‘Only Flattery is Safe’: Political Speech and the Defamation Act 1996

Published date01 May 1997
Date01 May 1997
AuthorKevin Williams
DOIhttp://doi.org/10.1111/1468-2230.00087
‘Only Flattery is Safe’: Political Speech and the
Kevin Williams*
The sudden and humiliating collapse of Neil Hamilton’s libel action against The
Guardian newspaper at the end of September 1996
1
is likely to have significant
repercussions for the political process and, maybe, for the law of defamation. In its
immediate wake, most attention has been focused on how allegations of political
corruption (‘sleaze’) should be investigated and dealt with.
2
Much less attention
has been paid to the means by which Mr Hamilton was enabled to sue at all.
Ironically, this was made possible only because a majority of Conservative peers
and MPs voted for a late amendment to the Defamation Bill. What is now section
13 of the 1996 Defamation Act retrospectively allows MPs to waive parliamentary
privilege, so facilitating libel actions against critics of their conduct in the House.
This note argues that, regardless of the outcome of waiver for individual
politicians, section 13 was a mistaken and retrograde step, and that the common
law of defamation should be developed so as to promote greater freedom of
political speech.
Mr Hamilton and the Act
In 1994, Mr Hamilton was forced to resign his junior ministerial post because of
what has come to be called the ‘cash for questions’ scandal. When he attempted to
sue The Guardian in July 1995 over its allegation of corruption, the newspaper
argued that Article 9 of the Bill of Rights 1689 forbade the courts to investigate
anything that happens in Parliament. Article 9 declares 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.’ A well understood consequence of this
ancient privilege is that MPs may not be sued in respect of anything they say in the
course of parliamentary debate. It was perhaps less well understood that the
privilege cut both ways, that the mere existence of the privilege might be a shield
in the hands of libel defendants preventing MPs themselves from suing.
The Modern Law Review Limited 1997 (MLR 60:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
388
*Sheffield Hallam University.
The quotation in the title is taken from Weir’s seminal case note concerning Bognor Regis UDC vCampion
[1972A] CLJ 238, 239.
1 See The Guardian, 1 October 1996. For a detailed account of the ‘Hamilton affair’ from the
newspaper’s perspective, see Leigh and Vulliamy, Sleaze: The Corruption of Parliament (London:
Fourth Estate, 1997).
2 On 3 October 1996, the Prime Minister referred the matter of Mr Hamilton’s conduct to Sir Gordon
Downey, the Parliamentary Commissioner for Standards, a part-time official with few staff and no
inherent power to subpoena documents or witnesses, or to take evidence on oath. He will report to the
Committee on Standards and Privileges, which has an in-built government majority and is advised by
the government’s law officers. Critics called unsuccessfully for an independent judicial tribunal of
inquiry with full investigative powers.

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