Nusrat Ghani Deputy Speaker and Chairman of Ways and Means
Before the debate begins, I remind the House of the application of the sub judice rule. It is extremely important that we respect the function of the courts. It is also important that we are able to discuss important matters. In civil cases, which are the subject of this debate, the rule applies only when arrangements for a hearing have been made; for appeals, it applies when an application for leave to appeal has been made. I note that the motion refers to matters that do not reach the courts. In such cases, the sub judice rule does not apply. I remind Members that they should not refer to cases if they are aware that arrangements for a hearing have been made, as the sub judice rule does then apply.
Lloyd Hatton Labour, South Dorset
I beg to move,
That this House
recognises the impact of Strategic Lawsuits Against Public Participation (SLAPPs) on the publication of stories in the public interest;
acknowledges that most cases of SLAPPs do not reach the courts, but are blocked or changed at an earlier, unseen stage;
further recognises the importance of disclosing suppressed stories under parliamentary privilege in order to highlight the broader impact of legal threats on free speech;
further acknowledges efforts made to tackle SLAPPs through the Economic Crime and Transparency Act 2023; and calls on the Government to introduce comprehensive anti-SLAPP legislation that provides swift dismissal of such cases, protects those targeted from prohibitive legal costs, and ensures that SLAPP filers face significant financial deterrents.
I start by thanking the Backbench Business Committee for speedily granting this important debate. I also thank my hon. Friend Joe Powell, who has long campaigned on this issue and worked closely with me to secure today’s debate.
I open this debate by outlining the nature of the problem that we face in our legal system. SLAPPs are considered an abuse of the legal process—an abuse in which the primary objective is to harass, intimidate, and financially and psychologically exhaust one’s opponents via improper and costly legal intervention.
SLAPPs are just another name for lawfare, legal threats, intimidation or—simply put—bullying, and this form of bullying has been going on for years; however, it is a tool that is available only to those with deep pockets. Too often, wealthy individuals, white-collar criminals, oligarchs and kleptocrats use their financial might to muzzle free speech, launder their own reputation, and prevent journalists, whistleblowers and campaigners from shining a light on corruption or foul play. Those who seek to challenge these powerful individuals face the prospect of bankruptcy if they choose to engage in legal proceedings. In that way, a select few can abuse our legal system to evade scrutiny and stop important information ever reaching the public.
My constituents in South Dorset certainly do not have the means or motive to envisage engaging in such bullying tactics, but it is my constituents, and the public at large, who pay the price. Legal intimidation is routinely used to silence public participation. As a consequence, important investigations that are in the public interest are blocked from ever seeing the light of day. Why are we allowing our legal system to be hijacked in that way? These legal threats effectively stifle debate around a wide range of issues of significant public interest. They often significantly alter or even prevent the publication of information. In doing so, I fear they shield misconduct and conceal wrongdoing in such a way that the powerful individuals behind the legal threats, and those who are hiding from scrutiny, can get away scot-free.
This foul play is simply unacceptable. What matters here is not just the subject matter of the information that has been suppressed but the manner in which journalists, campaigners and whistleblowers have been silenced. In most cases, the stories have been legally challenged long before they ever reach the courts. Through endless aggressive and intimidating legal letters, powerful actors are able to delay, and often halt entirely, the publication of a story. Such bullying tactics can even derail or shut down investigations at an earlier stage, and often result in our news outlets and journalists self-censoring.
In order that the House might better understand the current legal mess in which we find ourselves, I will use parliamentary privilege to describe a number of stories that have become silent stories. I will first talk about one SLAPP case of acute and enduring public interest. Professor Kristian Lasslett, a professor of criminology at Ulster University, wrote an article for openDemocracy raising concerns about a construction project worth around half a billion dollars that was under development in Uzbekistan. His research probed exactly why the project was costing hundreds of millions of dollars, and he raised concerns about the due diligence procedures of Government officials, questioning links between the property developers and a family sanctioned for corruption.
Lasslett’s article focused on the links between the developers in question and a family known as the Guptas, who have been accused of systemic corruption in South Africa—corruption so severe that members of the family were slapped with sanctions by both the United Kingdom and the United States. It is clear to me that the activities of the Guptas are of significant national and international public interest because of their position on those sanctions lists. Lasslett also uncovered documents that seemed to show that the proposal document for the development was substantially plagiarised, raising concerns about both the integrity of the project and the procurement checks performed by the Uzbek Government. In a country that is widely criticised by reputable news outlets and civil society for widespread corruption, this story speaks directly to the challenges that the Uzbek people face in holding their elected officials to account.
Importantly, the company’s ties to the Gupta family raise questions about the provenance of the huge sum of money used to fund the project. The findings may point to attempts by the Guptas, through their associates, to integrate their ill-gotten wealth into the Uzbek economy. The public interest merits of the investigation are, in my view, undeniable, but the story was never published. The information that it contains, linking potential procurement corruption to the looting of billions of dollars from South Africa’s state coffers, was effectively blocked. The Uzbek people were deprived of information that speaks directly to their Government’s propriety in the award of enormous contracts.
The story was silenced in a way that follows a pattern that I am sure is all too familiar to Members present. Lasslett received a legal letter from a boutique law firm on behalf of the developers. The lawyers’ letter provided some meaningful factual information, but tried to obfuscate important issues and outright denied any “relationship, business or otherwise” between the developers and the Gupta family, despite clear evidence to the contrary. Now, openDemocracy routinely faces legal threats, but following the correspondence a decision was made that the benefits of publishing the story would be outweighed by the time and financial expense of facing down a deep-pocketed litigant. The media outlet decided against running the story, despite believing in its credibility and appreciating the public interest in asking questions about a country mired in decades of corruption allegations at the highest level.
When even a highly respected academic with extensive expertise and a reputable news outlet decide to censor themselves following legal intimidation, we can only wonder what other cases of egregious misconduct have been uncovered only then to remain hidden—but we need not wonder for too long. Occasionally, public interest stories threatened with legal action have still found their way into the public domain—for instance, the investigation into the tax arrangements of the former Chancellor Nadhim Zahawi, which later partly contributed to his dismissal. Dan Neidle, a tax lawyer, researcher and commentator, had been investigating the then Chancellor’s financial ties to the data firm YouGov. There were concerns about whether Zahawi was benefiting from tax codes that he had had a hand in shaping. In a lengthy and detailed thread on Twitter, setting out his evidence, Neidle alleged that Zahawi had avoided almost £4 million of capital gains tax.
In response, Zahawi’s lawyers sent Neidle two letters, which not only asked him to retract his accusation by the end of the day but suggested that it would be a “serious matter” if he published the legal letters. Neidle did not submit to those threats. Instead, he set out his research findings, and the conclusions that he drew, in more detail. Moreover, believing that the assertions of confidentiality were false, and that the letters were rather an attempt to intimidate him, Neidle chose to publish the letters, and drew the public’s attention to the use of legal threats to silence research. After he went public, Neidle reported hearing from many others who had been intimidated in a similar way. He stated:
“Silence is integral to the SLAPP strategy. A small-time blogger says something you don’t like. You get your lawyers to write them a letter warning them off. The blogger deletes their blog, and nobody has any idea what happened”.
It is not just the odd former politician who uses legal threats to avoid scrutiny. Sadly, Britain has become a go-to destination for lawfare tactics. Our courts have become the playground of the super-wealthy. The UK is by far the most frequent country of origin for SLAPPs. According to the UK Anti-SLAPP Coalition, around 31% of lawfare cases originate from here. We are almost as frequent a source as the European Union and the United States put together. London is an international hotspot, with lawfare tourists travelling from far and wide to get in on the action. Aside from the powerful individuals and entities directly benefiting from the protection afforded by such threats, sending legal letters is also a lucrative business for the lawyers who write them. The legal professionals who knowingly engage in this abuse of the legal process are the product of a culture in which client choice is based on profit over professional ethics.
The Solicitors Regulation Authority, which is tasked with holding the profession to high standards, is not equipped with the right tools to hold lawyers to account. Of the 71 SLAPPs reported to the SRA over the past two years, 23 cases were closed with no further action, and of the 48 remaining live, only two were ever referred to a disciplinary tribunal. What is more, the financial penalties at the regulator’s disposal fail to match the deep pockets of the individuals and law firms that engage in these tactics. The SRA has a paltry fining power of just £25,000 for traditional law firms, which pales in comparison with the firms’ resources. In effect, the fines are likely priced in by the offending law firms.
At present, we simply do not have a proper deterrent, or the ability to impose real financial penalties on the lawyers and firms that knowingly engage in legal intimidation. Our legal framework also fails the minority of lawfare cases that eventually make it to the courts, meaning that those legal cases cannot be thrown out by a judge at an early stage.
I welcome the measures enacted by the recent Economic Crime and Corporate Transparency Act 2023 that ensured that cases of legal intimidation that relate to economic crime can be tackled. However, as we have heard in past debates in both Houses, those measures do not go far enough. We urgently need to update our legal framework to ensure that all SLAPP cases that reach the courts can be thrown out at an early stage if a judge deems it appropriate. Only then can we level the playing field and ensure that those with deep pockets are fairly scrutinised, just like everyone else.
I pay tribute to the former hon. Member for Caerphilly, who brought forward a private Member’s Bill that sought to fill this gap in our legal framework. His Bill was due to come back to the House when the general election was called, so it sadly went no further. We can re-examine much of that Bill as we seek to tackle the lawfare scandal engulfing our country. We urgently need to take seriously the risk that legal threats pose to the health of our public debate. I know the Government will listen to the powerful stories brought to light today and will seek to answer our concerns about the inadequacy of our regulatory and legislative framework. I look forward to hearing from the Government exactly how we can challenge the scourge of lawfare once and for all. We are surrounded by silent stories—it is high time they were heard.
John Whittingdale
I thank Lloyd Hatton for obtaining the debate, which is on an important subject. I chaired the all-party parliamentary group on media freedom, and am delighted to see the vice-chair, Joe Powell, attending the debate.
The UK has a proud record of defending and promoting media freedom in this country and across the world. In 2019, the UK established the global Media Freedom Coalition, which now has 51 members. During my time of involvement in the media, which goes back quite a long way, I always paid careful attention to the annual publication of the world press freedom index. I am pleased that the UK’s ranking has risen substantially in recent years. We now stand at No. 23—still some way to go, but nevertheless an improvement. The reason we have improved is that a lot of other countries have gotten considerably worse, so we have risen as a result of their demotion.
The hon. Member for South Dorset is right that the phenomenon of SLAPPs has been a blot on our record for a considerable time. I chaired the Culture, Media and Sport Committee for 10 years. In 2009, we carried out an inquiry into press standards, privacy and libel. In particular, we saw the phenomenon of libel tourism, which, to some extent, continues to this day.
We heard about, for instance, the case of Dr Rachel Ehrenfeld, a US academic who had written the book “Funding Evil: How Terrorism is Financed and How to Stop It”. The book appeared in the United States; it had no British edition. Twenty-three copies were obtained in the United Kingdom by ordering over the internet. Despite that, a Saudi businessman named in the book took legal action against Dr Ehrenfeld in the UK courts. He was awarded considerable damages on the basis that Dr Ehrenfeld did not defend the action in a court that she saw as having no jurisdiction over the matter. That led to the introduction of the Libel Terrorism Protection Act 2008 by the New York state legislature, which basically said that residents of New York did not have to abide by foreign courts’ judgments in this particular area. Since that time, the situation has much improved and, of course, the Defamation Act 2013 sought to address the specific issue of libel tourism and raised the bar for claimants in libel cases. Nevertheless, there has still been a chilling effect.
We also heard from the author Tom Bower, who was subject to a legal action over a very small reference to Richard Desmond in his book about Conrad Black. Mr Desmond lost the action, but was prepared to pay a huge amount to bring it about. Certainly, it was Mr Bower’s view that he did so to demonstrate that he was willing to spend a large amount even on a small and relatively minor accusation. The result was that Mr Bower’s plans to write a book about Mr Desmond did not proceed because the publishers were too afraid of potential legal action.
As the hon. Member for South Dorset recognised, further measures since the Defamation Act 2013 have been introduced, primarily through the Economic Crime and Corporate Transparency Act 2023, which focused specifically on the issue of SLAPPs around economic crime or allegations. When I returned to the position of Minister responsible for the media—in my second incarnation—we were nevertheless aware that it remained a problem. The Department for Culture, Media and Sport had established the National Committee for the Safety of Journalists, which I hope is still in existence. The committee was originally set up to look at the physical threat to journalists and attempts to intimidate them through harassment—sometimes online but occasionally through physical aggression—and a lot of work was done on it. We then agreed that the issue of SLAPPs represented an attempt to prevent media freedom and to close down legitimate public interest journalism, so the committee extended its work to cover SLAPPs.
I remember that we heard from Catherine Belton, the author of “Putin’s People”, and Tom Burgis, who wrote “Kleptopia”, both of which revealed corruption, in one case on the part of an ally of President Putin in Russia and, in the other, on the part of some individuals in Kazakhstan. Both were subject to legal action against them personally as well as against their publishers.
Perhaps the most appalling example, which was debated in this House at length, was the discovery that Yevgeny Prigozhin, the founder and leader of the Wagner Group, had been allowed to circumvent the sanctions placed on him to bring a legal action against the director of Bellingcat, who had rightly identified him as the leader of the Wagner Group. That was a scandal, and I am glad to say that the decision was subsequently reversed. Again, it was interesting that somebody as notorious as that had chosen to bring an action in the UK.
The hon. Member for South Dorset suggested that it is a matter of shame that the UK is seen as the centre for such actions, and I share his concern to some extent. It is also a tribute to the strength and independence of the UK judicial system, which is admired around the world. The reason why so many people wish to pursue actions in the UK courts is normally that they have greater confidence in UK courts than those in many other places. It is right that we should take action where the motivation behind those actions is more to do with preventing legitimate inquiry.
As I say, the DCMS National Committee for the Safety of Journalists established a SLAPPs taskforce in 2023—I think that was in my third incarnation in government with responsibility for the media. The taskforce brought together Departments, such as DCMS and the Ministry of Justice, representatives of campaigning organisations, such as Reporters Without Borders and Index on Censorship, and publishers and journalists, including the News Media Association and the National Union of Journalists. The taskforce was chaired by Janis Makarewich-Hall, the excellent DCMS official. Its initial meeting was attended by the then Secretary of State Lucy Frazer, and I attended as many meetings as I could. That led to a lot of work on trying to understand the prevalence of SLAPPs, producing guidance for journalists, examining the legal ethics and what more might be done—both by the Solicitors Regulation Authority and the Bar Standards Board—to ensure that law firms did not take on cases for which there was no real justification other than an attempt to shut down journalism, and raising awareness. Four meetings of that taskforce took place—I do not know whether it still exists, but I very much hope that it does. I would be interested to hear what work has continued under this Government, as a lot was done under the last.
As the hon. Member for South Dorset rightly recognised, Wayne David introduced a Bill that was prepared in government to tackle the issue of SLAPPs, and it was amended during its passage to strengthen it. It reached the House of Lords but it did not reach the statute book because of the general election. A lot of work has been done, and I hope that we can build on and learn from it.
The Bureau of Investigative Journalism has sent a number of cases as examples of SLAPPs—the hon. Gentleman quoted one of them. I do not want to use privilege to cite individual cases, but there is concern that it is happening in a number of areas, and we need to address it through legislative change. At the same time, it is important to recognise that individuals have a right to defend themselves against untrue and unfounded accusations. That is as much a fundamental part of liberty as freedom of speech. Not all cases claimed to be SLAPPs are SLAPPs, in my view—particularly those in which the claimant has subsequently proved successful in the action that they have brought in the court. That almost disproves the claim that it was a SLAPP to begin with, so we do need to be careful.
I have also had correspondence from the Society of Media Lawyers, which suggested that there is a lack of empirical evidence and that campaigners ignore existing legal and regulatory tools. It also suggested that this is an area that the Law Commission should perhaps review, but I have a concern that such a review is a way of pushing the matter into very long grass and would unnecessarily delay measures on which a great deal of work has already been done. Rather than doing that, I urge the Government to consider the work done in DCMS and the Ministry of Justice, and in particular the debates that took place during the Committee stage of Wayne David’s private Member’s Bill, and to introduce legislation to deal with the chilling of media freedom in the UK, which I absolutely recognise is a legitimate concern.
To watch the full clip of Sir John’s speech please click on the video link below:
