End of business adjournment debate on Lawfare - Jun 29

Mr David Davis (Haltemprice and Howden) (Con)

On 20 January last year, I opened a Backbench Business debate on the use of lawfare and strategic litigation against public participation by those seeking to suppress public debate, bully people into submission and conceal vital information that is in the public interest. Free speech matters—that is a truism of our age—but why does it matter? There are many reasons, but the important one is that free speech helps keep our society clean; free of corruption, criminality and the abuse of power.

Typically, such corruption is curbed when whistleblowers expose it; when journalists and a free press report it; and when politicians or judicial authorities act on it. As such, over-mighty men and organisations that have acquired their power and money through corrupt means hate free speech, and use their wealth to suppress it. To do that, they use SLAPPs—strategic litigation against public participation.

SLAPPs are a suite of litigious techniques, used by corrupt plutocrats, that are designed to intimidate, suppress and destroy the same whistleblowers, journalists and politicians who are trying to expose malpractice. They are designed to do this even when the plutocrat has no substantive case at all. They are designed to grind down decent, honest, public-spirited people and ruin them.

Earlier this week in the House of Lords, the Government introduced the first legislative changes designed to tackle this issue of lawfare—SLAPPs. In the intervening period, the problem has been exemplified by the actions of the businessman Mohamed Amersi. I have already named this gentleman several times in the House in connection with our colleague Charlotte Leslie, who had to face two and a half years of fighting Amersi’s spurious legal claims against her. That court case was concluded in Charlotte Leslie’s favour a few weeks ago.

The judge found that Amersi’s case failed on the facts, but, importantly, he added that “several aspects” of Amersi’s conduct gave “real cause for concern” about the intent behind his legal case. Amersi delayed the start of defamation proceedings, took an

“exorbitant approach to the litigation”

and pursued an unnecessarily complex case. He also pursued a data protection claim and a defamation claim in succession rather than properly in one action, thereby spinning out the case and maximising the stress and cost on Charlotte Leslie. This was clearly an attempt to bully, intimidate and financially ruin Ms Leslie in order to suppress the truth. These are the classic characteristics of a SLAPP case, being designed to destroy free speech, not to deliver justice. The judge also noted that Amersi offered to drop his claim against Charlotte Leslie if he got his way and was given the green light to launch a rival group to Ms Leslie’s Conservative Middle East Council. This was a clear attempt to blackmail the Conservative party via a sort of judicial hostage taking.

These are all standard SLAPP tactics, which is unsurprising given that Mr Amersi was represented by Carter-Ruck, the go-to law firm for every bad actor seeking to undermine or misuse British justice. However, Carter-Ruck is not the only law firm willing to aid legal intimidation by dishonest and dishonourable means, if paid the right price. Others include CMS, Mishcon de Reya, Skadden, Taylor Wessing, Schillings and Harbottle & Lewis.

Charlotte Leslie is not alone in facing lawfare at the hands of Mr Amersi. He is also suing the BBC’s “Panorama” programme, and he has threatened The Guardian, Chatham House and Private Eye. He has also used legal threats to bully King’s College London into withdrawing a report on tax avoidance, tax evasion, economic crime and the way this has impacted on our public space and politics. The report was written in 2021 by the right hon. Member for Barking (Dame Margaret Hodge), who was a visiting professor at King’s College and is a long-standing campaigner against international corruption. The report was published in May 2022, but due to Amersi’s threats it was removed a few weeks later. This report was in the public interest, and highly relevant to our debates on the role and influence of Russian oligarchs and on the economic crime Bill, but access to it by the public, and indeed by Members, was prevented.

Why did Amersi do this? Because he did not like what was being written about him, and because our laws allow those with deep pockets to bully people, suppress negative commentary in the media and stop us holding their actions to public account—and because he is rich enough to do it. But what was it that Mr Amersi wanted to conceal with his SLAPPS? In a word, the truth—a long history of involvement in corruption, in bribery and in buying access to politicians.

Amersi is a wealthy businessman who made large sums of money in Russia, Uzbekistan, Kazakhstan and Nepal, which are all countries where corruption is rife. In 2005, Amersi made $4 million arranging the acquisition of a Russian telecoms company on behalf of a company he knew was secretly owned by a powerful Putin ally, the then Russian telecoms Minister, Leonid Reiman. He made another $1.5 million by buying and selling on a Russian telecoms venture, Komet, which was backed by a Russian general. In the UK, Amersi used his fortune to gain access to powerful people. He coined the term “access capitalism”, describing his own attempts to gain access to the royal household and Ministers, with payments to Prince Charles’s charities and the Conservative party. He and his partner gave £750,000 to the Conservative party, and he makes no bones about what he thought he was buying.

When the Pandora papers were leaked in 2021, they exposed some of the most egregious instances of corruption, economic crime and money laundering. Amersi was in the thick of it. Following the leak, a joint investigation by the BBC and The Guardian revealed that he profited from a corrupt deal involving the Swedish energy company Telia, and a high-profile kleptocrat in Uzbekistan. Most of the investigation relied on court documents, and a settlement reached between the Telia and the US Department of Justice, following a four-year investigation into that company’s activities. A leaked internal company report described the activities of a consultant called “Mr XY”, who it transpires is Mohamed Amersi. It said that some of the payments to Amersi

“may have been utilised to improperly acquire regulatory benefits and/or secure the go-ahead of the transaction.”

The report recommended that Telia sack him. That is not surprising, given that Telia’s former chief compliance officer said that he had been

“involved in one of the biggest corruption scandals that we have seen in Sweden.”

Amersi helped to facilitate a $220 million purchase of shares from a shell company owned by the daughter of the Uzbek President at the time. That share purchase was in fact a concealed bribe—that was the clear view of the US Department of Justice. Mr Amersi pocketed a $500,000 million “success fee” following the deal. He claims he was employed by Telia, at a rate of $10 million a year, for his advanced skills and aptitude for negotiating. Despite those apparent skills, he claims not to have realised that a financial arrangement he helped design facilitated a multimillion dollar bribe. Either he knew it was a bribe, or he was extremely naive and therefore grossly overpaid. I know my view, but I will leave the public to decide theirs.

This is precisely why the right hon. Member for Barking wrote about Mr Amersi in her report last year. This story had already been reported in The Guardian and the BBC, and this is the first paragraph that he wanted removed from the right hon. Lady’s paper— I will quote exactly:

“The figures behind the [Pandora] leak are mind-boggling, and the documents contain many scandalous stories which really confirm how utterly awful the abuse of offshore has become. The papers bring to light how Conservative Party donor, Mohamed Amersi, allegedly used BVI-based companies to profit from apparently corrupt deals between a Swedish telecoms giant and a key power broker in the kleptocratic regime in Uzbekistan. They reveal the offshore structures deployed by Putin’s inner circle of oligarchs and allies to buy million-dollar properties along the Monaco seafront. They demonstrate that money flows into onshore tax havens, such as US states like South Dakota, where there is around $360 billion hidden in secret trusts, including money that could have been derived from corrupt regimes or criminal activities.”

This is the second paragraph that he wanted removed:

“Comments from Mohamed Amersi, a Kenyan-born telecoms millionaire who, as previously discussed, was named in the Pandora Papers, seems to confirm that political donations can have a sinister purpose, after he described his frustrations at what he called ‘access capitalism’. Amersi previously admitted to buying access to Prince Charles and he has also donated £750,000 to the Conservative Party since 2017. He claims to have paid £250,000 to become a member of the party’s ‘Advisory Board’ which has regular meetings with Boris Johnson and leading Cabinet members, and claims that he was promised the chairmanship of a new body, the Conservative Friends of the Middle East and North Africa, a promise that has yet to materialise. The role would have given him significant power and influence as he would have acted as a link between Governments in the region and British Ministers. Amersi is now mired in an international corruption scandal.”

The report of the right hon. Member for Barking, “Losing our moral compass” was about illicit finance and its corrosive impact. It summarised and analysed the features of many corruption cases in the public domain. It was a well-researched and argued paper, designed to inform public debate and written to show how dirty money threatens the integrity of our economy and our political institutions. Ironically, what followed illustrates how right she was.

Within days of the report being published, King’s College and the right hon. Member received legal threats. Through his lawyers at Carter-Ruck, Amersi branded the report highly defamatory. He demanded an apology and that the passages referring to him be either changed or entirely removed. Amersi bullied King’s College into removing the paper. As notional defenders of academic freedom, it should have stood up to him, but it capitulated in the face of his threats. His threat effectively silenced the right hon. Member and suppressed her vital work exposing economic crime and dirty money.

We know that Amersi is no stranger to using his financial might to get what he wants. He has previously paid to meet senior members of the royal family, but organisations such as the Conservative party and Buckingham Palace take serious reputational risks in associating with people like Amersi. His attempts to remove important information from public view are a textbook example of strategic litigation against public participation. They are clearly an exercise in lawfare.

We have an individual with deep pockets who can use British lawyers and courts to suppress the publication of information that is clearly in the public interest. It is done in the knowledge that lengthy legal battles will likely bankrupt politicians, journalists, academic institutions, whistleblowers and others who are brave enough to tell the truth about public corruption. Amersi, like many oligarchs with huge wealth of doubtful origin, is in the business of silencing people. His actions are an example of how the rich and powerful can silence anyone who criticises them. The kleptocrats, oligarchs and bad actors do not care if that means stifling free speech or public debate. Now they are even prepared to try to silence elected Members of Parliament and to block the publication of information that is plainly in the public interest.

We find ourselves in a dangerous situation, where the abuse of the legal system is now damaging the very core of our democracy. The cases faced by the right hon. Member for Barking and Charlotte Leslie serve as a glaring example of that. It is to the disadvantage of the whole country when public interest investigations by Tom Burgis, HarperCollins, Catherine Belton, Eliot Higgins, openDemocracy, Oliver Bullough and the Bureau of Investigative Journalism are shut down. Fortunately, the Government responded quickly to our debates on this issue last January. They almost immediately held a major consultation, which resulted in proposals for reform. On Tuesday this week, they introduced the first anti-SLAPP measures in the Economic Crime and Corporate Transparency Bill, which is currently making its way through Parliament.

The measures will empower the courts to strike out SLAPPs before trial. They will also prevent courts from ordering defendants to pay claimants’ costs in relation to a SLAPP claim, unless misconduct by the defendants justifies that. Once a claim is deemed to be a SLAPP, the burden will be on the claimant to prove that their claim is more likely than not to succeed. If not, the claim can be struck out. This is a welcome reversal of the burden of proof. Taken together, these measures are a great win for those looking to shine a spotlight on economic crime and speak truth to power, but we must go further.

As things stand, the measures only apply to economic crimes. Approximately 70% of the crimes listed in April 2022 in the Foreign Policy Centre report were connected to financial crime and corruption, but SLAPPs have also been used to silence reporting on human rights abuses, labour practices, regulatory non-compliance and an array of other abuses that do not relate to economic crime. To be truly effective, we must broaden anti-SLAPP provisions so that they apply to all defamation lawsuits, because ultimately we want to ensure that people such as Wagner’s chief, Yevgeny Prigozhin, who has been in the news this week, are not able to silence and intimidate journalists, as he did to a Bellingcat reporter earlier this year. I welcome the commitment from Lord Bellamy on Tuesday that the Government will complete

“the jigsaw as soon as a suitable legislative vehicle appears.”—[Official Report, House of Lords, 27 June 2023; Vol. 831, c. 629.]

The issue will not end with reforms to defamation law. Data protection law and subject access requests are becoming yet another weapon for bullying people into silence. We also need proper regulation of private investigators, who in many instances have enabled SLAPPs through intrusive and often illegal surveillance or hacking. Justice Nicklin said that the tactic that Amersi’s lawyers used against Charlotte Leslie—that of bringing separate claims in succession—

“can be a hallmark of abusive conduct”.

I think he was being delicate in that reference to SLAPPs.

We could improve the Government’s proposals by allowing the courts to make the law firms and solicitors involved in SLAPPs pay the cost to the public purse, and so take the fight directly to those who enable SLAPPs. The London lawyers I listed earlier—Carter-Ruck and the rest—have designed a litany of tactics not to promote justice, but to suppress truth; not to protect reputations, but to silence legitimate criticism; not to ensure accountability, but to cover up corruption. That behaviour should not go unpunished. They should be made to meet the costs of wasting the courts’ time.

Our legal system is a source of pride. Britain is home to some of the fairest and best courts in the world. We cannot allow individuals with deep pockets and questionable motives to exploit our justice system and destroy our reputation as a trusted jurisdiction. Expanding anti-SLAPP measures will put an end to this perversion of our legal system that seeks to intimidate, threaten, and suppress British journalists, academics, civil society, and sitting Members of Parliament. We have made good progress, but if we fail to understand the magnitude of this issue and to fully address this problem, then, as the right hon. Member for Barking stated in her report, we are truly at risk of losing our moral compass.

5.21pm
The Parliamentary Under-Secretary of State for Justice (Mike Freer)

I thank my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) for securing this important debate. It gives me an opportunity to restate the Government’s commitment to freedom of speech and the protection of journalists. First, let me emphasise that investigative journalism is a central plank of 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. Our aim is to ensure that journalists operating in the UK are as safe as possible, to reduce the number of attacks on and threats issued to journalists, and to ensure that those responsible for such action are brought to justice.

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. As we rely on journalists to hold powerful actors to account for our collective good, lawfare that targets our public watchdogs through aggressive, intimidatory tactics must be stamped out.

Russia’s invasion of Ukraine brought home the urgent need for Government action on strategic lawsuits against public participation, as my right hon. Friend has laid out clearly. SLAPPs are an increasingly common lawfare tactic, and there are reports that hostile states could finance litigation in the UK to obstruct worthwhile investigations into corruption and other wrongdoing, as my right hon. Friend has set out many times. We know that the Government’s decisive action on sanctions has already urged firms to review their Russian client list, and mitigated threats to national security. Insurers are increasingly cautious about granting professional indemnity insurance, and that reflects the fact that there is greater scrutiny of Russian-linked litigation.

As this House will recall, the Government published a call for evidence on SLAPPs in 2022. I thank the 120 respondents, who submitted evidence of the highest quality. Through that invaluable evidence and a series of stakeholder engagement roundtables, we heard the shocking impact that these cases can have on the wellbeing and livelihood of investigative journalists who report under immense financial and psychological pressure so that we, as a collective, are well informed. They must be protected so that they are able to continue their valuable work. SLAPPs present a novel challenge to free speech and we are immensely grateful to the call for evidence respondents for helping to ensure that we get this right and deliver the outcome we want to see.

Free speech is a fundamental cornerstone of our democracy, so I am pleased to confirm that the Government have acted decisively to legislate, tabling amendments to the Economic Crime and Corporate Transparency Bill, which introduce measures to tackle SLAPPs related to economic crime. The Government still intend to introduce comprehensive anti-SLAPPs legislation when parliamentary time allows. If I may, I might gently suggest that my right hon. Friend applies for a private Member’s Bill. A Government legislative vehicle may take some time to appear, so a private Member’s Bill in the next Session might be suitable lighter codicil for this particular piece of legislation. We intend to go further, but we believe that the measures we have introduced will catch the majority of SLAPPs. At least 70% of the cases referenced in a 2022 report about SLAPPs and article 19 by the Foreign Policy Centre were connected to financial crime and corruption. The provisions should therefore target a significant proportion of cases.

Recent court cases have shown that SLAPPs are difficult to identify and there is a notable difference in legal and judicial opinion on what constitutes a SLAPP, both domestically and overseas. To rectify that, we have introduced a statutory definition to enable clearer identification of SLAPPs related to economic crime, according to common characteristics. Those characteristics may include aggressive pre-action communications and targeting of 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 have therefore introduced an early dismissal process which will effectively stop claimants from financially and psychologically exhausting their opponents via abusive means, cutting short cases which have no merit.

With respect to economic crime, no longer will claimants be able to suppress legitimate investigation into and reporting on matters of public interest by bringing baseless claims. The crippling costs currently borne by SLAPPs defendants will be addressed through a new costs protection regime, which will ensure that journalists and free speech advocates are able to litigate without fear of bankruptcy. The regime will be introduced in secondary legislation, once the principles are set out in statute. The regime will frustrate a central plank of SLAPP claims: the weaponisation of costs.

In addition, stakeholder engagement continues to be a vital part of our monitoring effort to ensure that the Government’s response to the issue of SLAPPs is appropriate and effective. We are working closely with the Solicitors Regulation Authority, which should be applauded for its action on SLAPPs. In February, it published a thematic review of the behaviour in disputes of 25 law firms suspected of SLAPP activity, a deep dive into conduct that may breach ethical or regulatory duties. It also issued, in March, additional guidance on conduct in disputes. This shows that our system of regulation is adapting at pace to novel challenges.

I must underline that the vast majority of legal professionals operating in this jurisdiction do so with utmost integrity and regard for the rule of law. Therefore, it is vital to protect the integrity of our legal system and our judiciary from the reputational risk that SLAPPs pose.

Our common law system is world-renowned, precisely because of the quality of the practitioners and procedures that we use. It must remain that way. The importance we place on access to justice and an independent judiciary naturally leads to foreign litigants choosing to do business in our courts, but we must not, and will not, allow the process and procedures to be abused for most improper purposes. That must be stopped, as my right hon. Friend laid out, including attempts to conceal economic crime.

I thank my right hon. Friend for continuing to champion this critical issue, and our stakeholders who have tirelessly campaigned against abuse of the legal system. I would like to end by repeating his own words. He said:

“Our legal system is a source of pride. Britain is home to some of the fairest and best courts in the world. We cannot allow individuals with deep pockets and questionable motives to exploit our justice system and destroy our reputation as a trusted jurisdiction.”

The Government could not have put it better.

Question put and agreed to.