Strategic Litigation Against Public Participation Bill

Mike Freer Excerpts

2nd reading
Friday 23rd February 2024 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

I congratulate the hon. Member for Caerphilly (Wayne David) on bringing forward the Bill, and the numerous campaigners who have been pressing this issue for many years. As we have heard, SLAPPs are an abuse of our courts and our laws by corrupt individuals who seek to stifle free speech and a free press—two of the linchpins of our democracy.

I cannot talk about the specific case that the hon. Member for Poplar and Limehouse (Apsana Begum) raised, but I can reassure her that the Bill widens the scope beyond what is in the Economic Crime and Corporate Transparency Act 2023 and that it now talks about all kinds of behaviours. I am more than happy to discuss the specific issues with the hon. Member for Caerphilly, as it is his Bill, to see what we can do to ensure that we either reassure or accommodate her on the specific issues she wishes to see covered.

This issue became increasingly pressing when the Russian oligarchs and allies of Putin used this process for their own ends. Alongside them, we saw behaviour by multinational corporations or disreputable landlords to use and abuse our processes. SLAPPs must always be taken seriously and tackled swiftly. In this House, we have the ability and the privilege to ensure that such abuses are addressed head-on. This House stands for free speech and for holding the powerful to account, and for always seeking to ensure that the best interests of the public, in the widest sense, are being served by the law.

SLAPPs-style litigation is an abuse of power designed to inhibit public interest investigations and reporting. The harm that SLAPPs cause is not only that they stifle public comment by forcing its removal or editing it; they also discourage journalists, academics and campaigners from investigating issues in the first place, leaving matters of public interest undiscovered and the British public in the dark. In this way, the effect of SLAPPs is far more pernicious. We cannot sit by and allow our media to feel that some people and organisations cannot be subject to scrutiny just because they have unlimited financial firepower to mobilise aggressive legal tactics. To quote Andrew Galizia, whose mother Daphne, a Maltese investigative journalist, was murdered in 2017:

“The aim of these lawsuits is to deprive the target of time and resources, and to deter others from taking up the same story.”

His mother was subject to 43 lawsuits at the time of her death.

Regardless of whether a claim is aimed at an author, an academic, a journalist or a private individual, this abuse of the law to muzzle the free press must not go unchecked. We will not allow our justice system to be abused. In the Government’s response to our original call for evidence, we said that although there are powers enabling courts to strike out cases as an abuse of process, these powers need to be strengthened to counteract the very sophisticated and aggressive actions brought by SLAPP claimants.

The House will be aware of some high-profile cases that have shone a light on SLAPPs—cases such as that brought against the British journalist Tom Burgis, whom Members have already mentioned, who was sued for libel in the High Court by ENRC, an oligarch-owned mining company, following his publication of “Kleptopia: How Dirty Money is Conquering the World”. There were multiple claims issued against Tom Burgis by ENRC, targeting him as an individual author rather than his publisher. These claims concerned his tweets, podcasts and articles that mentioned his book. The case was dismissed early on. The statements complained about were found not to be defamatory and Mr Burgis was vindicated, but how many more cases do not reach our courtrooms due to the intimidatory tactics and costs run up by aggressive claimants before proceedings are even initiated? I think that is the point made by the hon. Member for Hammersmith (Andy Slaughter), and I will address a couple of his points at this juncture.

We have engaged with the SRA and will continue to do so. As the hon. Member mentioned, warning notices have already been issued. The fines for misbehaviour by solicitors firms have been increased, and pre-action behaviour is a legitimate cause of concern. The Government will continue to engage with the regulator to see how that can be further addressed. As so many people have volunteered to be on the Public Bill Committee, I am sure that, with the indulgence of the hon. Member for Caerphilly, we can look at the issue in more depth.

There is evidence that the number of SLAPPs is increasing year on year. There were 11 cases in the UK in 2020, 25 in 2021 and 29 in 2022. Such worrying and abusive conduct, whereby those with deep pockets attempt to financially bully dissenting voices, is unacceptable in our democracy. The courts must not be a pawn in these underhand attempts to cover up corruption and wrongdoing.

SLAPPs are a modern-day struggle between David and Goliath: we have individual journalists, academics and authors up against extremely wealthy individuals and corporates with unlimited resources on their side. We cannot let this type of intimidation and harassment stand. It is right that wrongdoing and dubious deals are laid bare for the world to see, and those who expose such behaviour should not be afraid of the repercussions of doing so. That is why the Government listened and introduced the Economic Crime and Corporate Transparency Act 2023 to tackle SLAPP claims connected to financial misdeeds.

That Act meant we were the first country in the world to legislate against SLAPPs at a national level. Although we can argue over whether it was overdue, we were certainly the first to do it, and we ought to take pride in the fact that this legislature acted faster than most. The Act gave cover to only a small part of the SLAPPs regime, and it targeted only one part of economic crime, which is why this private Member’s Bill seeks to address the gaps. It will make sure that the definition of SLAPPs is more comprehensive.

The hon. Member for Tiverton and Honiton (Richard Foord) raised the issue of behaviour in the test of objectivity and subjectivity. The issue of subjectivity is not unusual, and the court will consider all evidence before it comes to an assessment, including an explanation from the claimant as to why their claim is reasonable. The courts are, of course, well versed in taking that information into account. The test of subjectivity or intent is not unusual, and it is well established in our court system. Clause 2 gives specific examples of SLAPPs-type behaviour. I believe there is a careful balance between the standard practice of intent and tightening things up to give objective guidance to the judiciary on what constitutes SLAPPs-type behaviour.

The Bill follows the Economic Crime and Corporate Transparency Act in establishing a cost-protection regime that limits legal costs in SLAPPs claims, protecting defendants from the obscene costs run up by claimants to increase the intimidatory effect of their claim. This will also help to address the glaring inequality of arms between the parties in these cases.

Of course, one of the big steps forward is the ability to secure early dismissal so that these cases do not rumble on and rack up fees, particularly for defendants. The ability to strike out cases at an early stage is a big part of the cost-protection armoury. Our reforms also have to ensure a balance between defending people from SLAPPs-type behaviour and protecting access to justice, which is a fundamental part of our system. It is for the courts and the judiciary to determine whether a case is a SLAPP and whether it has merit. We have acted to remove the level of fear and risk that these cases can engender. The Government are glad to welcome and support this Bill, which builds on the important progress already made.

I thank the hon. Member for Caerphilly for seizing the moment to introduce a private Member’s Bill. This is an opportune time to build on what we have done so far, and to make it more comprehensive. As he outlined so well, the Government have found that the scourge of SLAPPs is unfortunately spreading into new areas, such as sexual harassment, clinical negligence and landlord and tenant disputes. The purpose of this Bill is to tackle such behaviour. If the behaviour looks like a duck and quacks like a duck, it’s a SLAPP. [Interruption.] Sorry, that is rather clumsy English. I am sure Hansard will correct me.

This Bill is a major step forward, and it is time to legislate. The majority of SLAPPs were thought to be linked to economic crime, but it is time to move on and make the definition more all-encompassing.

I will cover a couple of points raised by hon. Members. My hon. Friend the Member for West Bromwich East (Nicola Richards) raised the Belton case again. Information from all SLAPPs cases formed part of the call for evidence, so I can reassure her that the activities in the Belton case will be part of the foundation of this Bill.

My hon. Friend the Member for Heywood and Middleton (Chris Clarkson) spoke about forum shopping, which I will look at, and I am sure he will raise it in his customary fashion in Committee. I am sure the hon. Member for Caerphilly will urge him not to talk quite as much as he promises.

It is a credit to this Parliament that Members of all parties have rallied to support action on this issue and to introduce new laws to help ensure the integrity of our justice system and to support the freedoms and protections that we all cherish. In some ways, a private Member’s Bill is the most fitting way to complete what the Government started.

I have spoken about the work we are doing with the Solicitors Regulation Authority to ensure that it tightens up its regulation, and we will continue to engage with it. I pay tribute to the UK Anti-SLAPP Coalition, which has been an enormously effective stakeholder. The coalition has supported the Government’s efforts, and I thank it for its consistent engagement and clarity on this issue.

The Department for Culture, Media and Sport launched the SLAPPs taskforce last September, with a remit to develop non-legislative recommendations to tackle SLAPPs. Good progress is being made on a number of fronts, and I thank the Secretary of State for her tireless commitment.

Internationally, the UK was represented as an expert member of the Council of Europe’s Working Group on SLAPPs, which concluded its mandate in December 2023. The draft recommendation which was produced over the course of two years will now make its way to the Committee of Ministers, and we trust that it will be eventually adopted in all 46 member states.

The Government acted last October by legislating against SLAPPs, because we must not allow our courts to be abused and our legal system manipulated. We are therefore pleased to support the Bill, and will continue to ensure that those who speak out against corruption, who hold the powerful to account and who guard our freedoms through their voices are protected.

Let me again thank the hon. Member for Caerphilly for promoting the Bill. I also thank the officials at the Ministry of Justice for providing all the necessary support as we move forward.

Strategic Litigation Against Public Participation Bill

Mike Freer Excerpts

Committee stage
Wednesday 8th May 2024 Public Bill Committees

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship again, Ms Elliott. I am pleased to speak to clause 1 stand part. I commend my hon. Friend the Member for Caerphilly on his private Member’s Bill. Its aim to legislate for the remaining SLAPP cases not covered by the Economic Crime and Corporate Transparency 2023 is welcomed by the Law Society, which says that

“it’s in the public interest that our justice system works for all people regardless of their means and produces fair outcomes.”

I praise the long-running campaign led by free speech organisations, media practitioners and parliamentarians that forms the backdrop to this Bill. Those organisations include the UK Anti-SLAPP Coalition, which was formed in 2021 and has campaigned for changes to the law to address SLAPPs, as well as supporting individuals targeted by SLAPPs.

Clause 1 sets the stage for action that is long overdue. I am sure that all Committee members agree with the Bill’s important ambition of preventing abuses of the administration of justice. This Bill is about inequality under the law and how we address it. The Opposition supported it on Second Reading and, significantly, it received endorsement across the Benches. From the Front Bench, my hon. Friend the Member for Cardiff West (Kevin Brennan) noted:

“Labour has long recognised the danger posed by SLAPPs to our democratic values.”—[Official Report, 23 February 2024; Vol. 745, c. 963.]

I recognise that the Bill could be stronger, but we are content that it is necessary to bring about important change. We would not want to lose the Bill altogether or disrupt its progress. We recognise the importance of striving for a balance between the legitimate right to sue and freedom of expression. We would not want to close the door on individuals getting a remedy in court in appropriate cases.

As we have heard, clause 1(1)(b) will allow claims to be struck out if

“the claimant has failed to show that it is more likely than not that the claim would succeed at trial.”

I am mindful of the Law Society’s concerns that this measure will shift the onus of proof to the claimant in applications to strike out a claim:

“This represents a high threshold that a potential claimant would have to reach simply to be able to bring a claim. The test makes no allowances for cases in which a claimant may have a meritorious case but may not be able to demonstrate at the outset sufficient evidence to meet the threshold. This therefore has potential consequences for access to justice.”

I invite the Committee to discuss these concerns. Perhaps my hon. Friend the Member for Caerphilly will outline in a little more detail why clause 1(1)(b) is drafted as it is, or perhaps the responsibility for sorting this out falls to the Minister.

I turn to new clause 1. I am pleased, and unsurprised, to see the right hon. Member for Haltemprice and Howden contributing to the Bill. His campaigning against lawfare cases is well known, and I pay tribute to his tireless commitment to shining a spotlight on the issues and calling for action. I heard the concerns that my hon. Friend the Member for Caerphilly has expressed about some aspects of the proposed new clause. I hope that the Minister will provide an appropriate response to the right hon. Member for Haltemprice and Howden and perhaps see how we can help him in his ambitions for the Bill on Report.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

It is a pleasure to serve under your chairmanship, Ms Elliott.

I will not detain the Committee long. I wish to state my support for the hon. Member for Caerphilly in introducing the Bill, and for the approach that he has taken in steering it forward. However, I will try to address all the concerns raised by various parties—not least the constructive and weighty contributions from right hon. and hon. Members.

As we have heard, SLAPPs are the purview of corrupt individuals seeking to stifle free speech and a free press by abusing our courts and our laws, and to undermine our democracy. No matter who brings the case, SLAPPs must always be recognised as an affront to our renowned courts and legal system, and they should be tackled swiftly.

The Ministry of Justice has been keen to ensure swift passage of the Bill, and I pay tribute to the officials who have provided support to the hon. Member for Caerphilly and other Members in trying to fine-tune it. I gently say to the right hon. Member for Birmingham, Hodge Hill that the Department has certainly not been a roadblock—quite the reverse. We have been doing our best to ensure a swift and smooth passage.

Strategic litigation against public participation is a bullying display of power designed to silence investigations and reporting in the public interest. SLAPPs cause harm not only by stifling public comment but by forcing its removal or editing, leaving a sanitised version of events that may far underplay the true severity of the information covered. They discourage journalists, academics and campaigners from investigating issues in the first place, using intimidation to ensure that matters of public interest remain hidden, and leave the British public in the dark. The effect of SLAPPs is pernicious, and we cannot allow our media to be helpless to act to expose the actions of some people and organisations due to aggressive legal tactics and unlimited resources.

[Liam Byrne]

I hope the Minister did not mishear me: I was hoping to ensure that the Ministry of Justice does not become a roadblock in the future. I am very grateful for the work that he has done so far. Will he use this moment to put on the record whether he agrees with subsection (1) of new clause 1, tabled by the right hon. Member for Haltemprice and Howden? It provides that the Bill’s purpose should be interpreted as being

“to protect and promote the ability of individuals and organisations to participate in public debate, advance accountability, and speak out on matters of public interest, and to prevent the use of the courts to undermine these rights through abusive legal action”.

Is that basically the intent of the Bill?

[Mike Freer]

Let me take this opportunity to address two points that the right hon. Gentleman has raised. First, on pre-litigation issues, I will have to write to him to ensure that I get correct the rights that the Lord Chancellor, the Department or the courts will have before a matter gets to court. I will make sure that I get the details so that I do not misinform him.

We cannot support new clause 1, tabled by my right hon. Friend the Member for Haltemprice and Howden. As I have said to him, I am more than happy, between now and Report, to sit down and try to flesh out where we can find more agreement, but at this stage we cannot support the new clause. While we support the whole thrust of what he is trying to achieve, we feel that the Bill has actually—

[Sir David Davis]

The Minister has now said twice that the Government support the thrust of new clause 1. Given the consensus that we have maintained from the beginning, I would rather not divide the Committee. Alongside me, the right hon. Member for Birmingham, Hodge Hill has been the primary driver on this issue since—I cannot remember the actual date, but it was the day after I called for Boris to go. That is the new reference point: not anno Domini, but anno B, after Boris.

If the Minister agrees with the thrust of the new clause, and if he will come back on Report with an equivalent that makes it plain to the judges what the Bill proposes, I will not press it—but I do need that undertaking.

[Mike Freer]

I can give the undertaking that I will work with my right hon. Friend and the right hon. Member for Birmingham, Hodge Hill to try to ensure that the Bill meets those objectives. We believe that the Bill creates a balance of rights and responsibilities that ensures that we protect free speech while balancing the rights of both claimants and defendants, so that the bad behaviour that has been documented is addressed. Also, the examples of bad behaviour in the Bill and the explanatory notes are not exhaustive.

[Liam Byrne]

I am very grateful for that constructive reply, but I want the Minister to underline and crystallise the point for the Committee: he is saying that the Government support the thrust of the right hon. Gentleman’s new clause.

--- Later in debate ---

[Mike Freer]

I think the whole Bill supports the thrust of protecting freedom of speech. Equally, as the right hon. Member for Birmingham, Hodge Hill mentioned, we do not have a first amendment, so there is a nervousness about going down a path of establishing some form of first amendment, as the Americans have. We want to ensure that the Bill maintains a balance between claimants and defendants while protecting defendants who cannot protect themselves from the pernicious behaviour that we have all seen and read about.

[Sir David Davis]

I raised the first amendment issue, and the right hon. Member for Birmingham, Hodge Hill was responding to that. This is not a first amendment clause at all. The Minister knows as well as I do that, throughout the debate, the argument has been about how the judges will interpret every clause. The fact that the hon. Member for Caerphilly will move the other amendments today indicates that we did not get that balance right in the beginning; indeed, we might have made the problem worse. That is what this is about.

As I said, I do not want to divide the Committee if I can avoid it, and I seek an undertaking from the Minister. The alternative is to bring the new clause back on Report and then whip the thing on behalf of our own argument.

[Mike Freer]

I repeat my offer to my right hon. Friend and the right hon. Member for Birmingham, Hodge Hill: I am happy to discuss how we ensure that we come to an agreement that the Bill delivers what they want to achieve. However, we believe that new clause 1 is not necessary. Of course, if they believe that the Bill still needs it, my right hon. Friend has the right to move it during the remaining stages.

The offer is there: let us try to work together to see whether we can bridge the gap and persuade each other that we are right. At this point, the Department’s view is that the Bill creates a balance of rights and responsibilities while addressing the bad behaviour and listing, but not exhaustively listing, what bad behaviour will be curtailed.

[Liam Byrne]

I am grateful to the Minister for his characteristic generosity. He has just told the Committee that he does not think that new clause 1 is needed and that the intention of the Bill as a whole is to support the objectives of the new clause. The new clause is very carefully drafted. It states:

“The purpose of this Act is to protect and promote the ability of individuals and organisations to participate in public debate, advance accountability, and speak out on matters of public interest”.

It therefore falls short of an American first amendment-style provision and, in that sense, has been quite carefully sculpted. I am grateful to the Minister for saying that he does not think it is needed because that is the thrust of the Bill overall, and it is important that that is on the record. I am happy to work with the right hon. Member for Haltemprice and Howden and others to ensure that we have got that beyond doubt.

[Mike Freer]

We broadly agree, I think, that the Bill is in a good place, but the right hon. Gentleman may wish to take us up on our offer to discuss further why we believe that the Bill strikes a balance in achieving what he wants to achieve while protecting rights and balances when it comes to claimants and defendants. It will stop the pernicious behaviour that we know has been happening while, equally, ensuring that there are no unintended consequences or problems with other rights and responsibilities that could have resulted from the new clause. Let us park that for now and try to flesh the issues out between now and Report. I realise that my right hon. Friend the Member for Haltemprice and Howden and the right hon. Member for Birmingham, Hodge Hill reserve their right to move an amendment at a later stage.

The Government firmly believe that clause 1 creates the most appropriate and effective framework for courts to deal with SLAPPs, allowing such claims to be dismissed swiftly. There will also be a fair and proportionate assessment of whether any such claim or part of it should be allowed to proceed, and a fair and proportionate costs sanction should it do so. Allied to the other provisions in the Bill, that framework will ensure that courts will be able to properly tackle SLAPPs in a fair and proportionate way, to ensure that justice to both claimants and defendants is done.

Although the Government share the important concerns raised by my right hon. Friend the Member for Haltemprice and Howden and the right hon. Member for Birmingham, Hodge Hill that the purpose of the Bill should be achieved in practice, they consider that the current draft will do so. As I said, we have significant concerns about the possible unwarranted effects of the purpose and interpretation provision in new clause 1. That is why I have made the offer to sit down and work through whether we can find some form of agreement.

I want to put it on the record that we have given careful thought to ensuring that public participation and free speech are protected and that all convention rights are also protected. These reforms are carefully balanced to protect access to justice—a fundamental tenet of our legal system—and to provide the courts with the ability to broadly interpret and apply the principles, to make sure that no devious misuse of litigation is left unaddressed.

[Damian Collins (Folkestone and Hythe) (Con)]

Before the Minister brings his remarks to a close, I would like to go back to new clause 1, tabled by my right hon. Friend the Member for Haltemprice and Howden (Sir David Davis). Does the Minister think it important that, in passing this legislation, the Committee and the House should give some direction that considers that people with a public profile should be subjected to greater accountability and debate and that they are different from ordinary private citizens? Should judges take into account whether the criticism of a high-profile person is fair comment in an open society because they are a public figure and different from a private person who would never seek the public eye?

[Mike Freer]

I am not a lawyer, so I will not be tempted down the path of discussing whether certain people should be subject to greater or less scrutiny in the eyes of the law. In my view, the law applies equally; it is up to the judges to interpret the intention of the Bill, which we have clearly laid out in what we have said and in the explanatory notes. We are seeking to redress the balance when it comes to the rich and powerful misusing our courts, and to protect freedom of speech. I do not want to say that certain people should have more or less scrutiny; I leave it to the judges to clearly interpret the intent of the Bill and the House through the Bill itself, the explanatory notes and the words that right hon. and hon. Members have spoken.

[Damian Collins]

Does the Minister agree that one of the challenges that judges will always face is that every claimant will say that their cause is just and reasonable and that great hurt and offence has been caused by what has been written and said about them? It is important that judges have the confidence to know when they can make a call to say that the litigation is strategic rather than legitimate.

[Mike Freer]

I believe that the Bill itself, the explanatory notes and comments made by right hon. and hon. Members will give clear direction to the judges so that they understand the intent of the Bill, which is not to stifle a defendant’s access to justice but to stop the bad behaviour that we have seen. Judges will know the intent of the Bill in respect of those seeking to bring the rich and powerful to account or to shine the light of good journalism—the disinfectant of sunlight—on inappropriate actions; equally, however, everyone must have their right to justice as well.

[Alex Cunningham]

Will the Minister address directly the concerns of the Law Society in relation to clause 1(1)(b)? The clause states that a claim can be struck out if the claimant

“has failed to show that it is more likely than not that the claim would succeed at trial.”

In other words, the onus in terms of proof is shifted on to the claimant rather than the defendant. The Law Society says:

“This represents a high threshold that a potential claimant would have to reach simply to be able to bring a claim.”

[Mike Freer]

It was certainly not the view of the hon. Member for Caerphilly or the Department that the amendments should be accepted, because we felt that the arguments put forward by the Law Society were not supported and that our Bill created a careful balance. In a nutshell, we did not agree with what the Law Society put forward—neither the amendments nor that particular argument. We think the Bill creates a careful balance between claimants and defendants, and we support it.

[Sir David Davis]

On a point of order, Ms Elliott. I have listened to the Minister carefully, and my interpretation is that he will seek to resolve this problem before Report. I will therefore not press new clause 1 today and will seek consensus across the board. However, I give notice that if we do not resolve this issue, it will come back on Report.

--- Later in debate ---

[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.

[Mike Freer]

If I may, I will address a few points raised by hon. Members and then make some final remarks.

On the issue raised by my hon. Friend the Member for Windsor about whether it is possible to strike out all or part of the claim or seek an appeal, he is absolutely correct.

I am grateful that my right hon. Friend the Member for Haltemprice and Howden is not pressing his amendments. I reiterate that I am happy to discuss his remaining concerns about the Bill and how it needs to be tweaked before the remaining stages.

On the issue raised by the hon. Member for Poplar and Limehouse, the Department has engaged extensively with the UK Anti-SLAPP Coalition. It is fair to say that we can never get all stakeholders entirely happy, but I am advised that the coalition is broadly supportive of the Bill. On the issue that she raised about behaviour, particularly with respect to domestic violence issues, of course it is not expected that the Bill seeks to facilitate behaviour, as she has outlined, in domestic violence issues. She has specific concerns as to how she believes domestic violence is being facilitated by elements of the Bill. I am more than happy to meet her to go through them in more detail, but we do not believe those concerns will be borne out by the Bill.

On the issue raised by the hon. Member for Hammersmith, I confess that I am not exactly au fait with the Media Bill, but I will be more than happy to write to him about his specific points.

On the points that the right hon. Member for Birmingham, Hodge Hill raised about clause 2(1)(c), of course all litigation causes alarm, but as paragraph 31 of the explanatory notes states, the

“behaviour must be intended to cause the defendant harassment, alarm, distress, expense, or any other harm or inconvenience, beyond that which would ordinarily be encountered in properly conducted litigation.”

That broadens it. Of course when someone gets litigation or letters from a lawyer, people are naturally alarmed or distressed, but what is the intent? To what extent does that behaviour meet the criteria and those descriptors in paragraph 31 of the explanatory notes, which clarify the behaviour we are seeking to curtail?

I reiterate that the Bill will protect the individuals and organisations that engage in important public debate. It will advance accountability for those who would obfuscate their dealings, and it will ensure that speaking out in the public interest is given the support that it deserves. The Bill will safeguard our courts, ensuring that our highly regarded legal system is protected from the insidious abuse of process that could undermine its reputation of achieving justice for all.

The amendments tabled to clause 2 by the hon. Member for Caerphilly will ensure that public interest is kept at the heart of the issues, as its suppression is a key hallmark of SLAPP cases. The introduction of the reasonableness component of the test will ensure that inappropriate behaviour and weaponised processes are identified and tackled at the earliest possible opportunity. The centring of the behaviour of the claimant will ensure that it is abundantly clear to those who would use SLAPPs that they cannot act poorly and remain unchecked and unchallenged, whether that behaviour happens in the courtroom, via privately funded surveillance or a social media campaign to undermine the credibility of an author, academic or whistleblower. The Government are content fully to support all 10 of the hon. Gentleman’s amendments, which we believe will strengthen the Bill.

With respect to amendment 12, tabled by my right hon. Friend the Member for Haltemprice and Howden, the Government laud his intention to ensure that the Bill is properly drafted so that it captures all SLAPPs. I hope I have reassured him that the matters he raises are in many respects already covered by the existing draft of the Bill for a number of reasons. I repeat my offer to meet him to reassure him further, if necessary.

[Sir David Davis]

To be clear, I do not think that the Bill, as drafted, meets the requirements. I will not press my amendments to a vote, because they are flawed, but I will table something on Report to deal with the issue. I hope that we can agree on what it should be.

[Mike Freer]

I thank my right hon. Friend and reiterate my offer to sit down with him and go through this in detail, whether for me to reassure him that the Bill meets his objectives or for him to convince me that we need to go further.

Clause 2(1)(c), to which amendment 12 would add, is broad: “any” behaviour can be considered by the court as evidence of misconduct. Subsections (4) and (5) give examples, but are certainly not intended to be exhaustive lists. Furthermore, many matters in the amendment are covered by clause 2(4). For example, the reference to

“disproportionate reaction to the matters complained of in the claim”

will cover excessive disclosure requests and dilatory strategies, as well as questions regarding the choice of jurisdiction.

The Government expressly support the amendments of the hon. Member for Caerphilly to clause 2 and the reasonableness test. We will not support the amendments that my right hon. Friend the Member for Haltemprice and Howden has tabled but not moved, as we believe that materially they cover the same ground. However, I repeat my offer to meet and see where we can agree.

I reiterate my thanks to the hon. Member for Caerphilly for promoting this important Bill, and I confirm the Government’s continuing support for it. The Bill will ensure that all those who speak out against corruption, hold the powerful to account and guard our freedoms through raising their voice are protected.

[Wayne David]

I thank hon. Members for their contributions. The hon. Member for Windsor is absolutely correct that what we have experienced today and previously highlights the fact that this is a good process. There should be more private Members’ Bills and more time allocated to them in the procedures of this House. That is an important point to make.

I am extremely grateful for the knowledgeable contributions from hon. Members, particularly my hon. Friend the Member for Hammersmith and my right hon. Friend the Member for Birmingham, Hodge Hill. I have very much relied on their experience and good advice in the passage of the Bill so far. I also thank my hon. Friend the Member for Poplar and Limehouse for her excellent contribution about her personal experience, which shows clearly why the Bill is required.

It is worth noting that the Bill has changed remarkably during its passage. The amendments to which we are in the process of agreeing will substantially strengthen the legislation. A number of stakeholders have been intimately engaged in the process. The Anti-SLAPP Coalition, to which several hon. Members have referred, has done a remarkable job and many of its suggestions have been directly incorporated into the legislation.

May I particularly thank the right hon. Member for Haltemprice and Howden for his amendments? He noted that it looks rather strange to see the names “David” and “Davis” together on the amendment paper. The only conclusion is that we must both have Welsh blood in our veins—there must be some commonality that transcends our party political differences. His amendments show that his careful consideration has enhanced our process enormously.

On amendment 11, I wholly agree in principle with the right hon. Gentleman’s proposal to give the public interest element of clause 2 greater prominence. Indeed, that is why I have tabled amendments 1, 3, 4, 8 and 9, which have the same aim. In view of the specific language in clause 2(1)(a) and (b), I consider that the formulation used in amendments 1, 3, 4, 8 and 9 will better achieve that purpose.

The right hon. Gentleman’s amendment 12 was drafted to expand the categories of conduct that show wrongful behaviour on the part of the claimant, in turn expanding the misconduct element of the test to establish whether a case is a SLAPP. The current drafting was purposely designed on the basis of evidence gathered, from stakeholders across the spectrum of views, in the Ministry of Justice’s call for evidence. The list is non-exhaustive and allows the court to take into consideration any matter that may be relevant. On that basis, I believe the categories of wrongful behaviour under clause 2 to be more than sufficient to identify whether the behaviour of the claimant amounts to misconduct.

I thank all hon. Members again for their contributions and their participation. I particularly thank the right hon. Member for Haltemprice and Howden for tabling his amendments but not pressing them, which has ensured an excellent debate this morning. I look forward to cross-party unanimity being expressed clearly at the end of our deliberations.

Amendment 1 agreed to.

Amendments made: 2, in clause 2, page 2, line 8, after “claim” insert

“is such that it is reasonable to conclude that the behaviour”.

This amendment ensures that the condition in subsection (1)(a) is met if the court determines that it is reasonable to conclude that the claimant’s behaviour has or is intended to have the effect in question.

Amendment 3, in clause 2, page 2, line 9, after “exercise” insert

“by that disclosure or potential disclosure”.

See the explanatory statement for amendment 1.

Amendment 4, in clause 2, page 2, line 10, leave out from beginning to “and” in line 11.

See the explanatory statement for amendment 1.

Amendment 5, in clause 2, page 2, line 13, after “claim” insert

“is such that it is reasonable to conclude that the behaviour”.

This amendment ensures that the condition in subsection (1)(c) is met if the court determines that it is reasonable to conclude that the claimant’s behaviour is intended to have the specified effect.

Amendment 6, in clause 2, page 2, line 14, leave out sub-paragraphs (i) to (iii) and insert “any harm or inconvenience”.

This amendment and amendment 7 restate sub-paragraphs (i) to (iii) for the purpose of clarifying the condition in subsection (1)(c).

Amendment 7, in clause 2, page 2, line 18, at end insert—

“(1A) In subsection (1)(c) the reference to ‘harm’ includes (but is not limited to) a reference to any of the following—

(a) expense;

(b) harassment;

(c) alarm;

(d) distress.”

See the explanatory statement for amendment 6.

Amendment 8, in clause 2, page 2, line 20, leave out “or (b)”.

See the explanatory statement for amendment 1.

Amendment 9, in clause 2, page 2, line 23, leave out “(1)(b)” and insert “(1)(aa)”.

See the explanatory statement for amendment 1.

Amendment 10, in clause 2, page 2, line 23, leave out from second “the” to end of line 24 and insert

“matters that are of ‘public interest’ include (but are not limited to) the following—”.—(Wayne David.)

This amendment rephrases the opening words of subsection (3) so as to make it explicit that matters of “public interest” are not limited to the specified matters.

Clause 2, as amended, ordered to stand part of the Bill.

Clauses 3 and 4 ordered to stand part of the Bill.

Bill, as amended, to be reported.