Strategic Litigation Against Public Participation Bill

Debate between Liam Byrne and Alex Cunningham

Committee stage
Wednesday 8th May 2024 Public Bill Committees

[Liam Byrne]

I have just two points to make on this excellent group. First, I wholeheartedly support the amendments to clause 2 that my hon. Friend the Member for Caerphilly proposes. The Opposition amendments to the Economic Crime and Corporate Transparency Act 2023 were very much a tactical strike on the statute book: here was a Bill that gave us the chance to ensure that we had road-tested similar provisions. Given the narrow scope of that Bill, it was possible to sketch only amendments that tackled economic crime at their core, so I am glad that this Bill gives us the opportunity to go well beyond that and take the holistic approach that my hon. Friend set out in his excellent opening speech.

My second point, which perhaps the Minister or my hon. Friend will address, relates to the concerns that have been well set out by the UK Anti-SLAPP Coalition. It gives me the chance to congratulate the coalition on its extraordinary and steadfast work; I am not sure that we would have arrived at quite the same speed without it. The coalition usefully highlights concerns about clause 2(1)(c), the drafting of which appears to suggest that there is a threshold for the “harassment, alarm or distress”—harm, if you like—that can be permitted. That is not something that we would want to support in this place. I realise that it is difficult to get the balance right, but my hon. Friend the Member for Poplar and Limehouse has spoken eloquently about the risks of creating a space in which there is a level of distress and harm that is permitted. It would be useful for both Front Benchers to crystallise how that issue will be tackled by the amendments in this group.

[Alex Cunningham]

As we have heard, consensus has broken out. It is all very pleasant, unlike some issues that I have debated with the Minister in the past. I welcome amendments 1, 3, 4, 8 and 9, which will reorder the themes so that public interest is referred to before freedom of speech. My hon. Friend the Member for Caerphilly has more than adequately outlined the necessity of the clauses, and I support his efforts to improve the Bill’s application.

I am also pleased to see amendments 2 and 5, which will ensure a more objective approach to the identification of intent. As we have heard, requiring the courts to engage in a subjective inquiry into the mind of a claimant or defendant would create uncertainty and might be practically and evidentially difficult to assess. These requirements could create satellite litigation and uncertainty at an early stage and might have the unwanted effect of introducing further delay and driving up costs.

The definition in the Bill should, at a minimum, include an objective element so that it relates to claims concerning disclosures that are or would be made on matters of genuine public interest. That would make the text similar to section 4(1)(a) of the Defamation Act 2013. I know that the amendments have the backing of the Law Society and the UK Anti-SLAPP Coalition. The News Media Association, a member of the coalition, says that the amendment is required to allow a judge to define a case as a SLAPP based on a reasonable interpretation of a claimant’s actions, rather than a complex inquiry into a claimant’s state of mind. It agrees that the latter would result in complex, time-consuming and costly legal wrangling that would defeat the object of a Bill intended to dismiss egregious SLAPP cases swiftly.

Amendments 6 and 7 restate sub-paragraphs (i) to (iii) of clause 2 for the purpose of clarifying the condition in subsection (1)(c). They have our support.

Clause 2(3) attempts to set out a definition of “public interest” to help with identifying SLAPP cases. That includes matters such as illegality, false statements, public health and safety, the climate or the environment, or investigations by a public body. Concerns have been raised to me that the original drafting lacks clarity and risks creating problems for implementation; it also proves contradictory in relation to the Defamation Act 2013. I therefore support my hon. Friend’s amendment 10, which will go some way towards addressing those issues by making it clear that the list set out in the clause is not exhaustive, and that other matters not specified in the Bill can be considered by the court to be of public interest.

It would not be appropriate to privilege certain types of public interest speech and create an unnecessary and problematic hierarchy. Without amendment 10, the examples in the definition of “public interest” in clause 2(3) would cut across principles in the Defamation Act and in data protection law, making it harder for defendants to use the full scope of defences available at trial. That is because it would naturally be difficult for a court to decide that an article was not in the public interest under the Bill’s narrow definition but then take a different course at trial. We are happy to support amendment 10.