Davis: London is the global capital of SLAPPs
MPs yesterday hit out at lobbying against the Strategic Litigation Against Public Participation Bill by the lawyers they accuse of creating the problem it aims to solve.
The comments came during the bill’s committee stage, during which various amendments were made to strengthen the bill.
In February, the government threw its support behind the private member’s bill put forward by Labour MP Wayne David, which – until yesterday – simply replicated the SLAPPs provisions of the Economic Crime and Corporate Transparency Act 2023 beyond economic crime.
During the debate, Conservative Sir David Davis, who has spearheaded parliamentary criticism of so-called lawfare, said: “It has to be said that the Ministry [of Justice] 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.”
Labour’s Aspana Begum said she remained concerned that the bill “has been drafted with too much focus on attempting to balance competing interests within the legal profession, instead of protecting public participation and the fundamental rights of free expression and access to a fair trial”.
She added: “Indeed, we know that the government have been heavily lobbied by—and, as has been mentioned, have had substantial input from—the very lawyers who bring SLAPP claims.”
The Society of Media Lawyers was formed late last year. It is made up of around 80 solicitors and barristers, many of them high-profile names in the field, who last month told the government that good lawyers would be able to circumvent the “one-sided” legislation.
Labour MP Liam Byrne expressed concern about “pre-litigation chilling action” replacing SLAPPs. He explained: “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.”
The main amendments put forward by Mr David and supported by the government delivered a key change sought by anti-SLAPP campaigners by changing how the court is to determine if a legal action can be identified as a SLAPP from a subjective to an objective test.
As originally drafted, the bill required the court to assess the claimant’s intention. The amendments mean that it will instead be a question of whether it is “reasonable to conclude” that the behaviour has, or is intended to have, the effect of restraining the defendant’s exercise of freedom of speech and also cause them harm or inconvenience beyond that “ordinarily encountered in the course of properly conducted litigation”.
Mr Freer said: “The centring of the behaviour of the claimant will ensure that it is abundantly clear to those who would use SLAPPs that they cannot act poorly and remain unchecked and unchallenged, whether that behaviour happens in the courtroom, via privately funded surveillance or a social media campaign to undermine the credibility of an author, academic or whistleblower.”
In response to a question from Labour MP Alex Cunningham, Mr Freer said the Ministry of Justice had rejected an amendment put forward by the Law Society, which supports the bill, to the clause that states a claim can be struck out if the claimant “has failed to show that it is more likely than not that the claim would succeed at trial”.
The Law Society said this represented a high threshold that a potential claimant would have to reach simply to be able to bring a claim and could restrict access to justice.
Mr Freer said: “We felt that the arguments put forward by the Law Society were not supported and that our bill created a careful balance… between claimants and defendants.”
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