Lawfare and UK Court System

Liam Byrne Excerpts

Thursday 20th January 2022 Commons Chamber

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

It is a real privilege and an honour to follow the right hon. Member for Haltemprice and Howden (Mr Davis) to help open this debate and to follow on from his arguments.

“Follow the money” is the oldest and wisest advice given to journalists who are pursuing the corrupt, shining lights where they need to be shone and hunting the truth, yet this dictum, which has served us so well since Watergate, is now being smothered, suffocated and strangled in courts by allies, associates and friends of President Putin, who is pursuing a hybrid war against the west and against us. That is the context for the debate that we are holding this afternoon.

Many of us in this House have been warning for some years that it is time for this country to wake up to this new threat. Hybrid war is a novel kind of conflict. Once upon a time, wars were fought on land, in the air and at sea, but no more. Hybrid war is a battle for minds as much as it is for land—for influence and narrative, not simply territory. That means it extends the battlefront to space, to cyber-space and, now, to law space. It is fought with tweets as well as tanks, and now it is being fought with writs as one more weapon in the armoury. Of course, the reason for this is simple: what totalitarians, autocrats and kleptocrats fear most is the truth, so what they are seeking to do is to murder the truth, and we are letting them do it in English courts.

[Stephen Kinnock]

My right hon. Friend is making an excellent speech, and I congratulate him on securing this debate. On the point of cyber and hacking, is he aware of cases in which these Russian-backed interests are hacking people’s private data, leaking it and then suing them for libel, and does he agree that that is an utterly absurd and unacceptable position to be in?

[Liam Byrne]

My hon. Friend is absolutely right, and I will come on that in a moment.

The truth is that the truth is under attack by oligarchs with Russian connections because they are seeking to disguise the origin of their fortunes, their methods of business and, of course, their networks of friends. The result is that the frontline of this hybrid war now stetches from the streets of Donbass and Crimea and the troll farms of St Petersburg to the law courts of Britain—our courts, in England, here in London.

It was the Intelligence and Security Committee—whose distinguished Chair, theright hon. Member for New Forest East (Dr Lewis), is present—that made clear on, I believe, page 22 of its landmark report on Russia that the interests of Russian business are now so closely entwined with the interests of the Russian state that it is impossible to unravel them. It is these honourable folk who are now using English courts as their preferred location for the business of truth silencing. According to a survey of 63 journalistsin 41 countries, more cases were brought against journalists in the UK than in America and Europe combined.As theright hon. Member for Haltemprice and Howden said, the United States and Europe are now moving to shut this down, but we are not. That is why we are now becoming the global capital of the lawfare industry.

There are now so many cases that today we can reveal—it was evident in the right hon. Gentleman’s speech—what might be described as the oligarch’s playbook. Step one is to target the individual, not the organisation, because the individual is most vulnerable, and take aim at the slightest error. Arron Banks did not go for The Guardian or The Observer; he went for Carole Cadwalladr, and took aim at a single sentence in her TED talk. As we have heard, ENRC went after Tom Burgis personally after he flagged up the information that witnesses to its crimes were being murdered. Paul Radu, who happens to be Romanian, is being pursued in English courts by corrupt Azerbaijani politicians. We have to ask: why are powerful interests from far away suing journalists who are not English and do not write for English titles? Why are they being sued in English courts? Surely that must tell us that something in our country is going badly wrong.

Step two is to maximise intimidation, using covert surveillance if necessary. As we have heard, investigators and journalists are now being inundated with data subject access requests so that people who are up to no good can smoke out what they are up to. ENRC agents surveilled Tom Burgis, who was in a meeting that had been arranged on an encrypting messaging app; how on earth did it know about that? The Financial Times journalist Dan McCrum, who helped to break the Wirecard story, was subject to online abuse, hacking, electronic eavesdropping and physical surveillance. These people know no boundaries. They are completely out of control.

At one stage, I have been told, Elizabeth Denham, who was the Information Commissioner at the height of the Cambridge Analytica scandal, was warned by counter-terrorism officers that MI5 had evidence that she was under active intrusive surveillance ordered by Mr Arron Banks, so her office had to be swept. Others have told us about the “hack and leak” technique whereby systems are hacked into, and information is then leaked to serve as a trigger for defamation proceedings.

Step three is then to file the most ludicrously exaggerated claims. Mr Abramovich’s attack on Catherine Belton took completely out of context what Ms Belton had actually written. We know that Tom Burgis has been attacked because he is alleged to have said that a corporate entity had ordered the murders. There are extraordinary exaggerations and twisting of what has actually been written.

Step four is to co-ordinate the claims with others to maximise intimidation and, indeed, legal costs. Catherine Belton was subject to an onslaught first from the Alpha group, then from Abramovich, then from Mikhail Fridman, then from Shalva Chigirinsky, then from Pyotr Aven, and then from Rosneft—and we are being invited to believe that somehow this was unco-ordinated. They must think we are complete idiots.

Step five, as we have heard, is to file claims in multiple jurisdictions—an example is Mr Abramovich’s suit against HarperCollins in Australia—to maximise the cost for journalists, writers and their publishers. The impact is the creation of legal bills that are so big that they chill and kill the truth. Catherine Belton’s case cost well over £1.5 million, and it would have cost millions more if it had gone any further. Carole Cadwalladr’s case is costing hundreds of thousands of pounds. Major Karpov’s case against Bill Browder left Mr Browder with a bill of £600,000, which the plaintiff has not paid because when he lost his case, lo and behold, he subsequently disappeared.

Democracy’s watchdogs are having their tongues cut out and our writers are having their writing fingers broken. The result is that suspicion multiplies and the risk of corruption grows. I am so glad that the right hon. Member for Haltemprice and Howden has put before the House details of Mr Mohamed Amersi, which is a case in point. On Monday I shared intelligence with the House from sources inside the Kremlin and the Russian Government, including information about one of Mr Amersi’s business partners, a man called Leonard Bogdan, who sources tell me has “a definite FSB background.” I now learn that Mr Bogdan’s daughter works for the Conservative party’s central office and—surprise, surprise—was briefly secretary of Conservative Friends of the Middle East and North Africa.

We then learned, as the right hon. Gentleman said, that Mr Amersi’s associate, friend, colleague and lunching partner, Carl Hunter, threatened a former Member of Parliament, Charlotte Leslie, that without an apology to Mr Amersi the case had “all possibility of going further to a really gruesome stage.” What on earth is going on in this country when people like this are able to issue threats to anyone, never mind former Members of this House? And still Mr Amersi thinks he can go to a four-day trial and take Ms Leslie to court.

We still do not know the origin of Mr Banks’s donations to Leave.EU. When the Electoral Commission warned about the poor National Crime Agency investigation, Mr Banks sued the Electoral Commission and forced it to take down a statement about his lies. We have heard from regulators who fear judicial review because a subject access request might come in from representatives of organised crime groups that are seeking banking licences. This is complete madness. Perhaps there are perfectly innocent explanations for all this, and maybe I have too suspicious a mind, but I would like to know the truth. I want newspapers and investigators to be able to hunt down the truth and, where necessary, publish it.

That is why we need action and we need it now. We are still governed by the great European Magna Carta that we wrote in the 1950s, the European convention on human rights. It establishes a positive obligation to safeguard the freedom of a pluralist media and to create a favourable environment for participation in public debate. We are failing to uphold that duty.

It is not simply libel law being abused, as Bill Browder was attacked using cross-border insolvency legislation. We have heard how GDPR is now being misused by oligarchs. I was the shadow Minister on the Public Bill Committee on the Data Protection Act 2018, and I can expressly tell the House that it was not the intention of the previous Parliament for the Act to be used in this malicious way.

The new anti-corruption strategy and the economic crime plan that the Government have to refresh need to include five quick provisions. First, we need what are known as SLAPP-back laws so that a judge can rapidly dismiss a case if it is designated as strategic legal action against public participants. Secondly, we need a public figure defence, as America has, so a person who sues a public figure has a much higher bar to clear and needs to be able to prove actual malice. Thirdly, we need a sanctions regime against vexatious litigants, which could include paying 100% of costs or even punitive costs, to deter the misuse of our courts that we are now seeing. Fourthly, we need a defamation defence fund on the lines proposed by President Biden, and I humbly suggest that it should be funded by a windfall tax on the law firms making millions from the misuse of our courts.

Time and again, we have heard in our research about the behaviour of Hugh Tomlinson, Geraldine Proudler, Carter-Ruck, Mishcon de Reya, Schillings, CMS and Olswang, and it is now time for the regulatory body to pass new rules to ensure these firms follow a good model of litigation principles that ensures rules of good conduct and even liability for clients who refuse to pay their bills when they lose their case, like Major Karpov.

[Bob Seely]

This is yet another great speech. Does the right hon. Gentleman think that these solicitors’ bodies and barristers’ bodies should be more concerned about the very questionable ethics and behaviour of individual lawyers and individual law firms? They seem to be able to get away with whatever they want and offer whatever service, however questionable.

[Liam Byrne]

The hon. Gentleman is right on that. When we welcomed the integrated review and the rhetoric of “global Britain”, what none of us intended was that “global Britain” meant London becoming the capital of the global lawfare industry, yet we know about the profits that are being made by some of these firms, which, as the right hon. Member for Haltemprice and Howden eloquently said, are now carving out a big fat niche for themselves.

In conclusion, once upon a time Mr Churchill warned about an “iron curtain” descending across our continent, from Stettin in the north to Trieste in the south. The challenge for our generation is very different. A kleptosphere is taking shape, stretching from Kaliningrad in the west to Kamchatka in the east. Every day, urgently, incessantly, patiently, friends of Mr Putin are trying to push the frontiers of that kleptosphere into Ukraine, the Balkans, Cyprus, Malta and the Baltics, and, yes, into Britain. It is pushed forward by attacking the weakest brick in our defences, and we in this House must ensure that our courts never become vectors for our country’s opposition. For nearly 1,000 years, our courts have been sanctuaries of justice, but now they are becoming arenas of silence, places in which the truth is killed. It was Václav Havel who said that the greatest defence against totalitarians is to live “in truth”. That is also the greatest defence against kleptocrats. I want to live in truth, which is why I say to the Minister: it is now time for the Government to act.

[Mr Deputy Speaker (Mr Nigel Evans)]

Before I call Sir Robert Neill, let me just remind everybody that the sub judice waiver is not a general waiver; it relates to specific cases. If people wish to seek guidance, the Clerks at the Table will be able to guide them properly so that they do not stray, which I know Sir Robert Neill will not do.

--- Later in debate ---

[Sir Robert Neill]

Let us put it this way: Parliament may decide as a matter of policy that certain behaviours are undesirable and should be constrained by law. The courts would faithfully apply any law on the subject that Parliament passed. That is the right way, in my judgment, to deal with this. That relates, too, to the law regulating the professions. For the reasons I gave, we should be very wary of fettering lawyers’ ability to defend unpopular clients, which is not the same as unmeritorious clients. Remember why that is: there are many instances where injustice has been prevented by lawyers taking on an unpopular client and an unpopular cause. That is the point on the other side that we have to weigh in the balance before we go entirely down the path of saying that because we disapprove of someone, we should deny them redress in law.

[Liam Byrne]

The hon. Gentleman is doing an immense service to the House by bringing his expertise to this debate. I agree that we need to be circumspect, and to empower judges to deal with abuse of courts. Judges know an abuse of court when they see one. In Major Karpov’s case, he was being paid £15,000 to £20,000 a year in Russia, but could somehow afford lawyers who cost £600 an hour. There must be some kind of weakness there, which we need to fix if we are to ensure that lawyers can genuinely understand the source of the money that is paying their bills.

[Sir Robert Neill]

Obviously, I am not in a position to consider the facts in that case. If people have suggestions, or examples that suggest a failure in the regulatory environment, of course they should bring them to the attention of the regulatory authorities; my experience has been that they take their job very seriously, and I know that the Ministry of Justice is very aware of this matter. Of course, one should never be afraid to look at specific examples to see if anything could be improved; I am very open to that. I would not, however, want to throw out the baby with the bath water in our approach to this issue, and that is why I argue for a balanced approach.

--- Later in debate ---

[Sir Robert Neill]

We must always make sure that the regulatory regime is kept up to date and fit for purpose. That applies to a number of the tools we have for dealing with this type of corruption. It also applies to resourcing of the Serious Fraud Office, which has been mentioned. We should make sure that it has the technology and manpower to deal with complex investigations, and that the courts and certain regulatory bodies have the technology to deal with complicated matters; there is no problem with that at all. The key thing that we must do, however, is preserve the independence of the regulatory bodies, and that is best done by our setting a proper legal framework—that is our responsibility—and giving them the tools to do their daily job in an independent fashion. As far as I can see, there is no dispute about that in the Chamber.

It is important, too, that we look at practical measures. I hope that the Ministry of Justice will consider consulting on anti-SLAPP laws that broadly follow the form of those in the United States. That is something that distinguished jurists such as Lord Neuberger think is well worth considering. It would be a sensible and constructive step forward. The High-level Panel of Legal Experts on Media Freedom also suggested that reform of the civil procedure rules could be fairly regularly undertaken. That is something we could ask the judiciary themselves to look at, because they must be master of their own rules, rather than us dictating them.

It has been suggested, for example, that civil procedure rule 24.4 on summary judgment could be adjusted to make it easier to deal with such unmeritorious claims where they are being pursued for abusive reasons, such as deliberately stretching out proceedings to run up the costs. Perhaps greater use of security for costs could also be undertaken. Those are practical things that I have no doubt that the courts would be willing to do and we could ask them to consider. The broader legislative framework of the anti-SLAPP law, as I said before, is down to this House. I, for one, would be open to looking constructively at that. That is the balance that I wanted to get into the equation. How do we ensure the reputation that we have in this country as a jurisdiction of choice for litigation—that exceptional benefit?

Only yesterday, Justice Committee members and I met the Justices of the Supreme Court, across Parliament Square, because we thought it would be useful to start more of a dialogue between the legislature and the Supreme Court on matters of importance. We have there men and women of the highest integrity and intellectual ability. They reminded us of the very high percentage of cases that they deal with, even at the final appellant level, that involve international parties. Of itself, that is not a bad thing and we should not ever allow anyone to think that is ever a bad thing. Generally bona fide commercial organisations or individuals choose to litigate under English law precisely because it is trusted more than that anywhere else, because of the independence and because of the rigour. How do we preserve that and at the same time update, where necessary, the tools to prevent abuse of the system? That is the trick that we have to pull off. I am sure, with good will, that that can be done.

The final thing I was going to say in this context was referred to by other speakers in the debate: the importance of our continued engagement in the international sphere on this. I, for one, in particular stress the absolute importance of our continuing within our obligations to the Council of Europe and the convention on human rights. I regard that as an absolute red letter in our constitutional and legal position and a massive benefit to the UK.

I had the honour to serve in the Parliamentary Assembly of the Council of Europe for a number of years, before I became Chairman of the Justice Committee, and in that role I represented the Parliamentary Assembly on GRECO, the Group of States against Corruption, on which the Ministry of Justice has officials sitting on a permanent basis. Admirable work is done there, including, interestingly, by some of the emerging democracies in eastern and central Europe, which recognise the need to clean up their own systems and reputations. That is important.

[Liam Byrne]

The hon. Gentleman is being incredibly generous. I underline that the Ministry of Justice is out for consultation on reform of the Human Rights Act 1998, which helps to enshrine the ECHR. Does he agree that it is absolutely essential that there is no backsliding on our obligations to preserve a pluralist media environment with vigorous public debate and the cherishing of free speech?

[Sir Robert Neill]

Protection of the media and the right to free speech are fundamental to our convention obligations. We must never do anything that resiles from those. There is a separate debate about the mechanisms with which we in our domestic courts enforce the convention obligations, but our commitment to the convention itself must be absolutely crystal clear and so, too, must be our commitment to the institutions put in place to assist, on a co-operative basis, with those matters. I referred to GRECO, which does excellent work, as does—particularly in terms of dirty money, which is without doubt a real problem—Moneyval, the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism. They are not the catchiest of acronyms, but they do valuable work.

We could also look at what we do on the issue of cross-border insolvency. That is not one that is easy to fix because, again, the cross-border insolvency regime stems from a number of international agreements that we have entered into, which in many respects bring considerable commercial value to British companies and individuals. However, there is no harm in looking at that, if it is an issue where there is potential abuse.

This has been referred to in discussions I have had with practitioners and judges. As well as the cross-border insolvency issue—we need to protect from abuse—we need to look at potential loopholes in the data protection legislation. Again, that is for us to do because, we, as a House, passed that legislation. If time has shown that there are areas of defect that need to be addressed, then, absolutely right, we should move to address that. Again, if we address that, I have absolute confidence that the judiciary will enforce the policy decision that we take in this place under our constitutional rule. They will play their constitutional part to enforce it.

This is an immensely important debate and I am very grateful to my right hon. Friend the Member for Haltemprice and Howden for securing it. Our international reputation is critical. The reputation of our judiciary is critical. I get the sense that no one for one second is calling that into doubt, but we have to find a sensible, balanced and proportionate means of making sure that, while we uphold that and the judiciary’s fundamental independence, we do so in a way that prevents abuse. That is an objective that certainly warrants further debate and consideration. I hope the Minister will take that on board as we go forward.

--- Later in debate ---

[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—

--- Later in debate ---

[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—

[Madam Deputy Speaker (Dame Eleanor Laing)]

The right hon. Gentleman has already spoken, but he has the leave of the House to speak again.

[Liam Byrne]

This has been one of the most remarkable debates that I have sat through in 18 years in the House. The issue is extremely serious, there has been a high level of cross-party consensus and immense practical detail has been offered. I have been in the Minister’s position, when there is turbulence at the top. I urge him to keep his head down and to plough on. We cannot afford anything less.

Thirty-two years ago, President Gorbachev came to the Council of Europe and talked about his dream of a common European home and a single legal space, our great gift to the world. That dream is now shattered, but that means that we have a special obligation in this country, as the home of the Magna Carta and the Bill of Rights, to be a beacon and a champion of freedom, rights and free speech. That is the challenge to which the Minister must now rise.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I am glad that the right hon. Gentleman had the leave of the House to speak again.

Question put and agreed to.

Resolved,

That this House has considered the matter of lawfare and the UK court system.