Strategic Litigation Against Public Participation Bill

Debate between David Davis and Liam Byrne

Committee stage
Wednesday 8th May 2024 Public Bill Committees

[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.

Post Office (Horizon System) Offences Bill

Debate between David Davis and Liam Byrne

2nd reading
Wednesday 20th March 2024 Commons Chamber

[Sir David Davis]

My hon. Friend has more experience of this issue than anyone, and he reinforces my point. Frankly, if I had a magic wand I would force the Post Office to re-audit every set of accounts for the last 20 years and give back the money, but that will not happen: it would drag on forever, and we know the stress that it is causing postmasters even today. My worry is that we may feel at the end of this process that we have solved the problem, but there will be some—perhaps only dozens or hundreds, not thousands—who will be left not absolved or exonerated, but who deserve to be. That is the risk of this approach.

[Liam Byrne]

Given the right hon. Gentleman’s argument, will he reflect on whether we should include in the scope of the Bill those who went to the Court of Appeal initially but lost, or those who were not given leave to appeal, on the basis that we simply did not know then what we know now? Should we provide for that handful of cases—perhaps under 40—in the Bill rather than exclude them?

[Sir David Davis]

Those are precisely the cases I am focusing on; there may be others that we do not know about but they are the most obvious ones. I agree but, again, if I had a magic wand, I would use the mechanism that I mentioned of unretiring a few Supreme Court justices and saying, “These are more complicated and require a bit more insight. You can’t deal with these en bloc. Will you please reconsider them?” On the one hand, I want to exonerate people who are truly innocent but, on the other, postmasters still call me up and say, “Whatever you do, don’t exonerate the guilty.” It seems to me that the best way is a judicial or quasi-judicial route over and above what we are doing here. No doubt we will debate that at some length on Report.

I will still support the Bill because, at the end of the day, it is the difficult compromise that the Government have found. They have got to where they are by talking to everyone, including the right hon. Member for North Durham, who is not in his place just now, and taking all the expert advice. The Bill is necessary.

I had a telephone call just yesterday from a victim of the scandal, which I mentioned in my earlier intervention. Her name is Janet Skinner, and she is not my constituent but she called me anyway. She told me that 15 years later, she is still going through misery and, despite having promised me that they would not, Post Office management are putting her through an inquisition, demanding documents from her from 15 years ago. During that time she was in prison and had to sell her house, so she probably has no documents, given the disruption of all that. The Post Office itself will have those documents somewhere, and if it does not, it ought to have them.

That barbaric mindset is still going on from, frankly, a sickeningly inadequate and self-absorbed Post Office management, as we saw when they gave evidence to the Committee of the right hon. Member for Birmingham, Hodge Hill (Liam Byrne). That is a problem, and we have to get the Bill under way as fast as possible. I pay enormous credit to both the junior Ministers who have dealt with this, my hon. Friends the Members for Thirsk and Malton (Kevin Hollinrake) and for Sutton and Cheam. They were both formidably good at their job at a time when the whole Whitehall and Post Office system was desperately trying to ignore the issue. They did a heroic job of dragging it back up the priority list. The Minister needs to force the Post Office to solve the problem, or, as the right hon. Member for North Durham said, force someone else in its place to put this right quickly, easily, gracefully and with minimum stress for the postmasters.

Sanctions

Debate between David Davis and Liam Byrne

Tuesday 1st March 2022 Commons Chamber

[Mr Davis]

My hon. Friend and I sponsored the lawfare debate four weeks ago, and he played a sterling part—he made probably the most informative speech in the whole debate. Yes, we have to address lawfare, but it is a difficult area. There are quicker areas we can work on right now, bearing in mind that time means lives. We have to work faster than we have been.

As I said, the NCA was able to bring successfully only two unexplained wealth orders out of nine, but the truth is that it has 100 targets sitting in its files—not two or four—and it cannot pursue them. Its evidence was given to the Intelligence and Security Committee and is reflected in the Russia report, but Lynne Owens, who was then head of the NCA, said that it simply could not afford the huge legal bills that it faced. The truth is that frankly it does not have the huge calibre of skills—no agency can say that they have— that oligarchs with virtually infinite quantities of money can employ.

How can we get the Serious Fraud Office, Her Majesty’s Revenue and Customs, the Financial Conduct Authority, the Crown Prosecution Service and the NCA all to use this legislation properly? First, we must ensure that the costs of unexplained wealth orders are brought under control from the state point of view. Again, we must be careful that we do not undermine the rights of ordinary citizens, so we may say that the rules will apply only to unexplained wealth orders of, let us say, more than £50 million or something like that—that will not worry the ordinary citizen—and put a cap on expenditure. We must also use the private sector. We must say, “This is a national emergency” and ask everybody to put their shoulder to the wheel and make these UWOs work properly. The NCA has a list of 100, but those of us who took part in the lawfare debate know that roughly 140 Russian oligarchs should be on the target list. Not all of them are in Britain, but they should be on the list because their money may be in Britain, even if that is not the case.

It seems to me that there is a serious issue that should be in today’s regulations. I worry about the Government moving so slowly that their prey escape them and that the people who are in effect the enemies of the people of Ukraine by proxy get away with things that we should not allow. We must fight fire with fire and beat the oligarchs at their own game.

I will pick one oligarch out. We have already seen the results of actions taken so far, with oligarchs scrambling to protect their reputations. In the newspapers in the last few days we have seen Roman Abramovich doing things to protect himself. According to the Spanish Intelligence Committee, he is the man—or at least one of the men—who manages Putin’s business affairs. That is a really important issue in considering whether he should be on our target list. He was refused a Swiss residency permit due to suspected involvement in money laundering and contacts with criminal organisations and, when his UK visa was up for renewal, he chose to withdraw his application as it became clear that he would need to explain the source of his wealth due to the changes that we introduced in 2015. I picked one, but I could have picked any of 100-plus to illustrate that there is information and knowledge—it is not a question of being unable to identify the individuals. It should not have taken a war for us to make a start on that.

[Liam Byrne]

The right hon. Gentleman is making a brilliant speech. Will he give the House his perspective on the potential weakness in the sanctions regime? Its focus is obviously on asset freezing, but while Abramovich, who is widely regarded as Putin’s cashier, has tried to take pre-emptive measures by transferring control of Chelsea football club to a charitable trust, there is a real issue that the mansions, the jets and the yachts owned by oligarchs will continue to be available for their use because the regulations do not prohibit the use of economic resources for personal consumption.

[Mr Davis]

That is true. We must also face facts on the sophistication of the targets that we are aiming at. The assets that the right hon. Member talked about—the blocks of flats, the grand houses and the yachts—are probably owned by six or seven layers of companies through various offshore entities in the Cayman Islands, the British Virgin Islands or whatever, and it is incredibly difficult for the state to find out who the owner is. That is why these unexplained wealth orders are at least the first weapon that we should sharpen up. That is also why speed is important.

Every day we give to these people allows their advisers to develop more sophisticated tactics of concealment and distraction. In at least a couple of the unexplained wealth orders, it turned out that the state was pursuing the wrong ownership because of distraction tactics. Speed, determination, sophistication and clear targeting, which is not difficult given what I have just been saying, are critical to succeeding in this. It should not have taken a war for us to start rooting out dirty Russian money in the UK, but we are where we are and we must not wait any longer.

We must start by going after the 140 or so oligarchs who have been identified as having direct links with Putin. We must take that action immediately and make clear to those corrupt oligarchs that their money is no longer welcome on these shores, and indeed that it is unsafe while they continue to provide financial support to Putin, whatever they say in the public press. I would have liked that process to have started today with these SIs. Sadly it has not, but hopefully it will be in next week’s economic crime Bill. However, if that takes weeks as well, every single week means more lives lost, more opportunities for these people to escape justice, and a worsening of the chances of our rescuing the Ukrainian nation from the fate in front of it.

--- Later in debate ---

[Liam Byrne]

My right hon. Friend is absolutely right. We are now seeing a sanctions gap emerge, where the UK is the soft touch, the weakest link, and the slowest to the punch. None of us in this House wants to be in this position. We all welcome the regulations that the Paymaster General has brought before the House this afternoon, but the question that we put back is: “Tell us what further power and resources you need so that we can genuinely be best in class around the world.”

[Mr David Davis]

One of the reasons the sanctions are milder than perhaps the right hon. Gentleman or any of us would like may well be the problem that in British law, the stiffer the sanction, the greater the reaction. We may well have to take action in two stages, by freezing the assets in the first instance and then sequestering them.

[Liam Byrne]

That could well be the case, but if the Paymaster General has told us this afternoon that nothing is off the table, then we in this House need to hold him to his word and ask him to come back to us with an explanation, because at the moment the regime prohibits the dealing in economic resources but permits the Office of Financial Sanctions Implementation to make available those resources. Personal consumption is not prohibited, according to the regulation. I guess we are asking him please to commit to us today to look at this question and bring back proposals for our urgent consideration, because I believe I speak for the whole House when I say that we will give the green light at a moment’s notice.

I want to pull together some of the brilliant contributions that we have had in this debate over the past few years and, in particular, over the past couple of weeks. If we write down the contributions that we have heard from all hon. Members, we basically get a call on Ministers for a 10-point plan to drive hard behind the powers that are being granted. First, surely it is now time for a Minister for economic warfare. This came up in conversation with the right hon. Member for Haltemprice and Howden (Mr Davis). We are now settling into what will be a long confrontation with Russia, yet the sanctions team is in the Foreign Office, the instructions to the Bank of England are issued by the Treasury, and the Minister for Security is in the Home Office. I have been a Minister with a foot in two different Departments, and I can tell the House that it is an absolute nightmare. Surely it is now time to unite the political leadership in a single department for economic warfare that begins to take the fight to President Putin in a far more aggressive way.

Secondly, there are 12 different agencies currently tasked with taking on economic crime, and the Government, in their negligence, have not yet appointed a lead authority. Surely that now has to change. The National Crime Agency was bewildered to hear that a kleptocracy cell was being set up, as were the people in the National Economic Crime Centre. We have to do away with this nonsense and create a single lead agency that brings to this House a CONTEST-style strategy for taking on economic crime in which we prepare, protect and prevent, and pursue economic criminals to the ends of the earth.

Thirdly, there are Government reports that now need to see the light of day, starting with the Home Office’s review of the golden visa scheme. The Home Secretary has said that her ambition is for it to published. Why on earth has it not been published this week? We need to know where the weaknesses are, so let us get the facts on the table.

Fourthly, we need to resource the fight against economic crime far more seriously. Lynne Owens, the former director general of the National Crime Agency, is on the record as saying that its budget needs to double. When we consider the £100 billion-plus in economic damage to our country, surely doubling the National Crime Agency’s budget is a very small ask of the Treasury. While we are at it, we need to introduce cost capping orders in relation to unexplained wealth orders, as the hon. Member for Isle of Wight (Bob Seely) said, so that the costs of prosecution are that much smaller.

Fifthly, we need policy infrastructure such as a register of beneficial ownership of property and a proper targeting system based on our financial information. There is a group of urgently overdue laws that must be introduced over the next couple of months. We need a foreign agents registration Act, an update to GDPR legislation so that abusive data subject access requests can be stopped, and SLAPP-back laws to allow judges to throw out abuses and attempts to silence journalists such as brave Catherine Belton and Tom Burgis. We need updated espionage laws before the House as quickly as possible.

I have to say to the Government that there needs to be a ban on political donations from profits earned outside the UK. We need a regime for calling in donations from improper sources for national security assessment. Fortunately enough, the Elections Bill is in the House of Lords, and as it happens I have tabled amendments that would allow us to achieve exactly that. The answer that normally comes back—it is getting slightly wearing now—is “Just because there are people with Russian links donating to political parties, not all Russians are bad.” No one is saying that. Stop patronising our intelligence!

We have named specific individuals with links to Russia, such as Mohamed Amersi, who, together with his partner, has given £750,000 to the Conservative party, despite making millions of dollars from a deal that involved President Putin’s telecoms Minister. In case anybody is in any doubt about the gravity of the situation, let me quote from a letter from Carter-Ruck that I have been sent in defence of Mohamed Amersi.

[Mr David Davis]

Haven’t we all!

[Liam Byrne]

The right hon. Gentleman might have had a similar letter. Mine is many, many pages long and must have cost an absolute fortune. It says:

“Our client did not know, and cannot reasonably have been expected to know or suspect, that Ms Karimova was the ultimate controller of Takilant Limited”—

that was the corrupt telecoms deal that he was involved in. Anybody who was doing business in the country knew that that family were behind pretty much every major industry. Mr Amersi is many things, but he is not stupid. At the bottom of page 4, the letter goes on:

“To be clear, all of our client’s…dealings in Russia and the former Soviet Union…were entirely legitimate, lawful and transparent.”

Surely this is not the kind of individual that the Conservative and Unionist party should be taking money from. I could go on; I have made previous contributions in the House about the matter. Dmitry Leus—a man whose cheque the Prince’s Foundation has sent back—has given something like £30,000 to the Justice Secretary’s constituency party. Please stop patronising our intelligence, stop telling us that all the donations were given under the rules that existed at the time, stop pretending that we are trying to smear the entire Russian people, look at the people writing the cheques with suspect links, and pay the money back.

Let me set out the final couple of points in our 10-point plan. In addition to the five pieces of legislation that need updating, we need to update the regulation of the Solicitors Regulation Authority. Many of us have heard time and again how firms such as Mishcon de Reya and Carter-Ruck abuse the legal process in order to create and inflate costs and intimidate others. Frankly, that has to stop.

As the hon. Member for Isle of Wight said, it is a tragedy that it has taken a war to bring us together across the House around a plan for tackling economic crime. When the Berlin wall fell, and also on that tragic day of 9/11, I looked out on the world and thought, “We are moving into a different era”, and now I think we are moving into a different era again. We will need to rethink the way in which we fortify our frontline with Russia across the NATO territories, and we will need to get serious about taking on the cancer of economic crime once and for all. If we do that, I believe that we will ultimately prevail.

Lawfare and UK Court System

Debate between David Davis and Liam Byrne

Thursday 20th January 2022 Commons Chamber

[Mr David Davis]

I have to say that before we started I did not necessarily expect this debate to be a particular success, because it deals with an industry that hides evil in plain sight and it is pretty difficult to deal with something that can do that, yet we have had a formidably effective debate. Whether it was the detailed, astonishing insights into how the Russians operate from my hon. Friend the Member for Isle of Wight (Bob Seely), the localised issue raised by my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell), or the courageous exposition by the hon. Member for Poplar and Limehouse (Apsana Begum) of what happened to her, the contributions have demonstrated the impact on ordinary people: the simple people we aim to represent.

At a grander level, the right hon. Member for Birmingham, Hodge Hill (Liam Byrne) made the best speech I have ever heard him give—I hope he will forgive me for saying that. It was formidable, passionate and went right to the point. It was then picked up, of course, by my right hon. Friend the Member for North Thanet (Sir Roger Gale), who talked about the kleptosphere and how we have to deal with that.

To come to the substance of the debate, the SNP spokesman, the hon. Member for Gordon (Richard Thomson), rightly said that it needs much more than a Back-Bench debate. There is no two ways about that. It is difficult and will be difficult. The hon. Member for Hammersmith (Andy Slaughter) crystallised the whole thing when he rightly said that we need to make the rules of the game fair, in a game where one side has enormous resources—even measured against the resources of Government—and the other side does not. We have to think about whether we are putting enough effort into it.

As my hon. Friend the Member for Isle of Wight made clear, these people have made an industry out of devising incredibly complex tactics to exploit the Human Rights Act, using all the articles, one against the other. I say this to him: I welcome what he said about recognising that, but I think the difficulty he had in answering the Chair of the Intelligence and Security Committee, my right hon. Friend the Member for New Forest East (Dr Lewis), demonstrated the complexity and detailed nature of the problems. We must please not rely, therefore, on the consultation on the Bill of Rights or whatever. The matter requires a special look and careful attention.

The huge authority of the day was of course the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). I will simplify everything he said, which was basically a tutorial for all of us, down to the last point he made: we can pick the best of the anti-SLAPP legislation in the States and other places. That is the way to go. We have to start with a proper, detailed and tight investigation, and deliver off the back of the best practice elsewhere. That is my request of the Minister. He has done a sterling job of dealing with a difficult issue and I hope that he will carry on in that direction.

[Liam Byrne]

rose—

Coronavirus Bill

Debate between David Davis and Liam Byrne

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons
Monday 23rd March 2020 Commons Chamber

[Mr Davis]

I am now glad that I teased the hon. Gentleman, because it got something very useful on the record. If I may pick up on the point made by my hon. Friend the Member for Wycombe (Mr Baker), it is why I tabled amendment 6, which recognises that the Government need these new powers and that parliamentary counsel have created a 320-page Bill in what sounds like a matter of days—in truth, they did it in an astonishingly short amount of time. They have done it at a time, however, when scientific evidence is, to put it mildly, fragile and likely to change. It has changed already in the past two weeks and is likely to change again as different tests, different vaccines and so on become available. Scientific evidence will change. Economic analysis of future outcomes is unbelievably uncertain and the societal effects are completely unknown. The Bill is guaranteed to have flaws, even with the best draftsmen in the world.

Amendment 6 therefore proposes that instead of the sunset being two years, which anyway is too long, it would be one year. We invite the Government to write a new Bill in nine months. If they think the Bill is perfect in nine months, put it back again and we will put it through again, but this time, with three months for the House to consider it. Remember, the Civil Contingencies Act 2004 took a whole year to go through both Houses, so with three months we would have proper democratic approval of the process.

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

The right hon. Gentleman is making an excellent speech. There will, of course, be many things that we learn, not just things we need to take out of the Bill but critical measures that we need to put in, so flexible legislation will be essential as we go through the emergency and learn things.

[Mr Davis]

I agree. I think the Government have done a pretty good job so far in the face of unbelievably difficult judgments and decisions. The Americans talk about drinking from a fire hose, which is how every Minister in this Government must feel because of the information and problems arriving on their desk every day.

The right hon. Gentleman is right that there will be changes in the science and in the economics. We will also know, frankly, what worked and what did not work in the previous nine months. If we then allow Parliament three months to scrutinise it, we will get good, solid law that is well supported on both sides of the House. We will have the sort of debate we have had today, which has been one of the better debates I have heard in years because both sides are committed to the same cause.

Finally, I recommend that colleagues read the report on this Bill published at lunchtime today by the Delegated Powers and Regulatory Reform Committee of the House of Lords. That expert Committee considers our legislation and makes recommendations to the other House, and it is led by Lord Blencathra—those who have been here a long time may remember him as David Maclean, a tough, no-nonsense Security Minister at the Home Office. The Committee’s analysis is very clear and very straightforward, and it is not a libertarian fantasy. This is the conclusion, the last five lines of a five-page report:

“We anticipate that the House may well wish to press the Minister for an explanation about why the expiry date was not set at one year, thereby enabling the Government to exercise the powers needed in the immediate future while allowing a further bill to be introduced and subject to parliamentary scrutiny in slower time.”

A House of Lords Committee has arrived at exactly the same conclusion on this Bill as my amendment proposes.