Strategic Litigation Against Public Participation Bill

Apsana Begum Excerpts

2nd reading
Friday 23rd February 2024 Commons Chamber

[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.

Strategic Litigation Against Public Participation Bill

Apsana Begum Excerpts

Committee stage
Wednesday 8th May 2024 Public Bill Committees

That is why I have tabled amendments 11 and 12. I do not propose to press them to a vote today, because they are flawed and do not take on board the changes that have taken place since our last meeting with the Department. However, I ask the Department and the Minister to look very hard at them, because I would prefer to table an agreed set of amendments on this matter on Report. I do not think anybody could fail to agree that there is a problem here that the Bill does not explicitly address. It is true that the judge could look outside; however, there is no requirement in the Bill for them to do so. I believe that there should be, because this is in many ways the nastiest element of SLAPPs.

[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.