Susan Coughtrie, Catrin Evans KC and Professor Chris Frost.

Q1 The Chair: This is the Communications and Digital Select Committee of the House of Lords. I should just say for the benefit of those of you in the Room and, indeed, to Professor Frost, who is joining us by Zoom, that we are now transmitting live on the internet and a transcript will be taken and published in due course.

By way of introduction myself, this is a one-off session on SLAPPs or, to give them their full description, strategic litigation against public participation. It is a hearing in two parts. We have two panels today, the people who are joining us first and then we will have the Solicitors Regulation Authority later.

We last looked at this as a committee in March last year and that was because SLAPPs came to public attention around about that time when it became apparent that this was a practice that Russian oligarchs were involving themselves in. In the course of the hearing that we had in March last year, we established that the use of SLAPPs, and the practice of them by those who had received media attention, only represented the tip of the iceberg and that this was a widespread problem of what we might describe as very aggressive legal action against legitimate public scrutiny.

Around about the same time as we had that hearing, the Government opened a consultation and later last year they set out some proposals as a result of that. One was a definition of SLAPPs, which is not something that currently exists. They proposed a three-part test that would allow for a statutory early dismissal process to throw illegitimate claims out. They also proposed a capping of costs. So far the Government have not come forward with a timetable for legislative change, although the economic crime Bill, which is currently before Parliament, does remove the cap from SRA fines on law firms as it relates to economic-type cases, if I can put it that way.

The purpose of this session today is to get an update, first of all from those who can speak for people on the receiving end of SLAPPs—if I can describe the first panel in such a way—and then we will hear from the Solicitors Regulation Authority about the action that it has taken in the year that has passed to ensure that lawyers and law firms are not aiding and abetting clients who seek to avoid legitimate public scrutiny. Can I ask the witnesses to introduce themselves very briefly? I will start with the two who are in the room.

Susan Coughtrie: I am director of the Foreign Policy Centre. I am also one of the co-chairs of the UK Anti-SLAPP Coalition.

Catrin Evans: I am King’s Counsel and barrister at Matrix Chambers and I specialise in media and information law.

Professor Chris Frost: I am a member of the National Union of Journalists and I serve on the national executive council. I am also chair of the union’s ethics council and I have written a number of books on journalism ethics.

The Chair: Thank you very much. I am very grateful to Professor Frost for joining us and doing so at the last moment. We had hoped that the director-general of the NUJ would be able to be here, but she is suddenly not available so we are very grateful to Professor Frost for stepping in.

Before we get going, one final thing for me to say is to remind everybody of Parliament’s sub judice requirements. That is that, if there are any live cases that are currently before a UK court, we should not be discussing those at this time. With that, I will hand over to the Lord Bishop.

Q2 The Lord Bishop of Worcester: Following on from the Chair’s excellent introduction, there has been a mixed response to the Government’s proposals. How would you evaluate them? I will start with Catrin Evans.

Catrin Evans: The proposal that we have seen for legislation is good and welcome. I am saying that with a practitioner’s hat on but also as somebody who does a lot of work for media defendants, so I understand the desire to do something about the SLAPPs problem. However, the devil is in the detail on this and we do not have any detail. The Chair has referred, of course, to the three-part test or criteria that the Government’s document has indicated will form the basis of achieving the objective of creating some legislation, but it raises more questions at the moment than it answers.

This is such a complex area of law because of the way that it will interface with current law that is already in existence, such as defamation and privacy, not to mention all the procedural regulations that are already in place. It will take a lot of clever thinking to produce meaningful guidelines and criteria that the judiciary can get their heads around, that practitioners can use, and that would avoid endless years of litigation as to what the legislation means. I am certainly not saying that it is not possible.

I can come back and explain in more detail—perhaps after Susan has answered the question, too—about what I would criticise regarding the generality that has been presented so far. I understand that they are working on the detail. However, without the detail it is very difficult to evaluate whether it will achieve what it wants to achieve.

Susan Coughtrie: The UK Anti-SLAPP Coalition welcomed the announcement that there would be primary and secondary legislation in July. We saw the three-part test framework as something that would have potential to provide meaningful protection, but it definitely needs to be fleshed out. Since then, the Government have not released any more details as to what that might look like, nor a timeline for bringing it forward for reform.

In the interim period, the UK Anti-SLAPP Coalition, very much in partnership with media lawyers, has produced a model UK anti-SLAPP law, which we published in November. It was also supported and endorsed by over 70 editors, academics, media lawyers, journalists and others in an open letter to Dominic Raab and the Ministry of Justice in November. We do not see this as a complete starting point because, as you may be aware, anti-SLAPP legislation is already in existence in other jurisdictions and we have taken learnings from that. Of course, it has to be applied in a UK-specific context but we did not see that by any means as a starting from scratch operation.

With regard to the point about pre-existing law, we found that this is quite a good approach because it does not involve going in and messing about with existing legislation. Rather, this is bringing in something that would act as an early dismissal mechanism and would apply whatever law is used for the purpose of a SLAPP. That could be defamation. That could be privacy. It could be GDPR or others. We see it as quite a neat solution rather than trying to re-open other legislative vehicles.

Professor Chris Frost: I think that I will be repeating some of what has been said, but it is important that I put it on the record from the NUJ. We have been very concerned about SLAPPs for some time now and have seen a number of very significant cases where journalists have been bankrupted or have been threatened into dropping stories that, frankly, should have been published in the public interest.

We welcomed the consultation and we largely welcome the Government’s response to it, but it is just a start and, as someone else has already said, it is a question of the devil being in the detail. Until we know precisely what it is that the Government are proposing, while the general theme of what they are saying is very welcome, we cannot comment very much further. The NUJ has also been involved in the UK Anti-SLAPP Coalition model anti-SLAPP law. We support that, along with a number of other organisations, and we would certainly like to see something develop along those lines.

Q3 The Lord Bishop of Worcester: As a supplementary, I was going to ask whether you felt that the proposed three-part test for identifying and dismissing SLAPPs at an early stage was fit for purpose and proportionate, but from what you have said I imagine you would find that quite difficult to answer. Do comment on it if you wish, but the other thing I wanted to ask was, in view of the fact that no timeline has been set for the introduction of legislation, do you think that there are opportunities for the Government to introduce a cost protection scheme without waiting for primary legislation?

Catrin Evans: I will deal with the first point first, just to close off the point about the three-part test. I am looking at it now because I think that that is the best way to deal with it. These are the reasons why I think that the answer is that, at the moment, it is what it says it is but you cannot use it. The first one is that you would be looking to identify cases suitable for this early dismissal procedure that are, first, in the public interest. That is quite uncontroversial, relatively speaking. Judges do not find it difficult, and nor do practitioners now using our current laws, to identify subjects and matters that are in the public interest, so that one speaks for itself. It is the next two that are more difficult.

The second is that it should have some features of an abuse of process, which would be set out in an illustrative, non-exhaustive list of factors that are common hallmarks of SLAPPs litigation. So far so good, and I know that Susan’s group has done quite a lot of work on trying to break down what those criteria would be. Indeed, the level of detail in that work is what one would be looking for. The example of an abuse of process case that is given for this in the Government’s document is, “for example (but not limited to) sending a very large number of highly aggressive letters on a trivial matter”. Fundamentally, that is already unconvincing because if it were a trivial matter, you would just get rid of it under defamation law because it would not cause serious harm. It would not pass that test. The other point is that by definition SLAPP cases are not trivial, because they are about investigations of a serious sort into corruption and other matters that the subject usually wants to keep hidden.

That example—and I am being typically lawyer forensic about it—is an easy one to tear apart, but it does indicate perhaps that the Government have found it difficult themselves to think of the examples that would come within this. I suppose the reason for stressing that is that it suggests that at the stage that this document was produced the thinking was at quite an early stage. I hope that they will listen to and read a lot of what has been given to them by way of assistance, including in the so-called draft Bill that has a lot more detail in it.

The other thing about highly aggressive letters is that there is nothing wrong with sending aggressive letters, per se, as a solicitor if you are instructed to and you have the facts to do it. That is a question of: how long is a piece of string? Because you can send one highly aggressive letter and that could be abusive, depending on what it says; you could send a whole series and it would not be because they could be justified for some reason related to their content.

The third of the criteria is that there should be “insufficient evidence of merit to warrant further judicial consideration, for example where a case has no realistic prospect of success”. That test as to whether it has a realistic prospect of success is already within the Civil Procedure Rules for all cases. It would be available to any claimant or defendant to come to court and say, “Looking at the evidence, this case does not have a realistic prospect of success”. It is hard to win on that basis at an early stage and, of course, this is part of a three-part approach. Again, it is difficult to see how a judge will find it easy to carry out that merits-based exercise at an early stage of the case when the evidence is not available. It would be easy for the SLAPPing claimant to say, “I will produce a lot of evidence further down the line”.

I have gone on a bit, sorry. However, I think it is important to get to grips with the lack of detail in the thinking in this document, even though the objective is a good one.

The Lord Bishop of Worcester: It would seem that the short answer to the question is no.

Catrin Evans: The short answer is no.

Susan Coughtrie: Yes, in what we are working with on an official level there is not a lot of detail. That is partly why we decided to produce the model law, which has fleshed out a lot of that detail, including the potential hallmarks of abuse of process. That is an important point because often with SLAPPs it is the process that is the punishment, going through lengthy hearings. In one of the cases that we were following, between a hearing on jurisdiction and a judgment, it was 15 months. If you are waiting for that length of time in order to proceed to the next level of a case, you can see how these things drag on and how it becomes very difficult for journalists, or anyone who is the subject of a SLAPP, to continue to fight it.

What is critical is that this creates an early dismissal mechanism, but all these factors are looked at together with a critical eye as to whether this is in the public interest. The behaviour of the claimant and the tactics deployed on its behalf are examined at a very early stage. Something we often see is that the pre-action steps have not been in the spotlight at all, partly because a lot of that happens in the back and forth of letters, sometimes weeks, sometimes months, marked private and confidential. That is something that has been talked about a lot, and I am sure it will be talked about in the next session in light of the SRA’s warning notice. I think that this mechanism is crucial in bringing all that together and focusing the attention on the wider impact that potentially this lawsuit, if it were to continue, would have on the public interest.

The third part of the test, regarding the continuation of the case, is a very interesting one. It is a filter in a way. We want to make sure that there is a high threshold at every level, so a higher merits threshold for identifying cases, wide and robust criteria for identifying abuse, and making sure that if the case were to continue that this is where the cost-capping element comes in. I do not see how that could be introduced in secondary legislation, presumably prior to the primary legislation being put in place, to have that framework to set out how this would operate in practice.

Professor Chris Frost: Again, I agree with everything that has been said so far. The difficulty is identifying precisely how you develop the three tests into something that can be useful. Certainly, the model anti-SLAPPs law, which Susan has already mentioned, is something that we fully support. It gives a good way forward in a number of instances.

It is quite difficult to deal with the way anti-SLAPPs is actually operating, in that it is not being used very often as a legitimate way forward through the law courts to redress a wrong. It is a way of trying to prevent journalists from investigating stories. It is based on the fact that, frankly, most journalists are not very well paid. I know that there are exceptions—and lucky them—but most are not. Even those working as investigators for large national newspapers are not necessarily that well imbursed. What often happens in these cases is that the attack is on the individual journalist and not on the publication that they are working for. Constant sending of letters and other things of that nature can build up the pressure on a journalist both in terms of time, which they should be spending doing something else, and money from their very limited resources.

It is difficult until we see what the Government have in mind to say how much further that will go, but even the test that we are talking about in the anti-SLAPP law will not always work as well as it might do and there are difficulties in seeing how to pursue that further.

The Lord Bishop of Worcester: In terms of a cost protection scheme before primary legislation, do you share doubts about that feasibility?

Professor Chris Frost: It is certainly not something that I am particularly expert on and I would bow down to the lawyers on this one, but it is quite difficult to see how that could work in any serious way. Some of the costs that have been mentioned in various documents in the responses, for instance, are astronomical in terms of ordinary, everyday people: £5,000 to deal with a few letters? Astronomical. Most people do not have such cash available to them. A number of journalists have gone into crowdfunding. You can do that at certain stages of a story when they have started to go out there and people have started to understand the implications of what the story is all about, but if you are at a relatively early stage and hardly anything has been published, that is not possible either. We would like cross-protections. I am not quite sure how we would achieve that but it needs to be done.

The Lord Bishop of Worcester: Catrin Evans, you did not refer to that. Do you have any comments on that point?

Catrin Evans: There is already provision within the Civil Procedure Rules for some form of cost protection in any litigation, but it does not really help in these cases. This is the security for costs regime, for example, or indeed cost capping. In my experience, it is rarely used in our field. That is because in these kinds of cases, as a defendant, it would be difficult to get an order that the claimant pay some money into court as security for the defendant’s costs.

As a defendant, there is a very regimented series of thresholds that you have to get over to show why that money should be paid. Usually, if you are a wealthy individual or a wealthy corporation, you will not come within that part of the rule because you can demonstrate to the court that you are good for your money. As for a normal security for costs situation and the risk that the defendant faces of getting to the end of a case and winning but not getting your costs back because the claimant has no money, in this situation paradoxically the claimant is not in any difficulty to show the court that, “Of course, I am good for the money if I lose the case in the end”. You would not get an order for security for costs.

The problem is that, without changing the substantive law, I think that to introduce secondary legislation or changes through the rules committee to broaden the ability to award costs to defendants in these situations would come up against Article 8 and Article 10 balance arguments and Human Rights Act application arguments, whereby claimants would say, “My Article 8 right to reputation is engaged here. You cannot create a special rule just because you say my case is one brought by a suspected wealthy foreigner”.

Q4 The Chair: I am conscious of time. Before I do move on, though, I think that what we are hearing here is that it is about tactics—it gets quite complicated as to who is a claimant and who is a defendant when you start talking about this—rather than the type of claim that they are bringing and which the journalist is defending themselves from.

Can I ask you very briefly, Ms Coughtrie—and forgive me for mispronouncing your name at the start of this session—whether you have had any government reaction to your model Bill? Do you know what they think of it?

Susan Coughtrie: We are currently awaiting a response from Dominic Raab regarding the open letter that we sent towards the end of November. We would be very interested to hear what he thinks about it. We have presented this to the Ministry of Justice and we remain available for any dialogue that it would like to have with us regarding how it could work in implementation.

The Chair: Thank you. I will move on to Baroness Harding.

Q5 Baroness Harding of Winscombe: One of the things that I would take from the last 20 minutes is that legislation will be hard to deliver and slow. All primary legislation is slow but this sounds like it will be quite tricky. I want to explore what the options are for introducing non-legislative support for people who are faced with SLAPPs. It is highly likely that this will be quite a long journey before they have any form of legislative support. Professor Frost, perhaps you might start from the NUJ’s perspective and then we will move back into the Room.

Professor Chris Frost: We certainly see that there needs to be support in some form. It is difficult to see how much of that can be done when the drive is often before legislation kicks in, in that it is threats to move into legislation. We are confident that some kind of cost protection scheme could be introduced with sufficient good will. However, at the moment the legal system is being largely starved of funds anyway so I am not sure how practical that might be. We would like to see something like that, but without primary legislation it is difficult to see how that would operate. I am as interested as you to hear what the lawyers have to say about this, as they probably know more about how the systems work than I do.

Susan Coughtrie: Part of the reason that this has made so much progress—because it is not necessarily a new problem—is that there has been the surfacing of evidence over the last couple of years, including to the MoJ’s consultation. Something that we have been recommending to DCMS, as a suggestion that we would like to see, is that the UK has a national action plan on the safety of journalists, which was launched a couple of years ago. It currently focuses on physical attacks and online harassment and violations, which sometimes do also cross into SLAPPs. In many of the SLAPP cases we see that those subject to SLAPPs at the same time are receiving online abuse or being subject to surveillance on and offline. We think that, given that this has been recognised by the Government as a key problem, it should be included within that national action plan and monitored.

One of the elements of the action plan—and the NUJ might have more comment on it because it is involved with it—is to monitor violations, so this could be a good mechanism, moving forward, to track developments and provide journalists and media with a way to report when they are having issues.

Baroness Harding of Winscombe: Is there currently a well-recognised go-to place to find support and advice if you are facing a SLAPP?

Susan Coughtrie: I would say probably we at the coalition receive a lot of information. We are a numerous coalition of media freedom organisations, transparency organisations and whistleblower organisations. Since we started two years ago we have had a steady stream of people coming to us for advice. Of course, we have a capacity bandwidth, not least also in the level of pro bono legal support that we can offer. There are members of our coalition, including the European Centre for Press and Media Freedom, that do offer some legal funds and I am sure there are others that can provide advice or point in the direction of legal support. However, in terms of any official mechanism, I am not aware of that. That is why I think that utilising the pre-existing mechanism of the action plan and the committee would make a lot of sense from our point of view.

Professor Chris Frost: Can I just add that, of course, the NUJ does help its members where it can, but not financially. We are not in a position to do that.

Q6 Baroness Harding of Winscombe: Thank you. Could I come back to whether or not it would be possible to generate some form of defence fund to pay for early-stage legal advice? I do not know, Catrin, whether this is something you would feel able to comment on. Are there mechanisms that would make that possible, maybe by using money from any fines imposed by the SRA that would enable there to be a defence fund pre any legislative back-up?

Catrin Evans: That is an interesting idea. The reality is, though, that a lot of these complaints are against individual journalists, academics, researchers and so forth. In my experience, the most high-profile ones are usually ones that are directed if not directly at newspapers and actual media organisations then at their journalists, so that their journalists are given the protection of their employer. They are obviously organisations that are these days quite cash-strapped, relatively speaking anyway, but they are not in the position where they need to draw off a fund.

One would have to distinguish between the types of people who are targeted. It is quite difficult to lump all claimants together, but one would not want to drive this notional claimant more towards individuals than towards media organisations because they think those individuals have a fund backing them, for example, because it would not be a fund of infinite depth. It is an interesting idea.

Susan Coughtrie: Can I come back on that? Catrin mentioned that the high-profile cases are often those that are supported, but there is often a reason that the cases that are high profile are supported. It is because they are the ones that are able to be defended. We see a lot of journalists who are not able to take the cases forward and have to settle because they are not financially in a position to make any other choice at that stage.

Another of our recommendations is the potential to create some kind of defamation defence fund similar to what the US did a couple of years ago. I keep mentioning the national action plan and the committee, but perhaps it is something that they could look at. Whether the SRA’s fines would want to be directed towards that I am sure is a question you will put to them.

However, I want to stress that often early intervention—where a journalist could get legal advice at an early stage and be able to respond to the legal threat or be confident that they do not need to, that they have the story and can proceed in the face of that threat—is the critical part that such legal advice is useful for. We have seen cases, and they are in the report that we produced last year called London Calling, that have dissipated as a result of early intervention. I want to stress that there is this hidden bit. We keep talking about the tip of the iceberg, but it does exist and the legal support there is what is crucial, not when you get to the court case, which is also helpful.

Baroness Harding of Winscombe: That is very clear. Professor Frost, did you have anything else to add?

Professor Chris Frost: To pick up that same point, it is often at the very early stages when a journalist is being picked at rather than their publication, assuming it has got as far as that. Sometimes you are making early inquiries and threats are made, letters are sent—private and confidential letters have been mentioned—and to respond to some of those legally becomes expensive. You get what is known as a chilling effect and the journalist decides to do a story on something else. That can particularly apply to a freelancer who has to build the story up and then sell it to a particular publication. They may not then get to that stage.

Some kind of fund would be useful but I can see practical difficulties in running and operating it. It may be that the NUJ ought to look at setting up some kind of trust fund with others to do something on that. That might be a way forward for these earlier cases, but I can see difficulties.

The Chair: We have a supplementary question from Lord Lipsey and then we will move on.

Q7 Lord Lipsey: Starting with a point, I was deputy editor of two national papers with responsibility for these matters, Sunday Correspondent and the Times. In all the time I was responsible for them, I cannot remember us ever saying to a journalist, “No, you cannot investigate that, it will cost us too much legally”. We had some Rottweilers on the staff who could cope with any SLAPP lawyer.

However, what has come out very much in recent times is the extraordinary risks to individual journalists from people with very deep pockets. Therefore, I was wondering if you would agree with me that it is that side of things that we should particularly concentrate on. I know that the papers are not as rich as they were in my day, but I just could not say, “No, you cannot investigate that because it will cost the paper too much”. We would have had the whole journalistic staff on strike if we had. It was a practical as well as a moral issue.

The Chair: Were you just making a point, Lord Lipsey?

Lord Lipsey: It was a point with a question because I asked whether they agree with that analysis.

Susan Coughtrie: Certainly, the media landscape has changed and that is something that journalists whom I have spoken to, who have perhaps had longer experience, have said. When it comes to SLAPPs, a lot of the focus has been on investigations into financial crime and corruption, and you do see these specialist smaller media outlets that are focusing on that. They are working in small teams with smaller budgets, but there have also been journalists I have spoken to in large organisations who have said that they have felt like they are now problem journalists.

In fact, it was not who I was thinking of, but I believe in his evidence to the Foreign Affairs Select Committee last year, when talking about his case, Tom Burgis said something along those lines and that money gets diverted. Money that would have been going to a new investigation or a different investigation just is not there. It is the same for publishers. That was something that came out from Catherine Belton’s and Tom Burgis’s experiences when HarperCollins, his publisher, and lawyers spoke last year. It is not an endless pot for them either, so the loss is not just the immediate story or the immediate investigation. There is a wider chilling effect.

If the automatic reaction from people who are being investigated is to send legal letters rather than fairly engage with questions, as we have seen examples of even just this week, that is an endless stream of things you have to deal with. The time resource as much as the financial resource is something that needs to be considered.

The Chair: Professor Frost, was there anything you wanted to add or can we move on?

Professor Chris Frost: I will just emphasise the point that things have changed quite a bit over the last 10 to 20 years, with more freelancers now, fewer staff members and less cash in big newspapers. While I am sure that most of the nationals, having decided to pursue an investigation, would happily continue with that if they are under threat, that certainly does not apply to a lot of the smaller publications, which frankly are the ones that tend to do more of the investigations these days. The landscape has changed quite dramatically, I think.

Q8 Baroness Rebuck: We have touched on the number of specialised service businesses—private investigators, specialised PR firms—that seem to flourish in the UK to amplify the threat of SLAPP cases by discrediting the individual journalist or the writer. We heard from one witness who called the UK the concierge capital of the world and told us that she was subjected not only to negative PR but intrusive surveillance. Her emails were hacked into and manipulated. It was profoundly shocking. The question is: would you say that further scrutiny is needed of the networks that help enable SLAPPs? You have talked a little bit about a national action plan for the safety of journalists but what else can be done? Susan, can I put the question to you first?

Susan Coughtrie: Yes, sure. It is an area that definitely needs further scrutiny. If I could be so bold, I would suggest that more inquiries and committee hearings into this topic would be very helpful, to hear from people who work in this area and have more knowledge than I do.

From discussions that have been had, this is not just an issue about private investigators and PR firms that work hand in hand with law firms. It is not just something confined to SLAPPs. It is a broader package that has been raised in concerns with particularly kleptocracy and other issues like that. Yes, bringing more of a spotlight to that, and what regulation currently happens and what further regulation might be needed would be an excellent place to start.

Baroness Rebuck: Professor Frost, you have just mentioned the number of individual investigative journalists who would seem particularly vulnerable to such an attack. What perspective do you have on what further scrutiny is required and what answers could one begin to discuss?

Professor Chris Frost: You are absolutely right that attacks have become much more common. We are very concerned about the attacks made online against journalists, particularly those working on stories of this nature. It is difficult to tell whether or not those are concerted in some way, brought together by a number of people and planned, or whether it is just a series of trolls who get the wrong idea. It is probably in reality a mixture of both.

We would want to see some level of regulation against the organisations that might be driving that, whether that is PR or whether that is coming from elsewhere. It has certainly built up over the last five to 10 years as online has become more and more of a useful tool for condemning particular journalists. As you probably know yourselves, journalism in the UK—but not just the UK, elsewhere—has come under huge-scale attack from various groups where we are accused of putting out disinformation. While clearly no media system can ever be perfect, most of those attacks are entirely unfair and when they come against individual journalists, as many of them do, trying to discredit their work, trying to scare them off, then that needs serious investigation.

Yes, we would like to see more regulation of organisations involved in that so-called PR work—it is not what we see as being PR—and to have more investigations looking at what people are doing there and attempting to regulate them.

Q9 Baroness Rebuck: Catrin, you have said that somehow or another we manage to offer a varied and professional package to clients in SLAPP cases. More specifically, these private investigators, PR firms or whatever—if there were to be further regulation what form could you see that taking? Which areas would you look at investigating?

Catrin Evans: From my own professional perspective, I think that one would have to look at the relationship between solicitors’ firms and inquiry agents and PR firms that they use. I am not saying that because I have a negative view of English solicitors’ firms, because I do not; quite the opposite. However, they do use inquiry agents, PR firms and intelligence agencies, as do newspapers sometimes.

I think that the problem that has occurred is that London is an international wealth centre and, for good or evil—at the moment it seems for evil—many of the sources of the wealth come from parts of the world where the respect for the rule of law is not perhaps what it is here, such as the ex-Soviet states and some Middle Eastern states. Therefore, the expectation on the part of the clients from those places who are living here and doing business here of what they can ask through firms and solicitors to do for them will be different, I think, from the expectation that someone in the West would have who understands that there are certain restrictions.

Obviously, solicitors who are law-abiding will not agree to do things that break the law, but they are regulated so you immediately see the problem: the gap that exists in respect of the agencies that are being used to do very intrusive work, work that is often unlawful but the fruits of which can become more innocent-looking as it makes its way up the chain and even ends up in litigation. It is also well known that our evidential system allows illegally obtained evidence in, if it is probative of something, subject to looking at the circumstances of its receipt.

All these combinations of factors are very bad for the situation that we are talking about, which is trying to redress a balance between powerful people who will exploit what is effectively an easy legal landscape for them and people who are in some way sitting ducks because they want to investigate those people. The creation of a regulator for PR or inquiry agencies sounds like a good thing. I do not know whether it is something that there would be enough political support for. I would imagine that a lot of politicians might not like the idea of it.

Q10 Baroness Rebuck: You can see all manner of lines that could be crossed there because some are obviously engaged in perfectly legitimate activity and we are looking at the extreme of the SLAPPs cases.

Looking at the ways in which legal firms are paid, we heard in evidence at least the accusation that some SLAPP cases might be funded by illegal money laundering and that there were not enough checks and balances that were put in place in the individual solicitors. Is this a problem? Is not enough due diligence being done on the source of money? Is there a way of investigating and saying, “No, we feel satisfied that this is okay” without doing enough due diligence to really know where the money is coming from that is paying for some of these cases?

Catrin Evans: I am not in a position to answer that because I am not a solicitor. To be fair to the solicitors’ profession it needs to be somebody from that side. No doubt the SRA people would be able to talk about it.

Baroness Rebuck: We are speaking to them next, yes.

Catrin Evans: The trouble is that London is awash with laundered money, let us face it. It is not difficult to make your illicit money disappear and make it come out the other end looking legal. That is not necessarily something that solicitors’ firms are in control of.

Baroness Rebuck: Susan, did you want to comment on that?

Susan Coughtrie: On that point, I am not a lawyer—to clarify that for anyone watching—but I was surprised to discover that anti-money laundering regulations do not cover legal advice. Therefore, if a solicitors’ firm is providing advice to its clients, that is not subject to those regulations. I am sure that the SRA will provide more detail, but I can see how in certain circumstances that can be understood and important for access to justice. However, if a client is pursuing a case against journalists or others who are perhaps particularly looking at their source of wealth, that should trigger some additional checks in place.

Q11 The Chair: This has been particularly helpful and we will pick up on some of these matters when we swap around and the SRA takes the place where you are right now.

Before I move over to Lord Young, can I ask one question, which is a bit of a devil’s advocate-type question: in terms of the changing nature of this landscape, do you have any views on the blurring of lines between journalism and campaigning that we have seen emerge over the recent past? Do you think that that has had any effect on this overall reaction from people in bringing these different aggressive legal-type activities? Professor Frost, did you want to comment on that?

Professor Chris Frost: Yes, I would be happy to comment on that, Chair. I think that you are right, there has been a blurring. We find that a complication when we are dealing with memberships about whether someone is actually working as a journalist or as a campaigner doing something slightly different. I do not think that it has any particular effect on SLAPPs. Most campaigners are following clear routes where they understand where they are going from. They are not tending to use material that is likely to bring them into conflict in terms of defamation.

It is where journalists are doing investigations that they run into problems normally because the whole point about the SLAPPs is to prevent that investigation going ahead. A properly run SLAPP would ensure that the story never gets into the paper or the broadcast in the first place. It is not a question of trying to damp it down once it is there, if that is at all possible. Yes, you are right, but I do not think that that has any effect on what is happening here.

The Chair: All right. Thank you.

Q12 Lord Young of Norwood Green: How would you evaluate the response of the Solicitors Regulation Authority with regard to tackling SLAPPs?

Susan Coughtrie: We were pleased at the proactive nature of the SRA’s response, starting from immediately while the MoJ consultation was going on. From conversations I had with the SRA previously, I know that it lacked evidence on the full extent of this problem, which was something that as a coalition we were trying to support. The fact that it has addressed this, in terms of taking forward our recommendations around a warning notice, and creating clearer guidance for those people who are concerned about SLAPPs and concerned that they may be the subject of a SLAPP and might be able to complain to the SRA is key.

That was something that had come out of some of the research that we had done. Journalists were not complaining to the SRA. They were a bit confused as to whether or not they could complain without complaining to the law firm first. There may have been an expectation that you are complaining mostly about your own lawyer as opposed to the behaviour of other lawyers pursuing you. I think that the SRA has taken steps to address that to make it clear that it is open for evidence.

In particular, we are very pleased to see that the guidance that was released in November addressed the issues around labelling, and put emphasis on the behaviour of the lawyers and the tactics that they use on behalf of their client. As I mentioned earlier, part of the reason that this issue was hidden away was because a lot of these letters are universally marked “private and confidential and not for publication”. Some who received them felt they were not able to talk about them publicly. What we have seen now is several people go public with these letters and they do not go anywhere sometimes.

There is a mechanism now, not only a proactive ability for education on this issue—because there could be lawyers who are not necessarily aware of the full extent of the impact of this behaviour—but also a mechanism by which complaints could be made.

All that being said, the proof is in the pudding. We have not had any outcomes from complaints yet and we understand—and I am sure you will hear from the SRA—that there are several things going on in terms of opening investigations and a thematic review, but we are very keen to see it. Overall, it has been good to see the regulator take a proactive step, especially given the legislative landscape. It is a good thing.

Q13 Lord Young of Norwood Green: Susan, you told us last year that you heard from journalists who were not satisfied with the SRA response to SLAPPs. Do you think that there have been improvements?

Susan Coughtrie: The first step is the fact that there has been this warning notice released. There were journalists who we know had made complaints that had not had a satisfactory response. My understanding is that some of those have now been reopened and perhaps re-examined in the light of this issue and the warning notice existing. I know that there are several journalists who have filed complaints who are awaiting the outcomes of those. I guess we have to see.

Lord Young of Norwood Green: It is a work in progress, yes.

Susan Coughtrie: Yes, a work in progress. We have certainly been encouraging people to make complaints to the SRA if they feel that they have been in receipt of this kind of letter. Now there is at least some language to put to that complaint and something to point to. We also hope that by educating lawyers about this behaviour and the wider impact it can have—particularly who you are writing to and not asserting things that may not be absolutely correct—that will have a cultural and behavioural shift. How much that has happened thus far I do not know.

Lord Young of Norwood Green: Professor Frost, do you want to comment on that? Do you agree?

Professor Chris Frost: Largely, we welcome that it is taking this seriously. However, we are aware that no matter how well regulated a profession is—and I am aware that there are plenty of criticisms about regulation of journalists, which I certainly take very seriously—you cannot cover absolutely everything. It will be small steps moving along the way as the SRA tries to deal with the issues that it sees. It will never be totally successful but it is welcome and we thank it for it.

Lord Young of Norwood Green: Catrin, do you want to make any comment?

Catrin Evans: No, I agree with that. It seems to be important as an educational context and we have to wait and see what happens with any investigations.

Susan Coughtrie: I just want to add at the end in concluding that one complaint that is pending that is worth noting—particularly as it has become newsworthy again in the last couple of days—is the complaint regarding the case of Eliot Higgins, who was sued here in the UK by someone who was already subject to sanctions. That case ultimately collapsed after Discreet Law, which was taking his case, withdrew its services. I understand he was still left with £70,000 of costs. Ultimately, the case was able to be brought because licences were applied for by the law firm on Prigozhin’s behalf and issued and that allowed the case to continue.

Given that Prigozhin was already under sanctions since 2020—the case was started in 2021 and eventually dropped last May and only because he was not able to continue to retain legal services—that raises a question in a number of areas regarding legal ethics but then, also, what happens when sanctioned individuals want to take cases like this against media or others; that is, civil cases, not responding to criminal complaints. There are questions that need to be asked about how that process happened. Given that we have a lot more sanctioned individuals now in light of the Russian invasion into Ukraine, what would happen in a similar circumstance? I just wanted to make that point.

Q14 The Chair: I have just been prompted by my colleague to my left. I do not know whether you are able to answer this question or not: what do you understand the role of the Government to be in waiving the sanctions that allowed that to happen?

Susan Coughtrie: When this case came into public prominence last spring, we tried to work out how it had been possible for a sanctioned individual to be given a licence to use money that presumably should have been frozen to pay lawyers in order to take that case forward here in the UK. There is a department inside the Treasury called the Office of Financial Sanctions Implementation that awards these licences at—

The Chair: Do they award them to the lawyers or to the individual?

Susan Coughtrie: It is my understanding that the lawyers apply for them. Whether it is specifically then given to the individual, I am not sure of that detail.

It was unclear at that time how it happened. There has been a report yesterday published by openDemocracy that has dug into the detail of that and it seems that it is more than one licence. In fact, because Prigozhin was under sanctions and could not come to the UK, the lawyers representing him here got special permission to go to him, I believe in Moscow.

I am interested in the level of detail of involvement from a government department for a case where a journalist was being sued individually for a series of tweets linking to media reports—linking Prigozhin, the sanctioned individual, to the issue that he was sanctioned for a year before. My understanding, although I would want to check this, is that his lawyers did issue a statement after the case collapsed that, because another licence had not been put in to secure costs of damages, if any cost order had been issued it would not have been enforceable in order for Higgins to claim the damages back.

As I said, he was left, as I understand from the report yesterday, with something to the tune of £70,000 worth of expense in fighting that case. It only ran for a year or less and only collapsed because, ultimately, the lawyers decided to withdraw their legal services. That was held behind closed doors so we do not know the reason, but it was in light of the Russian invasion into Ukraine. He was unable to secure other legal representation so the case was ultimately thrown out.

The Chair: As far as you know, the Government have not commented on their decision to waive those sanctions in order to allow that to go ahead?

Susan Coughtrie: No. I think that much more detail is needed on how that process works, as I said, especially given that we now have a number of sanctioned individuals, including all those who sued Catherine Belton two years ago, through pretty much all of 2021. What happens now? We would really want the assurance from the Government that that cannot happen.

Q15 Lord Hall of Birkenhead: I have a quick question. This is clearly a serious problem and your evidence has been very interesting. Can you give us some idea, Susan, of the scale of the problem? How many stories or investigations that you are seeing each year that are subject to SLAPPs either get through it or do not get through it?

Susan Coughtrie: That was the greatest challenge when we started researching this about three years ago. I can only describe it as akin to pulling a thread. There were only a few stories we knew at the beginning and then I am sorry to say that more cases have been launched. Some of those have been very high profile, like the ones I have mentioned against Catherine Belton, Tom Burgis and Carole Cadwalladr—those are most of the names that come to mind—but there are several others.

A case just settled last week of a Swedish business publication called Realtid that has been sued in the UK. The case has gone on for more than two years, despite the fact that it is based in Sweden, the journalists are based in Sweden and it is published in Swedish. The gentleman suing was a Swedish businessman largely domiciled in Monaco. I do not want to go into all the details of the case for time, but my point is that there are these less well-known cases that are still getting to the courts.

There is then this whole ream of things underneath that do not get there, either because they dissipate at some point but there has been a challenge in the first instance or because there has not been the possibility to defend them just for the circumstance of it.

Lord Hall of Birkenhead: Thank you. Professor, do you want to add anything to that?

Professor Chris Frost: No, just to support those. Those are all cases that we know about, some of the big ones. A lot of the ones that are happening we probably do not know very much about because they stop at a very early stage when it becomes clear to the journalist driving them that it will simply become very expensive.

The Chair: Thank you very much to Ms Coughtrie, Ms Evans and Professor Frost. I am very grateful to all three of you for your evidence today. For anybody who is watching us via the internet right now, we will pause while we invite a different set of witnesses to the table.