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.