Strategic Litigation Against Public Participation Bill

Liam Byrne Excerpts

Committee stage
Wednesday 8th May 2024 Public Bill Committees

[Sir David Davis (Haltemprice and Howden) (Con)]

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.

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

It is a privilege to serve under your chairmanship this morning, Ms Elliott. I congratulate my hon. Friend the Member for Caerphilly not only on securing this opportunity, but on working—as the right hon. Member for Haltemprice and Howden said—with formidable diplomacy to steer us to the Bill we have today.

The Bill is unusual in having commanded a great deal of cross-party consensus, ever since the first debate that the right hon. Member and I had the privilege of sponsoring in the House two or three years ago. It is not common to move this quickly from a Backbench Business debate to legislation. That is to be commended; indeed, it is why the Back Benches in this place should be strengthened further and given far more opportunities to legislate.

The Bill builds on an amendment that I had the privilege to move to the Economic Crime and Corporate Transparency Act 2023. It is outrageous that our courts are being used as arenas of silence to shut down free speech. We have become a place where oligarchs from around the world choose to come, in order to silence truth tellers and journalists who are providing an incredibly important public service.

The Bill is an important step forward, but it is only a step. As the right hon. Member for Haltemprice and Howden says, it cannot be the full solution. In particular, it will not address the plague of pre-litigation action. The number of journalists working in and around this place who tell us of legal letters being sent when they get a whiff of a story to close it down shows that this is a really significant problem. Once the Bill passes, we will need to understand what more can be done to stop the chilling effect of pre-litigation action.

New clause 1 provides us with an important debate. The right hon. Member for Haltemprice and Howden is right to say that part of the delicacy of the Bill relates to making sure that judges have full sight of Parliament’s intention. The debates we have in this place will be unusually important in interpreting and applying the Bill in the courts, so he is absolutely right to say that subsection (1) sets out the basic purpose of the Bill: to maximise the latitude for free speech, truth telling, investigations and good journalism, for which this country is rightly famous. If that comes at the cost of the Ministry of Justice opposing the Bill and killing it today, it will be an unfortunate consequence.

I hope that the Committee can unite around a solution that the Government can support, so that the Bill becomes law. This debate is important, and I hope it will run on here and in the other place to ensure we have a balancing test that secures the objectives of the right hon. Member for Haltemprice and Howden, without incurring a ministerial roadblock in the shape of the Ministry of Justice.

[Sir David Davis]

There were two possible approaches to this Bill. One was what we have before us, which is quite complex but seeks to address issues piece by piece; the other was what is known as the Ontario option, which effectively puts in place a parallel to the American first amendment. One of the reasons why new clause 1 is important is that it straddles those approaches. It does not take us down the first amendment and constitutional route, but it does make it clear what we are trying to do.

[Liam Byrne]

The right hon. Gentleman is absolutely right. A debate on the effects of a British version of the first amendment would be very welcome.

When the Minister replies, he could helpfully inform the Committee about a couple of things. First, it would be useful if he took the opportunity to tell us more about how pre-litigation chilling action is to be policed. Schillings, Mishcon de Reya and all the others are perfectly capable of moving their investment to the pre-litigation phase. They will do their damnedest to find their way around the provisions of this Bill, because frankly they are being paid too much not to do so. I would like to hear from the Minister about that.

Secondly, I would like to hear from the Minister—his words will be important, because they will be read by judges when they interpret the Bill—on whether he will put on the record today, in this Committee, some security around delivering the right hon. Gentleman’s objectives. The Bill aims to maximise the latitude for free speech in this country, an important objective that the Minister needs to share with us.

I have further comments to make, but they are probably best dealt with in our debate on clause 2. There are some important issues around the thresholds at which this Bill kicks in and the permissive environment that might be created for bad behaviour that may fall just short of the prohibitions in the Bill, but may none the less be fatal to the humble journalists and news outlets who do such valuable work.

[The Chair]

Before I bring in the shadow Minister, I remind colleagues that electronic devices should be absolutely silent. Somebody’s phone keeps pinging; I do not know whose it is, but could you all check your phones so that it does not happen again?

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

It is a pleasure to serve under your chairmanship, Ms Elliott.

I will not detain the Committee long. I wish to state my support for the hon. Member for Caerphilly in introducing the Bill, and for the approach that he has taken in steering it forward. However, I will try to address all the concerns raised by various parties—not least the constructive and weighty contributions from right hon. and hon. Members.

As we have heard, SLAPPs are the purview of corrupt individuals seeking to stifle free speech and a free press by abusing our courts and our laws, and to undermine our democracy. No matter who brings the case, SLAPPs must always be recognised as an affront to our renowned courts and legal system, and they should be tackled swiftly.

The Ministry of Justice has been keen to ensure swift passage of the Bill, and I pay tribute to the officials who have provided support to the hon. Member for Caerphilly and other Members in trying to fine-tune it. I gently say to the right hon. Member for Birmingham, Hodge Hill that the Department has certainly not been a roadblock—quite the reverse. We have been doing our best to ensure a swift and smooth passage.

Strategic litigation against public participation is a bullying display of power designed to silence investigations and reporting in the public interest. SLAPPs cause harm not only by stifling public comment but by forcing its removal or editing, leaving a sanitised version of events that may far underplay the true severity of the information covered. They discourage journalists, academics and campaigners from investigating issues in the first place, using intimidation to ensure that matters of public interest remain hidden, and leave the British public in the dark. The effect of SLAPPs is pernicious, and we cannot allow our media to be helpless to act to expose the actions of some people and organisations due to aggressive legal tactics and unlimited resources.

[Liam Byrne]

I hope the Minister did not mishear me: I was hoping to ensure that the Ministry of Justice does not become a roadblock in the future. I am very grateful for the work that he has done so far. Will he use this moment to put on the record whether he agrees with subsection (1) of new clause 1, tabled by the right hon. Member for Haltemprice and Howden? It provides that the Bill’s purpose should be interpreted as being

“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”.

Is that basically the intent of the Bill?

[Mike Freer]

Let me take this opportunity to address two points that the right hon. Gentleman has raised. First, on pre-litigation issues, I will have to write to him to ensure that I get correct the rights that the Lord Chancellor, the Department or the courts will have before a matter gets to court. I will make sure that I get the details so that I do not misinform him.

We cannot support new clause 1, tabled by my right hon. Friend the Member for Haltemprice and Howden. As I have said to him, I am more than happy, between now and Report, to sit down and try to flesh out where we can find more agreement, but at this stage we cannot support the new clause. While we support the whole thrust of what he is trying to achieve, we feel that the Bill has actually—

[Mike Freer]

I can give the undertaking that I will work with my right hon. Friend and the right hon. Member for Birmingham, Hodge Hill to try to ensure that the Bill meets those objectives. We believe that the Bill creates a balance of rights and responsibilities that ensures that we protect free speech while balancing the rights of both claimants and defendants, so that the bad behaviour that has been documented is addressed. Also, the examples of bad behaviour in the Bill and the explanatory notes are not exhaustive.

[Liam Byrne]

I am very grateful for that constructive reply, but I want the Minister to underline and crystallise the point for the Committee: he is saying that the Government support the thrust of the right hon. Gentleman’s new clause.

--- Later in debate ---

[Mike Freer]

I repeat my offer to my right hon. Friend and the right hon. Member for Birmingham, Hodge Hill: I am happy to discuss how we ensure that we come to an agreement that the Bill delivers what they want to achieve. However, we believe that new clause 1 is not necessary. Of course, if they believe that the Bill still needs it, my right hon. Friend has the right to move it during the remaining stages.

The offer is there: let us try to work together to see whether we can bridge the gap and persuade each other that we are right. At this point, the Department’s view is that the Bill creates a balance of rights and responsibilities while addressing the bad behaviour and listing, but not exhaustively listing, what bad behaviour will be curtailed.

[Liam Byrne]

I am grateful to the Minister for his characteristic generosity. He has just told the Committee that he does not think that new clause 1 is needed and that the intention of the Bill as a whole is to support the objectives of the new clause. The new clause is very carefully drafted. It states:

“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”.

It therefore falls short of an American first amendment-style provision and, in that sense, has been quite carefully sculpted. I am grateful to the Minister for saying that he does not think it is needed because that is the thrust of the Bill overall, and it is important that that is on the record. I am happy to work with the right hon. Member for Haltemprice and Howden and others to ensure that we have got that beyond doubt.

--- Later in debate ---

For every Tom Burgis, there is a Kate and Gerry McCann; for every Catherine Belton, there is a Christopher Jefferies; for every Charlotte Leslie, there is a family like Milly Dowler’s. However the courts are used to bully or prosecute with ulterior motives designed to silence defendants or make their lives unbearable, the same can be done by any bullying organisation. It can be done by media conglomerates as much as by oligarchs. I see that as a contradiction in the Government’s approach, but I am sure the Minister can explain it fully in his response.

[Liam Byrne]

I have just two points to make on this excellent group. First, I wholeheartedly support the amendments to clause 2 that my hon. Friend the Member for Caerphilly proposes. The Opposition amendments to the Economic Crime and Corporate Transparency Act 2023 were very much a tactical strike on the statute book: here was a Bill that gave us the chance to ensure that we had road-tested similar provisions. Given the narrow scope of that Bill, it was possible to sketch only amendments that tackled economic crime at their core, so I am glad that this Bill gives us the opportunity to go well beyond that and take the holistic approach that my hon. Friend set out in his excellent opening speech.

My second point, which perhaps the Minister or my hon. Friend will address, relates to the concerns that have been well set out by the UK Anti-SLAPP Coalition. It gives me the chance to congratulate the coalition on its extraordinary and steadfast work; I am not sure that we would have arrived at quite the same speed without it. The coalition usefully highlights concerns about clause 2(1)(c), the drafting of which appears to suggest that there is a threshold for the “harassment, alarm or distress”—harm, if you like—that can be permitted. That is not something that we would want to support in this place. I realise that it is difficult to get the balance right, but my hon. Friend the Member for Poplar and Limehouse has spoken eloquently about the risks of creating a space in which there is a level of distress and harm that is permitted. It would be useful for both Front Benchers to crystallise how that issue will be tackled by the amendments in this group.

[Alex Cunningham]

As we have heard, consensus has broken out. It is all very pleasant, unlike some issues that I have debated with the Minister in the past. I welcome amendments 1, 3, 4, 8 and 9, which will reorder the themes so that public interest is referred to before freedom of speech. My hon. Friend the Member for Caerphilly has more than adequately outlined the necessity of the clauses, and I support his efforts to improve the Bill’s application.

I am also pleased to see amendments 2 and 5, which will ensure a more objective approach to the identification of intent. As we have heard, requiring the courts to engage in a subjective inquiry into the mind of a claimant or defendant would create uncertainty and might be practically and evidentially difficult to assess. These requirements could create satellite litigation and uncertainty at an early stage and might have the unwanted effect of introducing further delay and driving up costs.

The definition in the Bill should, at a minimum, include an objective element so that it relates to claims concerning disclosures that are or would be made on matters of genuine public interest. That would make the text similar to section 4(1)(a) of the Defamation Act 2013. I know that the amendments have the backing of the Law Society and the UK Anti-SLAPP Coalition. The News Media Association, a member of the coalition, says that the amendment is required to allow a judge to define a case as a SLAPP based on a reasonable interpretation of a claimant’s actions, rather than a complex inquiry into a claimant’s state of mind. It agrees that the latter would result in complex, time-consuming and costly legal wrangling that would defeat the object of a Bill intended to dismiss egregious SLAPP cases swiftly.

Amendments 6 and 7 restate sub-paragraphs (i) to (iii) of clause 2 for the purpose of clarifying the condition in subsection (1)(c). They have our support.

Clause 2(3) attempts to set out a definition of “public interest” to help with identifying SLAPP cases. That includes matters such as illegality, false statements, public health and safety, the climate or the environment, or investigations by a public body. Concerns have been raised to me that the original drafting lacks clarity and risks creating problems for implementation; it also proves contradictory in relation to the Defamation Act 2013. I therefore support my hon. Friend’s amendment 10, which will go some way towards addressing those issues by making it clear that the list set out in the clause is not exhaustive, and that other matters not specified in the Bill can be considered by the court to be of public interest.

It would not be appropriate to privilege certain types of public interest speech and create an unnecessary and problematic hierarchy. Without amendment 10, the examples in the definition of “public interest” in clause 2(3) would cut across principles in the Defamation Act and in data protection law, making it harder for defendants to use the full scope of defences available at trial. That is because it would naturally be difficult for a court to decide that an article was not in the public interest under the Bill’s narrow definition but then take a different course at trial. We are happy to support amendment 10.