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Strategic Litigation Against Public Participation Bill Debate
Full Debate: Read Full DebateWayne David
Main Page: Wayne David (Labour - Caerphilly)Department Debates - View all Wayne David's debates with the Ministry of Justice
(6 months ago)
Commons ChamberI beg to move, That the Bill be now read the Second time.
I have been a Member of Parliament for nearly 23 years. [Hon. Members: “No!] I know it is difficult to believe for some, but it is true. This is the first occasion on which my name has been drawn in the private Member’s Bill ballot; I am pleased to say my name was drawn fourth. I thought long and hard about the most appropriate and best piece of draft legislation to bring forward. I decided on this Bill, because I genuinely think it is incredibly important, and I will set out to the House why that is.
The Bill tackles strategic litigation against public participation cases, widely known as SLAPPs, in all their forms. Last year, I and the Labour Opposition welcomed the measures enacted in the Economic Crime and Corporate Transparency Act 2023 that ensured that SLAPPs relating to economic crime can be tackled. I am pleased to bring forward a Bill to expand on that. Reform to protect freedom of speech and the public interest is something that all parties in Parliament hold dear. In all debates in this House and the other place there has been a broad consensus about the need for reform to tackle the pernicious effect of SLAPPs. However, in both Houses it has been clear that the Economic Crime and Corporate Transparency Act does not go far enough.
SLAPPs have taken and do take many forms. It is vital to bring forward legislation that genuinely tackles the issue in a holistic and rounded sense. There are many examples of SLAPPs. I will refer to a few high-profile cases that have reached court and received some publicity, and to others that have not received that much publicity.
I begin with a case that I am sure hon. Members will be aware of, because it has attracted a great deal of attention. In 2022, a defamation case was reportedly brought against the journalist Tom Burgis, the Financial Times and publishers HarperCollins by a Kazakh mining company. The case concerned a book by Burgis entitled “Kleptopia: How Dirty Money is Conquering the World”.
A defamation case was brought by Roman Abramovich against journalist Catherine Belton and HarperCollins regarding her book “Putin’s People”. It is an excellent book and well worth reading. There was a legal assault on the book through a number of lawsuits in quick succession, justifiably provoking a group of campaigners for free expression to state that London’s courts were becoming the venue of choice for legal action designed to “quash critical journalism”. Catherine Belton, the author of “Putin’s People”, has called for the introduction of reforms to tackle this global industry, based here in London. Hopefully, the Bill will begin to address this significant problem seriously.
Then there is the case of Amersi v. Leslie. A British business owner, Mohamed Amersi, brought a defamation case against Charlotte Leslie, a former Conservative MP and managing director of the Conservative Middle East Council. I am familiar with the case, because I am the shadow Minister for the middle east and north Africa. The case concerned a memo on Amersi’s background and dealings with Russia. It was put together in response to his attempt to become the chair of CMEC. The claim by Amersi was struck out, because he had failed to show how the memo caused serious harm to his reputation.
It is not only high-profile cases that involve SLAPPs. There is the case of Nina Cresswell who named a person who violently sexually assaulted her after her original report was dismissed by the police. She commendably wanted to alert other women who may become victims of sexual assault. The man who was named sued her for defamation. Ms Cresswell won a landmark judgment last year, but the very fact that she had to fight the case at all demonstrates the huge gaps that SLAPP claimants are only too ready to exploit, and we need to address that fact.
I have also heard stories of patients who have left negative reviews for botched plastic surgeries being issued with SLAPP claims by the surgeons. I have heard of tenants who have spoken out about their uninhabitable housing being issued with SLAPP claims by their landlords. That is wrong and it must be stopped.
I have given a few examples of relatively high-profile cases, and also of some that are not so well known. There are many cases that do not attract any attention in court and there are many more that we do not know about because individuals are intimidated before legal proceedings actually commence. The data that the Government have is only the tip of the iceberg. As I have suggested, SLAPPs are extremely pernicious before any action reaches court. Pre-action letters and legal pressure are applied well before proceedings are initiated. This often results in the search or the investigation being withdrawn before publication, or, in some cases, in a whole variety of different areas, the effectiveness of threats and intimidation are such that the cases never see the light of day. Accordingly, that will never be reflected in available data.
Then we come to the press in this country. Let us remember that, as a country that champions freedoms both here and abroad, we must ensure that our free press, which is a real pillar of our democracy, never feels so vulnerable that it self-censors on vital matters in the public interest. No one in the United Kingdom is above the law. Furthermore, no one should be above proper scrutiny on a matter of public interest.
As to the data we have, the provision of figures from the Coalition Against SLAPPs in Europe are deeply concerning in themselves. It estimates that there were 29 SLAPPs in England and Wales in 2022. That is up from 25 in 2021 and 11 in 2020. CASE’s August 2023 report recorded that the total figure in Europe over the past decade was 793.
The hon. Member mentions the Coalition Against SLAPPs in Europe. I wonder whether he agrees with the Anti- SLAPP Coalition that the proposed Bill, as drafted, would introduce a subjective test, requiring a court to infer the state of mind and purpose of the filer. Does he agree with me that that would create complexity, costs and delay, which would potentially make the Bill ineffective?
It is an issue that has to be considered carefully, and, indeed, it has been given a great deal of consideration and much debate.
On that point, will the hon. Gentleman give way?
May I just respond to the other point that has been made? It is vital that this issue is considered properly and deeply. I hope very much that, if we are successful today, the debate will continue into Committee, so that further consideration may be given to that issue. At the moment, I am erring on the side of what is suggested by my private Member’s Bill. I think the Bill strikes a balance. It is not quite accurate to talk about subjectivity and objectivity, because a judge will have to make a determination on the facts that are presented and his knowledge of how the case is being conducted. At the moment I err in favour of saying that there is a false dichotomy, but it is something that should be considered further in Committee.
I join in concordance with the hon. Member for Caerphilly (Wayne David). This is an excellent piece of legislation and I am very broadly in support of it. I just wanted to respond to the comment from the hon. Member for Tiverton and Honiton (Richard Foord). Subjectivity is actually a fundamental part of our legal system already: we talk often of the man on the Clapham omnibus. It is the reasonableness test, so I do not think there is anything in the Bill that is out of scope or inappropriate.
I am inclined to agree with that comment, as my Bill suggests, but it is something that needs to have more airing and more consideration. Detailed consideration in Committee would be an appropriate place for that to happen.
As others have said many times, most SLAPP-related activity takes place below the radar before a formal court case and court claim is issued. There are a number of reasons why SLAPPs are so bad, and why SLAPPs claimants are so successful in their warped objective of perpetrating them. Commonly, the comparatively modest means of a defendant are leveraged against them to encourage retraction or the abandonment of the important research that would shine a light on questionable behaviour. Bullying tactics can include huge threatened litigation costs and damages, and all of the unbearable consequences such as bankruptcy and loss of homes and livelihoods, as well as the emotional distress that entails. All of that can cause huge hardship and psychological pressure.
Sadly, many people are not able to withstand all of that. So many of the cases are like David and Goliath, but if David had no slingshot. I should be clear about why the unfairness of a legal system that allows all of that has to be challenged and changed. That is why I am bringing forward the Bill today. We must eradicate the harms caused by that kind of aggressive litigation. We must protect publishers, authors and advocates from spurious claims and empower them to forge ahead with publishing legitimate stories. Grounded, well-researched investigative reporting must be protected, not reined in for fear of colossal legal costs. We must do our utmost to protect and empower ordinary people, and give them the confidence to use the legal system of this country to ensure fairness in the public interest.
Of course, protecting journalists or anyone else cannot be at the expense of denying claimants their rights of access to justice. But at present, the fact that claimants can wrongly exploit the justice system to obfuscate the transparency that is essential in a healthy democracy means that an important balance must be struck. As things stand, that is clearly not the case, and that is why I call for urgent reform today. Robust action to counter SLAPPs in all their forms is needed and it is needed now.
I have sought to work alongside the Government to ensure that the approach underpinning the Economic Crime and Corporate Transparency Act—which was positively received across civil society, media and the legal professions, including the regulators—remains largely intact in the Bill as it achieves what is necessary. The Bill will therefore keep, for the most part, the definition of a SLAPP claim in the Economic Crime and Corporate Transparency Act, but it will also broaden the scope and capture all SLAPPs in future. In future, any SLAPPs cases in which speaking out is in the public interest, including for publications on economic crime, will be caught.
Let me address the components of the definition. First, the claimant will have acted to restrain the defendant’s exercise of their right to freedom of speech. Secondly, the exercise of that right will have been in the pursuit of the public interest, or exposing potential wrongdoing or other bad behaviour, such as illegality or untruths, or matters to do with public health and safety or the climate and the environment. Thirdly, the claimant will have misused litigation for its threat to cause harm to the defendant, specifically through harassment, stress or expense, which is beyond that which can be ordinarily expected in properly conducted litigation. The last point includes an important distinction. Legal cases almost always bring a measure of stress and expense to the parties involved, given their serious nature.
As I have said, SLAPP claims are often designed to generate excessive stress and expense in pursuit of a remedy that is a mere fig leaf, or excuse to allow the real harm that the claimant wishes to cause. One thing that distinguishes a SLAPP claim is that the legal action is not pursued for the appropriate remedy, but as a means, in its own right, of bringing oppression to bear. To safeguard against that harm in an effective and proportionate way, including by ensuring that legitimate claims can proceed, the Bill will introduce a new early dismissal test. Claimants will have to show that they are more likely than not to succeed at trial. Where they cannot do so, the case will be struck out.
In addition, much of the harm in SLAPP claims lies in the risk of adverse costs that defendants face. A properly functioning early dismissal mechanism will assist in removing many of the risks to the defendant. However, for SLAPP claims that are not dismissed early, the Bill will introduce a new costs regime that protects defendants from costs that they would usually pay if they lost the case. That will ensure that defendants can defend themselves properly and that the risk of costs does not force them to settle claims unnecessarily. The underpinning principles of that new cost regime are included in the provisions, but the detail will be introduced under the usual cost regime-making powers through rules of court.
Together, those provisions will initially require only new civil procedure rules to give them shape and maximise their effectiveness, as the evidence available shows that SLAPPs are focused on civil proceedings. However, the provisions can be extended by regulations to any other proceedings as necessary, such as the online procedure rules. I trust that the Government will make necessary regulations when claimants who are well resourced and able to exploit any perceived loophole choose other courts in which to pursue SLAPPs. That will also help to ensure that the Bill is future-proofed. SLAPPs are likely to evolve, and we need legal infrastructure to be robust enough to meet future challenges.
As a result of the Bill, the courts will have the necessary tools and guidance to deal swiftly with all SLAPPs, which aim to stifle freedom of speech. Investigative journalists will also be empowered to expose wrongdoing in all its forms, whatever that may be. It is my hope that defendants in such cases will, as a consequence, feel safe from attempts to wrongly exploit our legal system. Journalists and others will be empowered to shine a light on criminal misconduct wherever they find it, whatever form it takes, without fear of spurious claims being made against them.
Unscrupulous individuals or corporations brazenly misuse our courts and legal system to further their agendas, to the detriment of the public interest, though it is wrong to do so as a matter of principle. The public must know about wrongdoing and corruption, so that our democratic society can function and the rule of law can be preserved. This Bill recognises the breadth and depth of SLAPPs; currently, the law focuses solely on economic crime, but SLAPPs can be found in all areas of the law. This all-embracing legislation against SLAPPs is, I believe, a truly significant step in ensuring freedom of speech and removing a clear abuse of our legal system. I therefore urge colleagues across the House to give the Bill their full support.
With the leave of the House, I am very pleased that we have had such a good debate. It is laudable that so many Members in all parts of the House have taken the time to attend and to make such excellent contributions. I also pay tribute to people and organisations outside the House, notably the UK Anti-SLAPP Coalition. It has worked tirelessly on this issue for some time, and its input has been of tremendous value. I thank the Ministry of Justice and its civil servants for their assistance, its briefings and its constructive engagement at all times.
There are a number of issues that many Members consider particularly important, such as the so-called issue of subjective tests. I am inclined to agree with what the Minister said in summing up the debate, but I accept that there is room for further discussion, and we will be able to deal with it in some detail if the Bill goes into Committee.
I agree that cost is a fundamental issue. A number of Members have cited examples in which it is enormously important in ensuring that justice is done and is seen to be done. In her evidence to a Select Committee, the author Catherine Belton said that in London a single letter cost as much as £9,000, addressing concerns that had been expressed by a number of people. If one letter costs £9,000, we all know how much an entire case could cost. Surely that cannot be right in a democratic country which prides itself on freedom of speech, in which freedom of speech is pivotal, and which allows justice for all.
I hope very much that the Bill will continue its progress through the House and will reach the statute book, because I think that that would be a huge step forward for parliamentary democracy.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).
Strategic Litigation Against Public Participation Bill Debate
Full Debate: Read Full DebateWayne David
Main Page: Wayne David (Labour - Caerphilly)Department Debates - View all Wayne David's debates with the Ministry of Justice
(3 months, 2 weeks ago)
Public Bill CommitteesWith this it will be convenient to discuss new clause 1—Purpose and Interpretation—
“(1) 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, and to prevent the use of the courts to undermine these rights through abusive legal action.
(2) Provisions in this Act should be broadly construed and applied to advance the purpose defined in subsection (1).”
This new clause places a purpose and interpretation of the proposed Act at the beginning of the Bill.
It is a pleasure to serve under your chairmanship, Ms Elliott. I tabled this private Member’s Bill to tackle SLAPPs—strategic litigation, or lawsuits, against public participation—in all their forms, so that any abuse of litigation to attack free speech in the public interest, regardless of subject matter, can be addressed through the courts.
The Bill has had a long gestation. On Second Reading on 23 February, the version that I tabled, with Government support, was unanimously agreed by the House, but hon. Members clearly expressed some concerns and made some constructive comments. I am pleased to say that since Second Reading, a quite remarkable and very positive series of discussions has taken place between the Ministry of Justice and me, and between us and a number of stakeholder bodies. There have also been formal and informal discussions with Members who have taken a keen interest in the subject for a long time, in particular the right hon. Member for Haltemprice and Howden. The result has been not total, but a high degree of consensus on quite difficult and intense issues.
I remind everyone that SLAPPs are abusive or threatened lawsuits that are designed to inhibit free speech. These hostile lawsuits masquerade as genuine claims, but their underlying objectives are far more sinister. Such cases are often brought by powerful individuals and corporations with the aim of avoiding scrutiny by shutting down critical voices that seek to hold them accountable.
Protecting freedom of speech in the public interest is something that all parties in Parliament hold in high esteem. In all debates in this House and in the other place, there has been broad consensus on the need for reform to tackle the harmful effect of SLAPPs. As champions of media freedom, we must ensure that the free press is never made so vulnerable that it resorts to self-censorship on vital matters in the public interest. Grounded, well-researched investigative reporting must be protected, not reined in for fear of legal action. Of course, such protections cannot and must not come at the expense of access to justice, but the fact that claimants can currently exploit the system means that that important balance has not been struck. I have worked with the Government to make sure that the approach underpinning the Bill achieves the necessary protections and balances.
Clause 1 provides that rules of court must be made to provide a means of dismissing SLAPP cases at an early stage. The provisions require that rules are developed to make sure that a claim can be struck out where the court has determined, first, that a claim is a SLAPP, and secondly that the claimant has failed to show that their claim is more likely than not to succeed at trial. That will ensure that a court has the power to dismiss SLAPP claims at the earliest possible opportunity, thereby protecting defendants from unnecessary and intimidatory litigation that is used to silence and suppress articles, investigations and reporting being conducted in the public interest.
The rules of court will also establish the appropriate procedure to be followed so that Parliament’s intention to prevent the harm of SLAPPs is properly achieved in such cases. Subsections (2) and (3) provide that the rules will be able to identify what evidence will be considered and the degree to which it will be tested by the court in determining the various matters that it has to address, including the use of presumptions with respect to matters of fact. I will turn shortly to other provisions that will assist the judge, for example by setting out common attributes and behaviours that are characteristic of SLAPP-style litigation.
Clause 1(4) provides for the development of rules to establish costs protection for defendants in cases identified as SLAPPs. The rules will provide that the court must not order the defendant to cover the costs of the claimant in SLAPP cases, unless they themselves have behaved inappropriately. The purpose of this provision is to protect defendants from the exorbitant costs that are currently racked up by claimants in such cases, and from the use of the threat of such costs to intimidate them.
At present, the risks of high costs often force defendants to abandon their legitimate defence against challenges to important reporting in the public interest, because of fear of financial ruin. That is wrong and must be put right. Defendants in SLAPP cases will often not have the same means available to them as claimants; they are therefore commonly intimidated into abandoning cases and/or reporting, even when they know the story in question to be true. They often find that the risks of adverse costs orders, which can result in great personal debt, including having to sell their home or go through bankruptcy, are far too great to contemplate, even for the sake of important stories.
I commend the clause to the Committee.
I commend the hon. Member for Caerphilly for his Bill. It has been long in the coming, but it deals with a very important problem, and it is brilliant that he has actually brought it to the House. If I may say so, he has managed it in a formidably diplomatic way, given the sometimes quite difficult arguments that have gone on. My unreserved congratulations go to him.
The hon. Gentleman has done a brilliant job of outlining the point of the Bill, so I will not reiterate that, save to say that it is a difficult and technical Bill. We are balancing rights—the right to sue for defamation versus the right not to be oppressed and to enjoy free speech—and that is not easy to do. It is a subtle problem. Quite properly, the legal profession, the judiciary and the Ministry of Justice want to maintain that balance. They are very sensitive about that, but we should also remember that the right to sue for defamation is pretty much a rich man’s right. Very few of my constituents will exercise it, and very few people in this room will exercise it—perhaps one or two are rich enough. Nevertheless, it is important that it is maintained; I accept that without reserve.
It is understandable that the Ministry of Justice, in its advice on the Bill, seeks to compromise. I generally agree with compromise, but not with compromise between right and wrong. It has to be said that the Ministry will be being lobbied—with how much effect I cannot say—by the Society of Media Lawyers, including such leading lights as Carter-Ruck, Mishcon de Reya and Schillings, the very people who have created the problem that we are now trying to resolve. People have created a multimillion-pound industry out of oppressing the right to freedom of speech and making London the global capital of that. I could pick a ruder word for it, but I will just say that it is the global capital of SLAPPs.
I have one proposal to put to a vote, but first I want to talk a little about the vagaries of the Bill. Throughout all our discussions, the common theme has been, “How will the judge interpret this phrase, or this clause, in the context of what we are trying to do?” We are trying to protect freedom of speech and, at the same time, people’s right to look after their own reputation in court.
New clause 1 aims to give judges guidance on interpretation and tell them what the high priority of the Bill is. I will read out the clause in full:
“(1) 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, and to prevent the use of the courts to undermine these rights through abusive legal action.
(2) Provisions in this Act should be broadly construed and applied to advance the purpose defined in subsection (1).”
I ask the Committee to see that as effectively an instruction to the judges as to how broadly they should interpret the Bill when it becomes an Act. I will press no amendments other than new clause 1 to a vote, because there is consensus on almost everything.
What can I say? We have had an excellent discussion this morning. It has been very good indeed and has in many ways got to the core of the issue. I want to genuinely thank the right hon. Member for Haltemprice and Howden for prompting this excellent debate through his new clause. As I said, I brought forward this Bill to tackle SLAPPs in all their forms and provide protection for free speech in the public interest. The fact that SLAPP claimants can misuse the justice system shows that the right balance between access to justice and protections against abuse of process is currently not being struck. The Bill must ensure that balance, and it has.
I want to stress that the Bill has been carefully drafted to ensure that all litigants are able to properly and fairly exercise their rights of access to justice. It will ensure that attempts by claimants to misuse the justice system in order to limit the rights of defendants to free speech on matters in the public interest cannot succeed. This point is crucial: it will do so without unduly and unfairly preventing claimants from achieving their own rights, such as the right to not be defamed.
New clause 1, however, risks and draws into question that carefully balanced approach. It is undoubtedly well-intentioned and many of us would agree with the sentiments expressed this morning, but it runs a risk of undermining the efficacy of the Bill as a whole; that is, of course, opposite to the intention of the right hon. Member for Haltemprice and Howden. The new clause risks that by introducing new and uncertain concepts into domestic law, such as the right to public participation, and requiring a supremacy of those concepts over other established rights. These are big and important issues.
I am afraid that, perhaps for the first time in all this, we disagree on something. The right to free speech and public participation is not new in British law: it goes back to Magna Carta.
I am not familiar with Magna Carta, but I suspect our common law has moved on somewhat since then.
The uncertainty about the scope and effect of the new clause also raises the somewhat unfortunate spectre of new and unexpected avenues for litigation, when these measures are intended to do the exact opposite. I am clear that the drafting of the Bill makes its purpose transparent. It is a purpose that is consistent with rights already established in domestic and international law and that addresses the fundamental need to ensure access to justice for both claimants and defendants.
Does the hon. Gentleman agree that at the heart of this is the application of the reasonableness test? Although I agree with the thrust of new clause 1, I think there is an opportunity to apply the existing framework to achieve its goals. As my right hon. Friend the Member for Haltemprice and Howden said, the idea of freedom of speech and public participation is already a fundamental part of our common law, but even when we are applying the reasonableness test we often give judges instruction on how they should interpret reasonableness. Does the hon. Gentleman think that there is an opportunity to ensure, before Report, that we have embedded that concept?
I am a very reasonable person—[Hon. Members: “Hear, hear.”] I am glad that all Members agree.
This is a crucial test, which will be addressed, I am certain, in clauses that we have yet to discuss. There is much to be said for providing a clarification, and that is one of the central things that we will come on to in a few moments’ time.
I very much support the direction of travel in new clause 1. Would it not be fairly straightforward for the Minister, even at this stage—although perhaps he does not have the words available—simply to confirm the intention, which might then negate any need for the new clause?
In fairness, the Bill’s intention is clearly expressed in the clauses that we have before us. I accept that the discussion will be ongoing; nobody is saying that it is the end of the matter, but as things stand, I think it is fair to say that there has been a great deal of discussion and a great deal of investigation of different options, and that this is the best consensual position that we have established to date. Although of course the debate will continue, I have yet to be persuaded that there is a sound and definitive case for changing what we have before us.
I believe that the Bill provides a sound framework and guidance to our independent judiciary to deal with the serious harm that SLAPPs can cause. Judges are well versed in interpreting provisions, assessing evidence and, ultimately, ensuring that justice is done. I believe very strongly that we must be careful here, because unclear direction or too much direction risks creating difficulties—more difficulties than it resolves. Words have to be precise.
Although I thank the right hon. Member for Haltemprice and Howden for his continued commitment on the issue of SLAPPs and his consideration of the Bill, I consider that new clause 1 at the moment goes a bit too far. It risks undermining, and certainly draws into question, the careful balance that the Bill strikes, as well as the efficacy of the provisions, and it potentially complicates unnecessarily the Bill’s onward passage, and not just in this House; let us remember that it has to go to the other House as well.
Clarification is always needed, and the debate will be ongoing. I understand that the Government are prepared to provide clarification in the appropriate place, such as the explanatory notes. That is extremely important, because the explanatory notes provide the clarification for the Bill and add substantial meaning to it.
May I just say to the hon. Gentleman that I have viewed many court cases in my time and I have heard judges refer explicitly on many occasions to the wording of the law, but I have never yet heard them refer to explanatory notes?
The right hon. Gentleman might not have heard judges refer explicitly to explanatory notes, but I know it to be a fact that judges quite regularly provide interpretations and receive information derived from them, so I suggest to him that explanatory notes are very, very important. The two—the legislation itself and the Government’s official explanatory notes—should go in tandem.
I am delighted that the right hon. Gentleman has decided not to press his new clause. I can assure him that I, like the Minister, will ensure that the discussion continues, because this is an important debate. We have had a good discussion this morning; this is not the end of the matter, but it is important at this point to affirm that we stand by what has been put forward. I am delighted that the right hon. Gentleman will not press his new clause, because it would be unfortunate to divide the Committee on an issue on which there is so much genuine understanding and consensus. I thank him for not pressing it, and I give a commitment that the debate will continue.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Meaning of “SLAPP” claim
I beg to move amendment 1, in clause 2, page 2, line 6, at end insert—
“(aa) the claim relates to an expression or potential expression made or to be made by the defendant which discloses or would disclose information relating to a matter of public interest;”.
This amendment and amendments 3, 4, 8 and 9 re-order themes in the subsection so that the public interest is referred to before freedom of speech.
With this it will be convenient to discuss the following:
Amendment 11, in clause 2, page 2, leave out lines 7 to 18 and insert—
“(a) the information that is or would be disclosed by the defendant relates to a matter of public interest;
(b) the claimant’s behaviour in relation to the matters complained of in the claim is such that it is reasonable to conclude that the behaviour has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech; and
(c) any of the behaviour of the claimant, including leading up to or alongside the claim, in relation to the matters complained of in the claim is such that it is reasonable to conclude that the behaviour is intended to cause the defendant any other harm or inconvenience beyond that ordinarily encountered in the course of properly conducted litigation.
(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) alarm,
(c) harassment or distress.”
Amendment 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—”.
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.
Amendment 12, in clause 2, page 2, at end of line 39 insert—
“(ba) the use of dilatory strategies, excessive disclosure requests, disproportionate or unreasonable pre-action threats, or any refusal without reasonable excuse to resolve the claim through alternative dispute resolution;
(bb) the choice of jurisdiction;
(bc) the use of public relations campaigns to bully, discredit or intimidate the defendant;”.
This amendment sets out a wider context of SLAPPs.
Clause stand part.
Clauses 3 and 4 stand part.
I will turn shortly to amendment 1 and the other amendments in my name, but I will first address the function of clause 2, which creates a statutory definition of what constitutes a SLAPP claim, so that courts can effectively identify such misuses of our justice system. It will mean that a case will be considered a SLAPP if each limb of a three-part test is met: a defendant has had their freedom of speech restrained, the story is a matter of public interest, and the claimant’s behaviour has been harassing, alarming or distressing to the defendant, including by running up inappropriate expense or inconvenience “beyond that ordinarily encountered” in litigation.
Before discussing my amendments, I want to recognise the targeted, constructive efforts by stakeholders who have invested time by providing feedback on the Bill, to ensure that those at risk of SLAPPs receive the backing they need to curtail abusive proceedings in the courts. I am also grateful for the work and support of the Government, who have shown their commitment to cementing the UK’s reputation as a jurisdiction that values free speech and broad public participation.
I will start with amendment 1 and will also speak to amendments 3, 4, 8 and 9, which are consequential to it. In short, amendment 1 seeks more prominently to convey the Bill’s purpose by reordering the first two of the three components of a SLAPP so that public interest is given the primary position in clause 2, ahead of free speech. The amendment does not diminish or undermine the importance of an expression of freedom of speech or the claimant’s misconduct in the identification of a SLAPP. Each of the three components in clause 2 must still be present for a case to be found to be a SLAPP. Public interest considerations are at the heart of SLAPP cases, and amendment 1 reflects that importance. Accordingly, I commend the amendment to the Committee, alongside amendments 3, 4, 8 and 9, which are required for drafting purposes if clause 2 is reordered as proposed.
Amendments 2 and 5 seek to ensure that there is an appropriate degree of objectivity in the intention test when considering the effects a claim has on a defendant’s freedom of speech and the misconduct of the claimant in pursuing the claim. That is achieved by introducing the concept of reasonableness. The amendments will allow the court to consider the claimant’s behaviour in terms of whether it is reasonable to conclude, based on their conduct, that the claimant intended to restrict the defendant’s freedom of speech and to cause harm. Any harm beyond what can be reasonably expected to be incurred in the course of properly conducted litigation—bearing in mind that by its very nature, litigation is stressful and inconvenient—would result in the case being identified as a SLAPP and being struck out.
On a point of clarification: I am not a lawyer either, but under the amendment, if a judge were to determine that a case were a SLAPP and strike it out, could he do so partially? Is there a mechanism by which the claimant can appeal the initial strike-out?
I will seek clarification, as I am a layperson. My understanding is that the judge’s decision is definitive and will achieve the desired effect.
The introduction of reasonableness will give the court a clear ability to draw conclusions about a claimant’s intention from all the objective evidence before it. That evidence will be from both the claimant and the defendant, and its extent will be controlled by the court. The court will also be able to determine the degree to which it is tested, and will therefore be in a proper position to infer from it whether the necessary intention from the claimant is present, so as to warrant the case being found to be a SLAPP. Amendments 2 and 5 will assist courts in ensuring that an objective and fair assessment is made of whether the case is a SLAPP.
Amendments 6 and 7 clarify the misconduct element of the test to decide whether a claim is a SLAPP. They respond to concerns from stakeholders who said that the original formulation of the clause suggested that there is a level of harassment, alarm and distress that is acceptable to pursue as a tactic to cause intimidation in conducting litigation. That was never the intention, and I wish to make that point firmly and very clearly.
The intention of the clause is to isolate claimants who are perpetrating misconduct in the way in which they are pursuing their claim. It will separate those who are using litigation as a weapon from those who have a legitimate grievance and are behaving properly in conducting their case. These amendments will mean that a defendant will be able to assert that, through improper behaviour, a claimant has caused them harm. In making that claim, the defendant will be able to invoke harm of any sort, including but not limited to harm, distress, expense, inconvenience or harassment. I consider that this new formulation will assuage the legitimate concerns raised by stakeholders and parliamentarians alike. It is therefore extremely important.
In many ways, this goes to the heart of the argument that we have had throughout all this. The truth of the matter is that anybody in receipt of normal judicial action in an ordinary defamation case faces distress and expense. A person who receives a lawyer’s letter at the beginning of such a claim suffers, if not a nervous breakdown, then something quite close to it, so this is quite difficult to elucidate. I know that the hon. Gentleman takes that point.
The right hon. Gentleman makes an extremely important point that gets to the heart of the Bill. Such cases are extremely stressful and cause all manner of feelings, which are clearly indicated here, and often enormous expense. One of the things that is recognised in this Bill is that in many cases that is quite deliberate. SLAPP cases are often designed to cause a maximum amount of distress, alarm and expense to defendants. That is precisely what we want to iron out of the system to introduce an objective fairness, so that cases are really judged on their merits and not on what quite often happens behind the scenes. I consider this new formulation to be much stronger than what we initially had in mind, and it is therefore very important and appropriate. I very much hope that it receives the full support of this Committee.
Finally, amendment 10 seeks to clarify the scope of “public interest” as set out in clause 2(3). That is achieved by amending the language so that it is clear that the list of matters in the “public interest” is not exhaustive. This amendment will assist the court in the identification of SLAPP claims and ensure that all relevant claims can be dealt with under the scope of this Bill. It brings greater clarity to the definition of “public interest” in the Bill and addresses concerns from parliamentarians that the Bill would not achieve its aim of identifying SLAPP claims as currently drafted. I commend amendment 10 to the Committee.
For completeness, I note that clause 3 will amend the Economic Crime and Corporate Transparency Act 2023 by removing the provisions for SLAPPs that relate to economic crime. Sections 194 and 195 of the ECCTA are no longer required as this Bill’s provisions will capture all SLAPPs, including those that feature an element of economic crime. The measures in this Bill will deal with SLAPPs in the round, and not just those related to economic crime currently contained in the 2023 Act. In other words, this is a holistic approach that encompasses all SLAPPs and should be recognised as such.
Clause 4 sets out the legal jurisdictions to which the provisions will apply and the commencement of this legislation. The Bill applies only to England and Wales, as justice is a devolved matter, and it will be for the Administrations in Scotland and Northern Ireland to consider whether and how they wish to legislate to address the challenges that SLAPPs represent in their own jurisdictions; I very much hope that they will follow our good example. Although the Bill will take effect two months after Royal Assent, it will be implemented in full once the necessary rules of court have been developed by the Civil Procedure Rule Committee; those will come into force through secondary legislation.
On that basis, I commend clause 2, as amended by the amendments in my name, and clauses 3 and 4 to the Committee.
I have just looked with amusement at the selection list. The grouping of amendments under clause 2 reads:
“1 [David] + 11 [Davis]…10 [David] + 12 [Davis]”
I am not responsible for all of them—the hon. Member for Caerphilly and I are brothers in arms, but not brothers. I agree with every single amendment that he has tabled in his name; they will all improve the Bill. They also demonstrate that the Bill was very flawed before, as indeed was the Economic Crime and Corporate Transparency Bill, to which there is also an amendment here. I am afraid that that demonstrates that the Government’s original approach was not as thought-through as it should have been.
The two amendments in my name both seek to do the same thing: to broaden the view of the judge, when they are making a ruling on whether a case is a SLAPP case, to the extrajudicial behaviour outside the court room, included in which is the selection of forum. If someone were to pursue a court case in London rather than in their domestic court, that would be an indication that they were seeking to exploit our laws in pursuit of a SLAPP.
In some ways, the point about extrajudicial action is even more important. It is that the actions taken against the individuals on the receiving end of SLAPPs are intimidatory and bullying in a whole series of extrajudicial ways. I should think everybody on the Committee knows about the cases of Tom Burgis, Catherine Belton and our erstwhile colleague Charlotte Leslie. Intimidatory social media campaigns, threatening phone calls, not-so-subtle surveillance, hacking—the list goes on and on.
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.
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.