Kimathi & Ors v Foreign And Commonwealth Office

Article 9 of the Bill of Rights 1689 prevents parliamentary material being used in litigation to prove the truth or accuracy of facts stated in Parliament, or the belief, credibility, motive or good faith of the speaker. The court must examine both the purpose for which the material is relied on and its relevance to the substantive issues. A mere reference to the fact of a parliamentary debate, or to words spoken there, is permissible where the material is not used to challenge or establish its truth. Parliamentary privilege belongs to Parliament as a whole. It cannot be waived by an individual member or by the Speaker, and the death of the member who made the statement does not remove the protection. Limited statutory exceptions and the separate publication of the same statement outside Parliament may produce different results.

The claimants in historic litigation against the Foreign and Commonwealth Office sought to rely on 48 extracts from Hansard for their substantive content. They wished to establish the truth of facts mentioned in parliamentary speeches and, in some instances, the speakers’ belief in those facts. The defendant opposed that use under Article 9 of the Bill of Rights 1689. The court was also asked to consider whether parliamentary privilege ceased on the death of the speaker, whether it could be waived, and the significance of republication outside Parliament. The central issue was whether the proposed uses of the Hansard extracts would impeach or question proceedings in Parliament.

1. Purpose and scope. The court must identify the purpose for which parliamentary material is relied on and consider its relevance to the substantive claim. Article 9 requires separate consideration of “proceedings in Parliament”, “impeached or questioned”, and “in any court or place out of Parliament” (paras 15–18).
2. Truth and accuracy. Hansard may not be used to prove the truth or accuracy of facts stated in Parliament where those facts are not admitted. That would require the court to assess the accuracy of parliamentary proceedings. Nor may Hansard be used to establish the speaker’s subjective belief, credibility, good faith or motive, since that would involve questioning the speaker or the proceedings. If the underlying facts are agreed, the parliamentary material is irrelevant for that purpose (paras 19–25).
3. Permitted uses. A mere reference to the fact that matters were debated in Parliament, or to what was said, is permissible if the material is not used to establish the truth of the matters stated. Parliamentary material may also be considered as an aid to construing ambiguous legislation, and where it is relevant to assessing compatibility with the European Convention on Human Rights. A statement repeated or published outside Parliament is generally protected only by reference to the separate publication, not Article 9 (paras 14, 17, 39).
4. Death and waiver. The privilege protects Parliament itself and is not lost when the maker of a statement dies. Article 9 is absolute. Neither an individual member nor the Speaker can waive it. The privilege can be altered only by statute; the former statutory waiver provision in section 13 of the Defamation Act 1996 had been repealed by the Deregulation Act 2015 (paras 26–34).
5. The proposed uses of the claimants’ Hansard extracts were therefore impermissible where directed to proving extraneous facts or the accuracy or belief underlying parliamentary statements. The defendant’s extracts were non-controversial: one had been republished outside Parliament, and the other was relied on only to establish that a parliamentary reference had been made (paras 38–40).