Hamilton v Al Fayed

Article 9 parliamentary privilege generally prevents a court from receiving evidence, questions or submissions which challenge the truth or propriety of parliamentary proceedings. Where that restriction would prevent a defendant from fairly defending a defamation claim, the court may exceptionally stay the action.

Section 13 of the Defamation Act 1996 permits the person whose parliamentary conduct is in issue to waive that protection for the defamation proceedings. The waiver permits evidence, questioning, submissions and findings concerning that person’s conduct. Their admission does not infringe the privilege of either House. The statutory power therefore removes the basis for a fair-trial stay, although the waiver does not extend to another person who has not waived protection.

A former Member of Parliament sued for libel over allegations that he had corruptly accepted cash, vouchers and hospitality in return for parliamentary services. Parliamentary investigations had previously examined related allegations. The defendant sought dismissal as an abuse of process or, alternatively, a stay because parliamentary privilege would prevent a fair trial.

Popplewell J refused relief. The Court of Appeal, reported at [1999] 1 WLR 1569, dismissed the defendant’s appeal. It held, among other things, that the claimant had validly waived protection under section 13 of the Defamation Act 1996.

The central issue before the House was whether section 13 empowered the claimant to waive the relevant protection, thereby permitting the action to be tried notwithstanding parliamentary privilege.

1. Appeal dismissed unanimously. Lord Browne-Wilkinson delivered the leading speech. Lord Steyn agreed completely with his reasons. Lord Cooke agreed with his interpretation of section 13 of the Defamation Act 1996, and Lord Hope and Lord Clyde agreed with his reasons.

2. Per Lord Browne-Wilkinson, article 9 of the Bill of Rights 1689 forms part of a wider constitutional principle preserving the separate roles of Parliament and the courts. A court may not entertain evidence, cross-examination or submissions intended to establish that a witness deliberately misled Parliament. Misleading Parliament is a matter within Parliament’s exclusive disciplinary jurisdiction.

3. Parliamentary privilege ordinarily operates by excluding particular evidence or questioning rather than by requiring the whole action to be struck out. In a defamation action brought by a parliamentarian, that exclusion may prevent the defendant from proving justification. Where the resulting unfairness is exceptional, the court may stay the action to preserve a fair trial.

4. Lord Browne-Wilkinson considered that, without section 13, the present action should have been stayed. The defendant could justify the allegations only by challenging the claimant’s parliamentary conduct and evidence given during the parliamentary inquiries. Parliamentary privilege would otherwise have prohibited that challenge and made a fair trial impossible. This conclusion was counterfactual because the statutory waiver was decisive.

5. Section 13 clearly authorised the claimant to waive, for these defamation proceedings and so far as his own conduct was concerned, the protection of any enactment or rule preventing parliamentary proceedings from being questioned. Under subsection (2), evidence, questioning, submissions, comments and findings concerning that conduct could then be admitted. Subsection (2)(b) ensured that their admission did not infringe the privilege of either House.

6. The defendant’s distinction between privileges belonging to an individual member and those belonging to the House was rejected. Parliamentary privileges belong to the House and exist to enable Parliament to perform its functions. The individual enjoys their protection. Once that protection is waived under section 13, the statute prevents the resulting examination of the individual’s conduct from constituting an infringement of the House’s privilege.

1. House of Lords: Dismissed the defendant’s appeal unanimously. It held that section 13 of the Defamation Act 1996 authorised the claimant’s waiver of parliamentary protection.

2. Court of Appeal: In [1999] 1 WLR 1569, dismissed the appeal from Popplewell J. It held that the parliamentary inquiry was protected from judicial questioning, but that the claimant had validly waived the relevant protection under section 13.

3. High Court: Popplewell J refused to dismiss or stay the libel action. He rejected the collateral-attack argument and regarded a fair-trial stay as premature.