Alexander Horne and Oonagh Gay: Ending the Hamilton Affair?

AlexanderOonaghArticle 9 of the Bill of Rights 1689 has been the subject of a variety of legal challenges. The Article, which provides (in modern parlance) that: “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” is usually considered to be a fundamental feature of the constitution and a cornerstone of parliamentary privilege.

The legal immunity granted by Article 9 is wide and it is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the Member who knows what he is saying is untrue as much as the Member of Parliament who acts honestly and responsibly. Nor is the protection confined to Members. Article 9 applies to officers of Parliament and non-Members who participate in proceedings in Parliament, such as witnesses giving evidence to a committee of one of the Houses. In the case of A v United Kingdom (2003) 36 EHHR 51 the European Court of Human Rights held that the absolute freedom of speech in Parliament was proportionate, and did not violate the European Convention on Human Rights (although the Court also asserted its jurisdiction over national parliaments’ privileges).

In 1995 an interesting issue arose relating to a case in which a Member sued a non-Member for defamation. In his defence the non-Member asserted that he was justified in saying what he did, and sought to rely on statements made by the Member in parliamentary proceedings.

The case was a libel action brought by Neil Hamilton, then an MP, and a political lobbyist, Ian Greer, against The Guardian newspaper over allegations that Hamilton had “made corrupt use of his right to ask questions of ministers and had received money via Mr Greer’s company (`cash for questions’)”. In its defence, the newspaper submitted that for a full defence it would need to use parliamentary proceedings as evidence relating to Mr Hamilton’s conduct and motives in tabling parliamentary questions and early day motions. The judge found that this was contrary to Article 9 and stopped the proceedings on the ground that it would not be fair to allow the claimant to sue for libel if the defendant newspaper was not permitted to justify what it had written. In other words, just like every other citizen a Member was bound by the prohibition on impeaching or questioning proceedings in Parliament, even if it might be in the MP’s own interest for the court to let the parties in the case do so.

Section 13 of the Defamation Act 1996 was intended to remedy the injustice perceived to exist in this type of case. It enabled a person, who may be a Member of either House or of neither House, to waive parliamentary privilege so far as he or she is concerned, for the purposes of defamation proceedings. The essential protection of Members against legal liability for what they have said or done in Parliament remained and could not be waived. The section was inserted into the Defamation Bill [HL] through a Lords Amendment, drafted by parliamentary counsel, but moved by Lord Hoffmann, a Law Lord, at Third Reading. Although the amendment was subsequently the subject of debate in the Commons, the clause survived.

Geoffrey Lock’s chapter on the Hamilton affair in Conduct Unbecoming (eds Oonagh Gay and Patricia Leopold Politico’s 2004) tells the full story of Hamilton’s subsequent legal actions. He and Greer planned to re-activate their defamation action against the Guardian, but the discovery process led Greer’s lawyers to advise against his continuing the case, and Hamilton also had to withdraw as a result.

Section 13 enabled Hamilton to take a separate action against Mohammed Al Fayed, who had made allegations about cash payments to Hamilton. The effect of a waiver under s 13 of the 1996 Act was eventually considered by the House of Lords in Hamilton v Fayed [2001] 1 AC 395. Lord Browne-Wilkinson gave the only speech (in what was a unanimous decision by the court). In respect of s 13, he concluded, inter alia:

Before the passing of the Act of 1996, it was generally considered that parliamentary privilege could not be waived either by the Member whose parliamentary conduct was in issue or by the House itself. All parliamentary privilege exists for the better discharge of the function of Parliament as a whole and belongs to Parliament as a whole. Under section 13, the individual Member bringing defamation proceedings is given power to waive for the purposes of those proceedings “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.” The section then provides by subsection (2) that such waiver operates so that evidence, cross-examination or submissions made relative to the particular M.P. are not to be excluded by reason of parliamentary privilege. The M.P. thus having been given statutory power to waive the protection afforded by the privilege so far as he is concerned, the section goes on to provide that the admission of such evidence, questioning etc., should not be treated as infringing the privilege of either House of Parliament: see subsection (2(b).

The effect of the section seems to me to be entirely clear. It deals specifically with the circumstances raised by Mr. Hamilton’s case against The Guardian. He could waive his own protection from parliamentary privilege and in consequence any privilege of Parliament as a whole would fall to be regarded as not infringed. At least in part, section 13 was passed by Parliament to enable specifically Mr. Hamilton to proceed with The Guardian action. The issues in this present action against Mr. Al Fayed are for the most part identical. It would, indeed, be very strange if the section had failed to enable Mr. Hamilton to bring this action.

Section 13 proved controversial. It was considered by the Joint Committee on Parliamentary Privilege in 1999 (HL 43-I / HC 214-I). That Committee concluded that:

68 … [T]he cure that section 13 seeks to achieve has severe problems of its own and has attracted widespread criticism, not least from our witnesses …. A fundamental flaw is that it undermines the basis of privilege: freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example, where two members, or a member and a non-member, are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings. No similar waiver is available for any criminal action, or any other form of civil action.

69. The Joint Committee considers these criticisms are unanswerable. The enactment of section 13, seeking to remedy a perceived injustice, has created indefensible anomalies of its own which should not be allowed to continue. The Joint Committee recommends that section 13 should be repealed.

The Committee acknowledged that repeal would leave the potential problem that the provision had been intended to address unresolved and examined alternative remedies. It recommended the replacement of section 13 with a short statutory provision empowering each House to waive Article 9 for the purpose of any court proceedings, whether relating to defamation or to any other matter, where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability.

In spite of the criticisms raised by the Committee, no steps were taken to repeal section 13 following its report and there are no other reported uses of the waiver. A further opportunity for repeal came in the 2010-12 Parliamentary Session, with the consideration of a draft Defamation Bill, but no action was taken, as a more wide-sweeping review of parliamentary privilege was under way in the wake of the 2009 expenses scandal. This review resulted, not in the draft Bill foreshadowed in the 2010 Queen’s speech, but in a Green Paper on Privilege (Cm 8318: 2012). The Green Paper posed the question as to whether “anything, needs to be done in relation to section 13 of the Defamation Act 1996.” It stated that it “could be repealed without replacement, amended, or left as it is, given that the existing power of waiver has never been used.”

The Government’s proposals were considered by a new Joint Committee on Parliamentary Privilege, which reported in June 2013. It recorded that it had received evidence from the Government to the effect that as it was not aware of any instances in which anyone has used the power of waiver “it would not appear to be a pressing priority to repeal Section 13.” Nonetheless, the Committee concluded that:

170. We recommend the repeal of section 13 of the Defamation Act 1996. The anomalies it creates are more damaging than the mischief it was intended to cure. There is no persuasive argument for granting either House a power of waiver or for restricting such a power to defamation cases alone. A wider power of waiver would create uncertainty, and have the potential to undermine the fundamental constitutional principle of freedom of speech in Parliament.

The Government responded to the report in December 2013 (Cm 8771) and agreed that section 13 should go when parliamentary time permitted.

The Government was given a nudge by former Commons Members of the 2013 Joint Committee (Conservatives Mr William Cash and Mr Bernard Jenkin and Labour’s Thomas Docherty) who tabled New Clause NC1 to the Criminal Justice and Courts Bill and Amendment 4 to the Deregulation Bill, both propositions repealing section13 without replacement. The New Clause was withdrawn before the report stage of the Criminal Justice and Courts Bill, but the Government Ministers in charge of the Deregulation Bill (Conservative Solicitor General Oliver Heald and Liberal Democrat Deputy Leader of the House Tom Brake) added their names to Amendment thereby adopting it as a Government Amendment and virtually guaranteeing its path to the statute book. So it looks likely section 13 will eventually be repealed via the Deregulation Bill, due to be carried over as amended into the 2014-15 Session, among its varied provisions for the repeal of legislation “no longer of practical use”. (The Members’ explanatory note to Amendment 4 described the provision circumspectly as “hardly used” rather than the Green Paper’s bolder formulation’s “never used.”)

William Cash and Thomas Docherty spoke to the amendment with support from the Solicitor General.

As a carry-over Bill, the Deregulation Bill still needs to be considered by the House of Lords. But unless their Lordships have any strong objections, it appears that by the end of the current Parliament, Section 13 will be no more (as its repeal will come into force two months after the Deregulation Act is passed).

In addition to the Bill, a resolution was also agreed in the Commons on 8 May 2014, mirroring a Resolution in identical terms passed by the House of Lords on 20 March 2014, that legislation creating individual rights which could impinge on the activities of the House should in future contain express provision to this effect. This was another recommendation from the 2013 Joint Committee to be adopted quietly.

Reform of parliamentary privilege tends to emerge in this piecemeal way, and the end of the waiver embodied in section 13 is yet another example of this practice.

Alexander Horne is a Barrister (Lincoln’s Inn) and is Legal and Senior Policy Adviser at the House of Commons Scrutiny Unit. Oonagh Gay is a senior researcher at the Parliament and Constitution Centre in the House of Commons. The views expressed are the personal views of the authors and do not reflect the views of any other person or institution. Further information on the business of the House of Commons can be found at: Second Reading: The Blog of the House of Commons Library

(Suggested citation:A. Horne and O. Gay, ‘Ending the Hamilton Affair?’ U.K. Const. L. Blog (21stMay 2014) (available at http://ukconstitutionallaw.org/).

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One response to “Alexander Horne and Oonagh Gay: Ending the Hamilton Affair?

  1. Pingback: Law and Media Round Up – 26 May 2014 | Inforrm's Blog

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