In depth: King's speech - SLAPPs legislation languishes

In December last year Labour MP Wayne David introduced a private member’s bill, the Strategic Litigation Against Public Participation Bill. His proposed measure rode a wave of growing concern about what he called ‘the misuse of litigation to suppress freedom of speech’. In February this year, the Conservative government threw its weight behind the measure, which would create a statutory dismissal process for claims classified as SLAPPs. ‘We want people to feel confident standing up to the corrupt, knowing the law is firmly on their side,’ then lord chancellor Alex Chalk told parliament.

All appeared set fair for the measure to reach the statute book – until May, when the general election was called. The bill, at committee stage in the Commons, failed to survive the washup of parliamentary business. And this week, prospects for legislation were shunted into the future when the issue of SLAPPs failed to get a mention in the new government’s programme.

Campaigners for an anti-SLAPP law said they were disappointed by the omission, especially given the cross-party support for reform and the progress already made on the bill.

‘While in opposition Labour supported reform, but now they are in the position to bring forward protections for free expression they cannot shrink from the challenge,’ said Nik Williams of Index on Censorship, a member of the UK Anti-SLAPP Coalition.

Coalition co-chair Susan Coughtrie added: ‘This could have been a relatively “easy win” not only for the new government, but for the protection of public interest speech and the democratic health of our society.’

But the Society of Media Lawyers, which represents top litigation firms, took a very different view.

‘I was pleased to see that no attempt was made to revive the SLAPP Bill in the King’s speech,’ said society vice-president Iain Wilson, partner at Brett Wilson. ‘The bill was rushed into parliament following intensive media lobbying and was plainly incompatible with articles 6 and 8 of the European Convention on Human Rights. While no one wants to see our legal system abused, much of the campaigning has been a thinly veiled wholesale attack on the law of defamation and privacy.’

Opponents of legislation can point to several developments since SLAPPs became a hot political issue. One is the diminishing number of Russian oligarchs appearing before the courts. Another is the passage of anti-SLAPP legislation through the Economic Crime and Corporate Transparency Act, albeit only in the context of economic crime.

The Solicitors Regulation Authority is also scrutinising the way practitioners pursue actions that might be deemed SLAPPs. A possible indicator of future developments was the £15,000 fine and £66,500 costs order imposed this month by the Solicitors Disciplinary Tribunal on Philip Julian Paul Hyland, a solicitor accused by the SRA of improperly threatening legal proceedings concerned with a Covid-19 vaccine. (Written judgment in this case has yet to be published and the finding is open to appeal.)

And, just this month, the court showed it has the tools under the Civil Procedure Rules to dispose of cases unlikely to succeed. While the case fell short of any definition of SLAPP, His Honour Judge Lewis granted the Daily Mail’s application to strike out a claim brought by green energy entrepreneur Dale Vince for £100,000 damages over an article about Labour party donors. The case turned on whether the ‘reasonable reader’ would go beyond a sensationalist headline and take in an article as a whole. Finding that this principle was well established in case law, the judge ruled the claim bound to fail.

Campaigners for an anti-SLAPP law have vowed to fight on. In the current political climate, any such effort is more likely to focus on the issue of SLAPPs against environmental campaigners than popular newspapers. For the Anti-SLAPPs Coalition, Coughtrie noted that before the election, David Lammy had described stopping SLAPPs as a key part of Labour’s strategy to tackle dirty money in the UK. ‘It’s time to put words into action,’ she said.

Lammy, now foreign secretary, was also cited in Wilson’s response. ‘Prior to the election, David Lammy indicated a desire to work with the Law Society and Law Commission when considering this issue,’ he said. ‘This is to be welcomed. We hope that Mr Lammy’s words are indicative of a more considered approach by the new government, rather than the kowtowing to the media we saw in the last parliament.’