Lawfare and UK Court System

James Cartlidge Excerpts

Thursday 20th January 2022 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

I begin by congratulating my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the right hon. Member for Birmingham, Hodge Hill (Liam Byrne) on securing this important debate, and the Backbench Business Committee on raising the profile of this important subject.

I will make two points about the sub judice ruling. First, as the Minister for the courts in the Ministry of Justice, I would not want to comment on any live or recent cases, for obvious reasons, including the case of the hon. Member for Poplar and Limehouse (Apsana Begum), although like the SNP Front-Bench spokesperson, the hon. Member for Gordon (Richard Thomson), I pay tribute to her bravery and courage in talking as she did on her experience of domestic abuse. The other point concerns the 17th century, where the shadow spokesman, the hon. Member for Hammersmith (Andy Slaughter), lingered briefly. My hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell) made the point that we are all incredibly privileged, under article 9 of the Bill of Rights 1689, to have the right to stand up in this House under parliamentary privilege, knowing that we cannot be taken to court for what is said. That means we all enjoy the freedom to speak out without fear of those powers and those rich people we have been talking about. It is important that we have been able to put that on the record. It shows Parliament at its best when we have these sorts of debates, with colleagues showing what I think is consensus on these matters and speaking with great passion. I pay tribute to all the speeches we have heard.

Let me set out our position. All of us can be proud of the respect that the UK judiciary and legal profession attract around the globe. One of this country’s great exports is the common law system and rule of law principles which are fundamental aspects of our constitutional arrangement. My hon. Friend the Member for Isle of Wight (Bob Seely) spoke about the value of legal services and he is absolutely right. In 2019, the sector contributed over £29.6 billion gross value added to the economy and generated revenue of over £36 billion—that is many jobs in our constituencies.

Transparency and integrity are key to the proper functioning of the courts and to the law. Those values underpin public scrutiny of the powerful and maintain confidence in our laws. Let me be clear: today’s speakers are right to highlight the rare instances where the law is being weaponised as lawfare. SLAPPs represent an abuse of the legal system—let me be clear about that—as they rely upon threatening tactics to silence free speech advocates who act in the public interest. Public participation enriches all our lives and our democracy.

Having said that, I agree with my right hon. Friend the Member for Haltemprice and Howden, who, towards the end of his speech, spoke about the question of balance. We do have to approach this in a balanced way. We must be cautious to respond to SLAPPs in a proportionate way that continues our tradition of balancing individual rights with the public good.

Let me talk about actions we have taken and are taking at home and abroad in this area. I want to reassure the House of the Government’s commitment to act whenever the rule of law is under attack. We acted decisively in 2013 to introduce reforms to the Defamation Act 2013 to curb the practice of what is called libel tourism, which had allowed a number of overseas claimants to use our courts to challenge publications with small circulations in this country. A number of colleagues, including the right hon. Member for Birmingham, Hodge Hill, spoke about how England and London in particular had become a centre for international libel, but under section 9 of the Act the courts must now be satisfied that England and Wales is the most appropriate jurisdiction in which to hear a claim. The courts have robustly interpreted this test, notably in the Court of Appeal case of Wright v. Ver. While these reforms have succeeded in tempering international libel litigation in the UK, we are now exploring further whether further reform may be necessary when litigation targets public participation specifically.

I note that, according to the most recent Royal Courts of Justice statistics, defamation cases in the High Court in 2020 were in line with the average number for the past decade, at 152. That suggests we must not be premature in launching a response to SLAPPs but instead grow our evidence base through careful monitoring, as Lord Wolfson, my ministerial colleague in the Ministry of Justice, undertook to do in the House of Lords last June.

I want to commend the UK Anti-SLAPP Coalition for its support and advocacy in this field. Ministry of Justice officials are monitoring anti-SLAPP efforts in neighbouring nations. This is a fast-evolving jurisdiction which none the less warrants a considered response.

Open justice and free speech must be a core feature of any democracy. The Ministry of Justice recently launched the Bill of Rights consultation with an explicit aim to strengthen protection of the key British value of free speech. Our proposals intend to provide statutory guidance to the courts on the utmost importance attached to the right to freedom of expression. This is particularly important when considering whether an interference with the right to freedom of expression is proportionate

“for the protection of the rights and freedoms of others”

or when set against the wider public interest.

The right to freedom of expression is protected by article 10 of the European convention on human rights, which is given effect in domestic courts by the Human Rights Act 1998. We are signatories to the ECHR and I can assure colleagues we will remain so. Our proposals for a Bill of Rights will go even further to promote this country’s proud tradition of freedom and reinforce the democratic prerogatives of elected Members in this House over the legislative process in respect of the expansion of human rights.

It must be said that free expression is not an absolute right. There is a delicate interplay involving the need to protect security, the right to a private life, keeping citizens safe and taking steps to protect against harm to individuals. Our ongoing human rights consultation closes in March 2022, after which we will set out detailed plans to reinforce our great tradition of free speech.

A number of colleagues spoke about investigative journalism. We recognise that it plays an important part in keeping us all informed and promoting accountability where there is wrongdoing. Officials from my Department are monitoring threats against journalists in the form of SLAPPs, working closely with civil society stakeholders who tirelessly support journalists under threat to understand the immense financial and psychological burden that a few have endured when faced with these actions. Where journalists face physical threats, the Department for Digital, Culture, Media and Sport’s national action plan for the safety of journalists exists to support their security and wellbeing.

We are not alone in combating SLAPPs. The Ministry of Justice is collaborating with the Foreign, Commonwealth and Development Office to ensure a united stance on international engagement and media freedom around the world. I am pleased to announce that the UK will be a member of the Council of Europe’s inaugural working group on SLAPPs thanks to our diplomatic collaboration. The working group is comprised of experts in law and media policy who will begin working this year on an anti-SLAPP draft recommendation for member states due in December 2023.

We have also met the Organisation for Security and Co-operation in Europe’s representative on freedom of the media’s team to discuss common objectives in addressing SLAPPs. Meanwhile, the Media Freedom Coalition has continued to expand since its foundation in 2019 and consists of 50 members who have pledged to improve media freedom at home and abroad. It has also issued 20 statements on the deteriorating situations for media freedom concerns in various countries, including Yemen, the Philippines, Belarus, Egypt, China, Hong Kong, Myanmar and Russia.

The Government recognise that global media freedom increases security and prosperity for all, which is why that was a cornerstone of our G7 presidency. Misinformation can undermine public order and even health, particularly during the covid-19 pandemic. To that end, the UK has supported UNESCO’s global media defence fund by committing £3 million over five years and encouraging contributions from others.

Further, the UK has provided more than £400 million in official development assistance to the media and free flow of information in the past five years. We are consistently in the top five aid donors to the media sector globally. I recognise the strength of feeling in the House today, given the importance of the principles at play. In the light of the evidence provided in today’s debate, I will be giving SLAPPs in UK courts urgent consideration.

[Dr Julian Lewis (New Forest East) (Con)]

I have been here purely to listen to the debate, but I have one question for the Minister. Does he accept that both Government and Opposition parties are targets of systematic attempts to buy political influence? If so, does he accept that the people who are trying to check the legitimacy of such donations must be properly protected?

[James Cartlidge]

My right hon. Friend, who has a track record of scrutinising such matters, makes a very good point. I would simply say one thing: the Opposition spokesperson mentioned donations to our party, but we should all be concerned about recent stories of certain donations from an individual connected with the Chinese Communist party to a Member of the House.

As I said, I will be giving SLAPPs in UK courts urgent consideration. I want to make it clear that the Government are committed to a robust defence of transparency and freedom of speech. We will not tolerate anything that risks tarnishing the integrity of our judicial and legal profession.

[Dr Lewis]

I am sorry to come back, but that was not a reply to my intervention. I made it quite clear that parties on both sides of the House are subject to the problem. I am looking for a commitment from the Government that when people are trying to do due diligence and check on behalf of their party or any other organisation within their party that donations are legitimate—when they are trying to see whether a donation is clean money or dirty money—the Government will recognise the need for them to be protected and not sued. Will the Minister give a straightforward answer to that question?

[James Cartlidge]

Let me be clear to my right hon. Friend. I was simply referring to the debate as a whole. I recognise that he referred to all parties; I was just putting in some balance because we had only heard about one party. On his point, I am more than happy to meet him and look at the detail of what he proposes, because I do not think it is directly relevant to the matters that we have been debating.

It is important to consider lawfare threats in the broader context of Government action to curb abusive foreign influence. Last year, the Department for Business, Energy and Industrial Strategy brought in the National Security and Investment Act 2021 precisely to target foreign state interference in our economy.

[Bob Seely]

I am grateful to the Minister for listening to the debate. He says that the intervention of my right hon. Friend the Member for New Forest East (Dr Lewis) was not directly relevant but, with great respect, it was, because we need to protect people such as Charlotte Leslie, who are trying to do due diligence; we need to protect officials at the SFO to ensure that they are not hounded individually; and we need to protect journalists and people here. We need to protect quite a lot of people in this debate. He says that the Government will do everything in their power, which is great, but we need to get on and act because there is a real specific problem at the moment.

[James Cartlidge]

I recognise that there is a lot of concern about sources of money. The hon. Member for Eltham (Clive Efford) and a number of other colleagues have talked about the source of funding. I do recognise its importance, but stress that the legal profession has a robust due diligence mechanism in place to prevent dirty money corrupting our courts. Anti-money laundering regulations exist to combat illicit financing. The suspicious activity reporting regime requires legal professions to report to the UK financial intelligence unit within the National Crime Agency where terrorist activity or money laundering is suspected. Law enforcement officials must act safe in the knowledge that the Government defend their investigative remit as we all collectively rely on their industry. There has been a lot of talk about following the money. I just make the point that we do have robust regulations in place, as my hon. Friend, the Chair of the Justice Committee said earlier.

[Sir Robert Buckland (South Swindon) (Con)]

I am extremely grateful to my hon. Friend for giving way. I know that he is working very hard on these issues. He is right to talk about suspicious activity reports. The problem with them is that, for far too long, we have prioritised quantity over quality. Will he focus on this with his colleagues at the Home Office to make sure that we make this a meaningful process? May I gently say to him that the point made by my right hon. Friend the Member for New Forest East (Dr Lewis) is germane? It is a clear SLAPP. If somebody is trying to do the right thing in the public interest, and, in effect, a litigation stops that, then that is a classic SLAPP and something that we should all be concerned about.

[James Cartlidge]

I certainly recognise it from what my right hon. and learned Friend said. I apologise to my right hon. Friend the Member for New Forest East (Dr Lewis) if I misinterpreted his question. I was seeing it perhaps in a different context—

[Dr Lewis]

I did not want to mention Charlotte Leslie specifically, but we have spent plenty of time hearing about the Charlotte Leslie case, so I will now mention her specifically. The fact is that she was trying to see whether the money that was being offered by somebody who wanted to take over a political organisation within the Conservative party was clean or dirty. As a result of her doing her duty, she is threatened with financial ruin. If my hon. Friend the Minister cannot see the relevance of my asking for protection for such people in this debate, then he needs to go back and restudy his brief. I am sorry to put it in those terms, but I cannot put it in any other way.

[James Cartlidge]

Let me just answer.

[Liam Byrne]

rose—

[James Cartlidge]

I will respond to the intervention first, because this is important. I said at the beginning that I would not comment on specific cases no matter how—

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. We will be very careful about specific cases. I understand the point that the right hon. Gentleman is making, but the Minister is being rightly careful. There are perhaps some discussions that might better take place not here in the glare of publicity.

--- Later in debate ---

[James Cartlidge]

I will come to what I think is one of the most important points—my final substantive point—which is about costs. My hon. Friend the Member for Isle of Wight and a number of other colleagues have talked about the way in which costs are used—I think his words were to “financially destroy” journalists. As has been made clear, SLAPPs often threaten journalists with ruinous cost claims. In recent years, civil litigation costs, including defamation, have been subject to greater control. The Government commenced the no win, no fee conditional fee agreement—the CFA reforms—in part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, for defamation and privacy cases. This meant that the lawyer’s success fee was no longer payable by the losing party. This further controls the costs of these cases and gave effect to our legal obligations under the MGN v. UK judgment of the European Court of Human Rights in 2011. We are keeping the existing costs protection regime in place for the time being. This means that after-the-event insurance premiums are recoverable for defamation and privacy cases as the CFA reforms are in force. The ATE regime enables parties with a good case to litigate and discharge their article 10 rights for freedom of expression without the fear of having to pay potentially ruinous legal costs if their case fails. This approach controls costs but protects access to justice, as parties with good cases can still benefit from recoverable ATE insurance in respect of adverse costs.

We also introduced a rule that means that costs that are disproportionate will not be recoverable even when they are reasonably or necessarily incurred. The rule is intended to control the costs of activity that is clearly disproportionate to the value, complexity and importance of the claim, as is the case in SLAPPs.

Let me be absolutely clear, however: if more action is needed, I am happy to look at it. I recognise that this is an important issue. [Interruption.] I thought that was another phantom intervention—I apologise. I will wrap up.

This country will always support vigorous debate, here and abroad, and our rule of law requires it. Where we see proof that foreign sources seek to undermine our values, using the law against our national interests, the Government are poised to act. I ask today’s speakers to work with us as we consider the full sweep of legislative and regulatory reforms available to stop lawfare on our soil. The debate has had an impact, and we will respond. I am grateful to all speakers who have taken part.