Autocrats, Kleptocrats and Populists

Lord Thomas of Gresford Excerpts

Thursday 3rd February 2022 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, strategic litigation against public participation, known as SLAPPS, is abusive lawsuits pursued with the purpose of shutting down freedom of speech. They have been used against journalists, media outlets, whistleblowers, activists, academics and NGOs that speak out on matters of public interest.

The UK has become a global hub for financial crime and corruption. As the Prime Minister would say, we are world leading. My noble friend Lady Kramer referred to £100 billion a year. Along with that, our courts possess the tools to shut down reporting on such matters—cases for libel taken not for their legal merit but for the effect of silencing a critic by locking them into a long legal struggle. We have developed a class of lawyers who call themselves reputation managers.

Chatham House reported on the Abramovich action against the journalist Catherine Belton and her publisher HarperCollins. She had lived and worked in Russia for many years and had claimed in her book Putin’s People that Abramovich had purchased Chelsea Football Club at the behest of the Russian president Vladimir Putin. A statement from the firm Harbottle & Lewis, solicitors representing Abramovich, claimed that Belton’s book, “falsely alleges that” Abramovich “acted corruptly” —a claim that was struck out in the early part of those proceedings. However, a further three Russian billionaires and the Russian state oil company Rosneft followed Abramovich in filing civil claims against HarperCollins, Belton’s publishers. It is much to their credit that they stood by their author and the claims were apparently settled satisfactorily.

The chilling effect of this type of litigation is most visible in the threat of action rather than action itself. Karen Dawisha, the author of the 2014 book,Putin’s Kleptocracy, was forced to change publishers due to legal concerns in the UK. Her publisher, Cambridge University Press, dropped her on the grounds that those implicated would sue and that the disruption and expense would be more than it could afford. The book was published in the US. There are numerous examples. The Maltese journalist Daphne Galizia, who was murdered by a car bomb, was facing 47 libel actions brought by Maltese politicians and others for her unbending and brave journalism exposing corruption. After her death, her family accused Mishcon de Reya, a British firm of solicitors, of “hounding” their mother.

There are rules of court that make it possible to strike out actions in this country but this power is not used often enough. We have fallen behind. Other countries, specifically Canada, have introduced primary legislation to deal with the problem. Its Act with the section, Prevention of Proceedings Limiting Freedom of Expression on Matters of Public Interest (Gag Proceedings), was recently approved and upheld in the Supreme Court of Canada.

Following that Canadian precedent, I have drafted a Bill to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. The Bill would give a judge the power to strike out an action at an early stage where the respondent satisfies the judge that the proceedings arise out of a communication that relates to a matter of public interest. The burden would then shift to the claimant to show that the proceedings have merit, the respondent has no defence and that the communication is sufficiently serious that it is in the public interest for it to proceed. In determining that public interest, the judge would consider the right to freedom of expression, the right of public participation in democratic discourse, the chilling effect of the proceedings and any disproportion between the resources deployed by the claimant and the amount of damages that might be awarded. The court would have power to award damages if the proceedings were brought in bad faith and award costs against the claimant on an indemnity basis. I hope that your Lordships will hear more about this Bill and I look forward to the Minister’s comments.