Economic Crime and Corporate Transparency Bill

Lord Thomas of Gresford Excerpts

Committee stage
Tuesday 25th April 2023 Grand Committee

Moved by

[Lord Thomas of Gresford]

80: After Clause 176, insert the following new Clause—
“Strategic lawsuits against public participation
(1) It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime.(2) A person guilty of an offence under this section is liable— (a) on summary conviction in England and Wales, to a fine;(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;(c) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).”Member’s explanatory statement
This amendment introduces a new criminal offence to deal with groundless threats in pursuance of SLAPPS in order to suppress investigations into economic crimes.

[Lord Thomas of Gresford (LD)]

My Lords, I will speak to my Amendment 80, in my name and those of the noble Lords, Lord Cromwell and Lord Agnew, and the right reverend Prelate the Bishop of St Albans, for whose support I am most grateful.

I will give a little background to set the amendment in context. In the 2021-22 Session, I drafted and introduced a Private Member’s Bill on the issue of SLAPPs, based on the Ontario model, as endorsed by the Supreme Court of Canada. Obviously, I had modified that model to suit the procedures of the civil justice system in England and Wales. Through the noble Lord, Lord Wolfson of Tredegar, I met with the Under-Secretary of State in the MoJ, James Cartlidge MP, and his officials, and had a very positive meeting with them.

My draft Bill was basically acceptable in principle, but there was one matter, they told me, it did not deal with: the scourge of pre-action threatening letters, designed to inhibit and intimidate journalistic or academic investigation. However, I was told that the Government were proposing a consultation on the issue, and indeed there was a call for evidence on 17 March 2022. It was wide-ranging; there were 48 questions asked of respondents. As it happens, not one referred to the issue of threatening letters prior to proceedings. However, one respondent suggested that any pre-action letter should require a statement of truth, so that any false allegations in the letter could be treated as a contempt of court.

The consultation finished in May of last year, and the MoJ published a full response in July. Dominic Raab said in the foreword:

“Strategic Lawsuits Against Public Protection, or SLAPPs, are a growing threat to freedom of speech and a free press – fundamental liberties that are the lifeblood of our democracy. Typically used by the super-rich, SLAPPs stifle legitimate reporting and debate”.


This is the point that I want to draw to your Lordships’ attention—he continued:

“They are at their most pernicious before cases ever reach a courtroom, with seemingly endless legal letters that threaten our journalists, academics, and campaigners with sky-high costs and damages”.


At the Second Reading of this Bill, the noble Lord, Lord Sharpe of Epsom, said:

“The Government are committed to tackling SLAPPs”


—I am sure that is right—

“but as the first country to pursue national legislation on such a complex issue”

—he ignored all the states of the United States, Canada and Australia, where such legislation exists, but never mind about that—

“it is right that we take the necessary time to consider this carefully and make sure we get it right. We will introduce primary legislation to tackle SLAPPs—this is where I am going to upset all noble Lords—as soon as parliamentary time allows”.

Now, I have to admit, I was upset. He continued:

“We are in the process of ensuring that we have anti-SLAPPs legislation which properly and comprehensively addresses the problem”.—[Official Report, 8/2/23; col. 1317]


So when will parliamentary time allow? Certainly not in this Session: it is highly unlikely that it will feature in a programme running up to a general election. So we are looking at years before this legislation can come to pass, although I guarantee that a Liberal Democrat-led Administration would deal with the matter as a priority.

I come to the substance of my amendment. I take the view that the endless stream of threatening letters—the “most pernicious” element, as Mr Raab described it, and really he should know—can be dealt with in the context of this Bill by criminalising their use in the investigation of the crimes set out in Schedule 9. I appreciate that may not cover the whole gamut of strategic litigation, and that a wider Bill will be necessary in due course, but investigative journalism is very much involved in turning over the stones of fraud, money laundering, bribery and the rest, and it is certainly in that area that SLAPPs have most frequently been used.

So the new offence that I propose could not be simpler:

“It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime”.


I think that is fairly understandable. The prosecution would have to prove a threat; a solicitor’s letter will speak for itself, and it will be for the jury to decide and judge its contents. Evidence will be necessary, of course, to prove intent, but that raises no more problems than in any other case in which intent has to be proved. Again, it will be a matter for a jury. An evidential burden would be placed on the defendant to raise a reasonable excuse for the prosecution to disprove, and the ultimate burden of proof of guilt would, of course, rest with the prosecution.

I believe that an offence of this nature, simply stated, would immediately result in a change of culture among those reputation lawyers who profited from this type of litigation. Their collective response to the consultation to which I referred was, “Nothing happening here, guv. Threatening? Oh, it’s just the rough and tumble of ordinary litigation”. No longer would the young Turk in the office be able to dash out on his laptop ill-considered threats. He would know that he will have a responsibility to interrogate his client thoroughly before committing his firm to intimidating conduct which would land both him and his senior partners in the dock, with all the reputational consequences for themselves. Further, it would be a great relief to threatened investigative journalists if, instead of having to consult their lawyers at considerable expense, they could make a complaint to the police and allow the criminal law to take its course. We can make this change now and let the great stew of reform of the civil procedure system which is slowly cooking in the MoJ follow “when parliamentary time allows”.

I conclude by strongly supporting the other amendments in this group for the same reasons. These are creating the means to tackle the SLAPPs problem of imbalance, as described in paragraph 15 of the Government’s response to the consultation. This is how the Government put it:

“the extreme power imbalance and inequality of arms between, on the one hand, media organisations, advocacy groups, academics, and journalists and, on the other, Claimant corporations or wealthy individuals who typically bring these cases”.

This group of amendments is designed to do something now—action, as the noble Lord, Lord Agnew, called for on an earlier amendment. I beg to move.

[Lord Garnier (Con)]

My Lords—

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[Lord Garnier (Con)]

Before the next contribution, I apologise to the Committee but I must be in two places at once. I hope the Committee will forgive me for not being here when other speeches are made and the Minister winds up. If that is thought to be very rude, I shall sit here, and there we are, but if I may, would it be—

[Lord Thomas of Gresford (LD)]

It is unprecedented.

[Lord Garnier (Con)]

It is unprecedented and very rude of me, but there seems to be rather a lot going on at the moment.

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[Lord Bellamy (Con)]

Absolutely. I will write to everybody after this debate and try to elaborate a little on what I have said. I hope noble Lords understand that in terms of my boss, I recently had a change of personnel, and it takes a little while to allow the dust to settle, if I may put it like that.

The only other thing I would respectfully draw noble Lords’ attention to, and I fully accept there is a certain amount of controversy as to how big this problem is, is that the Solicitors Regulation Authority issued a warning notice on 28 November 2022, which led to that authority undertaking investigations in relation to SLAPP complaints, so we are not without a regulatory instrument to at least hold the line until we are able to legislate. That, as far as one can tell, has had a salutary effect on the practical consequences of SLAPPs. It is not the case that nothing has been done.

[Lord Thomas of Gresford (LD)]

My Lords, the Minister said that the amendment which I have put forward criminalises access to justice. It does not do that; it criminalises a threat of litigation that is unwarranted and known to be unwarranted without reasonable excuse. It is perfectly simple, but I would be very unhappy to leave this Room today with the thought that the Minister has in mind that my amendment is criminalising access to justice.

[Lord Bellamy (Con)]

My Lords, perhaps I expressed myself a little loosely. Let me put it like this: in the Government’s view, this is not an area where we should introduce the criminal law, whether it is in relation to pre-litigation or in any other respect in terms of litigation. One is faced with a very basic question of when is something that is a robust and justifiable approach to litigation in a pre-action letter a threat. That is not straightforward, in the Government’s view. The Government’s view is that this is not a matter where the criminal law should intrude.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I apologise to the Committee, I perhaps should have declared my position as co-chair of the All-Party Parliamentary Group on Hong Kong in my last intervention.

[Lord Thomas of Gresford (LD)]

My Lords, I am grateful to Minister for his response and look forward to discussing these issues with him. I am grateful to all noble Lords who have spoken, and in particular to the noble Baroness, Lady Stowell. I commend her and her committee for the work they have done in investigation and taking evidence on this issue. I admire the guts and determination of the noble Lord, Lord Cromwell, and the fury of the noble Lord, Lord Agnew, on this issue.

I do not want to speak for too long: we have had a very long debate. The only dissenting voice was that of the noble and learned Lord, Lord Garnier. Your Lordships may recall that I said that, when the results of the consultation were looked at, the claimants’ lawyers were saying, “There’s nothing to see here, guv. It’s all the ordinary rough and tumble of litigation in this country”. The noble and learned Lord, Lord Garnier, referred to his experiences in the bear garden. I remember the bear gardens—I remember appearing in a bear garden for the leader of the Opposition in the Singapore Parliament; it was not an easy position. He was suing the Straits Times for libel, and the application to strike out was made on the grounds that he had no reputation in this country. When he died, some years later, he had obituaries in the Times, the Telegraph and the Guardian.

I know the games that these media lawyers play. They do not face up to some of the realities that we in the criminal courts perhaps have to face from time to time. But I have the highest regard for the noble and learned Lord, Lord Garnier, in his professional capacity, so nothing that I say should be taken as derogatory to him—otherwise, subject to professional privilege, I might find myself in court.

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[Lord Bellamy (Con)]

Just to clarify, as I said, the Government’s position is that it is not appropriate to introduce a criminal offence in relation to access to justice. It is not a question of just having another offence. Access to justice is a very important area, and we are on a slippery and possibly Orwellian slope if we start saying that it is criminal for someone to go to the law on some point. It is a very difficult area—that was all I said.

[Lord Thomas of Gresford (LD)]

So, according to the Minister, it is not criminal for a person to threaten litigation, with all the expense and worry that that involves and the way that it crimps the investigation of crime. He is saying that it is not unlawful and should not be criminal. There are criminal offences that cover conduct far less morally bankrupt than that, which is what I hope we shall discuss with the Minister before Report. For the moment, I beg leave to withdraw my amendment.

Amendment 80 withdrawn.