Strategic Lawsuits Against Public Participation

Kieran Mullan Excerpts

Thursday 21st November 2024 Commons Chamber

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

I begin by sending my condolences to the family of Lord Prescott, who was the sort of political figure who cut across party lines. As a teenager with just a passing interest in politics, I fondly remember seeing that punch and thinking, “Good for him!” As a shadow Minister, I should clarify that by saying he was exercising his lawful right to self- defence. May he rest in peace.

I congratulate the hon. Member for South Dorset (Lloyd Hatton) on securing this important debate, and I thank the Backbench Business Committee for granting it. It is a pleasure to respond on behalf of the Opposition. We are debating an issue that is always a challenge for any democracy: how do we ensure that bad actors do not exploit important protections that have been put in place for our benefit, and how do we prevent measures that are meant to act as a shield from being turned into a weapon? These tensions find sharp expression in the misuse of our legal system through SLAPPs. They are not just frivolous lawsuits or the expected robust exchange between solicitors and their clients; they are a serious, deliberate tactic used to stifle voices that expose wrongdoing or hold the powerful to account. They are designed to intimidate, drain resources and create a chilling effect that suppresses important public discourse.

It has been positive to hear contributions from Members that demonstrate a deep understanding of this issue and its importance. My right hon. Friend the Member for Maldon (Sir John Whittingdale) drew on his experience of the Culture, Media and Sport Committee and of being a former Secretary of State in discussing all the key issues that we have considered today, as did my right hon. Friend the Member for New Forest East (Sir Julian Lewis) and my hon. Friend the Member for West Suffolk (Nick Timothy). My right hon. Friend the Member for New Forest East reminded us of the importance of ensuring that the other side of the debate is remembered when it comes to allowing people to fairly protect their reputation. My hon. Friend the Member for West Suffolk talked in helpful detail about what happened to the former Member Charlotte Leslie, reminding us how much politicians are in the firing line. I know that my hon. Friend the Member for East Grinstead and Uckfield (Mims Davies), who has joined me on the Opposition Front Bench, is concerned about how SLAPPs can be used to stifle debate both locally and nationally.

Of course, all Back Benchers here today want to see action from the Government. Although the tone of the debate has been consensual, it is the job of the Opposition to hold this new Government to account. In what is becoming a familiar pattern, Labour Members, when in opposition earlier this year, supported legislation that would have built on our work in this area. Now that they are in government, however, reasons to delay have appeared. In the other place, the Government have said that they now think a further review is needed. Today, alongside an explanation for this change, I hope that we will hear a more concrete commitment and a clear plan from the Minister.

SLAPPs extend their impact far beyond the courtroom. Investigative journalists, whistleblowers, campaigners and even grieving families raising safety concerns have found themselves silenced. SLAPPs do not defend reputations; they conceal misconduct, shield wrongdoing and erode public trust in our institutions. In the previous Parliament, as a member of the Justice Committee, I had the welcome opportunity to join a one-off session of the Foreign Affairs Committee that did an excellent job of putting SLAPPs in the parliamentary spotlight. I got to hear at first hand from witnesses working across journalism, many of whom have been mentioned today, including Catherine Belton, the author of “Putin’s People”; investigative journalist Tom Burgis; Susan Coughtrie from the Foreign Policy Centre, who is co-chair of the UK Anti-SLAPP coalition; and Arabella Pike, who is head of publishing at William Collins.

I distinctly remember Catherine and Arabella talking powerfully about their experience of the sustained legal attack that “Putin’s People” came under, and it was clear that it took real courage to persevere with its publication. Tom described his experience across Africa, and the wider network of oligarchs and corrupt Governments working together to suppress journalism that would have held them to account. He has direct experience of successfully defeating SLAPPs relating to his own book, as others have mentioned. Susan described how individuals take advantage of good journalistic practices, whereby giving a right to reply is used to start to overwhelm journalists, and highlighted that this sort of activity is undertaken by not just legal professionals but other, unregulated individuals. The Bureau of Investigative Journalism has documented numerous cases where SLAPPs have smothered stories of profound public interest—stories exposing safety failures, corruption and malpractice. Such cases deserved public scrutiny, yet they were buried beneath a mountain of legal threats.

Of course, the right to defend one’s reputation is important. It ensures fairness, prevents the spread of harmful falsehoods, and protects individuals from malicious attacks. Like others who have spoken today, I have first-hand experience of that. A journalistic blogger decided that they had proof that my time spent volunteering as a policeman was made up, and that I had committed a criminal offence in lying about it. At the height of an election campaign, I saw that story spread across social media and reach tens of thousands of people. It was only through my taking the available legal steps that stopped it spreading further. Shoddy journalism should not find shelter in anti-SLAPPs legislation, but when SLAPPs turn the scales of justice into tools of suppression, they undermine the very principles that they claim to protect.

Sadly, the UK legal system is seen by some people as a favourable domain to stifle debate. Although it is not a watertight source, a 2020 survey by the Foreign Policy Centre revealed that the UK was the most frequent single international origin of legal threats against journalists, accounting for 31% of cases. By comparison, 35% of SLAPP threats originated in the US and the EU combined.

Recognising the threat of SLAPPs, the previous Conservative Government introduced important legislation that the current Government said represented a significant step forward in this area. The Economic Crime and Corporate Transparency Act 2023 defined SLAPPs in law for the first time, introduced swift dismissal mechanisms and implemented cost protections in claims relating to economic crime, reflecting the then Government’s belief that 70% of SLAPPs are linked to financial corruption and the scope of the original Bill. The last Government also established the SLAPPs taskforce, a group of legal and media professionals tasked with improving our understanding of SLAPPs and equipping stakeholders to combat them. As others have mentioned, during the previous Parliament the former Member for Caerphilly, Wayne David, introduced the strategic litigation against public participation Bill, a private Member’s Bill that presented further possible steps to address SLAPPs.

[Gregory Stafford (Farnham and Bordon) (Con)]

I will introduce my own Bill, which is based on that Bill, in early January. Will my Bill have the support of the Conservative party Opposition?

[Dr Mullan]

That is an important point and, notwithstanding my hope that the Government will introduce legislation, I expect that we will be able to support a Bill that is suitably similar to the one originally presented.

Mr David’s Bill proposed a robust framework to combat SLAPPs, including a wider early dismissal mechanism, and a requirement on claimants to demonstrate a greater likelihood of success for a trial to proceed. Additionally, the Bill called for new civil procedure rules to protect defendants from adverse costs when SLAPP claims go to trial. Crucially, it would have empowered the Lord Chancellor to extend this framework to other courts or tribunals if SLAPPs were being used to circumvent these protections.

The Conservative Government recognised the Bill’s value, supporting it as a complement to the steps we had already taken, and importantly, so did the then Labour Opposition. Unfortunately, despite its potential, the Bill fell away during the wash-up before the general election, as is sadly too often the case.

The proposals had cross-party support. There was no call from the then Opposition for a review or for things to be considered further, which they have now decided is necessary. In a recent article, the co-chair of the UK Anti-SLAPP Coalition, Susan Coughtrie, expressed her disappointment that Labour has not developed a clear plan for similar legislation:

“This could have been a relatively ‘easy win’ not only for the new government, but for the protection of public interest speech and the democratic health of our society.”

She is right, of course, and I cannot think of a new Government in more dire need of an easy win than this Labour Government.

With all this in mind, I urge the Minister to address several pressing questions. Given the Government’s support in opposition for the private Member’s Bill and its measures, why have they now determined that a further, delaying review is needed? When will this review be complete? Even if the review recommends some changes to the approach outlined in that Bill, do the Government commit in principle to introducing comprehensive anti-SLAPP legislation next year? If not, when will they bring forward legislation?

Will the Government commit to further and ongoing work with the Solicitors Regulation Authority to see whether its work could be reformed to deter law firms from taking on SLAPP cases? Finally, will the Minister commit to supporting the ongoing work of the SLAPPs taskforce? Ahead of legislation that has been unnecessarily delayed, this would send a strong signal of the Government’s commitment on this issue.

The balance we must strike is clear. Our legal framework must protect the right to defend one’s reputation while safeguarding freedom of speech and ensuring that public interest journalism can thrive. I urge the Government to pick up where we left off, as they have a detailed and comprehensive private Member’s Bill ready to go. The powerful must not be allowed to misuse the legal system to suppress scrutiny and silence critics.

In opposition, Labour Members were clear on what they supported and what needed to be done. Somehow, entering government has brought uncertainty and hesitation to their thinking. At a time when too much of this House’s legislative capacity is left unused, and when this Government desperately need a positive story to tell, they have changed course. I encourage them to build on our work and deliver in this area so that we can reaffirm our commitment to justice, accountability and the public interest, and ensure that the UK remains a beacon of free speech and fairness under the law.

[The Minister of State, Ministry of Justice (Heidi Alexander)]

I associate myself with the shadow Minister’s lovely remarks about Lord Prescott. John was a political giant, and I am sure I speak for the whole House in sending our thoughts and condolences to his family.

I congratulate my hon. Friend the Member for South Dorset (Lloyd Hatton) on securing this debate. I also thank the Backbench Business Committee for giving us the opportunity to debate this vital subject so early in this Parliament. We have had a good debate today, and I have always thought that Backbench Business debates lend themselves well to issues where there is general cross-party consensus that a problem exists but where we need thoughtful, forensic consideration about how to move forward with sensible, workable proposals.

I echo the comments of the Chair of the Justice Committee, my hon. Friend the Member for Hammersmith and Chiswick (Andy Slaughter), on how good it is to hear the wisdom of long-standing Members, such as the right hon. Members for Maldon (Sir John Whittingdale) and for New Forest East (Sir Julian Lewis) and the hon. Member for Strangford (Jim Shannon), while also hearing powerful contributions from newly elected Members, particularly the hon. Members for West Suffolk (Nick Timothy), for Tiverton and Minehead (Rachel Gilmour) and for Aberdeenshire North and Moray East (Seamus Logan) and my hon. Friend the Member for Kensington and Bayswater (Joe Powell).

I am happy to meet the hon. Member for Aberdeenshire North and Moray East, although I would also like to discuss with the Department for Business and Trade whether it might be more appropriate for him to meet a Minister from that Department, given that the matters he raised relate primarily to non-disclosure agreements.

SLAPPs represent an abuse of our legal system. They curtail free speech, have a chilling effect on public interest journalism and pose a threat to our democracy. As we have heard today, they are characterised by the use of threatening tactics or actions to silence those who exercise their right to free speech on issues in the public interest. These cases often involve an acute imbalance of power where those with deep pockets use their wealth and influence to silence journalists, academics and others who are committed to raising issues that need to see the light of day. These powerful actors do so by abusing the legal system to suppress information on which we collectively rely. True accountability and transparency in a functioning democracy can be achieved only through free speech and a free press that upholds the highest journalistic standards while challenging abuses of power without fear of financial ruin. As the Prime Minister recently wrote:

“This is a government that will always champion press freedoms. We believe in being held to account.”

That must apply to everyone, irrespective of wealth or position.

The Government understand the profound financial and psychological impact of SLAPPs. Such actions have enormous consequences for the wellbeing and the very livelihoods of those on the receiving end of them, because SLAPP conduct is not about winning a legal argument or remedy. Instead, a SLAPP seeks to exhaust a defendant so that they withdraw their investigation or public commentary. That was very clear in the responses received to the 2022 call for evidence run by the previous Government.

SLAPPs also impact the standing of our legal system. That system, underpinned by the quality of our legal services and independent judiciary, is held in the highest esteem internationally. The legal services sector contributes £34 billion to our economy each year. We must not allow our world-renowned system to be abused for improper purposes. I must emphasise that the vast majority of legal professionals in this jurisdiction operate with the utmost honesty, professionalism and respect for the rule of law. However, the small minority who abuse our system by bringing SLAPP claims risk undermining its integrity and reputation.

By their very nature, SLAPPs rarely reach court. Claimants ensure that by racking up pre-litigation costs so as to make defending the case beyond the reach of those targeted, often journalists investigating wrongdoings in the public interest. There are detailed accounts of how aggressive letters put pressure on targets to remain silent, proceedings are brought in multiple jurisdictions to ramp up risk for defendants, and disproportionate costs are claimed in relation to the remedy sought. Apart from the distress obviously caused to those exercising their right to free speech, in media cases resources are diverted as press outlets’ in-house lawyers are forced to spend hours poring over a defence, instead of publishing material of real interest. In the case of freelance journalists without insurance or academics, there is often no legal resource at all for them to get advice from when a threat from a SLAPP claimant comes in.

Defendants are often unable to take on the risks associated with fighting the lawsuits in court, usually because of the exorbitant costs they would have to pay to the claimant if they were unsuccessful in defending their case. Time-sensitive reporting is also hindered when a SLAPP is issued, as it prevents the journalist from revealing critical information while the case is ongoing. We cannot accept that chilling effect on public interest journalism and the prevention of other information in the public interest seeing the light of day.

To their credit, the previous Government introduced legislation to tackle SLAPPs that relate to economic crime in the Economic Crime and Corporate Transparency Act 2023, which received Royal Assent towards the end of last year. We supported the SLAPPs provisions in the Act in opposition, and I am proud that we are the first country to legislate against SLAPPs at national level. The Act introduced a statutory definition of a SLAPP and required the Civil Procedure Rule Committee to develop a new early dismissal process to strike out SLAPPs without merit, and to develop rules providing cost protection for defendants who are subject to a SLAPP.

I thank the CPRC’s SLAPPs sub-committee, which has been working hard on developing these rules. We expect its work to conclude early next year. The CPRC will then consider the matter, and once recommendations are adopted there will be clear court procedure in place to deal with these abusive lawsuits where they relate to allegations of economic crime. The measures will go some way towards tackling this abusive practice.

The Government understand that SLAPP claims are used to suppress public interest information beyond just economic crime. We have heard many examples today that illustrate the range of subjects they can cover. The right balance has to be struck between access to justice and the right to free speech. There will always be legitimate defamation claims, and any intervention must be proportionate and targeted appropriately. I am clear that this is a complex area and we should not legislate in haste, only to find ourselves with unworkable legislation with unintended consequences. We do not currently intend to legislate in this parliamentary session, but we are continuing our work to consider how best to tackle wider abuses of the system in the longer term.

[Dr Mullan]

I welcome that general commitment. Apologies if the Minister was going to come on to it, but could she explain why, when Labour was content with the legislation drawn up in the private Member’s Bill, it now feels it is too complicated and unbalanced, and cannot be implemented?

[Heidi Alexander]

The hon. Gentleman pre-empts the next section of my speech. We saw, during the passage of the private Member’s Bill before it fell on Prorogation, that there are strong and differing views on SLAPPs. I understand that there were still unresolved issues before Prorogation. The former Member for Caerphilly, Wayne David, the promoter the Bill, was a very good friend to me when I was previously in this House. I know there are current Members who would like me to just pick up where he left off, but I do not think it is quite as simple as that. I have read Hansard carefully and deliberately to ensure that I am aware of views across the House on this topic. I will also be meeting colleagues from the Foreign, Commonwealth and Development Office, the Department for Culture, Media and Sport, and the Home Office shortly to ensure we have a robust and joined-up response across Government.

This is an important and complex issue, where fundamental principles of free speech and justice are at play, so it is imperative that we take the time to get this right. Our immediate focus, therefore, will be on the implementation of the Economic Crime and Corporate Transparency Act provisions. Our future approach to SLAPPs reform will be informed by monitoring the operation of the new procedural rules when they come in. We continue to build our evidence base, taking into account the views of stakeholders that were raised during debates on the private Member’s Bill. I also invite parliamentarians to continue engagement with us as we consider longer-term options to tackle SLAPPs beyond economic crime.