Lawfare

Mike Freer Excerpts

Thursday 29th June 2023 Commons Chamber

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

I thank my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) for securing this important debate. It gives me an opportunity to restate the Government’s commitment to freedom of speech and the protection of journalists. First, let me emphasise that investigative journalism is a central plank of a functioning democracy. The UK launched a national action plan in 2021 to ensure that we continue to foster an environment in which journalists feel safe from physical harm and intimidation, and where those who threaten them are properly held to account. Our aim is to ensure that journalists operating in the UK are as safe as possible, to reduce the number of attacks on and threats issued to journalists, and to ensure that those responsible for such action are brought to justice.

The UK may not face the same challenges as other states, but it is clear that journalists operating here still face threats to their personal safety, largely through online abuse. As we rely on journalists to hold powerful actors to account for our collective good, lawfare that targets our public watchdogs through aggressive, intimidatory tactics must be stamped out.

Russia’s invasion of Ukraine brought home the urgent need for Government action on strategic lawsuits against public participation, as my right hon. Friend has laid out clearly. SLAPPs are an increasingly common lawfare tactic, and there are reports that hostile states could finance litigation in the UK to obstruct worthwhile investigations into corruption and other wrongdoing, as my right hon. Friend has set out many times. We know that the Government’s decisive action on sanctions has already urged firms to review their Russian client list, and mitigated threats to national security. Insurers are increasingly cautious about granting professional indemnity insurance, and that reflects the fact that there is greater scrutiny of Russian-linked litigation.

As this House will recall, the Government published a call for evidence on SLAPPs in 2022. I thank the 120 respondents, who submitted evidence of the highest quality. Through that invaluable evidence and a series of stakeholder engagement roundtables, we heard the shocking impact that these cases can have on the wellbeing and livelihood of investigative journalists who report under immense financial and psychological pressure so that we, as a collective, are well informed. They must be protected so that they are able to continue their valuable work. SLAPPs present a novel challenge to free speech and we are immensely grateful to the call for evidence respondents for helping to ensure that we get this right and deliver the outcome we want to see.

Free speech is a fundamental cornerstone of our democracy, so I am pleased to confirm that the Government have acted decisively to legislate, tabling amendments to the Economic Crime and Corporate Transparency Bill, which introduce measures to tackle SLAPPs related to economic crime. The Government still intend to introduce comprehensive anti-SLAPPs legislation when parliamentary time allows. If I may, I might gently suggest that my right hon. Friend applies for a private Member’s Bill. A Government legislative vehicle may take some time to appear, so a private Member’s Bill in the next Session might be suitable lighter codicil for this particular piece of legislation. We intend to go further, but we believe that the measures we have introduced will catch the majority of SLAPPs. At least 70% of the cases referenced in a 2022 report about SLAPPs and article 19 by the Foreign Policy Centre were connected to financial crime and corruption. The provisions should therefore target a significant proportion of cases.

Recent court cases have shown that SLAPPs are difficult to identify and there is a notable difference in legal and judicial opinion on what constitutes a SLAPP, both domestically and overseas. To rectify that, we have introduced a statutory definition to enable clearer identification of SLAPPs related to economic crime, according to common characteristics. Those characteristics may include aggressive pre-action communications and targeting of individuals where their publishers would be more appropriate. Today, we know that defendants are intimidated by the prospect of years of litigation that require expensive legal defence. We have therefore introduced an early dismissal process which will effectively stop claimants from financially and psychologically exhausting their opponents via abusive means, cutting short cases which have no merit.

With respect to economic crime, no longer will claimants be able to suppress legitimate investigation into and reporting on matters of public interest by bringing baseless claims. The crippling costs currently borne by SLAPPs defendants will be addressed through a new costs protection regime, which will ensure that journalists and free speech advocates are able to litigate without fear of bankruptcy. The regime will be introduced in secondary legislation, once the principles are set out in statute. The regime will frustrate a central plank of SLAPP claims: the weaponisation of costs.

In addition, stakeholder engagement continues to be a vital part of our monitoring effort to ensure that the Government’s response to the issue of SLAPPs is appropriate and effective. We are working closely with the Solicitors Regulation Authority, which should be applauded for its action on SLAPPs. In February, it published a thematic review of the behaviour in disputes of 25 law firms suspected of SLAPP activity, a deep dive into conduct that may breach ethical or regulatory duties. It also issued, in March, additional guidance on conduct in disputes. This shows that our system of regulation is adapting at pace to novel challenges.

I must underline that the vast majority of legal professionals operating in this jurisdiction do so with utmost integrity and regard for the rule of law. Therefore, it is vital to protect the integrity of our legal system and our judiciary from the reputational risk that SLAPPs pose.

Our common law system is world-renowned, precisely because of the quality of the practitioners and procedures that we use. It must remain that way. The importance we place on access to justice and an independent judiciary naturally leads to foreign litigants choosing to do business in our courts, but we must not, and will not, allow the process and procedures to be abused for most improper purposes. That must be stopped, as my right hon. Friend laid out, including attempts to conceal economic crime.

I thank my right hon. Friend for continuing to champion this critical issue, and our stakeholders who have tirelessly campaigned against abuse of the legal system. I would like to end by repeating his own words. He said:

“Our legal system is a source of pride. Britain is home to some of the fairest and best courts in the world. We cannot allow individuals with deep pockets and questionable motives to exploit our justice system and destroy our reputation as a trusted jurisdiction.”

The Government could not have put it better.

Question put and agreed to.