Judgments - Hamilton v. Al Fayed

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    Thirdly, the Court of Appeal held that the trial of this action would not infringe parliamentary privilege unless the possibility of the court reaching a conclusion contrary to that arrived at in the parliamentary proceedings "would be to undermine the authority of Parliament so that the action should on that ground be condemned as abusive: [1999] 1 W.L.R. 1569, 1589." The Court of Appeal held that only in cases which would involve an "assertion by the court of any power to challenge the exercise of authority by Parliament", would it be right to debar a person defamed from pursuing an action to clear his name. This was not such a case.

    It is to be noted that the Court of Appeal did not mention the relief claimed by paragraph 2 of the summons, viz. a fair trial stay.

    Finally, the Court of Appeal held that, in any event, under section 13 of the Act of 1996 Mr. Hamilton had validly waived any claim to parliamentary privilege and that accordingly the action should proceed.

The Issues before the House

    As I have said, the Court of Appeal rejected any argument based on collateral attack within the meaning of Hunter's case. The argument was not renewed before your Lordships. In consequence, section 13 of the Act of 1996 became decisive. Whether or not there was, apart from the Act, any ground on which it could be said that the action was an infringement of parliamentary privilege, Mr. Hamilton had waived such privilege so far as it affected him. Accordingly, if under section 13 he had power to make such a waiver, it did not matter what the position in relation to parliamentary privilege would have been had there been no such waiver. For reasons which I will give hereafter, in my judgment Mr. Hamilton did have power to waive his parliamentary privilege under section 13. I believe that the rest of your Lordships share that view. Therefore, the question whether or not, apart from waiver under section 13, Mr. Hamilton would have enjoyed a parliamentary privilege which prevented the action from being tried becomes strictly irrelevant. However, the Court of Appeal having held (contrary to my view) that no relevant parliamentary privilege would have been infringed if the action had gone forward, it is necessary for me to deal first with that point so as to ensure so far as possible that the law on parliamentary privilege does not become confused.

Parliamentary Privilege apart from section 13

    My Lords, it appears from the judgment of the Court of Appeal that this point was argued before the Court of Appeal on behalf of Mr. Al Fayed on somewhat unconventional lines. Mr. Beloff Q.C. did not appear in the court below. The Court of Appeal seems to have thought that the only argument for a stay on grounds of parliamentary privilege was that the action constituted a challenge to the jurisdiction of Parliament to make a decision on the matter at issue. The Court of Appeal appear to have been treating the case as analogous to the prohibition of collateral attacks on earlier court decisions on the Hunter principle. Thus, having held that the judge was in breach of parliamentary privilege by criticising parliamentary procedures, they went on to say [1999] 1 W.L.R. 1569, 1586:

    "This conclusion, however, provides no answer to the question whether this action for libel constitutes an impermissible collateral attack on proceedings in Parliament. This question has now to be considered in the context of section 13 of the Defamation Act 1996."

They then held that Mr. Hamilton's action did not fall within this wider concept of parliamentary privilege and therefore even apart from section 13 there would be no impermissible interference with parliamentary privilege if the action proceeded.

    I am far from satisfied that the views of the Court of Appeal on this point are correct. I have said above that, in the normal case involving parliamentary privilege, the court is not asked to make an order staying the whole action: the relief claimed in an action does not normally itself conflict with the authority of the decision reached by Parliament. The normal impact of parliamentary privilege is to prevent the court from entertaining any evidence, cross-examination or submissions which challenge the veracity or propriety of anything done in the course of parliamentary proceedings. Thus, it is not permissible to challenge by cross-examination in a later action the veracity of evidence given to a parliamentary committee. If that approach had been adopted in the present case, there can be no doubt that, apart from section 13, the trial of the action would from the outset have proved completely impossible. All evidence by Mr. Hamilton that he had not received money for questions would have conflicted directly with the evidence of Mr. Al Fayed which was accepted by the parliamentary committees. Any attempt to cross-examine Mr. Al Fayed to the effect that he was lying to the parliamentary committees when he said that he had paid money for questions would have been stopped forthwith as an infringement of parliamentary privilege.

    Presumably because of the way the case was presented to them, the Court of Appeal never considered the relevant question (viz. whether there should be a fair trial stay) raised by question 2 of the summons. The only way in which Mr. Al Fayed could justify his defamatory statements was by detailed challenge to Mr. Hamilton's conduct in Parliament, which challenge would be precluded by parliamentary privilege. That being so it would in my judgment have been impossible for Mr. Al Fayed to have had a fair trial in this action if he had been precluded from challenging the evidence produced to the parliamentary committees on behalf of Mr. Hamilton. Had it not been for section 13, the court should, in my judgment, have stayed the libel action brought by Mr. Hamilton by making an order under paragraph 2 of the summons. However, section 13 does apply to this case and provides a complete answer to it.

Section 13 of the Act of 1996

    Before the passing of the Act of 1996, it was generally considered that parliamentary privilege could not be waived either by the Member whose parliamentary conduct was in issue or by the House itself. All parliamentary privilege exists for the better discharge of the function of Parliament as a whole and belongs to Parliament as a whole. Under section 13, the individual Member bringing defamation proceedings is given power to waive for the purposes of those proceedings "the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament." The section then provides by subsection (2) that such waiver operates so that evidence, cross-examination or submissions made relative to the particular M.P. are not to be excluded by reason of parliamentary privilege. The M.P. thus having been given statutory power to waive the protection afforded by the privilege so far as he is concerned, the section goes on to provide that the admission of such evidence, questioning etc., should not be treated as infringing the privilege of either House of Parliament: see subsection (2(b).

    The effect of the section seems to me to be entirely clear. It deals specifically with the circumstances raised by Mr. Hamilton's case against The Guardian. He could waive his own protection from parliamentary privilege and in consequence any privilege of Parliament as a whole would fall to be regarded as not infringed. At least in part, section 13 was passed by Parliament to enable specifically Mr. Hamilton to proceed with The Guardian action. The issues in this present action against Mr. Al Fayed are for the most part identical. It would, indeed, be very strange if the section had failed to enable Mr. Hamilton to bring this action.

    Mr. Beloff sought to escape this conclusion by submitting that there are a number of parliamentary privileges only some of which are enjoyed by the individual M.P. as well as by the House itself. He submitted that amongst the privileges that belong to the House alone is its autonomous jurisdiction over certain matters. Therefore, Mr. Hamilton, as a former M.P., could not effectively waive the privileges of the House based on its autonomous jurisdiction as opposed to other privileges. In my judgment this argument is fallacious. The privileges of the House are just that. They all belong to the House and not to the individual. They exist to enable the House to perform its functions. Thus subsection (1) of section 13 accurately refers, not to the privileges of the individual M.P., but to "the protection of any enactment or rule of law" which prevents the questioning of procedures in Parliament. The individual M.P. enjoys the protection of Parliamentary privilege. If he waives such protection, then under subsection (2) any questioning of parliamentary proceedings (even by challenging "findings . . . made about his conduct") is not to be treated as a breach of the privilege of Parliament. I can see no way, following the waiver by Mr. Hamilton of his parliamentary protection in relation to the parliamentary inquiry into his conduct, that it can be said that such waiver does not also operate under subsection 2(b) so as to override any privilege belonging to Parliament as a whole.

    It was for these reasons that I dismissed this appeal.


My Lords,

    I am in complete agreement with the reasons given by my noble and learned friend, Lord Browne-Wilkinson.


My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons which he has given as to the interpretation of section 13 of the Defamation Act 1996, I agree that this appeal should be dismissed.


My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons which he has given I also was of the opinion that the appeal should be dismissed.


My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons which he has given I also was of the opinion that the appeal should be dismissed.


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