Lawfare and Investigative Journalism

Bob Seely Excerpts

Monday 17th October 2022 Commons Chamber

[Mr Davis]

I thank the right hon. Lady for drawing the attention of the House to that case. I do not know the substance of it, but the fact is that these cases are best resolved transparently and in public, with fearless reporting, not with repression of free speech. Oligarchs will often bring these claims as they know their opponents will, as in this case, have to back down either through the threat of bankruptcy or because they become bankrupt as a result of the operation, and it is a good example of this problem.

That is why the Government earlier this year found that some journalists

“no longer publish information on certain individuals or topics—such as exposing serious wrong-doing or corruption—because of potential legal costs.”

That also applies to some newspapers and some organisations whose job it is to expose this sort of information.

With every letter and every stage of legal action, organisations like the Bureau of Investigative Journalism must divert resources and attention away from public interest reporting and towards defending themselves against bogus or trivial claims. The Bureau of Investigative Journalism has a small team, with just a few dozen staff. To defend itself, it has been forced to divert much of its reporting team and senior management, as well as significant financial resources, to dealing with these legal threats.

This kind of lawfare is a potentially existential threat to investigative journalism, and that is precisely what the claimants in these cases intend. These proceedings are not initiated to prove the organisations wrong—the oligarchs know that the organisations are right—but rather to financially and psychologically exhaust them into retraction. What Nazarbayev wants is to import into the UK the contempt for free speech shown in Kazakhstan during his three-decade rule. As the hon. Member for City of Chester (Christian Matheson) pointed out in his intervention, Nazarbayev is bringing to Britain what he imposed on Kazakhstan and we cannot allow that. This should offend the sensibilities of anyone who values a fair and equal justice system, as well as those who rightly appreciate the value of public interest reporting.

It is of some reassurance that the Government intend to reform the law around SLAPPs, but we must move more quickly. I say that directly to the Minister, who is an old friend of mine over the years; I am very pleased he is in his place and in the Department as he will do a fantastic job, but I say to him that we must move more quickly. There is no time to waste when even now we have oligarchs using SLAPPs to curb free speech and evade justice in our country. One of our ex-colleagues, Charlotte Leslie, is facing such a case at the moment. We as Members of Parliament have parliamentary privilege and so can speak without the threat of libel action, but that privilege brings with it a duty to speak up for those who cannot speak for fear of punishment by the likes of Nazarbayev.

In the wake of the war in Ukraine, the Government swiftly introduced sanctions on those with links to the Russian regime, making it harder for them to use our country as a money-laundering venue. It is high time that we applied that same urgency and purpose to addressing the damage that oligarchs are doing to our justice system and our free-speech values. For too long, we have facilitated oligarchs’ dirty money and corruption in the UK.

[Bob Seely (Isle of Wight) (Con)]

My right hon. Friend is making a great speech and incredibly good points about lawfare. We have the Economic Crime and Corporate Transparency Bill before the House, and it would be wonderful if the Minister, when he is on his feet in a few minutes, confirmed that lawfare will be part of that. We have a lawfare Bill written and ready to go, and the Government could adopt it. There are three elements to it: the abuse of privacy laws; various other factors; and the aggressive abuse of libel law. The problem is, whether we like it or not, we may make grandiose speeches about how free speech must be defended, but it is being attacked all the time. In the last few years, it has been relentlessly attacked by criminals, by oligarchs and by Russian proxies and other corrupt proxies in this country. We need laws brought in now, not at some time in the future.

[Mr Davis]

My hon. Friend is exactly right. Our friends and neighbours in the US and Europe are taking action, and we must not be left behind. If we do not act, we will let dangerous people off the hook while allowing journalists and researchers to be punished for doing their jobs. What we need now is a commitment from Ministers to bring forward either a free-standing SLAPPs Bill or measures that form a component of another Bill. I do not care which it is, but it must happen soon.

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[The Parliamentary Under-Secretary of State for Justice (Gareth Johnson)]

Thank you, Mr Deputy Speaker. I congratulate my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on securing the debate. It is true that I was his Parliamentary Private Secretary back in 2017 when we were going through the turbulent times of Brexit. I think that he and I are pleased that things are so much calmer now.

I also pay tribute to all Members who have contributed: the right hon. Member for Barking (Dame Margaret Hodge), the hon. Members for City of Chester (Christian Matheson), for Strangford (Jim Shannon) and for Hammersmith (Andy Slaughter) and my hon. Friend the Member for Isle of Wight (Bob Seely), who is another doughty fighter on this issue. The House is lucky to have such Members who have seen this as an issue that they want to take forward and who want to ensure that my Department carries out the correct actions. It also gives me the opportunity to restate the Government’s commitment to freedom of speech and the protection of journalists. SLAPPs are wrong. They are a form of bullying. They need to be stopped, and stopped through legislation. First, let me emphasise that investigative journalism is of central importance to a functioning democracy. The UK launched a national action plan in 2021 to ensure that we continue to foster an environment in which journalists feel safe from physical harm and intimidation, and where those who threaten them are properly held to account.

[Bob Seely]

The Leus case, as eloquently highlighted by the right hon. Member for Barking, is just the latest example of the threatening abuse of lawfare, this time against Chatham House. It is remarkable that robust, incredibly famous international organisations are filleting reports because of the intimidation paid for by multi-millionaires. On the abuse of data protection, the abuse of privacy and the abuse of libel, is that going to be dealt with in a law which my right hon. Friend the Member for Esher and Walton (Dominic Raab) was planning, or is it going to be part of the Economic Crime and Corporate Transparency Bill, which is happening very soon and could be amended?

[Gareth Johnson]

I am grateful to my hon. Friend for his intervention. This matter will be dealt with by legislation. I cannot promise him that it will be dealt with in the Economic Crime and Corporate Transparency Bill, but it will be dealt with through legislation. I hope the House will forgive me if I do not refer to the substance of the cases that have been raised in this debate, but I want to set out exactly what the Government intend to do. Our aim is to ensure that journalists operating in the UK are as safe as possible, reducing the number of attacks on, and threats issued to journalists, and ensuring that those responsible are brought to justice.

--- Later in debate ---

[Mr Davis]

Will the Minister give way?

[Bob Seely]

Will the Minister give way?

[Dr Julian Lewis (New Forest East) (Con)]

Will the Minister give way?

--- Later in debate ---

[Gareth Johnson]

I can give my right hon. Friend an assurance that we will do this as soon as the legislation is ready and as soon as parliamentary time allows it to happen.

[Bob Seely]

Will the Minister give way on that specific point?

[Gareth Johnson]

I will give way one last time, because I hope hon. Members want to hear what I have to say.

[Bob Seely]

I absolutely want to hear what the Minister has to say. Just on the oven-ready point, and I know it is a slightly over-used term in this House, we had a Bill written. There is a SLAPPs Bill that is oven-ready.

[Gareth Johnson]

I am sure that the parliamentary draftsmen will be interested in having a careful look at that. We need to get legislation right. If we do not get this legislation right—I know this is not the intention of my right hon. Friend the Member for Haltemprice and Howden—we run the danger of blocking perfectly legitimate action that is being taken against wrongdoers. We therefore need to get it right. In other jurisdictions where legislation has been brought in at haste and got wrong, it has needed to be withdrawn and amended. We do not want to repeat that in the UK.

The UK may not face the same challenges as other states, but it is clear that journalists operating here still face threats to their personal safety, largely through online abuse. We rely on journalists to hold powerful people and organisations to account for our collective good. Lawfare that targets our public watchdogs through aggressive, intimidatory tactics must be stamped out.

Russia’s shocking invasion of Ukraine brought home the urgency of Government action on strategic lawsuits against public participation—SLAPPs, as lawfare is commonly called—amid reports that hostile states could finance litigation in the UK to obstruct worthwhile investigations into corruption and other wrongdoing. We know that the Government’s decisive action on sanctions has already urged firms to review their Russian client list, mitigating threats to national security. Insurers are increasingly cautious in granting professional indemnity insurance, reflecting greater scrutiny of Russian-linked litigation.

As the House will recall, the Government published a call for evidence on SLAPPs on 17 March and their accompanying response to the call for evidence on SLAPPs on 20 July. I thank the 120 respondents to our call for evidence, who submitted evidence of the highest quality. We individually analysed each response to inform our proposals and were particularly troubled to hear the shocking impact that these cases can have on individuals’ wellbeing and livelihood. We must all be grateful to investigative journalists who report under immense financial and psychological pressure so that we, as a collective, are well informed.

The call for evidence findings have persuaded us of the need to act, although recent court cases show that the issue requires caution as SLAPPs are difficult to identify. SLAPPs present a novel challenge to free speech, so we want to be sure, before introducing legislation, that we get this right so that we deliver the outcome we all want. I want to see legislation to tackle SLAPPs, as do the Lord Chancellor and the Government. That is why we intend to bring in legislation, but we have to get it right.

There is a notable difference in legal and judicial opinion on what constitutes a SLAPP, both domestically and overseas. To rectify that, we have committed to primary legislation to enable clearer identification of SLAPPs according to common characteristics rather than a fixed definition. Those characteristics may include aggressive pre-action communications and targeting individuals where their publishers would be more appropriate.

Today, we know that defendants are intimidated by the prospect of years of litigation that require expensive legal defence. We will introduce an early dismissal process in statute that will effectively stop claimants financially and psychologically exhausting their opponents through abusive means, cutting short cases that have no merit, potentially, through a three-part test.

The crippling costs currently borne by SLAPPs defendants will be addressed through a new costs protection scheme, which will ensure that journalists and free speech advocates can litigate without fear of bankruptcy. That scheme will be introduced in secondary legislation, once the essential identifying features are set out in statute.

We intend to legislate when legislation is ready and when parliamentary time allows, given the pressing issues standing before our new Cabinet. It is appropriate that, with a new Cabinet in place, the Government take care to reassess their immediate priorities. I assure the House that the Secretary of State for Justice is exploring every legislative option, because free speech is a fundamental cornerstone of our democracy.

I note that overseas jurisdictions that have hastily introduced SLAPP legislation have later had to rectify and unpick it. I assure the House, though, that legislation is important. We continue to monitor alleged SLAPPs as they arise to inform our response and to ensure that the measures we introduce reflect the problem accurately. Stakeholder engagement is a vital part of our monitoring effort.

I will skip to the end of my speech, because I took so many interventions, but I make it clear to the House that we intend to legislate on this issue once the legislation is correct and once parliamentary time allows. As this is an Adjournment debate, it is unfortunately too short to properly discuss all the issues involved, but I hope that I have reassured the House.

Question put and agreed to.