Strategic Litigation Against Public Participation Bill

Debate between Chris Clarkson and Wayne David

Committee stage
Wednesday 8th May 2024 Public Bill Committees

[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.

Strategic Litigation Against Public Participation Bill

Debate between Chris Clarkson and Wayne David

2nd reading
Friday 23rd February 2024 Commons Chamber

[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.