Hamilton v Fayed and Others
| Jurisdiction | UK Non-devolved |
| Judge | LORD BROWNE-WILKINSON,LORD STEYN,LORD COOKE OF THORNDON,LORD HOPE OF CRAIGHEAD,LORD CLYDE |
| Judgment Date | 23 March 2000 |
| Judgment citation (vLex) | [2000] UKHL J0323-1 |
| Date | 23 March 2000 |
| Court | House of Lords |
[2000] UKHL J0323-1
Lord Browne-Wilkinson
Lord Steyn Lord Cooke of Thorndon
Lord Hope of Craighead
Lord Clyde
HOUSE OF LORDS
My Lords,
This appeal raised questions of parliamentary privilege in relation to defamation proceedings brought by a Member of Parliament against a defendant who had alleged that he had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered. I will first set out the facts of the case, then summarise the relevant law, then consider the way in which the arguments were put forward in the courts below, and finally explain my conclusions on the case.
The Facts
The story starts in October 1985 when the appellant Mohamed Al Fayed ("Mr. Al Fayed") employed a firm of parliamentary lobbyists, Ian Greer Associates ("I.G.A."). At that time Mr. Al Fayed was in dispute with Mr. "Tiny" Rowland over Mr. Al Fayed's takeover of the House of Fraser, including in particular Harrods. I.G.A. were engaged to conduct the lobbying operation on Mr. Al Fayed's behalf which they did most actively between 1987 and 1989. In April 1987 the Department of Trade and Industry appointed inspectors to investigate the circumstances of the takeover; the inspectors' report was published in March 1990.
The respondent, Mr. Hamilton, used to be the Member of Parliament for Tatton. He became involved in the lobbying campaign in early November 1985 when he tabled parliamentary questions on behalf of Mr. Al Fayed. It is common ground between the parties that during the relevant period Mr. Hamilton made a number of parliamentary interventions (including tabling questions and giving his support to early day motions) attended meetings with ministers and wrote letters, in all of which activities he was pressing the views which were in Mr. Al Fayed's interests.
Mr. Al Fayed contended that he made substantial cash payments directly to Mr. Hamilton on a number of occasions between mid-1987 and late 1989. It was Mr. Al Fayed's contention that he made these payments in return for Mr. Hamilton's services in Parliament. Mr. Al Fayed also contended that, for the same reason, he gave Harrods gift vouchers to Mr. Hamilton. Mr. Hamilton denied receiving either cash or vouchers. On the other hand, it is common ground that in September 1987 Mr. Hamilton and his wife did spend six nights at The Ritz in Paris at Mr. Al Fayed's expense. It is also common ground that Mr. Hamilton and his wife stayed for shorter periods as the guests of Mr. Al Fayed at his house in Scotland and at his Paris apartment. Although Mr. Hamilton accepted that he received these benefits he contended that they were not a reward for services rendered or to be rendered.
On 20 October 1994 The Guardian newspaper published a front page report alleging that Mr. Al Fayed had paid Mr. Hamilton and another Member of Parliament thousands of pounds through I.G.A. in return for them asking questions in Parliament. That article also referred to the Hamiltons' stay at The Ritz. Mr. Hamilton issued libel proceedings against The Guardian as did Mr. Greer and I.G.A. The other Member of Parliament implicated by The Guardian admitted receiving fees from Mr. Al Fayed and resigned from the Government.
Following the publication of the article in The Guardian the Prime Minister announced the setting up of the Standing Committee on Standards in Public Life chaired by Lord Nolan ("the Nolan Committee"). In May 1995 the Nolan Committee recommended the appointment of a Parliamentary Commissioner for Standards.
It was part of The Guardian's defence in The Guardian action to allege that questions tabled in Parliament by Mr. Hamilton were linked to the payments received by him from Mr. Al Fayed. This was denied by Mr. Hamilton. It was therefore clear that questions of parliamentary privilege might arise in the course of The Guardian action. On 21 July 1995, May J. stayed The Guardian action because of parliamentary privilege on the grounds that the claims and defences raised issues whose investigation would infringe Parliamentary privilege and that in the absence of the evidence excluded by Parliamentary privilege the action could not be fairly tried. The result was that Mr. Hamilton was prevented from clearing his name by an action in the courts.
At about this time the Defamation Bill was passing through Parliament. On 4 July 1996 it received the Royal Assent. During its passage through the House of Lords an amendment (prompted in part by the stay of The Guardian action) was tabled. That amendment in due course became section 13 of the Act which came into force on 4 September 1996. Section 13 of the Act of 1996 raises the decisive question in this case and I will set it out later. For present purposes it is enough to say that it enabled a Member of Parliament who considered that he had been defamed to waive his Parliamentary privilege and bring proceedings for defamation even though such proceedings or the manner in which they were conducted would otherwise amount to a breach of Parliamentary privilege. In consequence of the passing of the Act, Mr. Hamilton applied to lift the stay on The Guardian action. Mr. Hamilton having waived his privilege, the stay was lifted and an early trial date fixed. However, very shortly before the trial of The Guardian action (which was due to start at the beginning of October 1996) Mr. Hamilton, Mr. Greer and I.G.A. withdrew their libel action against The Guardian. Despite Mr. Hamilton's assertion that he had only been forced to withdraw his action because he could not afford to instruct fresh legal advisers after Mr. Greer and I.G.A. had withdrawn, the fact that he had withdrawn his claim against The Guardian produced a great deal of publicity.
On 14 October 1996 the Speaker of the House of Commons referred to serious allegations which had been made about Members of Parliament while the House was adjourned which allegations called into question the reputation of the House as a whole. She expressed the hope that the Committee on Standards and Privileges would find it possible to make an early special report. Her announcement indicated that the issues to be considered ought at the end to be resolved by a decision of the House of Commons as a whole.
The Parliamentary Commissioner for Standards ("P.C.S.") had been recommended by the Nolan Committee and provided for by Standing Order 150 (H.C.P. 400) (1996-1997) of the House of Commons. His duties include:
"To receive and, if he thinks fit, investigate specific complaints from Members and from members of the public in respect of:
(i) the registration or declaration of interests, or
(ii) other aspects of the propriety of a Member's conduct:
and to report to the Committee on Standards and Privileges or to an appropriate sub-committee thereof."
The Committee on Standards and Privileges ("C.S.P.") was established by Standing Order 149:
"(a) to consider specific matters relating to privileges referred to it by the House;
(b) to oversee the work of the [P.C.S.] …;
(c) to consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in any code of conduct to which the House has agreed and which have been drawn to the committee's attention by the [P.C.S.];"
On 28 October 1996 the C.S.P. asked the P.C.S. to investigate as a matter of urgency the serious allegations about the conduct of Members referred to by the Speaker on 14 October 1996. His terms of reference were:
"To inquire into allegations of misconduct against [Mr. 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 [C.S.P.]."
The P.C.S. conducted a long and detailed inquiry involving the taking of evidence from 60 witnesses at 13 oral hearings and the consideration of some 14,000 pages of documents.
Whilst the P.C.S.'s inquiry was still continuing and a week before Mr. Al Fayed was due to give his evidence to the P.C.S., on 16 January 1997 Channel 4 broadcast a "Dispatches" programme which included a filmed interview with Mr. Al Fayed. In the course of that interview Mr. Al Fayed made serious allegations against Mr. Hamilton including the allegation that he had received money, vouchers and the stay at The Ritz Hotel as reward for his services in asking parliamentary questions and otherwise lobbying on behalf of Mr. Al Fayed. It is the remarks made by Mr. Al Fayed in the course of that broadcast which were the foundation of this action.
In the General Election on 1 May 1997 Mr. Hamilton lost his seat.
The P.C.S. prepared a report ("the Downey Report") which was submitted to the C.S.P. and published on 2 July 1997. That Report found that there had been a concerted parliamentary lobbying operation on behalf of Mr. Al Fayed between 1985 and 1989, mounted and to a large extent co-ordinated by Ian Greer, of which operation Mr. Hamilton was one of the "core members." The Downey Report reached the following conclusions:
1. That the evidence of Mr. Hamilton receiving cash payments directly from Mr. Al Fayed in return for lobbying services was compelling and the P.C.S. concluded that he had received such moneys. He found that the sum was unlikely to have been less than £18-25,000 received by another M.P.
2. The P.C.S. found that "the way in which these payments were received and concealed fell well below the standards expected of Members of Parliament."
3. That there was not sufficient evidence to show that Mr. Hamilton had received Harrods gift vouchers.
4. That the hospitality received from Mr. Al Fayed at The Ritz and elsewhere was intended and accepted as part of Mr....
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