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|Judgments - Hamilton v. Al Fayed
HOUSE OF LORDS
Lord Browne-Wilkinson Lord Steyn Lord Cooke of Thorndon Lord Hope of Craighead Lord Clyde
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Judgment: 7 October 1999
Reasons: 23 March 2000
This appeal raised questions of parliamentary privilege in relation to defamation proceedings brought by a Member of Parliament against a defendant who had alleged that he had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered. I will first set out the facts of the case, then summarise the relevant law, then consider the way in which the arguments were put forward in the courts below, and finally explain my conclusions on the case.
The story starts in October 1985 when the appellant Mohamed Al Fayed ("Mr. Al Fayed") employed a firm of parliamentary lobbyists, Ian Greer Associates ("I.G.A."). At that time Mr. Al Fayed was in dispute with Mr. "Tiny" Rowland over Mr. Al Fayed's takeover of the House of Fraser, including in particular Harrods. I.G.A. were engaged to conduct the lobbying operation on Mr. Al Fayed's behalf which they did most actively between 1987 and 1989. In April 1987 the Department of Trade and Industry appointed inspectors to investigate the circumstances of the takeover; the inspectors' report was published in March 1990.
The respondent, Mr. Hamilton, used to be the Member of Parliament for Tatton. He became involved in the lobbying campaign in early November 1985 when he tabled parliamentary questions on behalf of Mr. Al Fayed. It is common ground between the parties that during the relevant period Mr. Hamilton made a number of parliamentary interventions (including tabling questions and giving his support to early day motions) attended meetings with ministers and wrote letters, in all of which activities he was pressing the views which were in Mr. Al Fayed's interests.
Mr. Al Fayed contended that he made substantial cash payments directly to Mr. Hamilton on a number of occasions between mid-1987 and late 1989. It was Mr. Al Fayed's contention that he made these payments in return for Mr. Hamilton's services in Parliament. Mr. Al Fayed also contended that, for the same reason, he gave Harrods gift vouchers to Mr. Hamilton. Mr. Hamilton denied receiving either cash or vouchers. On the other hand, it is common ground that in September 1987 Mr. Hamilton and his wife did spend six nights at The Ritz in Paris at Mr. Al Fayed's expense. It is also common ground that Mr. Hamilton and his wife stayed for shorter periods as the guests of Mr. Al Fayed at his house in Scotland and at his Paris apartment. Although Mr. Hamilton accepted that he received these benefits he contended that they were not a reward for services rendered or to be rendered.
On 20 October 1994 The Guardian newspaper published a front page report alleging that Mr. Al Fayed had paid Mr. Hamilton and another Member of Parliament thousands of pounds through I.G.A. in return for them asking questions in Parliament. That article also referred to the Hamiltons' stay at The Ritz. Mr. Hamilton issued libel proceedings against The Guardian as did Mr. Greer and I.G.A. The other Member of Parliament implicated by The Guardian admitted receiving fees from Mr. Al Fayed and resigned from the Government.
Following the publication of the article in The Guardian the Prime Minister announced the setting up of the Standing Committee on Standards in Public Life chaired by Lord Nolan ("the Nolan Committee"). In May 1995 the Nolan Committee recommended the appointment of a Parliamentary Commissioner for Standards.
It was part of The Guardian's defence in The Guardian action to allege that questions tabled in Parliament by Mr. Hamilton were linked to the payments received by him from Mr. Al Fayed. This was denied by Mr. Hamilton. It was therefore clear that questions of parliamentary privilege might arise in the course of The Guardian action. On 21 July 1995, May J. stayed The Guardian action because of parliamentary privilege on the grounds that the claims and defences raised issues whose investigation would infringe Parliamentary privilege and that in the absence of the evidence excluded by Parliamentary privilege the action could not be fairly tried. The result was that Mr. Hamilton was prevented from clearing his name by an action in the courts.
At about this time the Defamation Bill was passing through Parliament. On 4 July 1996 it received the Royal Assent. During its passage through the House of Lords an amendment (prompted in part by the stay of The Guardian action) was tabled. That amendment in due course became section 13 of the Act which came into force on 4 September 1996. Section 13 of the Act of 1996 raises the decisive question in this case and I will set it out later. For present purposes it is enough to say that it enabled a Member of Parliament who considered that he had been defamed to waive his Parliamentary privilege and bring proceedings for defamation even though such proceedings or the manner in which they were conducted would otherwise amount to a breach of Parliamentary privilege. In consequence of the passing of the Act, Mr. Hamilton applied to lift the stay on The Guardian action. Mr. Hamilton having waived his privilege, the stay was lifted and an early trial date fixed. However, very shortly before the trial of The Guardian action (which was due to start at the beginning of October 1996) Mr. Hamilton, Mr. Greer and I.G.A. withdrew their libel action against The Guardian. Despite Mr. Hamilton's assertion that he had only been forced to withdraw his action because he could not afford to instruct fresh legal advisers after Mr. Greer and I.G.A. had withdrawn, the fact that he had withdrawn his claim against The Guardian produced a great deal of publicity.
On 14 October 1996 the Speaker of the House of Commons referred to serious allegations which had been made about Members of Parliament while the House was adjourned which allegations called into question the reputation of the House as a whole. She expressed the hope that the Committee on Standards and Privileges would find it possible to make an early special report. Her announcement indicated that the issues to be considered ought at the end to be resolved by a decision of the House of Commons as a whole.
The Parliamentary Commissioner for Standards ("P.C.S.") had been recommended by the Nolan Committee and provided for by Standing Order 150 (H.C.P. 400) (1996-1997) of the House of Commons. His duties include:
The Committee on Standards and Privileges ("C.S.P.") was established by Standing Order 149:
On 28 October 1996 the C.S.P. asked the P.C.S. to investigate as a matter of urgency the serious allegations about the conduct of Members referred to by the Speaker on 14 October 1996. His terms of reference were:
The P.C.S. conducted a long and detailed inquiry involving the taking of evidence from 60 witnesses at 13 oral hearings and the consideration of some 14,000 pages of documents.
Whilst the P.C.S.'s inquiry was still continuing and a week before Mr. Al Fayed was due to give his evidence to the P.C.S., on 16 January 1997 Channel 4 broadcast a "Dispatches" programme which included a filmed interview with Mr. Al Fayed. In the course of that interview Mr. Al Fayed made serious allegations against Mr. Hamilton including the allegation that he had received money, vouchers and the stay at The Ritz Hotel as reward for his services in asking parliamentary questions and otherwise lobbying on behalf of Mr. Al Fayed. It is the remarks made by Mr. Al Fayed in the course of that broadcast which were the foundation of this action.
In the General Election on 1 May 1997 Mr. Hamilton lost his seat.
The P.C.S. prepared a report ("the Downey Report") which was submitted to the C.S.P. and published on 2 July 1997. That Report found that there had been a concerted parliamentary lobbying operation on behalf of Mr. Al Fayed between 1985 and 1989, mounted and to a large extent co-ordinated by Ian Greer, of which operation Mr. Hamilton was one of the "core members." The Downey Report reached the following conclusions:
The C.S.P. having received the Downey Report held further hearings and on 14 October 1997 Mr. Hamilton made oral representations challenging some of the findings of the P.C.S. On 5 November 1997 the C.S.P., in its Eighth Report, expressed its conclusions in respect of Mr. Hamilton which were as follows:
The specific question of direct cash payments made to Mr. Hamilton caused the C.S.P. considerable difficulty and eventually it reported that it was "satisfied that the [P.C.S.] has carried out a thorough inquiry which took the evidence presented to him fully into account. The [C.S.P.] did not arrive at a practicable way of reaching a judgment which adds to or subtracts from the [P.C.S.'s] findings." On 17 November 1997 the House of Commons resolved to approve the C.S.P.'s Eighth Report.
On 9 January 1998 Mr. Hamilton issued the writ for libel in this case. The claim was based on Mr. Al Fayed's statements during his interview on "Dispatches". The essence of the defamatory imputation of which Mr. Hamilton complained is that he corruptly demanded and accepted material benefits (in particular cash payments) in return for tabling parliamentary questions and other parliamentary services on behalf of Mr. Al Fayed. Mr. Al Fayed sought to justify that meaning, relying on cash payments, gift vouchers and the hospitality provided by him for Mr. Hamilton.
By a summons dated 29 May 1998 Mr. Al Fayed applied for an order either dismissing the action on the ground that it constituted an abuse of the process of the court, or, alternatively, an order staying the action on the ground that the issues raised could not be determined fairly by reason of the exclusion of material because of Parliamentary privilege. The summons came first before Popplewell J. who refused to grant Mr. Al Fayed any relief. On appeal to the Court of Appeal (Lord Woolf M.R., Hirst and Laws L.JJ.)  1 W.L.R. 1569 the Court of Appeal dismissed the appeal but on different grounds from those relied upon by Popplewell J. Mr. Al Fayed appealed to your Lordships' House. At the conclusion of the argument your Lordships announced that the appeal would be dismissed for reasons to be given later. These are those reasons.
Since that date the defamation action itself has been tried and Mr. Hamilton's claim dismissed.
Article 9 of Bill of Rights 1689 provides:
It is well established that article 9 does not of itself provide a comprehensive definition of parliamentary privilege. In Prebble v. Television New Zealand Ltd.  1 A.C. 321 at p. 332, I said:
The wide scope of parliamentary privilege was fully discussed in the Prebble case which was not criticised before your Lordships. The new South Wales decision in Reg. v. Murphy (1986) 64 A.L.R. 498 was disapproved in Prebble because it sought to limit parliamentary privilege so as to cover only cases where makers of statements in Parliament were sought to be made legally liable. I said, at p. 334:
In Australia the Commonwealth Parliament reversed the views of the judge in Reg. v. Murphy by passing the Parliamentary Privileges Act 1987, section 16(3) of which provided "for the avoidance of doubt" as follows:
In Prebble it was stated that section 16(3) contains the true principles to be applied, a view shared by the Joint Committee on Parliamentary Privilege (H.L. Paper 43-1) (1998 - 1999) which recommended a statutory provision confirming "as a general principle" the traditional view of article 9, i.e. that it is a blanket prohibition on the examination of parliamentary proceedings in court. "The prohibition applies whether or not legal liability would arise: p. 28, para. 85."
It is in my judgment firmly established that courts are precluded from entertaining in any proceedings (whatever the issue which may be at stake in those proceedings) evidence, questioning or submissions designed to show that a witness in parliamentary proceedings deliberately misled Parliament. To mislead Parliament is itself a breach of the code of parliamentary behaviour and liable to be disciplined by Parliament: see Church of Scientology of California v. Johnson-Smith  1 Q.B. 522; Pickin v. British Railways Board  A.C. 765 at p. 800 per Lord Simon of Glaisdale. For the courts to entertain a question whether Parliament had been deliberately misled would be for the courts to trespass within the area in which Parliament has exclusive jurisdiction.
I have stressed this feature of parliamentary privilege because of the way in which this case has developed. As will appear, the Court of Appeal seem to have taken the view that parliamentary privilege is mainly relevant to cases where a party applies to strike out a court action on the grounds that the relief claimed in that action in some way trenches on conclusions reached in parliamentary proceedings. Although no doubt such cases may arise, they are, I believe, rare compared with those in which a party to litigation wishes to challenge the accuracy or veracity of something said in parliamentary proceedings. In such a case, the other party does not apply to strike out the whole of the plaintiff's action: the action will often be about something quite different to that under consideration in Parliament. The other party applies to prevent the giving of that specific evidence or the challenging of a particular witness. If parliamentary privilege is held to exclude such evidence normally the only result (serious though it may be) is that the case is decided in the absence of that evidence.
In the field of defamation parliamentary privilege has its main impact in precluding the courts from entertaining a case alleging that a Member of Parliament or other participant in parliamentary proceedings is liable for defamatory statements made in the course of parliamentary proceedings. However, recent experience has shown that the impact of parliamentary privilege is not all favourable to an individual M.P. Say, as in the present case, that an M.P. wishes to sue for defamatory remarks made by a third party outside Parliament, such defamatory remarks alleging breaches by the M.P. of his parliamentary duties. If the defendant wishes to justify his defamatory remarks he will be precluded from leading evidence or cross-examining as to matters which form part of the M.P.'s parliamentary functions. As a result in some such cases it might be grossly unfair to let the action proceed in circumstances which would preclude the defendant from putting forward his defence. It was to deal with such a case that the court developed a procedure ("the fair trial stay") under which, unless the plaintiff could in some way waive the privilege which produced exceptional unfairness, the action by the M.P. would be stayed. Since most Parliaments (including those of New Zealand and the United Kingdom) take the view that the privilege cannot be waived either by the individual or by the House of Parliament itself, the result is that in such cases a stay is exceptionally granted. A fair trial stay of this kind was, I believe, first devised by the Court of Appeal of New Zealand in the Prebble case and was approved by the Privy Council in that case. It was also the basis of the stay granted in The Guardian action, May J. being satisfied that the action could not be fairly tried in the absence of evidence led by The Guardian to prove the alleged corrupt parliamentary acts of Mr. Hamilton.
3. The Act of 1996
The impact of the fair trial stay on Mr. Hamilton was, in the eyes of many, very unfair to him. He claimed that he had been gravely defamed by The Guardian allegation but, because The Guardian was precluded by parliamentary privilege from proving the truth of the allegations, Mr. Hamilton was himself precluded from clearing his own name if that were the truth of the matter. It was in an attempt to avoid this unfairness to a libelled M.P., caused by the attempt to avoid unfairness to the alleged libeller, that Parliament passed section 13 of the Defamation Act 1996, which so far as relevant provides as follows:
The hearing before Popplewell J.
The summons before Popplewell J. sought an order;
It appears that paragraph 1(a) was not, in terms, a claim based on parliamentary privilege but sought to invoke the principle of "collateral attack." Paragraph 1(b) relies on Parliamentary privilege. Paragraph (ii) sought a fair trail stay.
As to the claim based on collateral attack, Mr. Al Fayed contended that the present action constituted a collateral attack on a final decision of Sir Gordon Downey, or Parliament, and as such was an abuse of the process of the Court: see Hunter v. Chief Constable of West Midlands  A.C. 529. The judge rejected this argument on the basis that the inquisitorial procedure adopted by Sir Gordon Downey did not provide Mr. Hamilton with a fair opportunity to test the case made against him and therefore could not be treated as a binding decision. Second, so far as the claim for a stay was based on breach of parliamentary privilege, the judge held that such claim had to be based on a challenge to a decision of the House of Commons. The judge held that no decision had been made by the C.S.P. and therefore there could be no breach of privilege. Mr. Al Fayed had also contended that Mr. Hamilton's action infringed parliamentary privilege by seeking to overturn and impugn a parliamentary inquiry. On this issue the judge apparently held that the evidence before the P.C.S. was so frail as not to justify ousting the jurisdiction of the court. Finally, the judge declined to grant a fair trial stay under paragraph 2 of the summons on the grounds that it was premature to consider what would be the impact of parliamentary privilege on the trial and therefore impossible to say whether it would or would not be so unfair to Mr. Al Fayed as to justify a fair trial stay. Although the judge referred to the concept of a waiver of parliamentary privilege, he did not in terms refer to section 13 of the Act of 1996 or its impact on the present case.
The appeal to the Court of Appeal
The Solicitor-General, although invited to do so, had not appeared before Popplewell J. However the House of Commons and the Solicitor-General had become concerned with parts of the reasoning of the judge. The Solicitor-General therefore appeared before the Court of Appeal to make representations on behalf of the Speaker and Authorities of the House.
The Court of Appeal held, first, that apart from any question of parliamentary privilege the principle in Hunter's case had no application: a parliamentary decision was not analogous to a decision of the Court. Next, the Court of Appeal held that the proceedings before the P.C.S., his report and its acceptance by the C.S.P. were all "parliamentary proceedings" and therefore any attempt to investigate or challenge any of the procedures adopted constituted a breach of parliamentary privilege: they constituted a "questioning" of parliamentary procedures. They therefore held that the judge had been in error and had himself breached parliamentary procedure by criticising the procedures adopted by the P.C.S. The conclusion of the Court of Appeal on these two points met the concerns of the Solicitor-General. The Court of Appeal were clearly correct on these points and they were not further challenged on appeal to your Lordships' House.