Strategic Lawsuits Against Public Participation

Wednesday 24th July 2024 Lords Chamber

Question

15:40

Asked by

[Baroness Stowell of Beeston]

To ask His Majesty’s Government what plans they have to introduce legislation to prevent ‘strategic lawsuits against public participation’.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, the Economic Crime and Corporate Transparency Act 2023 was a positive and significant step forward in tackling SLAPPs relating to economic crime. The Government are now carefully considering options to tackle SLAPPs comprehensively. I know that the noble Baroness has a long-standing interest in this area, and I assure her that the Government are taking the matter very seriously and are establishing working parties, working at pace to try to address this issue.

[Baroness Stowell of Beeston (Con)]

First, I welcome the noble Lord to his new appointment. It is very important for us to understand that SLAPPs are related not just to economic crime. SLAPPs are illegitimate and aggressive lawfare, used by all kinds of the rich and powerful to silence politicians, journalists and public bodies. They are an abuse of our legal system, and they are a threat to press freedom. Before Dissolution, we were very close to outlawing SLAPPs in their entirety, through the then Government supporting a Labour MP’s Private Member’s Bill. Would the Minister ensure that his Government supported another Private Member’s Bill, if another MP was to bring forward a revised version that incorporated all the amendments and agreements reached with the previous Government before the general election? If not, could he commit to the Government bringing forward their own legislation in this first Session of Parliament to outlaw SLAPPs comprehensively?

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the first point that the noble Baroness made. It is not just about economic crime, and that is one of the reasons why we want to have a wider review of potential SLAPPs legislation coming forward. I am not in a position to make the commitment that the noble Baroness has asked for around when any legislation might come forward, but I reassure her that we are taking this matter very seriously. On the Private Member’s Bill that fell at Dissolution, we support the principle behind it. However, we believe that there are outstanding questions that need to be properly balanced. That is to prevent the abuse of the process of SLAPPs, about which the noble Baroness spoke, but we also need to protect access to justice for legitimate claims. It is that balance that needs to be fully worked through. There were live discussions with important stakeholders—for example, the Law Society—at the time of the previous Private Member’s Bill. We have every intention of continuing those discussions as we review any potential legislation.

[Lord Thomas of Gresford (LD)]

The Private Member’s Bill that I produced on the abusive SLAPPs civil litigation, which was given its First Reading in the last Session of the last Parliament, was based on the Ontario model, which was approved in the Supreme Court of Canada as recently as last year and provides a way forward. It was also well received, as I recall, by the Ministry of Justice. Will the Minister take that into account?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there are various attempts at dealing with SLAPPs in different legislatures across the world. The Government are currently working with the Council of Europe, with its 46 member states, to try to get a more comprehensive approach. The noble Lord’s experience in Ontario, which he referred to, will be taken into account.

[Lord Faulks (Non-Afl)]

My Lords, I congratulate the noble Lord on his appointment. He is of course doubly there—he is not only elected but appointed, which gives him particular status on the Front Bench. I sympathise greatly with his position in the Ministry of Justice, which he will much enjoy. He will remember the terms of the amendment put down to the then Economic Crime and Corporate Transparency Bill; it was a start, but will he agree that it is important that we have really muscular legislation? Can he bear in mind that his own Foreign Secretary said that these SLAPPs have the effect of

“stifling effectively not just the rule of law and freedom of speech, but particularly going to journalists doing their job”?

[Lord Ponsonby of Shulbrede (Lab)]

Regarding the noble Lord’s opening comments, I am a hereditary Peer, though not an elected one, but I am a life Peer, which is the reason I am standing here at the moment. The noble Lord is absolutely right: my right honourable friend David Lammy has expressed very strong views on this matter, which is one that the Government are taking seriously. As I tried to reassure noble Lords in my earlier answers, we want to get this right and to be trenchant in the legislation that we bring forward.

[Lord Cromwell (CB)]

Does the Minister agree that any further legislation coming forward on SLAPPs should enable the judge to determine the intent of the litigant by their actions as to whether they are trying to harass the defendant? Will the legislation further make clear that no level of such harassment is acceptable?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question. SLAPPs represent an abuse of the legal system, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means. Judges are able to assess that. One objective of any forthcoming legislation will be to give them greater capacity to assess improper use of these objectives within the court’s process.

[Lord Keen of Elie (Con)]

I welcome the Minister to his place on the Front Bench. As has been indicated, SLAPPs often involve an insidious abuse of domestic legal systems in order to intimidate investigative journalists, or indeed human rights defenders. At the same time, it is necessary to balance any consideration of that with the issue of access to justice. The issue of harassment can sometimes be a somewhat subjective one. However, at the end of last year, the European Union published a directive to address SLAPPs and how they might be dealt with in domestic jurisdictions. The Minister may not yet have had an opportunity to consider that directive. Will he undertake to do so, lest it might give some guidance to our way forward as well?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble and learned Lord for that question. I am happy to give that undertaking. As I mentioned, there is a Council of Europe initiative going on, but clearly we should, and we will, look at the EU directive.

[Lord Browne of Ladyton (Lab)]

My Lords, I welcome my noble friend to the Dispatch Box. Recognising that the Government are planning a review, do they still agree that there is an urgent need for a stand-alone anti-SLAPP Bill, and that the lack of legislation will see SLAPP litigations continue? In the words of our right honourable friend the Foreign Secretary, as already mentioned, and as reported in the i newspaper on 3 June, they will continue effectively to stifle

“not just the rule of law and freedom of speech, but particularly … journalists doing their job to throw a spotlight and transparency on the most egregious behaviour of oligarchy, plutocracy, and very corrupt individuals doing bad things”.

Surely we need to stop that as soon as possible.

[Lord Ponsonby of Shulbrede (Lab)]

I agree with everything that my noble friend has said. I cannot make a commitment to a stand-alone Bill, but there is nevertheless an urgent need for legislation. My noble friend may be interested to know that the number of Russian litigants appearing in judgments from the Commercial Court has more than halved in the year to March 2024, falling to 27 from a record high of 58. We believe that that is a result of the successful UK sanctions regime taking effect.

[Viscount Colville of Culross (CB)]

My Lords, to build on the question from the noble Lord, Lord Cromwell, surely it would be better for a judge to be able to infer the intention of a SLAPP litigant based on their actions, rather than, as happens at present, having to infer the litigant’s state of mind, which is so hard to determine.

[Lord Ponsonby of Shulbrede (Lab)]

I agree with that point, but it is a complex question and we want to look at it in the round.

[Lord Garnier (Con)]

My Lords, I declare an interest, in that I have been practising at the defamation Bar since the mid-1970s. Much has been said in this House and in Committee about the need for SLAPP laws. I invite the Minister to look, if he can, at the letter I wrote to his predecessor, my noble and learned friend Lord Bellamy, on this very subject just before the election; if he cannot look at it, I will send him a copy. Will he also undertake to put this matter before the Law Commission, so that we can generate rather more light than heat?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am happy to look at the letter and to consider whether the matter should go before the Law Commission.