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There has been a lot said lately about Russian oligarchs using English courts in an attempt to suppress journalism that is in the public interest. Some commentators and politicians have criticised solicitors and barristers for being ‘facilitators and enablers’. Such comment is almost without exception unfair and misplaced.
In January, well before the government turned its attention to this issue, the Bar Council published a paper supporting law reform to tackle Strategic Lawsuits Against Public Participation (SLAPPs). This paper focused on EU initiatives in the area, but the principles apply to England and Wales.
SLAPPs generally arise out of defamation lawsuits (they seemingly have the same purpose – of protecting the claimant’s reputation) and can be used as a tool to shut down public scrutiny and criticism. The threat of significant costs orders can have a damaging effect as small businesses and individuals alike can feel overwhelmed by the forces gathered against them.
The government recently implicitly acknowledged that its own efforts to reform Unexplained Wealth Orders (UWO) had faced a similar challenge when it published its proposals to limit recoverable costs in the Economic Crime (Transparency and Enforcement) Act 2022.
The Bar Council’s role is to support the profession and to promote the highest standards of ethics. Readers of this column will hardly need reminding that in England and Wales the cab-rank rule requires a barrister (who is available and competent to act in the given case) to accept instructions for litigation from a professional client (a solicitor or in-house counsel), irrespective of the identity of the client; the nature of the case; and (importantly here) any belief or opinion which the barrister may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.
The practical consequence is that members of the Bar may find themselves professionally bound to act on either side of a SLAPP, or in other litigation that public opinion finds distasteful for one reason or another.
The cab-rank rule ensures that all potential litigants, regardless of reputation, background, or the apparent circumstances of the case, have access to justice. This is a cornerstone of our legal system and our democracy.
But what ‘access to justice’ means in practice may depend on the resources of the parties. Proper legal aid funding plays a vital role – and in this regard the proposed changes to eligibility in both criminal and civil legal aid are welcome.
Tackling the complex challenges posed by SLAPPs will require sensitive law and policy making, balancing potentially conflicting, fundamental rights such as freedom of the press and the right to freedom of speech with the right to an effective remedy, to privacy and the protection of personal data.
A strong and independent media is key to democracy, and public interest journalism should be protected from, among other things, vexatious harassment through SLAPPs. The Bar Council also strongly believes in the need to protect the integrity of the legal process, allowing those who believe their rights are infringed to seek redress in court where appropriate.
In our submission to the UK government on proposals to reform the Human Rights Act, we have made the case for increasing protections for free speech, freedom of expression and journalism. Although whether any changes at all are required to the Human Rights Act to best achieve these aims is a subject open to debate – there are other legal routes that might successfully be used. It may be, for example, that a fresh approach to costs akin to that proposed for UWOs has a part to play. Procedures allowing a court to dismiss a SLAPP at an early stage could make a significant difference.
One of the problems remains the definition of SLAPPs – we need sufficient precision and without overreach, so that improper use of the legal process to prevent legitimate inquiry in the public interest is stopped at the earliest possible stage, while at the same time the legitimate defence of private interests against unjustified press and third-party intrusion is not hampered.
The Bar Council will be responding to the government’s current consultation. If you have a particular interest, you may also wish to respond.
I have not written about the latest situation in Ukraine because it has been so fast moving. I hope you have seen the public statements issued by the Bar Council about our efforts to assist. We are working with Ukrainian Bar leaders to try to help match families displaced by the war with volunteers here who have offered accommodation and support under the government’s scheme. We also continue to work on initiatives to help Ukrainian lawyers continue to work both here and abroad.
There has been a lot said lately about Russian oligarchs using English courts in an attempt to suppress journalism that is in the public interest. Some commentators and politicians have criticised solicitors and barristers for being ‘facilitators and enablers’. Such comment is almost without exception unfair and misplaced.
In January, well before the government turned its attention to this issue, the Bar Council published a paper supporting law reform to tackle Strategic Lawsuits Against Public Participation (SLAPPs). This paper focused on EU initiatives in the area, but the principles apply to England and Wales.
SLAPPs generally arise out of defamation lawsuits (they seemingly have the same purpose – of protecting the claimant’s reputation) and can be used as a tool to shut down public scrutiny and criticism. The threat of significant costs orders can have a damaging effect as small businesses and individuals alike can feel overwhelmed by the forces gathered against them.
The government recently implicitly acknowledged that its own efforts to reform Unexplained Wealth Orders (UWO) had faced a similar challenge when it published its proposals to limit recoverable costs in the Economic Crime (Transparency and Enforcement) Act 2022.
The Bar Council’s role is to support the profession and to promote the highest standards of ethics. Readers of this column will hardly need reminding that in England and Wales the cab-rank rule requires a barrister (who is available and competent to act in the given case) to accept instructions for litigation from a professional client (a solicitor or in-house counsel), irrespective of the identity of the client; the nature of the case; and (importantly here) any belief or opinion which the barrister may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.
The practical consequence is that members of the Bar may find themselves professionally bound to act on either side of a SLAPP, or in other litigation that public opinion finds distasteful for one reason or another.
The cab-rank rule ensures that all potential litigants, regardless of reputation, background, or the apparent circumstances of the case, have access to justice. This is a cornerstone of our legal system and our democracy.
But what ‘access to justice’ means in practice may depend on the resources of the parties. Proper legal aid funding plays a vital role – and in this regard the proposed changes to eligibility in both criminal and civil legal aid are welcome.
Tackling the complex challenges posed by SLAPPs will require sensitive law and policy making, balancing potentially conflicting, fundamental rights such as freedom of the press and the right to freedom of speech with the right to an effective remedy, to privacy and the protection of personal data.
A strong and independent media is key to democracy, and public interest journalism should be protected from, among other things, vexatious harassment through SLAPPs. The Bar Council also strongly believes in the need to protect the integrity of the legal process, allowing those who believe their rights are infringed to seek redress in court where appropriate.
In our submission to the UK government on proposals to reform the Human Rights Act, we have made the case for increasing protections for free speech, freedom of expression and journalism. Although whether any changes at all are required to the Human Rights Act to best achieve these aims is a subject open to debate – there are other legal routes that might successfully be used. It may be, for example, that a fresh approach to costs akin to that proposed for UWOs has a part to play. Procedures allowing a court to dismiss a SLAPP at an early stage could make a significant difference.
One of the problems remains the definition of SLAPPs – we need sufficient precision and without overreach, so that improper use of the legal process to prevent legitimate inquiry in the public interest is stopped at the earliest possible stage, while at the same time the legitimate defence of private interests against unjustified press and third-party intrusion is not hampered.
The Bar Council will be responding to the government’s current consultation. If you have a particular interest, you may also wish to respond.
I have not written about the latest situation in Ukraine because it has been so fast moving. I hope you have seen the public statements issued by the Bar Council about our efforts to assist. We are working with Ukrainian Bar leaders to try to help match families displaced by the war with volunteers here who have offered accommodation and support under the government’s scheme. We also continue to work on initiatives to help Ukrainian lawyers continue to work both here and abroad.
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