian oligarchs and allies of Putin used this process for their own ends. Alongside them, we saw behaviour by multinational corporations or disreputable landlords to use and abuse our processes. SLAPPs must always be taken seriously and tackled swiftly. In this House, we have the ability and the privilege to ensure that such abuses are addressed head-on. This House stands for free speech and for holding the powerful to account, and for always seeking to ensure that the best interests of the public, in the widest sense, are being served by the law.
SLAPPs-style litigation is an abuse of power designed to inhibit public interest investigations and reporting. The harm that SLAPPs cause is not only that they stifle public comment by forcing its removal or editing it; they also discourage journalists, academics and campaigners from investigating issues in the first place, leaving matters of public interest undiscovered and the British public in the dark. In this way, the effect of SLAPPs is far more pernicious. We cannot sit by and allow our media to feel that some people and organisations cannot be subject to scrutiny just because they have unlimited financial firepower to mobilise aggressive legal tactics. To quote Andrew Galizia, whose mother Daphne, a Maltese investigative journalist, was murdered in 2017:
“The aim of these lawsuits is to deprive the target of time and resources, and to deter others from taking up the same story.”
His mother was subject to 43 lawsuits at the time of her death.
Regardless of whether a claim is aimed at an author, an academic, a journalist or a private individual, this abuse of the law to muzzle the free press must not go unchecked. We will not allow our justice system to be abused. In the Government’s response to our original call for evidence, we said that although there are powers enabling courts to strike out cases as an abuse of process, these powers need to be strengthened to counteract the very sophisticated and aggressive actions brought by SLAPP claimants.
The House will be aware of some high-profile cases that have shone a light on SLAPPs—cases such as that brought against the British journalist Tom Burgis, whom Members have already mentioned, who was sued for libel in the High Court by ENRC, an oligarch-owned mining company, following his publication of “Kleptopia: How Dirty Money is Conquering the World”. There were multiple claims issued against Tom Burgis by ENRC, targeting him as an individual author rather than his publisher. These claims concerned his tweets, podcasts and articles that mentioned his book. The case was dismissed early on. The statements complained about were found not to be defamatory and Mr Burgis was vindicated, but how many more cases do not reach our courtrooms due to the intimidatory tactics and costs run up by aggressive claimants before proceedings are even initiated? I think that is the point made by the hon. Member for Hammersmith (Andy Slaughter), and I will address a couple of his points at this juncture.
We have engaged with the SRA and will continue to do so. As the hon. Member mentioned, warning notices have already been issued. The fines for misbehaviour by solicitors firms have been increased, and pre-action behaviour is a legitimate cause of concern. The Government will continue to engage with the regulator to see how that can be further addressed. As so many people have volunteered to be on the Public Bill Committee, I am sure that, with the indulgence of the hon. Member for Caerphilly, we can look at the issue in more depth.
There is evidence that the number of SLAPPs is increasing year on year. There were 11 cases in the UK in 2020, 25 in 2021 and 29 in 2022. Such worrying and abusive conduct, whereby those with deep pockets attempt to financially bully dissenting voices, is unacceptable in our democracy. The courts must not be a pawn in these underhand attempts to cover up corruption and wrongdoing.
SLAPPs are a modern-day struggle between David and Goliath: we have individual journalists, academics and authors up against extremely wealthy individuals and corporates with unlimited resources on their side. We cannot let this type of intimidation and harassment stand. It is right that wrongdoing and dubious deals are laid bare for the world to see, and those who expose such behaviour should not be afraid of the repercussions of doing so. That is why the Government listened and introduced the Economic Crime and Corporate Transparency Act 2023 to tackle SLAPP claims connected to financial misdeeds.
That Act meant we were the first country in the world to legislate against SLAPPs at a national level. Although we can argue over whether it was overdue, we were certainly the first to do it, and we ought to take pride in the fact that this legislature acted faster than most. The Act gave cover to only a small part of the SLAPPs regime, and it targeted only one part of economic crime, which is why this private Member’s Bill seeks to address the gaps. It will make sure that the definition of SLAPPs is more comprehensive.
The hon. Member for Tiverton and Honiton (Richard Foord) raised the issue of behaviour in the test of objectivity and subjectivity. The issue of subjectivity is not unusual, and the court will consider all evidence before it comes to an assessment, including an explanation from the claimant as to why their claim is reasonable. The courts are, of course, well versed in taking that information into account. The test of subjectivity or intent is not unusual, and it is well established in our court system. Clause 2 gives specific examples of SLAPPs-type behaviour. I believe there is a careful balance between the standard practice of intent and tightening things up to give objective guidance to the judiciary on what constitutes SLAPPs-type behaviour.
The Bill follows the Economic Crime and Corporate Transparency Act in establishing a cost-protection regime that limits legal costs in SLAPPs claims, protecting defendants from the obscene costs run up by claimants to increase the intimidatory effect of their claim. This will also help to address the glaring inequality of arms between the parties in these cases.
Of course, one of the big steps forward is the ability to secure early dismissal so that these cases do not rumble on and rack up fees, particularly for defendants. The ability to strike out cases at an early stage is a big part of the cost-protection armoury. Our reforms also have to ensure a balance between defending people from SLAPPs-type behaviour and protecting access to justice, which is a fundamental part of our system. It is for the courts and the judiciary to determine whether a case is a SLAPP and whether it has merit. We have acted to remove the level of fear and risk that these cases can engender. The Government are glad to welcome and support this Bill, which builds on the important progress already made.
I thank the hon. Member for Caerphilly for seizing the moment to introduce a private Member’s Bill. This is an opportune time to build on what we have done so far, and to make it more comprehensive. As he outlined so well, the Government have found that the scourge of SLAPPs is unfortunately spreading into new areas, such as sexual harassment, clinical negligence and landlord and tenant disputes. The purpose of this Bill is to tackle such behaviour. If the behaviour looks like a duck and quacks like a duck, it’s a SLAPP. [Interruption.] Sorry, that is rather clumsy English. I am sure Hansard will correct me.
This Bill is a major step forward, and it is time to legislate. The majority of SLAPPs were thought to be linked to economic crime, but it is time to move on and make the definition more all-encompassing.
I will cover a couple of points raised by hon. Members. My hon. Friend the Member for West Bromwich East (Nicola Richards) raised the Belton case again. Information from all SLAPPs cases formed part of the call for evidence, so I can reassure her that the activities in the Belton case will be part of the foundation of this Bill.
My hon. Friend the Member for Heywood and Middleton (Chris Clarkson) spoke about forum shopping, which I will look at, and I am sure he will raise it in his customary fashion in Committee. I am sure the hon. Member for Caerphilly will urge him not to talk quite as much as he promises.
It is a credit to this Parliament that Members of all parties have rallied to support action on this issue and to introduce new laws to help ensure the integrity of our justice system and to support the freedoms and protections that we all cherish. In some ways, a private Member’s Bill is the most fitting way to complete what the Government started.
I have spoken about the work we are doing with the Solicitors Regulation Authority to ensure that it tightens up its regulation, and we will continue to engage with it. I pay tribute to the UK Anti-SLAPP Coalition, which has been an enormously effective stakeholder. The coalition has supported the Government’s efforts, and I thank it for its consistent engagement and clarity on this issue.
The Department for Culture, Media and Sport launched the SLAPPs taskforce last September, with a remit to develop non-legislative recommendations to tackle SLAPPs. Good progress is being made on a number of fronts, and I thank the Secretary of State for her tireless commitment.
Internationally, the UK was represented as an expert member of the Council of Europe’s Working Group on SLAPPs, which concluded its mandate in December 2023. The draft recommendation which was produced over the course of two years will now make its way to the Committee of Ministers, and we trust that it will be eventually adopted in all 46 member states.
The Government acted last October by legislating against SLAPPs, because we must not allow our courts to be abused and our legal system manipulated. We are therefore pleased to support the Bill, and will continue to ensure that those who speak out against corruption, who hold the powerful to account and who guard our freedoms through their voices are protected.
Let me again thank the hon. Member for Caerphilly for promoting the Bill. I also thank the officials at the Ministry of Justice for providing all the necessary support as we move forward.
Wayne David
With the leave of the House, I am very pleased that we have had such a good debate. It is laudable that so many Members in all parts of the House have taken the time to attend and to make such excellent contributions. I also pay tribute to people and organisations outside the House, notably the UK Anti-SLAPP Coalition. It has worked tirelessly on this issue for some time, and its input has been of tremendous value. I thank the Ministry of Justice and its civil servants for their assistance, its briefings and its constructive engagement at all times.
There are a number of issues that many Members consider particularly important, such as the so-called issue of subjective tests. I am inclined to agree with what the Minister said in summing up the debate, but I accept that there is room for further discussion, and we will be able to deal with it in some detail if the Bill goes into Committee.
I agree that cost is a fundamental issue. A number of Members have cited examples in which it is enormously important in ensuring that justice is done and is seen to be done. In her evidence to a Select Committee, the author Catherine Belton said that in London a single letter cost as much as £9,000, addressing concerns that had been expressed by a number of people. If one letter costs £9,000, we all know how much an entire case could cost. Surely that cannot be right in a democratic country which prides itself on freedom of speech, in which freedom of speech is pivotal, and which allows justice for all.
I hope very much that the Bill will continue its progress through the House and will reach the statute book, because I think that that would be a huge step forward for parliamentary democracy.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).
Strategic Litigation Against Public Participation Bill
Wednesday 8th May 2024
(6 months, 2 weeks ago)
Public Bill CommitteesRead Full debate Strategic Litigation Against Public Participation Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 May 2024 - (8 May 2024)
The Chair
My selection and grouping list is available online and in the room. We will have debates on two groups of clauses and amendments.
Clause 1
Requirement to make rules of court
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 1—Purpose and Interpretation—
“(1) The purpose of this Act is to protect and promote the ability of individuals and organisations to participate in public debate, advance accountability, and speak out on matters of public interest, and to prevent the use of the courts to undermine these rights through abusive legal action.
(2) Provisions in this Act should be broadly construed and applied to advance the purpose defined in subsection (1).”
This new clause places a purpose and interpretation of the proposed Act at the beginning of the Bill.
Wayne David (Caerphilly) (Lab)
It is a pleasure to serve under your chairmanship, Ms Elliott. I tabled this private Member’s Bill to tackle SLAPPs—strategic litigation, or lawsuits, against public participation—in all their forms, so that any abuse of litigation to attack free speech in the public interest, regardless of subject matter, can be addressed through the courts.
The Bill has had a long gestation. On Second Reading on 23 February, the version that I tabled, with Government support, was unanimously agreed by the House, but hon. Members clearly expressed some concerns and made some constructive comments. I am pleased to say that since Second Reading, a quite remarkable and very positive series of discussions has taken place between the Ministry of Justice and me, and between us and a number of stakeholder bodies. There have also been formal and informal discussions with Members who have taken a keen interest in the subject for a long time, in particular the right hon. Member for Haltemprice and Howden. The result has been not total, but a high degree of consensus on quite difficult and intense issues.
I remind everyone that SLAPPs are abusive or threatened lawsuits that are designed to inhibit free speech. These hostile lawsuits masquerade as genuine claims, but their underlying objectives are far more sinister. Such cases are often brought by powerful individuals and corporations with the aim of avoiding scrutiny by shutting down critical voices that seek to hold them accountable.
Protecting freedom of speech in the public interest is something that all parties in Parliament hold in high esteem. In all debates in this House and in the other place, there has been broad consensus on the need for reform to tackle the harmful effect of SLAPPs. As champions of media freedom, we must ensure that the free press is never made so vulnerable that it resorts to self-censorship on vital matters in the public interest. Grounded, well-researched investigative reporting must be protected, not reined in for fear of legal action. Of course, such protections cannot and must not come at the expense of access to justice, but the fact that claimants can currently exploit the system means that that important balance has not been struck. I have worked with the Government to make sure that the approach underpinning the Bill achieves the necessary protections and balances.
Clause 1 provides that rules of court must be made to provide a means of dismissing SLAPP cases at an early stage. The provisions require that rules are developed to make sure that a claim can be struck out where the court has determined, first, that a claim is a SLAPP, and secondly that the claimant has failed to show that their claim is more likely than not to succeed at trial. That will ensure that a court has the power to dismiss SLAPP claims at the earliest possible opportunity, thereby protecting defendants from unnecessary and intimidatory litigation that is used to silence and suppress articles, investigations and reporting being conducted in the public interest.
The rules of court will also establish the appropriate procedure to be followed so that Parliament’s intention to prevent the harm of SLAPPs is properly achieved in such cases. Subsections (2) and (3) provide that the rules will be able to identify what evidence will be considered and the degree to which it will be tested by the court in determining the various matters that it has to address, including the use of presumptions with respect to matters of fact. I will turn shortly to other provisions that will assist the judge, for example by setting out common attributes and behaviours that are characteristic of SLAPP-style litigation.
Clause 1(4) provides for the development of rules to establish costs protection for defendants in cases identified as SLAPPs. The rules will provide that the court must not order the defendant to cover the costs of the claimant in SLAPP cases, unless they themselves have behaved inappropriately. The purpose of this provision is to protect defendants from the exorbitant costs that are currently racked up by claimants in such cases, and from the use of the threat of such costs to intimidate them.
At present, the risks of high costs often force defendants to abandon their legitimate defence against challenges to important reporting in the public interest, because of fear of financial ruin. That is wrong and must be put right. Defendants in SLAPP cases will often not have the same means available to them as claimants; they are therefore commonly intimidated into abandoning cases and/or reporting, even when they know the story in question to be true. They often find that the risks of adverse costs orders, which can result in great personal debt, including having to sell their home or go through bankruptcy, are far too great to contemplate, even for the sake of important stories.
I commend the clause to the Committee.
Sir David Davis (Haltemprice and Howden) (Con)
I commend the hon. Member for Caerphilly for his Bill. It has been long in the coming, but it deals with a very important problem, and it is brilliant that he has actually brought it to the House. If I may say so, he has managed it in a formidably diplomatic way, given the sometimes quite difficult arguments that have gone on. My unreserved congratulations go to him.
The hon. Gentleman has done a brilliant job of outlining the point of the Bill, so I will not reiterate that, save to say that it is a difficult and technical Bill. We are balancing rights—the right to sue for defamation versus the right not to be oppressed and to enjoy free speech—and that is not easy to do. It is a subtle problem. Quite properly, the legal profession, the judiciary and the Ministry of Justice want to maintain that balance. They are very sensitive about that, but we should also remember that the right to sue for defamation is pretty much a rich man’s right. Very few of my constituents will exercise it, and very few people in this room will exercise it—perhaps one or two are rich enough. Nevertheless, it is important that it is maintained; I accept that without reserve.
It is understandable that the Ministry of Justice, in its advice on the Bill, seeks to compromise. I generally agree with compromise, but not with compromise between right and wrong. It has to be said that the Ministry will be being lobbied—with how much effect I cannot say—by the Society of Media Lawyers, including such leading lights as Carter-Ruck, Mishcon de Reya and Schillings, the very people who have created the problem that we are now trying to resolve. People have created a multimillion-pound industry out of oppressing the right to freedom of speech and making London the global capital of that. I could pick a ruder word for it, but I will just say that it is the global capital of SLAPPs.
I have one proposal to put to a vote, but first I want to talk a little about the vagaries of the Bill. Throughout all our discussions, the common theme has been, “How will the judge interpret this phrase, or this clause, in the context of what we are trying to do?” We are trying to protect freedom of speech and, at the same time, people’s right to look after their own reputation in court.
New clause 1 aims to give judges guidance on interpretation and tell them what the high priority of the Bill is. I will read out the clause in full:
“(1) The purpose of this Act is to protect and promote the ability of individuals and organisations to participate in public debate, advance accountability, and speak out on matters of public interest, and to prevent the use of the courts to undermine these rights through abusive legal action.
(2) Provisions in this Act should be broadly construed and applied to advance the purpose defined in subsection (1).”
I ask the Committee to see that as effectively an instruction to the judges as to how broadly they should interpret the Bill when it becomes an Act. I will press no amendments other than new clause 1 to a vote, because there is consensus on almost everything.
Liam Byrne (Birmingham, Hodge Hill) (Lab)
It is a privilege to serve under your chairmanship this morning, Ms Elliott. I congratulate my hon. Friend the Member for Caerphilly not only on securing this opportunity, but on working—as the right hon. Member for Haltemprice and Howden said—with formidable diplomacy to steer us to the Bill we have today.
The Bill is unusual in having commanded a great deal of cross-party consensus, ever since the first debate that the right hon. Member and I had the privilege of sponsoring in the House two or three years ago. It is not common to move this quickly from a Backbench Business debate to legislation. That is to be commended; indeed, it is why the Back Benches in this place should be strengthened further and given far more opportunities to legislate.
The Bill builds on an amendment that I had the privilege to move to the Economic Crime and Corporate Transparency Act 2023. It is outrageous that our courts are being used as arenas of silence to shut down free speech. We have become a place where oligarchs from around the world choose to come, in order to silence truth tellers and journalists who are providing an incredibly important public service.
The Bill is an important step forward, but it is only a step. As the right hon. Member for Haltemprice and Howden says, it cannot be the full solution. In particular, it will not address the plague of pre-litigation action. The number of journalists working in and around this place who tell us of legal letters being sent when they get a whiff of a story to close it down shows that this is a really significant problem. Once the Bill passes, we will need to understand what more can be done to stop the chilling effect of pre-litigation action.
New clause 1 provides us with an important debate. The right hon. Member for Haltemprice and Howden is right to say that part of the delicacy of the Bill relates to making sure that judges have full sight of Parliament’s intention. The debates we have in this place will be unusually important in interpreting and applying the Bill in the courts, so he is absolutely right to say that subsection (1) sets out the basic purpose of the Bill: to maximise the latitude for free speech, truth telling, investigations and good journalism, for which this country is rightly famous. If that comes at the cost of the Ministry of Justice opposing the Bill and killing it today, it will be an unfortunate consequence.
I hope that the Committee can unite around a solution that the Government can support, so that the Bill becomes law. This debate is important, and I hope it will run on here and in the other place to ensure we have a balancing test that secures the objectives of the right hon. Member for Haltemprice and Howden, without incurring a ministerial roadblock in the shape of the Ministry of Justice.
Sir David Davis
There were two possible approaches to this Bill. One was what we have before us, which is quite complex but seeks to address issues piece by piece; the other was what is known as the Ontario option, which effectively puts in place a parallel to the American first amendment. One of the reasons why new clause 1 is important is that it straddles those approaches. It does not take us down the first amendment and constitutional route, but it does make it clear what we are trying to do.
Liam Byrne
The right hon. Gentleman is absolutely right. A debate on the effects of a British version of the first amendment would be very welcome.
When the Minister replies, he could helpfully inform the Committee about a couple of things. First, it would be useful if he took the opportunity to tell us more about how pre-litigation chilling action is to be policed. Schillings, Mishcon de Reya and all the others are perfectly capable of moving their investment to the pre-litigation phase. They will do their damnedest to find their way around the provisions of this Bill, because frankly they are being paid too much not to do so. I would like to hear from the Minister about that.
Secondly, I would like to hear from the Minister—his words will be important, because they will be read by judges when they interpret the Bill—on whether he will put on the record today, in this Committee, some security around delivering the right hon. Gentleman’s objectives. The Bill aims to maximise the latitude for free speech in this country, an important objective that the Minister needs to share with us.
I have further comments to make, but they are probably best dealt with in our debate on clause 2. There are some important issues around the thresholds at which this Bill kicks in and the permissive environment that might be created for bad behaviour that may fall just short of the prohibitions in the Bill, but may none the less be fatal to the humble journalists and news outlets who do such valuable work.
The Chair
Before I bring in the shadow Minister, I remind colleagues that electronic devices should be absolutely silent. Somebody’s phone keeps pinging; I do not know whose it is, but could you all check your phones so that it does not happen again?
Alex Cunningham (Stockton North) (Lab)
It is a pleasure to serve under your chairmanship again, Ms Elliott. I am pleased to speak to clause 1 stand part. I commend my hon. Friend the Member for Caerphilly on his private Member’s Bill. Its aim to legislate for the remaining SLAPP cases not covered by the Economic Crime and Corporate Transparency 2023 is welcomed by the Law Society, which says that
“it’s in the public interest that our justice system works for all people regardless of their means and produces fair outcomes.”
I praise the long-running campaign led by free speech organisations, media practitioners and parliamentarians that forms the backdrop to this Bill. Those organisations include the UK Anti-SLAPP Coalition, which was formed in 2021 and has campaigned for changes to the law to address SLAPPs, as well as supporting individuals targeted by SLAPPs.
Clause 1 sets the stage for action that is long overdue. I am sure that all Committee members agree with the Bill’s important ambition of preventing abuses of the administration of justice. This Bill is about inequality under the law and how we address it. The Opposition supported it on Second Reading and, significantly, it received endorsement across the Benches. From the Front Bench, my hon. Friend the Member for Cardiff West (Kevin Brennan) noted:
“Labour has long recognised the danger posed by SLAPPs to our democratic values.”—[Official Report, 23 February 2024; Vol. 745, c. 963.]
I recognise that the Bill could be stronger, but we are content that it is necessary to bring about important change. We would not want to lose the Bill altogether or disrupt its progress. We recognise the importance of striving for a balance between the legitimate right to sue and freedom of expression. We would not want to close the door on individuals getting a remedy in court in appropriate cases.
As we have heard, clause 1(1)(b) will allow claims to be struck out if
“the claimant has failed to show that it is more likely than not that the claim would succeed at trial.”
I am mindful of the Law Society’s concerns that this measure will shift the onus of proof to the claimant in applications to strike out a claim:
“This represents a high threshold that a potential claimant would have to reach simply to be able to bring a claim. The test makes no allowances for cases in which a claimant may have a meritorious case but may not be able to demonstrate at the outset sufficient evidence to meet the threshold. This therefore has potential consequences for access to justice.”
I invite the Committee to discuss these concerns. Perhaps my hon. Friend the Member for Caerphilly will outline in a little more detail why clause 1(1)(b) is drafted as it is, or perhaps the responsibility for sorting this out falls to the Minister.
I turn to new clause 1. I am pleased, and unsurprised, to see the right hon. Member for Haltemprice and Howden contributing to the Bill. His campaigning against lawfare cases is well known, and I pay tribute to his tireless commitment to shining a spotlight on the issues and calling for action. I heard the concerns that my hon. Friend the Member for Caerphilly has expressed about some aspects of the proposed new clause. I hope that the Minister will provide an appropriate response to the right hon. Member for Haltemprice and Howden and perhaps see how we can help him in his ambitions for the Bill on Report.
The Parliamentary Under-Secretary of State for Justice (Mike Freer)
It is a pleasure to serve under your chairmanship, Ms Elliott.
I will not detain the Committee long. I wish to state my support for the hon. Member for Caerphilly in introducing the Bill, and for the approach that he has taken in steering it forward. However, I will try to address all the concerns raised by various parties—not least the constructive and weighty contributions from right hon. and hon. Members.
As we have heard, SLAPPs are the purview of corrupt individuals seeking to stifle free speech and a free press by abusing our courts and our laws, and to undermine our democracy. No matter who brings the case, SLAPPs must always be recognised as an affront to our renowned courts and legal system, and they should be tackled swiftly.
The Ministry of Justice has been keen to ensure swift passage of the Bill, and I pay tribute to the officials who have provided support to the hon. Member for Caerphilly and other Members in trying to fine-tune it. I gently say to the right hon. Member for Birmingham, Hodge Hill that the Department has certainly not been a roadblock—quite the reverse. We have been doing our best to ensure a swift and smooth passage.
Strategic litigation against public participation is a bullying display of power designed to silence investigations and reporting in the public interest. SLAPPs cause harm not only by stifling public comment but by forcing its removal or editing, leaving a sanitised version of events that may far underplay the true severity of the information covered. They discourage journalists, academics and campaigners from investigating issues in the first place, using intimidation to ensure that matters of public interest remain hidden, and leave the British public in the dark. The effect of SLAPPs is pernicious, and we cannot allow our media to be helpless to act to expose the actions of some people and organisations due to aggressive legal tactics and unlimited resources.
Liam Byrne
I hope the Minister did not mishear me: I was hoping to ensure that the Ministry of Justice does not become a roadblock in the future. I am very grateful for the work that he has done so far. Will he use this moment to put on the record whether he agrees with subsection (1) of new clause 1, tabled by the right hon. Member for Haltemprice and Howden? It provides that the Bill’s purpose should be interpreted as being
“to protect and promote the ability of individuals and organisations to participate in public debate, advance accountability, and speak out on matters of public interest, and to prevent the use of the courts to undermine these rights through abusive legal action”.
Is that basically the intent of the Bill?
Mike Freer
Let me take this opportunity to address two points that the right hon. Gentleman has raised. First, on pre-litigation issues, I will have to write to him to ensure that I get correct the rights that the Lord Chancellor, the Department or the courts will have before a matter gets to court. I will make sure that I get the details so that I do not misinform him.
We cannot support new clause 1, tabled by my right hon. Friend the Member for Haltemprice and Howden. As I have said to him, I am more than happy, between now and Report, to sit down and try to flesh out where we can find more agreement, but at this stage we cannot support the new clause. While we support the whole thrust of what he is trying to achieve, we feel that the Bill has actually—
Sir David Davis
The Minister has now said twice that the Government support the thrust of new clause 1. Given the consensus that we have maintained from the beginning, I would rather not divide the Committee. Alongside me, the right hon. Member for Birmingham, Hodge Hill has been the primary driver on this issue since—I cannot remember the actual date, but it was the day after I called for Boris to go. That is the new reference point: not anno Domini, but anno B, after Boris.
If the Minister agrees with the thrust of the new clause, and if he will come back on Report with an equivalent that makes it plain to the judges what the Bill proposes, I will not press it—but I do need that undertaking.
Mike Freer
I can give the undertaking that I will work with my right hon. Friend and the right hon. Member for Birmingham, Hodge Hill to try to ensure that the Bill meets those objectives. We believe that the Bill creates a balance of rights and responsibilities that ensures that we protect free speech while balancing the rights of both claimants and defendants, so that the bad behaviour that has been documented is addressed. Also, the examples of bad behaviour in the Bill and the explanatory notes are not exhaustive.
Liam Byrne
I am very grateful for that constructive reply, but I want the Minister to underline and crystallise the point for the Committee: he is saying that the Government support the thrust of the right hon. Gentleman’s new clause.
Mike Freer
I think the whole Bill supports the thrust of protecting freedom of speech. Equally, as the right hon. Member for Birmingham, Hodge Hill mentioned, we do not have a first amendment, so there is a nervousness about going down a path of establishing some form of first amendment, as the Americans have. We want to ensure that the Bill maintains a balance between claimants and defendants while protecting defendants who cannot protect themselves from the pernicious behaviour that we have all seen and read about.
Sir David Davis
I raised the first amendment issue, and the right hon. Member for Birmingham, Hodge Hill was responding to that. This is not a first amendment clause at all. The Minister knows as well as I do that, throughout the debate, the argument has been about how the judges will interpret every clause. The fact that the hon. Member for Caerphilly will move the other amendments today indicates that we did not get that balance right in the beginning; indeed, we might have made the problem worse. That is what this is about.
As I said, I do not want to divide the Committee if I can avoid it, and I seek an undertaking from the Minister. The alternative is to bring the new clause back on Report and then whip the thing on behalf of our own argument.
Mike Freer
I repeat my offer to my right hon. Friend and the right hon. Member for Birmingham, Hodge Hill: I am happy to discuss how we ensure that we come to an agreement that the Bill delivers what they want to achieve. However, we believe that new clause 1 is not necessary. Of course, if they believe that the Bill still needs it, my right hon. Friend has the right to move it during the remaining stages.
The offer is there: let us try to work together to see whether we can bridge the gap and persuade each other that we are right. At this point, the Department’s view is that the Bill creates a balance of rights and responsibilities while addressing the bad behaviour and listing, but not exhaustively listing, what bad behaviour will be curtailed.
Liam Byrne
I am grateful to the Minister for his characteristic generosity. He has just told the Committee that he does not think that new clause 1 is needed and that the intention of the Bill as a whole is to support the objectives of the new clause. The new clause is very carefully drafted. It states:
“The purpose of this Act is to protect and promote the ability of individuals and organisations to participate in public debate, advance accountability, and speak out on matters of public interest”.
It therefore falls short of an American first amendment-style provision and, in that sense, has been quite carefully sculpted. I am grateful to the Minister for saying that he does not think it is needed because that is the thrust of the Bill overall, and it is important that that is on the record. I am happy to work with the right hon. Member for Haltemprice and Howden and others to ensure that we have got that beyond doubt.
Mike Freer
We broadly agree, I think, that the Bill is in a good place, but the right hon. Gentleman may wish to take us up on our offer to discuss further why we believe that the Bill strikes a balance in achieving what he wants to achieve while protecting rights and balances when it comes to claimants and defendants. It will stop the pernicious behaviour that we know has been happening while, equally, ensuring that there are no unintended consequences or problems with other rights and responsibilities that could have resulted from the new clause. Let us park that for now and try to flesh the issues out between now and Report. I realise that my right hon. Friend the Member for Haltemprice and Howden and the right hon. Member for Birmingham, Hodge Hill reserve their right to move an amendment at a later stage.
The Government firmly believe that clause 1 creates the most appropriate and effective framework for courts to deal with SLAPPs, allowing such claims to be dismissed swiftly. There will also be a fair and proportionate assessment of whether any such claim or part of it should be allowed to proceed, and a fair and proportionate costs sanction should it do so. Allied to the other provisions in the Bill, that framework will ensure that courts will be able to properly tackle SLAPPs in a fair and proportionate way, to ensure that justice to both claimants and defendants is done.
Although the Government share the important concerns raised by my right hon. Friend the Member for Haltemprice and Howden and the right hon. Member for Birmingham, Hodge Hill that the purpose of the Bill should be achieved in practice, they consider that the current draft will do so. As I said, we have significant concerns about the possible unwarranted effects of the purpose and interpretation provision in new clause 1. That is why I have made the offer to sit down and work through whether we can find some form of agreement.
I want to put it on the record that we have given careful thought to ensuring that public participation and free speech are protected and that all convention rights are also protected. These reforms are carefully balanced to protect access to justice—a fundamental tenet of our legal system—and to provide the courts with the ability to broadly interpret and apply the principles, to make sure that no devious misuse of litigation is left unaddressed.
Damian Collins (Folkestone and Hythe) (Con)
Before the Minister brings his remarks to a close, I would like to go back to new clause 1, tabled by my right hon. Friend the Member for Haltemprice and Howden (Sir David Davis). Does the Minister think it important that, in passing this legislation, the Committee and the House should give some direction that considers that people with a public profile should be subjected to greater accountability and debate and that they are different from ordinary private citizens? Should judges take into account whether the criticism of a high-profile person is fair comment in an open society because they are a public figure and different from a private person who would never seek the public eye?
Mike Freer
I am not a lawyer, so I will not be tempted down the path of discussing whether certain people should be subject to greater or less scrutiny in the eyes of the law. In my view, the law applies equally; it is up to the judges to interpret the intention of the Bill, which we have clearly laid out in what we have said and in the explanatory notes. We are seeking to redress the balance when it comes to the rich and powerful misusing our courts, and to protect freedom of speech. I do not want to say that certain people should have more or less scrutiny; I leave it to the judges to clearly interpret the intent of the Bill and the House through the Bill itself, the explanatory notes and the words that right hon. and hon. Members have spoken.
Damian Collins
Does the Minister agree that one of the challenges that judges will always face is that every claimant will say that their cause is just and reasonable and that great hurt and offence has been caused by what has been written and said about them? It is important that judges have the confidence to know when they can make a call to say that the litigation is strategic rather than legitimate.
Mike Freer
I believe that the Bill itself, the explanatory notes and comments made by right hon. and hon. Members will give clear direction to the judges so that they understand the intent of the Bill, which is not to stifle a defendant’s access to justice but to stop the bad behaviour that we have seen. Judges will know the intent of the Bill in respect of those seeking to bring the rich and powerful to account or to shine the light of good journalism—the disinfectant of sunlight—on inappropriate actions; equally, however, everyone must have their right to justice as well.
Alex Cunningham
Will the Minister address directly the concerns of the Law Society in relation to clause 1(1)(b)? The clause states that a claim can be struck out if the claimant
“has failed to show that it is more likely than not that the claim would succeed at trial.”
In other words, the onus in terms of proof is shifted on to the claimant rather than the defendant. The Law Society says:
“This represents a high threshold that a potential claimant would have to reach simply to be able to bring a claim.”
Mike Freer
It was certainly not the view of the hon. Member for Caerphilly or the Department that the amendments should be accepted, because we felt that the arguments put forward by the Law Society were not supported and that our Bill created a careful balance. In a nutshell, we did not agree with what the Law Society put forward—neither the amendments nor that particular argument. We think the Bill creates a careful balance between claimants and defendants, and we support it.
Sir David Davis
On a point of order, Ms Elliott. I have listened to the Minister carefully, and my interpretation is that he will seek to resolve this problem before Report. I will therefore not press new clause 1 today and will seek consensus across the board. However, I give notice that if we do not resolve this issue, it will come back on Report.
Wayne David
What can I say? We have had an excellent discussion this morning. It has been very good indeed and has in many ways got to the core of the issue. I want to genuinely thank the right hon. Member for Haltemprice and Howden for prompting this excellent debate through his new clause. As I said, I brought forward this Bill to tackle SLAPPs in all their forms and provide protection for free speech in the public interest. The fact that SLAPP claimants can misuse the justice system shows that the right balance between access to justice and protections against abuse of process is currently not being struck. The Bill must ensure that balance, and it has.
I want to stress that the Bill has been carefully drafted to ensure that all litigants are able to properly and fairly exercise their rights of access to justice. It will ensure that attempts by claimants to misuse the justice system in order to limit the rights of defendants to free speech on matters in the public interest cannot succeed. This point is crucial: it will do so without unduly and unfairly preventing claimants from achieving their own rights, such as the right to not be defamed.
New clause 1, however, risks and draws into question that carefully balanced approach. It is undoubtedly well-intentioned and many of us would agree with the sentiments expressed this morning, but it runs a risk of undermining the efficacy of the Bill as a whole; that is, of course, opposite to the intention of the right hon. Member for Haltemprice and Howden. The new clause risks that by introducing new and uncertain concepts into domestic law, such as the right to public participation, and requiring a supremacy of those concepts over other established rights. These are big and important issues.
Sir David Davis
I am afraid that, perhaps for the first time in all this, we disagree on something. The right to free speech and public participation is not new in British law: it goes back to Magna Carta.
Wayne David
I am not familiar with Magna Carta, but I suspect our common law has moved on somewhat since then.
The uncertainty about the scope and effect of the new clause also raises the somewhat unfortunate spectre of new and unexpected avenues for litigation, when these measures are intended to do the exact opposite. I am clear that the drafting of the Bill makes its purpose transparent. It is a purpose that is consistent with rights already established in domestic and international law and that addresses the fundamental need to ensure access to justice for both claimants and defendants.
Chris Clarkson (Heywood and Middleton) (Con)
Does the hon. Gentleman agree that at the heart of this is the application of the reasonableness test? Although I agree with the thrust of new clause 1, I think there is an opportunity to apply the existing framework to achieve its goals. As my right hon. Friend the Member for Haltemprice and Howden said, the idea of freedom of speech and public participation is already a fundamental part of our common law, but even when we are applying the reasonableness test we often give judges instruction on how they should interpret reasonableness. Does the hon. Gentleman think that there is an opportunity to ensure, before Report, that we have embedded that concept?
Wayne David
I am a very reasonable person—[Hon. Members: “Hear, hear.”] I am glad that all Members agree.
Wayne David
This is a crucial test, which will be addressed, I am certain, in clauses that we have yet to discuss. There is much to be said for providing a clarification, and that is one of the central things that we will come on to in a few moments’ time.
Adam Afriyie (Windsor) (Con)
I very much support the direction of travel in new clause 1. Would it not be fairly straightforward for the Minister, even at this stage—although perhaps he does not have the words available—simply to confirm the intention, which might then negate any need for the new clause?
Wayne David
In fairness, the Bill’s intention is clearly expressed in the clauses that we have before us. I accept that the discussion will be ongoing; nobody is saying that it is the end of the matter, but as things stand, I think it is fair to say that there has been a great deal of discussion and a great deal of investigation of different options, and that this is the best consensual position that we have established to date. Although of course the debate will continue, I have yet to be persuaded that there is a sound and definitive case for changing what we have before us.
I believe that the Bill provides a sound framework and guidance to our independent judiciary to deal with the serious harm that SLAPPs can cause. Judges are well versed in interpreting provisions, assessing evidence and, ultimately, ensuring that justice is done. I believe very strongly that we must be careful here, because unclear direction or too much direction risks creating difficulties—more difficulties than it resolves. Words have to be precise.
Although I thank the right hon. Member for Haltemprice and Howden for his continued commitment on the issue of SLAPPs and his consideration of the Bill, I consider that new clause 1 at the moment goes a bit too far. It risks undermining, and certainly draws into question, the careful balance that the Bill strikes, as well as the efficacy of the provisions, and it potentially complicates unnecessarily the Bill’s onward passage, and not just in this House; let us remember that it has to go to the other House as well.
Clarification is always needed, and the debate will be ongoing. I understand that the Government are prepared to provide clarification in the appropriate place, such as the explanatory notes. That is extremely important, because the explanatory notes provide the clarification for the Bill and add substantial meaning to it.
Sir David Davis
May I just say to the hon. Gentleman that I have viewed many court cases in my time and I have heard judges refer explicitly on many occasions to the wording of the law, but I have never yet heard them refer to explanatory notes?
Wayne David
The right hon. Gentleman might not have heard judges refer explicitly to explanatory notes, but I know it to be a fact that judges quite regularly provide interpretations and receive information derived from them, so I suggest to him that explanatory notes are very, very important. The two—the legislation itself and the Government’s official explanatory notes—should go in tandem.
I am delighted that the right hon. Gentleman has decided not to press his new clause. I can assure him that I, like the Minister, will ensure that the discussion continues, because this is an important debate. We have had a good discussion this morning; this is not the end of the matter, but it is important at this point to affirm that we stand by what has been put forward. I am delighted that the right hon. Gentleman will not press his new clause, because it would be unfortunate to divide the Committee on an issue on which there is so much genuine understanding and consensus. I thank him for not pressing it, and I give a commitment that the debate will continue.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Meaning of “SLAPP” claim
Wayne David
I beg to move amendment 1, in clause 2, page 2, line 6, at end insert—
“(aa) the claim relates to an expression or potential expression made or to be made by the defendant which discloses or would disclose information relating to a matter of public interest;”.
This amendment and amendments 3, 4, 8 and 9 re-order themes in the subsection so that the public interest is referred to before freedom of speech.
The Chair
With this it will be convenient to discuss the following:
Amendment 11, in clause 2, page 2, leave out lines 7 to 18 and insert—
“(a) the information that is or would be disclosed by the defendant relates to a matter of public interest;
(b) the claimant’s behaviour in relation to the matters complained of in the claim is such that it is reasonable to conclude that the behaviour has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech; and
(c) any of the behaviour of the claimant, including leading up to or alongside the claim, in relation to the matters complained of in the claim is such that it is reasonable to conclude that the behaviour is intended to cause the defendant any other harm or inconvenience beyond that ordinarily encountered in the course of properly conducted litigation.
(1A) In subsection (1)(c) the reference to ‘harm’ includes, but is not limited to, a reference to any of the following—
(a) expense,
(b) alarm,
(c) harassment or distress.”
Amendment 2, in clause 2, page 2, line 8, after “claim” insert
“is such that it is reasonable to conclude that the behaviour”.
This amendment ensures that the condition in subsection (1)(a) is met if the court determines that it is reasonable to conclude that the claimant’s behaviour has or is intended to have the effect in question.
Amendment 3, in clause 2, page 2, line 9, after “exercise” insert
“by that disclosure or potential disclosure”.
See the explanatory statement for amendment 1.
Amendment 4, in clause 2, page 2, line 10, leave out from beginning to “and” in line 11.
See the explanatory statement for amendment 1.
Amendment 5, in clause 2, page 2, line 13, after “claim” insert
“is such that it is reasonable to conclude that the behaviour”.
This amendment ensures that the condition in subsection (1)(c) is met if the court determines that it is reasonable to conclude that the claimant’s behaviour is intended to have the specified effect.
Amendment 6, in clause 2, page 2, line 14, leave out sub-paragraphs (i) to (iii) and insert “any harm or inconvenience”.
This amendment and amendment 7 restate sub-paragraphs (i) to (iii) for the purpose of clarifying the condition in subsection (1)(c).
Amendment 7, in clause 2, page 2, line 18, at end insert—
“(1A) In subsection (1)(c) the reference to “harm” includes (but is not limited to) a reference to any of the following—
(a) expense;
(b) harassment;
(c) alarm;
(d) distress.”
See the explanatory statement for amendment 6.
Amendment 8, in clause 2, page 2, line 20, leave out “or (b)”.
See the explanatory statement for amendment 1.
Amendment 9, in clause 2, page 2, line 23, leave out “(1)(b)” and insert “(1)(aa)”.
See the explanatory statement for amendment 1.
Amendment 10, in clause 2, page 2, line 23, leave out from second “the” to end of line 24 and insert
“matters that are of ‘public interest’ include (but are not limited to) the following—”.
This amendment rephrases the opening words of subsection (3) so as to make it explicit that matters of “public interest” are not limited to the specified matters.
Amendment 12, in clause 2, page 2, at end of line 39 insert—
“(ba) the use of dilatory strategies, excessive disclosure requests, disproportionate or unreasonable pre-action threats, or any refusal without reasonable excuse to resolve the claim through alternative dispute resolution;
(bb) the choice of jurisdiction;
(bc) the use of public relations campaigns to bully, discredit or intimidate the defendant;”.
This amendment sets out a wider context of SLAPPs.
Clause stand part.
Clauses 3 and 4 stand part.
Wayne David
I will turn shortly to amendment 1 and the other amendments in my name, but I will first address the function of clause 2, which creates a statutory definition of what constitutes a SLAPP claim, so that courts can effectively identify such misuses of our justice system. It will mean that a case will be considered a SLAPP if each limb of a three-part test is met: a defendant has had their freedom of speech restrained, the story is a matter of public interest, and the claimant’s behaviour has been harassing, alarming or distressing to the defendant, including by running up inappropriate expense or inconvenience “beyond that ordinarily encountered” in litigation.
Before discussing my amendments, I want to recognise the targeted, constructive efforts by stakeholders who have invested time by providing feedback on the Bill, to ensure that those at risk of SLAPPs receive the backing they need to curtail abusive proceedings in the courts. I am also grateful for the work and support of the Government, who have shown their commitment to cementing the UK’s reputation as a jurisdiction that values free speech and broad public participation.
I will start with amendment 1 and will also speak to amendments 3, 4, 8 and 9, which are consequential to it. In short, amendment 1 seeks more prominently to convey the Bill’s purpose by reordering the first two of the three components of a SLAPP so that public interest is given the primary position in clause 2, ahead of free speech. The amendment does not diminish or undermine the importance of an expression of freedom of speech or the claimant’s misconduct in the identification of a SLAPP. Each of the three components in clause 2 must still be present for a case to be found to be a SLAPP. Public interest considerations are at the heart of SLAPP cases, and amendment 1 reflects that importance. Accordingly, I commend the amendment to the Committee, alongside amendments 3, 4, 8 and 9, which are required for drafting purposes if clause 2 is reordered as proposed.
Amendments 2 and 5 seek to ensure that there is an appropriate degree of objectivity in the intention test when considering the effects a claim has on a defendant’s freedom of speech and the misconduct of the claimant in pursuing the claim. That is achieved by introducing the concept of reasonableness. The amendments will allow the court to consider the claimant’s behaviour in terms of whether it is reasonable to conclude, based on their conduct, that the claimant intended to restrict the defendant’s freedom of speech and to cause harm. Any harm beyond what can be reasonably expected to be incurred in the course of properly conducted litigation—bearing in mind that by its very nature, litigation is stressful and inconvenient—would result in the case being identified as a SLAPP and being struck out.
Adam Afriyie
On a point of clarification: I am not a lawyer either, but under the amendment, if a judge were to determine that a case were a SLAPP and strike it out, could he do so partially? Is there a mechanism by which the claimant can appeal the initial strike-out?
Wayne David
I will seek clarification, as I am a layperson. My understanding is that the judge’s decision is definitive and will achieve the desired effect.
The introduction of reasonableness will give the court a clear ability to draw conclusions about a claimant’s intention from all the objective evidence before it. That evidence will be from both the claimant and the defendant, and its extent will be controlled by the court. The court will also be able to determine the degree to which it is tested, and will therefore be in a proper position to infer from it whether the necessary intention from the claimant is present, so as to warrant the case being found to be a SLAPP. Amendments 2 and 5 will assist courts in ensuring that an objective and fair assessment is made of whether the case is a SLAPP.
Amendments 6 and 7 clarify the misconduct element of the test to decide whether a claim is a SLAPP. They respond to concerns from stakeholders who said that the original formulation of the clause suggested that there is a level of harassment, alarm and distress that is acceptable to pursue as a tactic to cause intimidation in conducting litigation. That was never the intention, and I wish to make that point firmly and very clearly.
The intention of the clause is to isolate claimants who are perpetrating misconduct in the way in which they are pursuing their claim. It will separate those who are using litigation as a weapon from those who have a legitimate grievance and are behaving properly in conducting their case. These amendments will mean that a defendant will be able to assert that, through improper behaviour, a claimant has caused them harm. In making that claim, the defendant will be able to invoke harm of any sort, including but not limited to harm, distress, expense, inconvenience or harassment. I consider that this new formulation will assuage the legitimate concerns raised by stakeholders and parliamentarians alike. It is therefore extremely important.
Sir David Davis
In many ways, this goes to the heart of the argument that we have had throughout all this. The truth of the matter is that anybody in receipt of normal judicial action in an ordinary defamation case faces distress and expense. A person who receives a lawyer’s letter at the beginning of such a claim suffers, if not a nervous breakdown, then something quite close to it, so this is quite difficult to elucidate. I know that the hon. Gentleman takes that point.
Wayne David
The right hon. Gentleman makes an extremely important point that gets to the heart of the Bill. Such cases are extremely stressful and cause all manner of feelings, which are clearly indicated here, and often enormous expense. One of the things that is recognised in this Bill is that in many cases that is quite deliberate. SLAPP cases are often designed to cause a maximum amount of distress, alarm and expense to defendants. That is precisely what we want to iron out of the system to introduce an objective fairness, so that cases are really judged on their merits and not on what quite often happens behind the scenes. I consider this new formulation to be much stronger than what we initially had in mind, and it is therefore very important and appropriate. I very much hope that it receives the full support of this Committee.
Finally, amendment 10 seeks to clarify the scope of “public interest” as set out in clause 2(3). That is achieved by amending the language so that it is clear that the list of matters in the “public interest” is not exhaustive. This amendment will assist the court in the identification of SLAPP claims and ensure that all relevant claims can be dealt with under the scope of this Bill. It brings greater clarity to the definition of “public interest” in the Bill and addresses concerns from parliamentarians that the Bill would not achieve its aim of identifying SLAPP claims as currently drafted. I commend amendment 10 to the Committee.
For completeness, I note that clause 3 will amend the Economic Crime and Corporate Transparency Act 2023 by removing the provisions for SLAPPs that relate to economic crime. Sections 194 and 195 of the ECCTA are no longer required as this Bill’s provisions will capture all SLAPPs, including those that feature an element of economic crime. The measures in this Bill will deal with SLAPPs in the round, and not just those related to economic crime currently contained in the 2023 Act. In other words, this is a holistic approach that encompasses all SLAPPs and should be recognised as such.
Clause 4 sets out the legal jurisdictions to which the provisions will apply and the commencement of this legislation. The Bill applies only to England and Wales, as justice is a devolved matter, and it will be for the Administrations in Scotland and Northern Ireland to consider whether and how they wish to legislate to address the challenges that SLAPPs represent in their own jurisdictions; I very much hope that they will follow our good example. Although the Bill will take effect two months after Royal Assent, it will be implemented in full once the necessary rules of court have been developed by the Civil Procedure Rule Committee; those will come into force through secondary legislation.
On that basis, I commend clause 2, as amended by the amendments in my name, and clauses 3 and 4 to the Committee.
Sir David Davis
I have just looked with amusement at the selection list. The grouping of amendments under clause 2 reads:
“1 [David] + 11 [Davis]…10 [David] + 12 [Davis]”
I am not responsible for all of them—the hon. Member for Caerphilly and I are brothers in arms, but not brothers. I agree with every single amendment that he has tabled in his name; they will all improve the Bill. They also demonstrate that the Bill was very flawed before, as indeed was the Economic Crime and Corporate Transparency Bill, to which there is also an amendment here. I am afraid that that demonstrates that the Government’s original approach was not as thought-through as it should have been.
The two amendments in my name both seek to do the same thing: to broaden the view of the judge, when they are making a ruling on whether a case is a SLAPP case, to the extrajudicial behaviour outside the court room, included in which is the selection of forum. If someone were to pursue a court case in London rather than in their domestic court, that would be an indication that they were seeking to exploit our laws in pursuit of a SLAPP.
In some ways, the point about extrajudicial action is even more important. It is that the actions taken against the individuals on the receiving end of SLAPPs are intimidatory and bullying in a whole series of extrajudicial ways. I should think everybody on the Committee knows about the cases of Tom Burgis, Catherine Belton and our erstwhile colleague Charlotte Leslie. Intimidatory social media campaigns, threatening phone calls, not-so-subtle surveillance, hacking—the list goes on and on.
Apsana Begum (Poplar and Limehouse) (Lab)
I commend my hon. Friend the Member for Caerphilly for bringing this important Bill to the House and getting it to this stage. Like many colleagues, I was at the first debate on lawfare in January 2022 and I am now most grateful to serve on this Committee. I also thank campaigners for what they are doing to prevent the misuse of litigation to suppress freedom of speech, including the campaign groups and campaigners working against the use of the law to silence survivors of domestic abuse and violence.
Democratic and press freedoms are fundamental to our rights and to challenging corruption and the abuse of power. That is why I remain concerned that the Bill has been drafted with too much focus on attempting to balance competing interests within the legal profession, instead of protecting public participation and the fundamental rights of free expression and access to a fair trial. Indeed, we know that the Government have been heavily lobbied by—and, as has been mentioned, have had substantial input from—the very lawyers who bring SLAPP claims.
In particular, colleagues will be aware that the Anti-SLAPP Coalition takes issue with the wording of clause 2(1)(c) because it argues that the wording assumes that there is an acceptable level of “harassment, alarm or distress”, and harm, that a claimant can intentionally inflict on a defendant. It also has a narrow scope, focusing only on conduct directly related to litigation, which leaves claimants free to continue with much of the pre-litigation conduct, and abusive behaviour conducted in tandem with litigation, that make SLAPPs so egregious and hard to monitor.
I am minded to agree with campaigners that it must be clear that claimant behaviour that is intended to harass, alarm and distress, and that harms, is combined with other factors in clause (2)(1)(c) indicative of a SLAPP claim, and that there should be no threshold below which this behaviour is acceptable. Likewise, abusive claimant behaviour prior to and alongside the claim itself should be in scope.
I place on the record my support for amendments 2 and 5, which stand in the name of my hon. Friend the Member for Caerphilly, which seek to ensure that a court can reach a conclusion about a claimant’s intent based on a reasonable and more objective interpretation of their behaviour, rather than rather than an overly subjective inquiry into their state of mind. That would retain the test of a claimant’s intention while mitigating the threat of complex, costly and lengthy satellite litigation, which has already been discussed. I am concerned that campaigners and experts are warning that without these amendments, there is a risk that this Bill’s early dismissal mechanism could render the legislation redundant.
As chair of the all-party parliamentary group on domestic violence and abuse, and having had first-hand experience of how SLAPPs can be used to silence women, I want to ensure that we consider the ability of abusers to weaponise litigation. Back in 2021, the UN special rapporteur on freedom of expression, Irene Khan, warned about gendered censorship taking place around the world. I have also spoken extensively about this issue, and she rightly pointed out that there is currently an imbalance in the system between “his” right to reputation and, usually, “her” right to free speech.
Having spoken extensively about defamation and public interest defences in this regard, I think that we should aim to have a future free from perpetrators being able to abuse the courts and pursue litigation in this way. I therefore support my hon. Friend’s amendment 10 on the definition of “public interest”. It seeks to ensure that the Bill does not privilege certain types of public interest speech and create an unnecessary and problematic hierarchy that could, as I understand it, cut across principles in the Defamation Act 2013 and data protection law, making it harder for defendants to use the full scope of available defences.
Adam Afriyie
I will not keep the Committee too long. I just want to say that I have sat on many Committees in my 19 years here, and I think that this Committee is a testament to the strength of Parliament in scrutinising legislation that clearly we all want to see. It highlights the nuances of differing views on constitution versus freedom of speech versus public interest, so I very much understand the reason for each one of these amendments.
There is a lot of debate around each amendment, but I suspect that actually the Government and pretty much every MP would agree with the intention of all of them. The question is about the precision of how they are delivered. I rise, to be honest, to speak in support of all the amendments in this grouping—not necessarily the precision of them, but the intention behind each and every one. In particular, I speak in favour of amendments 11 and 12, which stand in the name of my right hon. Friend the Member for Haltemprice and Howden.
It does seem to me that as MPs, we see all sides of this issue. We see attacks on ourselves from people trying to suppress what we are about to say on the Floor of the House or elsewhere, but we also observe in our local media that the two little journalists stuck in a local regional newspaper are suddenly facing a massive court case if they write something that, to be honest, is in the public interest and fairly innocuous. We can see things from both sides, which is why, particularly in the debate about these amendments, we are all being very gentle in how we approach things: because we know that there are subtleties that we need to address.
However, I am very keen to see that those who have disproportionate power—whether that is financial power, or in business structures, or in access to lawyers—are kept in check when it comes to behaviours that are clearly designed to harass, intimidate, frustrate and frighten people on the receiving end, whether they are local journalists or media, or even, to be honest, mainstream newspapers that may have financial challenges as well, or individuals such as our former colleague Charlotte Leslie, whose life was made an absolute misery. Nobody in any party would want to see or witness that kind of behaviour, no matter which former MP was experiencing it.
This issue needs to be dealt with and I thank the Government for dealing with it. I also thank all hon. Members on this Committee for examining what needs to change. I am very keen on this group of amendments, because they aim to clarify and define more closely what it is we are trying to deal with. The worst kind of legislation is the kind that we have not scrutinised carefully to ensure that when a judge approaches a matter, they have clear directions and a clear understanding of the intention of this House in forming that legislation.
I hope that in Committee and on Report, we will finally get to a resolution on each of the issues that have been raised here, because it is really important that this piece of legislation gets on to the statute books. However, it is equally important that freedom of speech is defended and that the little guy or the little girl in our society—the small media outlets—are protected from deeply wealthy and deeply aggressive litigants.
Andy Slaughter (Hammersmith) (Lab)
It is a pleasure to see you in the Chair, Ms Elliott. I can be fairly brief, as harmony appears to have broken out across the Committee. I would not want to disturb that harmony in any way.
Andy Slaughter
Well, just a little, maybe.
I congratulate my hon. Friend the Member for Caerphilly on his Bill and particularly on his amendments. They not only clarify the Bill but strengthen it a great deal, especially in relation to the objective test, which, as we discussed at some length on Second Reading, is a necessary change. Without the amendments, the danger is that one of the vices that the Bill seeks to prevent would become apparent in another way—through satellite or preliminary litigation—because we were trying to delve down into what was in the mind of a claimant in the process of bringing a suit. That is a good start.
The right hon. Member for Haltemprice and Howden mentioned pre-litigation risks about actual harassment of defendants and other ways of manipulating the court processes. I find amendment 12, which he tabled, attractive from that point of view. It certainly is the case, and libel cases are the best example, that whole swathes of defendants’ lives can be taken up simply by the manipulation of the litigation process.
Above all, and most commonly, this is an issue about costs. We can all imagine what Tom Burgis, Catherine Belton and Charlotte Leslie felt when they received those letters. It is not just about the allegations or the possible reputational damage; it is about the real risk of bankruptcy, or at least having to pay out huge sums of money. It is just common sense that that is bound to suppress free expression and hobble investigative journalism. If the Bill goes some way towards preventing what is commonly described as the chilling effect of such litigation, it will be doing an extremely good job.
It is also true that the use of the justice system to pursue SLAPP claims undermines the rule of law and undermines confidence in the judiciary. There is a question as to whether courts have been manipulated. They have stuck to the rules and dealt with the law as it is, but have been unable to do much about claimants who bring cases for malicious and devious purposes. I often agree with the right hon. Member for Haltemprice and Howden, my right hon. Friend the Member for Birmingham, Hodge Hill and my hon. Friend the Member for Stockton North; I do not agree as often with the Government or the Ministry of Justice, so that is a great pleasure.
Liam Byrne
I have just two points to make on this excellent group. First, I wholeheartedly support the amendments to clause 2 that my hon. Friend the Member for Caerphilly proposes. The Opposition amendments to the Economic Crime and Corporate Transparency Act 2023 were very much a tactical strike on the statute book: here was a Bill that gave us the chance to ensure that we had road-tested similar provisions. Given the narrow scope of that Bill, it was possible to sketch only amendments that tackled economic crime at their core, so I am glad that this Bill gives us the opportunity to go well beyond that and take the holistic approach that my hon. Friend set out in his excellent opening speech.
My second point, which perhaps the Minister or my hon. Friend will address, relates to the concerns that have been well set out by the UK Anti-SLAPP Coalition. It gives me the chance to congratulate the coalition on its extraordinary and steadfast work; I am not sure that we would have arrived at quite the same speed without it. The coalition usefully highlights concerns about clause 2(1)(c), the drafting of which appears to suggest that there is a threshold for the “harassment, alarm or distress”—harm, if you like—that can be permitted. That is not something that we would want to support in this place. I realise that it is difficult to get the balance right, but my hon. Friend the Member for Poplar and Limehouse has spoken eloquently about the risks of creating a space in which there is a level of distress and harm that is permitted. It would be useful for both Front Benchers to crystallise how that issue will be tackled by the amendments in this group.
Alex Cunningham
As we have heard, consensus has broken out. It is all very pleasant, unlike some issues that I have debated with the Minister in the past. I welcome amendments 1, 3, 4, 8 and 9, which will reorder the themes so that public interest is referred to before freedom of speech. My hon. Friend the Member for Caerphilly has more than adequately outlined the necessity of the clauses, and I support his efforts to improve the Bill’s application.
I am also pleased to see amendments 2 and 5, which will ensure a more objective approach to the identification of intent. As we have heard, requiring the courts to engage in a subjective inquiry into the mind of a claimant or defendant would create uncertainty and might be practically and evidentially difficult to assess. These requirements could create satellite litigation and uncertainty at an early stage and might have the unwanted effect of introducing further delay and driving up costs.
The definition in the Bill should, at a minimum, include an objective element so that it relates to claims concerning disclosures that are or would be made on matters of genuine public interest. That would make the text similar to section 4(1)(a) of the Defamation Act 2013. I know that the amendments have the backing of the Law Society and the UK Anti-SLAPP Coalition. The News Media Association, a member of the coalition, says that the amendment is required to allow a judge to define a case as a SLAPP based on a reasonable interpretation of a claimant’s actions, rather than a complex inquiry into a claimant’s state of mind. It agrees that the latter would result in complex, time-consuming and costly legal wrangling that would defeat the object of a Bill intended to dismiss egregious SLAPP cases swiftly.
Amendments 6 and 7 restate sub-paragraphs (i) to (iii) of clause 2 for the purpose of clarifying the condition in subsection (1)(c). They have our support.
Clause 2(3) attempts to set out a definition of “public interest” to help with identifying SLAPP cases. That includes matters such as illegality, false statements, public health and safety, the climate or the environment, or investigations by a public body. Concerns have been raised to me that the original drafting lacks clarity and risks creating problems for implementation; it also proves contradictory in relation to the Defamation Act 2013. I therefore support my hon. Friend’s amendment 10, which will go some way towards addressing those issues by making it clear that the list set out in the clause is not exhaustive, and that other matters not specified in the Bill can be considered by the court to be of public interest.
It would not be appropriate to privilege certain types of public interest speech and create an unnecessary and problematic hierarchy. Without amendment 10, the examples in the definition of “public interest” in clause 2(3) would cut across principles in the Defamation Act and in data protection law, making it harder for defendants to use the full scope of defences available at trial. That is because it would naturally be difficult for a court to decide that an article was not in the public interest under the Bill’s narrow definition but then take a different course at trial. We are happy to support amendment 10.
Mike Freer
If I may, I will address a few points raised by hon. Members and then make some final remarks.
On the issue raised by my hon. Friend the Member for Windsor about whether it is possible to strike out all or part of the claim or seek an appeal, he is absolutely correct.
I am grateful that my right hon. Friend the Member for Haltemprice and Howden is not pressing his amendments. I reiterate that I am happy to discuss his remaining concerns about the Bill and how it needs to be tweaked before the remaining stages.
On the issue raised by the hon. Member for Poplar and Limehouse, the Department has engaged extensively with the UK Anti-SLAPP Coalition. It is fair to say that we can never get all stakeholders entirely happy, but I am advised that the coalition is broadly supportive of the Bill. On the issue that she raised about behaviour, particularly with respect to domestic violence issues, of course it is not expected that the Bill seeks to facilitate behaviour, as she has outlined, in domestic violence issues. She has specific concerns as to how she believes domestic violence is being facilitated by elements of the Bill. I am more than happy to meet her to go through them in more detail, but we do not believe those concerns will be borne out by the Bill.
On the issue raised by the hon. Member for Hammersmith, I confess that I am not exactly au fait with the Media Bill, but I will be more than happy to write to him about his specific points.
On the points that the right hon. Member for Birmingham, Hodge Hill raised about clause 2(1)(c), of course all litigation causes alarm, but as paragraph 31 of the explanatory notes states, the
“behaviour must be intended to cause the defendant harassment, alarm, distress, expense, or any other harm or inconvenience, beyond that which would ordinarily be encountered in properly conducted litigation.”
That broadens it. Of course when someone gets litigation or letters from a lawyer, people are naturally alarmed or distressed, but what is the intent? To what extent does that behaviour meet the criteria and those descriptors in paragraph 31 of the explanatory notes, which clarify the behaviour we are seeking to curtail?
I reiterate that the Bill will protect the individuals and organisations that engage in important public debate. It will advance accountability for those who would obfuscate their dealings, and it will ensure that speaking out in the public interest is given the support that it deserves. The Bill will safeguard our courts, ensuring that our highly regarded legal system is protected from the insidious abuse of process that could undermine its reputation of achieving justice for all.
The amendments tabled to clause 2 by the hon. Member for Caerphilly will ensure that public interest is kept at the heart of the issues, as its suppression is a key hallmark of SLAPP cases. The introduction of the reasonableness component of the test will ensure that inappropriate behaviour and weaponised processes are identified and tackled at the earliest possible opportunity. The centring of the behaviour of the claimant will ensure that it is abundantly clear to those who would use SLAPPs that they cannot act poorly and remain unchecked and unchallenged, whether that behaviour happens in the courtroom, via privately funded surveillance or a social media campaign to undermine the credibility of an author, academic or whistleblower. The Government are content fully to support all 10 of the hon. Gentleman’s amendments, which we believe will strengthen the Bill.
With respect to amendment 12, tabled by my right hon. Friend the Member for Haltemprice and Howden, the Government laud his intention to ensure that the Bill is properly drafted so that it captures all SLAPPs. I hope I have reassured him that the matters he raises are in many respects already covered by the existing draft of the Bill for a number of reasons. I repeat my offer to meet him to reassure him further, if necessary.
Sir David Davis
To be clear, I do not think that the Bill, as drafted, meets the requirements. I will not press my amendments to a vote, because they are flawed, but I will table something on Report to deal with the issue. I hope that we can agree on what it should be.
Mike Freer
I thank my right hon. Friend and reiterate my offer to sit down with him and go through this in detail, whether for me to reassure him that the Bill meets his objectives or for him to convince me that we need to go further.
Clause 2(1)(c), to which amendment 12 would add, is broad: “any” behaviour can be considered by the court as evidence of misconduct. Subsections (4) and (5) give examples, but are certainly not intended to be exhaustive lists. Furthermore, many matters in the amendment are covered by clause 2(4). For example, the reference to
“disproportionate reaction to the matters complained of in the claim”
will cover excessive disclosure requests and dilatory strategies, as well as questions regarding the choice of jurisdiction.
The Government expressly support the amendments of the hon. Member for Caerphilly to clause 2 and the reasonableness test. We will not support the amendments that my right hon. Friend the Member for Haltemprice and Howden has tabled but not moved, as we believe that materially they cover the same ground. However, I repeat my offer to meet and see where we can agree.
I reiterate my thanks to the hon. Member for Caerphilly for promoting this important Bill, and I confirm the Government’s continuing support for it. The Bill will ensure that all those who speak out against corruption, hold the powerful to account and guard our freedoms through raising their voice are protected.
Wayne David
I thank hon. Members for their contributions. The hon. Member for Windsor is absolutely correct that what we have experienced today and previously highlights the fact that this is a good process. There should be more private Members’ Bills and more time allocated to them in the procedures of this House. That is an important point to make.
I am extremely grateful for the knowledgeable contributions from hon. Members, particularly my hon. Friend the Member for Hammersmith and my right hon. Friend the Member for Birmingham, Hodge Hill. I have very much relied on their experience and good advice in the passage of the Bill so far. I also thank my hon. Friend the Member for Poplar and Limehouse for her excellent contribution about her personal experience, which shows clearly why the Bill is required.
It is worth noting that the Bill has changed remarkably during its passage. The amendments to which we are in the process of agreeing will substantially strengthen the legislation. A number of stakeholders have been intimately engaged in the process. The Anti-SLAPP Coalition, to which several hon. Members have referred, has done a remarkable job and many of its suggestions have been directly incorporated into the legislation.
May I particularly thank the right hon. Member for Haltemprice and Howden for his amendments? He noted that it looks rather strange to see the names “David” and “Davis” together on the amendment paper. The only conclusion is that we must both have Welsh blood in our veins—there must be some commonality that transcends our party political differences. His amendments show that his careful consideration has enhanced our process enormously.
On amendment 11, I wholly agree in principle with the right hon. Gentleman’s proposal to give the public interest element of clause 2 greater prominence. Indeed, that is why I have tabled amendments 1, 3, 4, 8 and 9, which have the same aim. In view of the specific language in clause 2(1)(a) and (b), I consider that the formulation used in amendments 1, 3, 4, 8 and 9 will better achieve that purpose.
The right hon. Gentleman’s amendment 12 was drafted to expand the categories of conduct that show wrongful behaviour on the part of the claimant, in turn expanding the misconduct element of the test to establish whether a case is a SLAPP. The current drafting was purposely designed on the basis of evidence gathered, from stakeholders across the spectrum of views, in the Ministry of Justice’s call for evidence. The list is non-exhaustive and allows the court to take into consideration any matter that may be relevant. On that basis, I believe the categories of wrongful behaviour under clause 2 to be more than sufficient to identify whether the behaviour of the claimant amounts to misconduct.
I thank all hon. Members again for their contributions and their participation. I particularly thank the right hon. Member for Haltemprice and Howden for tabling his amendments but not pressing them, which has ensured an excellent debate this morning. I look forward to cross-party unanimity being expressed clearly at the end of our deliberations.
Amendment 1 agreed to.
Amendments made: 2, in clause 2, page 2, line 8, after “claim” insert
“is such that it is reasonable to conclude that the behaviour”.
This amendment ensures that the condition in subsection (1)(a) is met if the court determines that it is reasonable to conclude that the claimant’s behaviour has or is intended to have the effect in question.
Amendment 3, in clause 2, page 2, line 9, after “exercise” insert
“by that disclosure or potential disclosure”.
See the explanatory statement for amendment 1.
Amendment 4, in clause 2, page 2, line 10, leave out from beginning to “and” in line 11.
See the explanatory statement for amendment 1.
Amendment 5, in clause 2, page 2, line 13, after “claim” insert
“is such that it is reasonable to conclude that the behaviour”.
This amendment ensures that the condition in subsection (1)(c) is met if the court determines that it is reasonable to conclude that the claimant’s behaviour is intended to have the specified effect.
Amendment 6, in clause 2, page 2, line 14, leave out sub-paragraphs (i) to (iii) and insert “any harm or inconvenience”.
This amendment and amendment 7 restate sub-paragraphs (i) to (iii) for the purpose of clarifying the condition in subsection (1)(c).
Amendment 7, in clause 2, page 2, line 18, at end insert—
“(1A) In subsection (1)(c) the reference to ‘harm’ includes (but is not limited to) a reference to any of the following—
(a) expense;
(b) harassment;
(c) alarm;
(d) distress.”
See the explanatory statement for amendment 6.
Amendment 8, in clause 2, page 2, line 20, leave out “or (b)”.
See the explanatory statement for amendment 1.
Amendment 9, in clause 2, page 2, line 23, leave out “(1)(b)” and insert “(1)(aa)”.
See the explanatory statement for amendment 1.
Amendment 10, in clause 2, page 2, line 23, leave out from second “the” to end of line 24 and insert
“matters that are of ‘public interest’ include (but are not limited to) the following—”.—(Wayne David.)
This amendment rephrases the opening words of subsection (3) so as to make it explicit that matters of “public interest” are not limited to the specified matters.
Clause 2, as amended, ordered to stand part of the Bill.
Clauses 3 and 4 ordered to stand part of the Bill.
Bill, as amended, to be reported.