Lawfare and UK Court System

Andy Slaughter Excerpts

Thursday 20th January 2022 Commons Chamber

[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.