Strategic Litigation Against Public Participation Bill

Debate between Wayne David and Adam Afriyie

Committee stage
Wednesday 8th May 2024 Public Bill Committees

[Wayne David]

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.

[Adam Afriyie (Windsor) (Con)]

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?

[Wayne David]

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.

--- Later in debate ---

[Wayne David]

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.

[Adam Afriyie]

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?

[Wayne David]

Like the hon. Gentleman, I am not a lawyer—

[Adam Afriyie]

I apologise for asking the question!

[Wayne David]

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.

Parliamentary Standards Act 2009

Debate between Wayne David and Adam Afriyie

Thursday 15th December 2011 Commons Chamber

[Mr David]

My hon. Friend makes a good point, which underlines the point that IPSA should always effectively be independent of Parliament, as he says. The only point I would make—and which the National Audit Office has also made—is about the general principle of collective procurement, which could be done more effectively to save taxpayers’ money. IPSA has made advances in ensuring a cost-effective scheme, but more can be done, and this is a clear example.

The second report that we are discussing today is that from the Committee on Members’ Expenses. I pay tribute to the hon. Member for Windsor (Adam Afriyie) and his Committee for their assiduous work. Their report is reasonable in tone and contains a raft of practical proposals to improve IPSA’s performance. However, I have some reservations about aspects of the report. For example, I am somewhat concerned about the recommendation that a separate body be established within the House of Commons service. That body, the report says, would be independently regulated by IPSA, and

“transparency would ensure that it did not replicate the deficiencies of the old expenses system.”

I welcome those words of reassurance, which are honestly expressed, but I am not convinced that we should run the risk of creating a perception that MPs could once again exercise influence over their expenses. For me, independence means independence, full stop.

[Adam Afriyie]

I do not think there is any disagreement, actually. The recommendation is merely that the legislation should enable the separation of those functions, because IPSA is unique in the entire world in its existing set-up. The Committee goes on to suggest what we think might be the best way to work more cost-effectively, but that is not the recommendation. The recommendation is merely that the legislation should enable a separation to take place, just to tidy things up a little.

[Mr David]

I hear what the hon. Gentleman says, but it still worries me that we are talking about at least an aspect of IPSA’s work coming in-house, to this place. Indeed, recommendation 3 says clearly:

“The best arrangement would be for that separate body to be within the House of Commons Service”.

However, if that body is in the House of Commons service, it is under the control of Members of Parliament, and I do not think that is desirable, nor is it something that would be easily understood by the general public.

That said, the report makes a number of good practical suggestions. For example, it is suggested that IPSA should extend its use of direct payments to cover as near to 100% of transactions as possible. That is to be welcomed. It is proposed that Members’ office and staff budgets should be merged, which would also be welcome. The report proposes that IPSA should make it easier for MPs to find out online how much of each budget has been spent. That would be a step forward. It is also suggested that IPSA should always ensure that MPs’ staff should have their expenses reimbursed directly and that this reimbursement should be made promptly. We would all endorse that. Those are just some of the practical and positive suggestions that are well worth active consideration and, I hope, implementation.

There are many policies and proposals in the report that I believe require careful deliberation. However, because of that, I am of the view that simply approving all the recommendations in their entirety might not be the best approach. That is why I have sympathy with the amendment, tabled by Government Back Benchers, which asks that the report be considered by IPSA as part of its annual review. I also hope that the Government will not merely wrap the report in warm words, but ensure that active consideration is given to those proposals that relate directly to the Government—in particular, recommendation 2—or the duties of IPSA.

I believe that the House has begun the process of restoring the reputation of Members of Parliament in the eyes of the public. However, to be honest, we still have a long way to go. That is why I believe that IPSA’s independence must be unequivocally maintained and that this House should not have any determining influence over any aspect of its expenses regime.