Hamilton v. Al Fayed

Key principles: Parliamentary privilege prevents courts from admitting evidence, questioning or submissions designed to impugn proceedings in Parliament or to show that a participant misled Parliament. The Defamation Act 1996, s.13, permits a Member of Parliament to waive the protection afforded by parliamentary privilege for the purposes of defamation proceedings so far as concerns him, and that waiver enables evidence and questioning about his parliamentary conduct to be admitted without constituting an infringement of parliamentary privilege. Where, but for privilege, the defendant could not have a fair trial because he would be precluded from challenging parliamentary evidence, a fair trial stay would otherwise be appropriate.

The House held that s.13 of the Defamation Act 1996 applied and that Mr. Hamilton validly waived the protection of parliamentary privilege so far as concerned him; accordingly the libel action was not barred by parliamentary privilege. The court rejected the narrower view that privilege only bars proceedings which directly challenge parliamentary jurisdiction; instead privilege normally operates to exclude evidence that would impugn parliamentary proceedings and so can produce a fair trial stay absent waiver under s.13.

Background and facts:

• Mr. Mohamed Al Fayed broadcast allegations that the respondent, former Member of Parliament Mr. Hamilton, had corruptly solicited and received payments and benefits in return for parliamentary services (tabling questions, lobbying) during 1985–1989. Mr. Hamilton sued in defamation.
• Separately, a lengthy inquiry by the Parliamentary Commissioner for Standards and the Committee on Standards and Privileges (the Downey Report and subsequent C.S.P. Eighth Report) found that Mr. Hamilton had received material benefits and that his conduct fell below expected standards; the House of Commons approved that report.
• Earlier libel proceedings against The Guardian had been stayed on grounds of parliamentary privilege; in response Parliament enacted s.13 of the Defamation Act 1996 enabling a Member to waive privilege for the purposes of defamation proceedings.

Procedural posture:

• Mr. Al Fayed applied to dismiss or stay the libel action on grounds of abuse of process, collateral attack and parliamentary privilege (including a fair trial stay). Popplewell J refused relief. The Court of Appeal dismissed Mr. Al Fayed's appeal ([1999] 1 WLR 1569) on different reasoning, holding that s.13 applied. The case came to the House of Lords by further appeal.

Issues framed:

1. Whether, apart from s.13, parliamentary privilege precluded the trial because the defendant would be unable to adduce or challenge evidence concerning parliamentary proceedings; and whether a fair trial stay should have been granted.
2. Whether a Member can, by s.13 of the Defamation Act 1996, waive the protection of parliamentary privilege so as to permit evidence and questioning about his conduct in parliamentary proceedings without infringing privilege.

Court’s reasoning and conclusions:

• The court reaffirmed the broad scope of parliamentary privilege: courts will not entertain challenges to what is said or done in Parliament, including enquiries into whether a witness misled the House. That protection ordinarily prevents evidence or cross-examination designed to impeach parliamentary proceedings, and where that exclusion would make it impossible for a defendant to have a fair trial a fair trial stay should be made.
• Section 13 was construed to give an individual M.P. the statutory power to waive, for the purposes of defamation proceedings, the protection of any enactment or rule of law preventing proceedings in Parliament being questioned. Subsection (2) provides that evidence and questioning admitted consequent upon such waiver are not to be regarded as infringing privilege of either House. The House rejected an argument that some privileges belong to the House alone and could not be displaced by an individual's waiver; once the individual waives his protection, the subsection operates to permit the questioning without treating it as a breach of parliamentary privilege.
• Because the House found that s.13 applied, it was unnecessary to decide the case on the alternative ground whether privilege apart from s.13 would have required a stay; the court observed, however, that absent s.13 a fair trial stay would have been appropriate in this case.

Appeal dismissed. The House held that section 13 of the Defamation Act 1996 enabled Mr. Hamilton to waive the protection of parliamentary privilege so far as concerned him; that waiver permitted evidence and questioning about his parliamentary conduct to be admitted without infringing the privilege of either House, and accordingly the libel action was not barred by parliamentary privilege.

First instance: application before Popplewell J refusing Mr. Al Fayed relief. Court of Appeal: appeal dismissed, reported at [1999] 1 WLR 1569. House of Lords (this appeal): dismissed, [2000] UKHL 18.