Strategic Litigation Against Public Participation Bill

Debate between David Davis and Mike Freer

Committee stage
Wednesday 8th May 2024 Public Bill Committees

[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.

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[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.

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[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.

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[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.