Anti-SLAPPs campaign is a defence of justice and democracy in Scotland

Years ago, I used to think the law was there to protect the innocent and punish the guilty. I used to think it was an effective bulwark for democracy and in particular for hard won human rights, including the right to free speech in the public interest.

As the years rolled on, I ended up a Member of Parliament in 2015 and, thanks to the work of David Leask and Richard Smith, became involved in campaigning against Scottish Limited Partnerships (SLPs). SLPs were at the forefront of massive money laundering, providing succor to some of the richest and criminal actors internationally. (SLPs are a creation of the Westminster parliament from over 100 years ago)

I gradually came to an understanding of what Claude-Frederic Bastiat, the French economist, meant when he said “when plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorises it and a moral code that glorifies it”.

This led me to become aware of how malevolent actors used the law as a weapon to protect themselves, harm democracy and silence critics. Initially, I was only aware of what has become known as SLAPPs (Strategic Lawsuits Against Public Participation) in the context of financial crime, where oligarchs and others used threats of defamation to silence investigative journalists from exposing wrongdoing. Given the costs of defending a malicious action – even where lacking in legal merit – could ruin individuals and publishers, many stories were and are being spiked, and the criminals win.

This was bad enough. But I gradually became aware of the law being used as a weapon against a wider range of people, from community activists, to academics, and, most shockingly of all against women who had been sexually abused. The thought that a sexually abused woman could find herself threated with legal action by her abuser is a particularly pernicious form of SLAPP.

And the threats are going beyond using laws of defamation and include, for example, data protection and privacy laws. Within Scotland there have been cases including where a victim of fraud received a legal threat from those who had defrauded her to try and prevent her from commenting in public. Another case is where an environmental campaigner has been SLAPPed by an international company to prevent him revealing environmental harm from company activities in Scotland. In other words, some of those seeking to weaponise the law have been finding compliant legal firms to issue threats of legal action across a sweep of laws and areas of crime.

I became aware that reforms are underway elsewhere to create Anti-SLAPP legislation, not least in Europe, adding urgency to my task. Even at Westminster moves were afoot to change the law for England and Wales prior to the general election being called. If Scotland does not act, I feared we would become a jurisdiction of choice for vexatious legal action. This drove me on to try and ensure Scotland did not become an international outlier.

Although in Scotland some comparatively recent reforms to defamation laws were helpful, the reforms did not go far enough to prevent SLAPPs. Nor was restricting the scope to defamation helpful. I therefore sought a way of getting it back on the parliamentary agenda.

I concluded that acting alone it was going to be well nigh impossible to create a huge public campaign in such a specialist area. Even someone like Alan Bates and his Post Office campaign found it hard going for many years before success became a real possibility, and I don’t claim to be in the same league as the tenacious Mr Bates.

I decided to raise a Scottish parliamentary petition in 2022. It cleared initial hurdles before being published in September 2022. With the support of a small group of well-informed players, the petition began to make progress. To cut a long story short, after calls for evidence and two meetings of the parliament’s Civic Participation and Petitions Committee it was agreed that a full oral hearing would take place on 17 April last. I was supported in the evidence session by Professor Justin Borg-Barthet, University of Aberdeen, and Graeme Johnston of the Scottish Anti-SLAPP working group. Also giving evidence was Ahsan Mustafa of the Law Society of Scotland.

Two weeks later on 1 May the committee took oral evidence from the Minister for Victims and Community Safety, Siobhian Brown MSP, who accepted the case for dealing with SLAPPs as petitioned and announced that in the Autumn a pre-legislative consultation would be held. I subsequently met the minister and am confident we are now on a clear path to dealing with SLAPPs in Scotland.

I first ran for parliament in February 1974, and was an MP from 2015-2017, but it is as a citizen, not an elected politician, that I have made my most practical contribution to supporting democratic and justice values in Scotland.