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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
    1. Stockdale v. Hansard (1839) 9 Ad. & E. 1; 3.St.Tr.(N.s.) 723
    2. Case of the Sheriff of Middlesex (1840) 11 Ad & E 273
    3. Bradlaugh v Gossett (1884) 12 QBD. 271
    4. Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42
    5. R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 1 All ER 195
    6. R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 All ER 93
    7. Hamilton v Al Fayed [1999] 3 All ER 317
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Hamilton v Al Fayed [1999] 3 All ER 317

LORD WOOLF MR: This is the judgment of the court, to which all three members have contributed.

The defendant appeals from a judgment of Popplewell J, given on 31 July 1998 by which he refused the defendant's application to strike out the plaintiff's claim for damages for libel on the ground of abuse of process. On 24 November 1998 this court (Judge LJ and Sir John Knox) granted leave to appeal against Popplewell J's decision. As the court then recognised, the case raises issues of great constitutional importance concerning the relationship between the courts and Parliament. The key question, in a nutshell, is whether it is open to a member of Parliament, or former member of Parliament, to bring a libel action on a publication made outside Parliament, containing defamatory imputations concerning the MP's activities and conduct as a member, on which adverse findings have been made by the Parliamentary Commissioner for Standards (PCS), which were subsequently left undisturbed by the Standing Committee on Standards and Privileges (CSP), and by the House of Commons itself.

On behalf of the defendant Mr George Carman QC submitted, in outline, that to allow this libel action to be heard necessarily involves questioning proceedings in Parliament in contravention of s 1, art 9 of the Bill of Rights (1688), whereby such proceedings are not to be questioned in any court, and/or that any hearing of this libel action will constitute a collateral attack upon Parliament's own previous investigation into the conduct of the plaintiff while he was a member of the House of Commons. These submissions are challenged by Mr Desmond Browne QC on behalf of the plaintiff, and Mr Browne also relies on s 13 of the Defamation Act 1996 as entitling him to bring this action.....

Before us, though not before Popplewell J, Her Majesty's Solicitor General has appeared to represent the Speaker and the Authorities of the House of Commons....He emphasised that his position was one of neutrality as between the parties to the present appeal, and his main criticism was directed to Popplewell J's approach to the problems arising, and in particular the manner in which the judge went behind the formal record of the parliamentary proceedings, concluded that the result of the parliamentary inquiry did not represent a final decision against the plaintiff, and expressed views as to the inadequacy of the inquisitorial procedure adopted by the PCS. This approach, he submitted, infringed art 9, constituted a collateral attack on a decision of Parliament, and failed to respect the wider constitutional principle of mutuality of respect between two constitutional sovereignties.....

On 16 January 1997 Channel 4 broadcast the 'Dispatches' programme by which in these proceedings the plaintiff claims to have been defamed. The programme contained part of a filmed interview given by the defendant. The defendant said (in summary) that he had personally handed over cash to the plaintiff on a number of occasions, and referred also to the free shopping trips and the holiday at the Ritz. On 9 January 1998 the plaintiff issued a writ against the defendant (and, originally, Channel 4 and another company, but they were later deleted by amendment) claiming damages for libel.... The defence, served in August 1998 and amended in December 1998, did not admit that meaning but nevertheless pleaded that so far as that was what the words meant, they were true in substance and in fact. Very full particulars of justification were given... By way of mitigation of damage, the defendant relied inter alia on what were described as the findings of a parliamentary inquiry.

The parliamentary process there referred to formed the genesis of the defendant's application for an order striking out the claim. That application was made by summons issued on 29 May 1998 and as I have said Popplewell J refused the order sought on 31 July 1998. We may then now turn to the history of the material events in Parliament, as to which we were provided with a very helpful factual summary agreed by all counsel.....

[In October 1996] the Committee on Standards and Privileges [CSP] asked the Parliamentary Commissioner for Standards [PCS] 'to investigate as a matter of urgency the serious allegations about the conduct of a number of Members referred to by Madam Speaker in the House on 14 October'. The PCS' terms of reference were:

To enquire into allegations of misconduct against Mr Neil Hamilton and other Members of Parliament with a view to establishing whether there has been any breach of House of Commons rules, in the letter or in the spirit, and to report the findings to the Select Committee on Standards and Privileges.

So it was that Sir Gordon Downey, the PCS, came to conduct his investigation. His final report was delivered to the CSP on 1 July 1997 (see First Report of the Committee on Standards and Privileges (HC Paper 30, vol 1 (1997(98)). By that date, the Channel 4 broadcast had of course already happened, on 16 January 1997 (though the plaintiff had not yet issued his writ in relation to it), and on 1 May 1997 the plaintiff had lost his seat in the general election. Sir Gordon's inquiry was extremely detailed. Both the plaintiff and the defendant, along with many others, gave evidence, though not on oath....The PCS' own description of the approach to the inquiry which he had adopted....was as follows:

This was a parliamentary inquiry and there was no attempt to replicate the procedures of a court action. The proposed procedures were shown in advance to the previous Select Committee and to complainees. The approach was inquisitorial, not adversarial. Its sole purpose was to arrive at the truth, not to achieve a 'conviction'.

The report was very full and comprehensive, running to some 151 pages, including Annexes...Part VIII of the report is headed 'Summary of findings and recommendations' and includes these passages:

857. I recommend that the Select Committee should endorse the following findings relating to individual Members Mr Hamilton (i) The evidence that Mr Hamilton received cash payments directly from Mr Al Fayed in return for lobbying services is compelling; and I so conclude. The amount received by him is unknown.... (ii) The way in which these payments were received and concealed fell well below the standards expected of Members of Parliament.....(iv) The hospitality Mr Hamilton received from Mr Al Fayed at the Ritz and elsewhere was intended, and accepted, as part of his reward for lobbying. It was not, as it should have been, registered. (vii) Mr Hamilton deliberately misled the President of the Board of Trade about his financial relationship with Mr Greer".

The CSP issued its Eighth Report, in which it considered the case relating to the plaintiff, on 5 November 1997. The plaintiff had appeared before the CSP and put in written statements. He apologised for his error of judgment in failing to register the hospitality he had received at the Ritz, but he vigorously contested many of the PCS' findings, and in particular consistently denied ever receiving any cash payments from the defendant. The CSP said (para 7):

"Mr Hamilton's conduct fell seriously and persistently below the standards which the House is entitled to expect of its Members. Had Mr Hamilton still been a Member we would have recommended a substantial period of suspension from the service of the House".....

In light of the issues we must decide para 8 is of great importance:

"The most difficult issue is that of the alleged payments to Mr Hamilton by Mr Mohamed Al Fayed. Having regard to the nature of the alleged transactions and the conflict of evidence there can be no absolute proof that such payments were, or were not, made.....We are satisfied that the Commissioner has carried out a thorough inquiry which took the evidence presented to him fully into account. The Committee did not arrive at a practicable way of reaching a judgment which adds to or subtracts from the Commissioner's findings".

....Just over three weeks later, on 9 January 1998 the plaintiff as we have said issued his writ against the defendant.....

The judgment of Popplewell J

Our conclusion does not with respect turn on the validity or otherwise of Popplewell J's approach, but it is that approach which is the particular subject of the Solicitor General's criticisms. We will therefore first summarise these controversial passages which are material to the concerns which he has expressed. (1) Having recorded that in his view Sir Gordon conducted his inquiry extremely thoroughly and perfectly fairly, the judge held that Mr Browne's criticism of the inquisitorial system of inquiry was justified. (2) The judge recorded, and appeared to adopt, comments by Lord Nolan in a letter to the clerk to the CSP dated 29 January 1998 that in his view it was not right that the PCS (as contrasted with the CSP) should be instructed to resolve disputed issues of fact, and certainly not issues involving the honour or credibility of a member. (3) The judge [described] para 8 of the CSP's findings... as 'Delphic in the extreme'.... (4) The judge took into account the speeches of various members during the House of Commons debate on 17 November 1997 in which they gave differing views as to the committee's intentions in relation to para 8.

Otherwise, the judgment comprised a careful review of the law and the relevant authorities to which we refer later in this judgment, and which give rise to the main issues on the appeal. For the purpose of determining those issues we should notice some other findings made by the learned judge. He held that in the last sentence which we have cited from para 8 of the Eighth Report 'The committee did not arrive at a practicable way of reaching a judgment which adds to or subtracts from the commissioner's findings the CSP were saying only that they were unable to judge what we may call the 'cash for questions' issue, and were expressing no view of their own about it. And so the judge concluded that: "...the resolution of the House of Commons accepting the report of the committee is not self evidently a decision of the House, that the plaintiff received cash payments from the defendant". The learned judge seems to have regarded this view, formed by him as to the facts of the matter, as conclusive against the defendant of the question whether the plaintiff's claim constituted an abuse of process as infringing the privileges of Parliament.....

The judge also considered an alternative submission made by Mr Price QC for the defendant on this part of the case, namely that the plaintiff's claim infringed parliamentary privilege because it sought to 'overturn and impugn [the] Parliamentary enquiry into the plaintiff's conduct'.... His reasoning here appears to turn the various strands of argument addressed to him into a single thread. At length he concluded:

"In my judgment in the instant case the procedure imposed upon Sir Gordon Downey and the inadequate appeal procedure together with the delphic conclusions to which the select committee came, are a frail basis upon which to oust the jurisdiction of the courts. Accordingly on neither of the first two grounds raised in the summons shall I do so".

Proceedings in Parliament

Mr Browne for the plaintiff submitted that the inquiry and report of the PCS were not 'proceedings in Parliament' for the purposes of art 9 of the Bill of Rights or of any other or wider rule upon which the argument as to collateral attack might be founded; and that the report's conclusions on the 'cash for questions' issue were not adopted or indorsed by the CSP or the House of Commons, so that there have not been any relevant 'proceedings in Parliament' at any stage. As regards the first part of this argument Mr Browne placed some reliance on the decision of Popplewell J in Rost v Edwards [1990] 2 All ER 641, [1990] 2 QB 460. In that case it was desired in the course of libel proceedings to call evidence about the Register of Members' Interests in order to support a plea of justification. Popplewell J said ([1990] 2 All ER 641 at 653, [1990] 2 QB 460 at 478):

"There are clearly cases where Parliament is to be the sole judge of its affairs. Equally there are clear cases where the courts are to have exclusive jurisdiction. In a case which may be described as a grey area a court, while giving full attention to the necessity for comity between the courts and Parliament, should not be astute to find a reason for ousting the jurisdiction of the court and for limiting or even defeating a proper claim by a party to litigation before it. If Parliament wishes to cover a particular area with privilege it has the ability to do so by passing an Act of Parliament giving itself the right to exclusive jurisdiction. Ousting the jurisdiction of the court has always been regarded as requiring the clearest possible words. Nothing in the authorities, as I have indicated, in any way covers the instant situation. It is true that courts have over the years enlarged the definition of (proceedings( from the formal speeches in the House to other matters, as appears from the various authorities to which I have been referred. But, as counsel for the defendants pointed out, there are plenty of areas which are not covered by (proceedings in Parliament(. It is clearly not possible to arrive at an exhaustive definition....A line has to be drawn somewhere. As Lord Pearce once said: 'I do not know, I only feel'. In the result, I conclude that claims for privilege in respect of the Register of Members' Interests does not fall within the definition of 'proceedings in Parliament'".

Assuming, with respect, that this reasoning is correct...it by no means follows in our judgment that the process of inquiry undertaken by the PCS and the report submitted by him do not constitute 'proceedings in Parliament'. The PCS' terms of reference, which we have set out, ran much wider than to require no more than an investigation touching only matters concerning the Register of Members' Interests; and the genesis of his inquiry is to be found in the Speaker's statement to the House of 14 October 1996 which itself gave expression to anxieties affecting, as the Speaker put it, 'the reputation of the House as a whole'. The PCS and the CSP were established by Standing Orders of the House following publication in May 1995 of the First Report of the Standing Committee on Standards in Public Life, which was itself brought into existence pursuant to the then Prime Minister's announcement in October 1994. In our judgment the inauguration of these bodies and their subsequent actions, the inquiry, the reports, and the resolution of the House constituted at every stage procedures which the House adopted for the better superintendence of its members' conduct and the protection of its own reputation. We conclude that the PCS' inquiry and report, the hearings before the CSP and its report, as well as the resolution of the House, amounted individually and collectively to proceedings in Parliament' whether for the purposes of art 9 of the Bill of Rights or of any wider rule which enjoins the protection of such proceedings.

In those circumstances it is not strictly necessary to consider whether the CSP (and the House) adopted the PCS' findings on the issue of 'cash for questions', since those findings in isolation amounted to proceedings in Parliament. However on a fair reading of para 8 of the Eighth Report in its context, it seems to us that it can at least be said that the CSP decided to leave the findings undisturbed. It seems that some members of the CSP had misgivings about lending the committee's imprimatur to the PCS' conclusions; but we do not think it necessary or proper to go into that. In our opinion the text of the Eighth Report speaks as the committee's collective decision. It is true that para 8 falls to be contrasted with para 6, in which findings of the PCS were specifically indorsed and the CSP recommended a 'notional' penalty in the plaintiff's case ('notional' because, of course, he was no longer a member of the House). But the findings relating to 'cash for questions' were not dissented from; as we have said they were left undisturbed and went, annexed to the Eighth Report, to the House for its consideration. If necessary we would hold that those findings formed part of the CSP's proceedings.

We will next consider whether the argument as to collateral attack upon proceedings of the House may be founded on any rule or principle of the law...The first possibility is to be found in art 9 of the Bill of Rights.

Article 9

.... It was contended by Mr Carman that to allow the plaintiff's action to proceed would involve 'questioning' proceedings of Parliament and thus would contravene art 9. The Solicitor General did not so submit; as we have said the focus of his concern relating to art 9 was directed to what he saw as the criticisms which Popplewell J had levelled at the inquiry process. The starting point for an appraisal of Mr Carman's submission is, no doubt, the proposition that art 9 is a provision of high constitutional importance and ought not to be narrowly construed; Lord Browne-Wilkinson so stated in Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42 at 67, [1993] AC 593 at 638. But he at once continued ([1993] 1 All ER 42 at 67(68, [1993] AC 593 at 638):

"In my judgment, the plain meaning of art 9, viewed against the historical background in which it was enacted, was to ensure that members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament".....

In our view this confirms that the vice to which art 9 is directed (so far as the courts are concerned) is the inhibition of freedom of speech and debate in Parliament that might flow from any condemnation by the Queen's courts, being themselves an arm of government, of anything there said. The position is quite different when it comes to criticisms by other persons (especially the media) of what is said in Parliament. Lord Browne-Wilkinson himself drew this distinction in the passage we have cited from Pepper v Hart. The courts could only have legitimate occasion to criticise anything said or done in parliamentary proceedings if they were called on to pass judgment on any such proceedings; but that they clearly cannot and must not do. Nor therefore should they issue such criticisms on any occasion, for to do so would be gratuitous.

In consequence we think with respect that Popplewell J was wrong to level any assault on the procedures adopted by the PCS; and this conclusion will satisfy the major concerns which have brought the Solicitor General to intervene in the proceedings before us.

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 s 13 of the Defamation Act 1996. The current libel action does not, or at the least need not, involve the imputation of any criticism of the procedures adopted by the PCS.... As long as the requirement to avoid any such criticism is observed, art 9, properly understood, does not mean the plaintiff's proceedings cannot be allowed to continue...... Manifestly the court would never make any order striking down what has been done by Parliament, or attaching legal sanctions or consequences to it. The defamation proceedings create no risk of this. The most that can be said is that the court might arrive at a different result on some aspects of the factual merits of the 'cash for questions' issue from that arrived at by the PCS and (at least) not departed from or objected to by the CSP or the House of Commons.

The approach to this issue must recognise that here the courts are being asked to prevent the plaintiff from proceeding with perfectly properly constituted proceedings in which he asserts a recognised cause of action in order to seek redress for a wrong he claims to have suffered by reason of an event happening entirely outside Parliament. It is important to bear in mind that any extension to the principle preventing the plaintiff continuing with his claim would have effect even if there were a raft of new evidence. As it happens, there are questions in the present case as to the extent of overlap between the subject-matter of the libel action and that of the PCS' inquiry; and the plaintiff says he has evidence which was not considered in the parliamentary process.

The court should only decline to hear the plaintiff's libel claim if it were persuaded that the possibility of a result being arrived at which was inconsistent with the PCS' conclusions would be to undermine the authority of Parliament so that the action should on that ground be condemned as abusive. It cannot credibly be maintained that such a power ought to be exercised in every single case where litigation covers or overlaps the same ground as has been trodden by an investigation by Parliament into some aspect of its own affairs. As the law presently stands, if a member of the House repeats outside Parliament what he said in Parliament, he can be sued for it. If a parliamentary committee or either House itself(reaches a distinct conclusion as to the merits of a question which does not itself touch Parliament's procedures, the courts in a later claim based on a common law cause of action arising out of the same facts may arrive at a result wholly at variance with the judgment of Parliament....It is not suggested that these circumstances undermine Parliament's authority.

Accordingly, were the court in any case to hold that a common law claim should be struck out as abusive because it risked undermining Parliament's authority, it would do so only upon an appreciation of the case's facts and circumstances. We do not say that there could not be such a case. But there would probably have to be additional features of the case making this appropriate: for example material tending to show that the plaintiff's real purpose was not to vindicate himself in relation to the later publication but to attack the parliamentary process.

On the facts of the present case, it has not been established that the plaintiff's claim should be struck out as abusive. The Solicitor General was inclined to accept that of the various financial benefits which the defendant alleged were received by the plaintiff, the PCS did not investigate the allegations about free shopping and found insufficient evidence to show that the plaintiff had been given Harrods vouchers; and Mr Browne took other points, into whose details it is I think unnecessary to go, to show that there was no full overlap between the libel complained of and the matters investigated in Parliament. In addition it has not been established that the plaintiff entertains any intent to attack as such the procedures adopted in Parliament. What he seeks is the resolution in court proceedings of his claim that he has been defamed. Very obviously, at this stage this court has nothing to say about the merits or demerits of such a claim; but for the plaintiff to be shut out from asserting it would require the clear demonstration of a threat to Parliament's authority. We do not think that this has been shown. It involves no reflection on Parliament to say that the courts are better placed to determine the issues which arise here. Parliament itself only embarked on its investigation when it became clear that the courts were not doing so.

Section 13 of the Defamation Act 1996

The plaintiff accepts that but for s 13 of the Act he could not have brought proceedings. However, he having waived privilege under s 13 that section is conclusive in the plaintiff's favour. Section 13 of the Act provides:

(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, 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.

(2) Where a person waives that protection((a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and (b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it.

(4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.

(5) Without prejudice to the generality of subsection (4), that subsection applies to((a) the giving of evidence before either House or a committee; (b) the presentation or submission of a document to either House or a committee; (c) the preparation of a document for the purposes of or incidental to the transacting of any such business; (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and (e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members' interests. In this subsection 'a committee' means a committee of either House or a joint committee of both Houses of Parliament.

We have already said that this provision was, in part at any rate, enacted so that the plaintiff might pursue his claim against the Guardian... The plaintiff's waiver of privilege under the section would without question have allowed him to take the Guardian action to trial. Why not, then, the action against the defendant following the Channel 4 broadcast? Mr Carman and the Solicitor General say that the intervening parliamentary inquiry makes all the difference. But we do not think that is so. Subsection (2) in terms allows evidence, questions, statements, comments and findings to be given, asked or made in relation to the conduct of a person in or in relation to proceedings in Parliament, where that person has waived privilege. The section makes no qualification whatever to inhibit or cancel the effect of sub-s (2) where there has been a parliamentary inquiry into the subject matter in question. To hold that it does would require words to be read into the statute which are not there. The policy of the section is, in our judgment, to allow such defamation claims as this to be brought irrespective of the demands of parliamentary privilege.