Lawfare and UK Court System

Robert Neill Excerpts

Thursday 20th January 2022 Commons Chamber

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Thank you very much, Mr Deputy Speaker. I promise that in my brief remarks I will endeavour not to do so. I am grateful to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) for securing this important debate and congratulate him on doing so. This is a significant topic, one with constitutional importance. I wish to confine most of my remarks to the position of the legal system in the UK, bearing in mind that just as living in truth is a great defence against evil, so, in practical terms, is the independence of the judiciary the greatest defence of our constitution. Abuse undoubtedly occurs, and I am grateful to him for highlighting some of the cases. The one case I will refer to is the appalling treatment of our friend and former colleague Charlotte Leslie; this is the worst type of intimidation of a thoroughly good person, as many of us would know, but there are many other such cases. When we deal with that abuse, we have to be wary of not doing so in such a way as to undermine the ability of the courts of this country to act utterly independently. That will sometimes involve the right of an unattractive litigant to seek access to the courts; that is fundamental too. That is probably why it is right that if action has to be taken, this House and Government must do it. We cannot place the judiciary in the invidious position of having to make judgments as to the political acceptability or otherwise of those who might seek to bring a claim before the courts—provided, of course, that there is at least a prima facie legal basis to bring the claim in the first place.

The right hon. Member for Birmingham, Hodge Hill (Liam Byrne) mentioned some sensible measures that we might take to enable courts to protect themselves. The anti-SLAPP law is worthy of consideration because it could involve an early strike-out mechanism that would speed up the means of dealing with cases without any substantive merit that have clearly been brought for the purposes of intimidation through a war of attrition.

It is useful to know that many lawyers and judges have raised concerns about the matter. Only at the end of last year, there was a very useful conference in which it was considered by the High Level Panel of Legal Experts on Media Freedom, which is chaired by the noble Lord, Lord Neuberger, the former President of the Supreme Court. The panel, of which Baroness Kennedy of The Shaws is also a member, recommended that the Ministry of Justice move towards a consultation on anti-SLAPP laws, perhaps taking up some of the best practice found in the States. We do not have to take up all suggestions—I would have some concerns about the practical impact of the defamation fund suggested by President Biden—but other issues that have been raised are well worthy of consideration.

[Sir Roger Gale (North Thanet) (Con)]

My hon. Friend is infinitely more expert than I am in these matters, but the point has been raised very clearly indeed on a couple of occasions that the regulatory bodies dealing with these law firms appear unwilling or unable to take any action. Can he suggest any way in which the law firms themselves can be brought to heel?

[Sir Robert Neill]

Let us be very clear: there are very significant regulations relating to the conduct of law firms in the United Kingdom. There are two separate regulatory regimes. Very properly, there are much greater checks in place on money laundering and source of funds for the solicitors profession, which handles client money, than for the Bar, which does not; it acts on the instructions that come via its professional client, the solicitors. That distinction is important, and I will digress briefly to deal with it.

We have to bear in mind that one of the key strengths of the independent Bar in England and Wales, in Scotland and in Northern Ireland is that barristers operate on the cab rank rule: if they hold themselves out as having expertise in a particular field of law and are available to take on a case when a proper fee is offered, they are professionally obliged to do so, regardless of their opinion of the client. That is utterly fundamental. Barristers do not and should not have the luxury of making moral choices about the people for whom they act; that is the essence of independence and objectivity at the Bar.

[Bob Seely]

Is my hon. Friend saying—he may well be right; I make no assertions—that it is a complete coincidence that Hugh Tomlinson keeps taking these cases?

[Sir Robert Neill]

If Mr Tomlinson practises in that field, it is open to him to take those cases—I have to say that bluntly to my hon. Friend. It would be a very dangerous thing if Parliament ever sought to interfere with the rights of any lawyer in respect of which clients they do or not take on. That would be a very dangerous and slippery slope; actually, it would go in the direction of the jurisdictions that we are rightly criticising in this debate.

[Sir Roger Gale]

I am sorry to press my hon. Friend on the point, but is there also a requirement on the law firm—the practice or the man—to establish the source of the funding that is being used to persecute people?

[Sir Robert Neill]

Absolutely. The regulations dealing with the solicitors profession have very considerable requirements to track the source of funds. They apply from the basic level of a conveyancing transaction, all the way up to funding for the most complex litigation. We should not mischaracterise the position by saying that there is a high level of cynicism in the legal profession; there is not, and I do not believe that there is a failure of regulation either.

[Mr David Davis]

As has already been said, my hon. Friend is infinitely more expert in these things than most of us. May I bring him back to the matter of Mr Hugh Tomlinson and other firms? The answer to this may be to look very closely at the tactics put together by these firms, which put them in the very profitable commercial niche that I was talking about. If we were to judge that those tactics were unfair and unjust, that would solve the problem of firms or individuals appearing in more and more of these oppressive cases.

[Sir Robert Neill]

Let us put it this way: Parliament may decide as a matter of policy that certain behaviours are undesirable and should be constrained by law. The courts would faithfully apply any law on the subject that Parliament passed. That is the right way, in my judgment, to deal with this. That relates, too, to the law regulating the professions. For the reasons I gave, we should be very wary of fettering lawyers’ ability to defend unpopular clients, which is not the same as unmeritorious clients. Remember why that is: there are many instances where injustice has been prevented by lawyers taking on an unpopular client and an unpopular cause. That is the point on the other side that we have to weigh in the balance before we go entirely down the path of saying that because we disapprove of someone, we should deny them redress in law.

[Liam Byrne]

The hon. Gentleman is doing an immense service to the House by bringing his expertise to this debate. I agree that we need to be circumspect, and to empower judges to deal with abuse of courts. Judges know an abuse of court when they see one. In Major Karpov’s case, he was being paid £15,000 to £20,000 a year in Russia, but could somehow afford lawyers who cost £600 an hour. There must be some kind of weakness there, which we need to fix if we are to ensure that lawyers can genuinely understand the source of the money that is paying their bills.

[Sir Robert Neill]

Obviously, I am not in a position to consider the facts in that case. If people have suggestions, or examples that suggest a failure in the regulatory environment, of course they should bring them to the attention of the regulatory authorities; my experience has been that they take their job very seriously, and I know that the Ministry of Justice is very aware of this matter. Of course, one should never be afraid to look at specific examples to see if anything could be improved; I am very open to that. I would not, however, want to throw out the baby with the bath water in our approach to this issue, and that is why I argue for a balanced approach.

[Bob Seely]

rose—

[Sir Robert Neill]

I will give way to my hon. Friend, and then I will try to make a bit of progress, because I have given way quite a number of times.

[Bob Seely]

My hon. Friend is making fantastically important points, and we are testing our arguments on him out of respect for his background and experience. Much as we like or dislike individual cases or lawyers, we all agree that lawyers should be independent, but we are talking about systemic failure that allows this corrupting industry to grow. On the point made by the right hon. Member for Birmingham, Hodge Hill (Liam Byrne), Bill Browder has directly alleged that CMS took instruction from Russian organised crime via middlemen, but nothing much seems to have been done about it, and there does not seem to be huge interest in where the money came from.

[Sir Robert Neill]

We must always make sure that the regulatory regime is kept up to date and fit for purpose. That applies to a number of the tools we have for dealing with this type of corruption. It also applies to resourcing of the Serious Fraud Office, which has been mentioned. We should make sure that it has the technology and manpower to deal with complex investigations, and that the courts and certain regulatory bodies have the technology to deal with complicated matters; there is no problem with that at all. The key thing that we must do, however, is preserve the independence of the regulatory bodies, and that is best done by our setting a proper legal framework—that is our responsibility—and giving them the tools to do their daily job in an independent fashion. As far as I can see, there is no dispute about that in the Chamber.

It is important, too, that we look at practical measures. I hope that the Ministry of Justice will consider consulting on anti-SLAPP laws that broadly follow the form of those in the United States. That is something that distinguished jurists such as Lord Neuberger think is well worth considering. It would be a sensible and constructive step forward. The High-level Panel of Legal Experts on Media Freedom also suggested that reform of the civil procedure rules could be fairly regularly undertaken. That is something we could ask the judiciary themselves to look at, because they must be master of their own rules, rather than us dictating them.

It has been suggested, for example, that civil procedure rule 24.4 on summary judgment could be adjusted to make it easier to deal with such unmeritorious claims where they are being pursued for abusive reasons, such as deliberately stretching out proceedings to run up the costs. Perhaps greater use of security for costs could also be undertaken. Those are practical things that I have no doubt that the courts would be willing to do and we could ask them to consider. The broader legislative framework of the anti-SLAPP law, as I said before, is down to this House. I, for one, would be open to looking constructively at that. That is the balance that I wanted to get into the equation. How do we ensure the reputation that we have in this country as a jurisdiction of choice for litigation—that exceptional benefit?

Only yesterday, Justice Committee members and I met the Justices of the Supreme Court, across Parliament Square, because we thought it would be useful to start more of a dialogue between the legislature and the Supreme Court on matters of importance. We have there men and women of the highest integrity and intellectual ability. They reminded us of the very high percentage of cases that they deal with, even at the final appellant level, that involve international parties. Of itself, that is not a bad thing and we should not ever allow anyone to think that is ever a bad thing. Generally bona fide commercial organisations or individuals choose to litigate under English law precisely because it is trusted more than that anywhere else, because of the independence and because of the rigour. How do we preserve that and at the same time update, where necessary, the tools to prevent abuse of the system? That is the trick that we have to pull off. I am sure, with good will, that that can be done.

The final thing I was going to say in this context was referred to by other speakers in the debate: the importance of our continued engagement in the international sphere on this. I, for one, in particular stress the absolute importance of our continuing within our obligations to the Council of Europe and the convention on human rights. I regard that as an absolute red letter in our constitutional and legal position and a massive benefit to the UK.

I had the honour to serve in the Parliamentary Assembly of the Council of Europe for a number of years, before I became Chairman of the Justice Committee, and in that role I represented the Parliamentary Assembly on GRECO, the Group of States against Corruption, on which the Ministry of Justice has officials sitting on a permanent basis. Admirable work is done there, including, interestingly, by some of the emerging democracies in eastern and central Europe, which recognise the need to clean up their own systems and reputations. That is important.

[Liam Byrne]

The hon. Gentleman is being incredibly generous. I underline that the Ministry of Justice is out for consultation on reform of the Human Rights Act 1998, which helps to enshrine the ECHR. Does he agree that it is absolutely essential that there is no backsliding on our obligations to preserve a pluralist media environment with vigorous public debate and the cherishing of free speech?

[Sir Robert Neill]

Protection of the media and the right to free speech are fundamental to our convention obligations. We must never do anything that resiles from those. There is a separate debate about the mechanisms with which we in our domestic courts enforce the convention obligations, but our commitment to the convention itself must be absolutely crystal clear and so, too, must be our commitment to the institutions put in place to assist, on a co-operative basis, with those matters. I referred to GRECO, which does excellent work, as does—particularly in terms of dirty money, which is without doubt a real problem—Moneyval, the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism. They are not the catchiest of acronyms, but they do valuable work.

We could also look at what we do on the issue of cross-border insolvency. That is not one that is easy to fix because, again, the cross-border insolvency regime stems from a number of international agreements that we have entered into, which in many respects bring considerable commercial value to British companies and individuals. However, there is no harm in looking at that, if it is an issue where there is potential abuse.

This has been referred to in discussions I have had with practitioners and judges. As well as the cross-border insolvency issue—we need to protect from abuse—we need to look at potential loopholes in the data protection legislation. Again, that is for us to do because, we, as a House, passed that legislation. If time has shown that there are areas of defect that need to be addressed, then, absolutely right, we should move to address that. Again, if we address that, I have absolute confidence that the judiciary will enforce the policy decision that we take in this place under our constitutional rule. They will play their constitutional part to enforce it.

This is an immensely important debate and I am very grateful to my right hon. Friend the Member for Haltemprice and Howden for securing it. Our international reputation is critical. The reputation of our judiciary is critical. I get the sense that no one for one second is calling that into doubt, but we have to find a sensible, balanced and proportionate means of making sure that, while we uphold that and the judiciary’s fundamental independence, we do so in a way that prevents abuse. That is an objective that certainly warrants further debate and consideration. I hope the Minister will take that on board as we go forward.

--- Later in debate ---

[Andy Slaughter (Hammersmith) (Lab)]

I thank the Backbench Business Committee for granting this important debate, and congratulate the right hon. Member for Haltemprice and Howden (Mr Davis) on securing it and on his excellent speech. He is rightly renowned as not only an advocate but a practitioner of free speech, as, indeed, we saw in the House yesterday.

On that subject, I should add, very briefly, that as the right hon. Gentleman knows his history, perhaps better than the Prime Minister, he will be aware that both Leo Amery and Oliver Cromwell secured the results that they desired in short order with the departure of Chamberlain and the Rump Parliament—although we should not stretch these analogies too far: Cromwell required a company of musketeers to clear out the Rump, which included pulling the Speaker from his chair, and in any event the Rump was back six years later quickly followed by the restoration of the monarchy, which I do not think is what Cromwell had intended. But I digress.

May I—personally, but I am sure that I speak for a number of other Opposition Members—send our solidarity to Charlotte Leslie? I worked with her on middle east matters, and still do, although she is no longer a Member of Parliament. I wish her well, and hope that she is successful in resisting the appalling bullying conduct against her. Let me also congratulate my right hon. Friend the Member for Birmingham, Hodge Hill (Liam Byrne), who is a co-sponsor of the debate and who has also been assiduous in raising this matter inside and outside Parliament.

We heard many passionate speeches this afternoon, from, for example, the right hon. Member for North Thanet (Sir Roger Gale), my hon. Friend the Member for Eltham (Clive Efford), and the hon. Members for Isle of Wight (Bob Seely) and for Newcastle-under-Lyme (Aaron Bell). I want to praise, in particular, my hon. Friend the Member for Poplar and Limehouse (Apsana Begum), who made a difficult speech on a sensitive subject. She raised not only important issues relating to this debate and to domestic violence, but other issues as well, including one on which I will not elaborate because it is not a subject for today, but which I consider important none the less. I refer to the nature of prosecutors. We saw something of that in the instance of the Horizon scandal and the post offices, but my hon. Friend made the point again about prosecutors other than the Crown Prosecution Service. She also mentioned the role of the media and their disproportionate power, and I will address that in a moment, because I think it is relevant to the debate. First, however, let me make some general comments about lawfare, or SLAPPs, while trying to avoid descending too much into jargon.

SLAPPs are an increasing feature in the UK court system—or perhaps “the English court system” is a better way of putting it—and are an abuse of that system. Their intention is to silence legitimate interests not by merit or argument but by process and oppressive conduct, and they prevent journalists, investigators and even regulatory bodies from shining light on issues of great public interest. Over the last few days, I have attended briefings from lawyers, investigators and writers to hear about their first-hand experience of SLAPPs, and I am grateful for that. They allege that the English court system is being used to play out this tool of legal harassment. The purpose of this debate is to discuss the evidence for SLAPPs and the reason they are prevalent in this jurisdiction. Is it that our legal system favours them, or is it that those who employ them are over-represented in the UK? I think it is probably both.

That said, we need to get the balance right. Freedom of speech is central to our values in the UK—the Lord Chancellor has made that clear with his proposed Bill of Rights—but inequality of arms and abusive conduct in litigation can work both ways. For every David sued by Goliath—for every oligarch chasing an investigative reporter—there may be a tabloid newspaper willing to libel an innocent citizen knowing that they can afford neither the cost of bringing a claim nor the risk of losing one. I will be happy today if the Minister first acknowledges we have a problem, and secondly undertakes to go and look for a solution. I do not have one that I think is bullet-proof, and I do not immediately expect him to. On the other hand, I hope he will not bury his head in the sand and deny that this is a substantial problem that is bringing our internationally revered justice system into disrepute. I doubt he will, having heard the compelling testimony of earlier speakers and the case histories they have presented.

We have heard from several speakers about the case of Tom Burgis and the Eurasian Natural Resources Corporation. Since the publication of his book, “Kleptopia”, Tom, his publisher HarperCollins and the Financial Times, for which he writes, have been subjected to a torrent of litigation by the ENRC. I have a copy of the book here that I have borrowed from the House of Commons Library, as I am afraid I have not had time to get to Waterstones, but I have promised that I will buy a copy to even up that case’s financial balance a little.

The ENRC, as we have heard, is subject to an ongoing investigation by the Serious Fraud Office focused on allegations of bribery, fraud and corruption, which resulted in the procurement of mineral assets in the Democratic Republic of the Congo. But the ENRC has not just brought a legal case against Tom Burgis and the Financial Times; it has also brought proceedings against the SFO.

I have my own quarrels with the SFO, as do the Government, and the Attorney General announced last year that she will investigate its mishandling of the Ziad Akle case—I found out this week from a parliamentary question that the investigation has yet to start. Many of the SFO’s problems come from a lack of resources. The ENRC spends as much on litigation each year as the SFO’s entire budget. The fact the ENRC feels so emboldened as to sue a UK Government Department when that same Department is currently investigating it for bribery, fraud and corruption should concern the Minister.

I received an email about a week ago from a company called Riverside Advisory, which describes itself as a private client communications service and reputation management company. Riverside Advisory is acting on behalf of the ENRC, and the email asked whether I wanted to meet it, perhaps because it believes I am still a member of the Justice Committee. The Chair of the Committee may have received a similar email.

[Sir Robert Neill]

indicated assent.

[Andy Slaughter]

I see the hon. Gentleman in his place, and I commend him for his learned speech. Riverside Advisory wishes to piggyback on the Select Committee’s inquiry into fraud and the justice system to tell us about its exasperations at its treatment by the SFO. Riverside Advisory filed a high-profile civil claim at the High Court last summer on an allegation of misfeasance in public office and it has offered to brief me, so I might take up that briefing. Other hon. Members may want to join me, I do not know.

I will now speak to the inequality of arms. SLAPPs have several identifying features, but a common thread in all SLAPP cases is the ability of the claimant to continue the lawsuit for many months, sometimes years, due to their enormous financial resources. The defendant then spends money trying to defend the action, which can prove financially ruinous even if they win, or if they win on most points. If they risk losing the case, the costs are such that it is tempting to concede at an early stage. This self-censorship or chilling effects means we never hear about most SLAPPs, let alone the information that has been supressed.

That disproportionality also feeds into the number of claims filed against a person or organisation, and claimants are increasingly pursuing individuals. As we have heard, they are pursuing journalists rather than newspapers, which gives a clue to their motivation. Why sue an impecunious writer rather than a media group? Because intimidation is more important than damages. Similarly, by bringing multiple proceedings the claimant seeks to overwhelm the defendant. SLAPPs are not a tool to set the record straight or to protect a previously unblemished reputation; they are a tool to silence public participation, to bully and to halt public criticism.

As far as I am aware, there is currently no judicial guidance or legislation expressly dealing with SLAPP cases, although, of course, English judges will take a robust line with parties they think are abusing the court process. Just this week, the High Court threw out a five-year-old negligence case for warehousing—maintaining a suit while doing the bare minimum to progress the litigation—but that is a long way from the position in many US states that have specific anti-SLAPP laws in place. London is already seen as friendly to SLAPPs and the people who bring them. If other jurisdictions are proactive in being anti-SLAPP, even more actions will be commenced here. The Foreign Policy Centre surveyed 63 investigative journalists across 41 countries and found that the UK is the most frequent international country of origin for legal threats.

I await the Minister’s telling us whether he recognises the problem and the scale of it and any ideas he has to fix it—particularly how we can rein in the oligarchs, their corporate vehicles and rottweiler law firms without further limiting the ability of genuine victims of press vilification and intrusion to get justice. I fear that the Government have a poor record on both points. The lurid stories of Tory donors that my right hon. Friend the Member for Birmingham, Hodge Hill recounted in the Elections Bill debates earlier this week suggest that the Tories are not ready to take on vested interests, and the shameful way they sidelined the recommendations of the Leveson inquiry, which sought to provide low-cost litigation for claimants and defendants in media cases, proved they are not prepared to offend the media barons.

Investigative journalists are a key component of a democratic society, which is why they are anathema to repressive regimes around the world. They risk their reputations, their assets and sometimes their lives to expose corruption. All they ask from the Government, who purport to believe in free speech, is to make the rules of the game fair. It is not only writers and journalists but investigators and even public bodies, as we heard, that are prevented from carrying out their functions; and it is not only defamation suits but privacy, data and even judicial review claims being perverted to this end.

There is more the Government can do to protect people against SLAPPs and to ensure that freedom of speech and expression is not curtailed by an unelected, seriously wealthy few and their agents, including, shamefully, some of the best-known law firms in this country. We could start with clearer judicial guidance and better regulation of the legal profession, and indeed measures to control costs, but we may need legislation. We cannot continue to do nothing—for the sake of victims of SLAPPs, but also the court system in this country and the Government’s reputation.