1.  One of the topics which the Joint Committee is looking into is section 13 of the Defamation Act 1996, and the extent to which proceedings in Parliament should be the subject of scrutiny by the Courts in defamation actions. I have some experience of the practical problems to which article 9 of the Bill of Rights 1689 gives rise in defamation actions. The problems can be illustrated by reference to the history of actions brought by three Members of Parliament.

MR MAUDLING

  2.  The late Reginald Maudling sued the Daily Mirror and Granada Television in the late 1970s. The accusation against him was that he accepted remunerative directorships in Mr John Poulson's companies, and large payments to a charity closely associated with Mr Maudling's wife, as a reward for parliamentary questions, speeches and other interventions by Mr Maudling, in the course of which he did not declare an interest, as he should have done. By the time the allegations against Mr Maudling surfaced, Mr Poulson had, of course, become notorious for having built his large architectural practice by corrupt payments to local government officers.

  3.  Mr Maudling's conduct had been investigated by a Select Committee of the House of Commons, which found no evidence of corruption by Mr Maudling, but criticised him for failing to declare an interest in debate on one occasion. The Select Committee's report was debated on the floor of the House. In the result, the House accepted the Select Committee's conclusions, save for the criticism of him for having failed to declare an interest, which the House did not accept. In short, Mr Maudling was entirely cleared by the House of Commons.

  4.  When sued for libel, the Daily Mirror and Granada Television defended by justifying what they had publised, in effect asserting that the allegations summarised in paragraph 2 above were true, and accusing Mr Maudling of corruptly making his parliamentary interventions in Mr Poulson's interest. The problems of parliamentary privilege to which this situation gave rise were never resolved, because Mr Maudling's untimely death brought the proceedings to an end.

  5.  Under the law prior to the passing of section 13 of the Defamation Act 1996, as stated by the Judicial Committee of the Privy Council in the New Zealand case of Prebble v Television New Zealand Ltd 1995 1 AC 321, Mr Maudling's actions would have been stayed. As a result, he would have been without redress for the destruction of his reputation by powerful media interests. This result would have placed the United Kingdom in breach of article 6(1) of the European Convention on Human Rights (ECHR). The same applies to the Hamilton and Allason cases, considered below, in which the actions were stayed.

  6.  The right to reputation, protected by the law of defamation, is a civil right within the meaning of article 6 (1). See Golder v United Kingdom (1979-80) 1 EHRR 524, and Fayed v United Kingdom (1994) 18 EHRR 393. Note that the effect of article 6(1) is to place the Court under a duty to conduct a propert examination of the submissions, arguments, and evidence adduced by the parties, Kraska v Switzerland (1994) 18 EHRR 188, paragraph 30 of the judgement. The text of article 6 does not permit the right to a fair and public hearing to be restricted by the national law, even in the interests of national security, public safety, the prevention of disorder or crime, or the protection of health or morals, etc, as do articles 8 to 11. None of these articles mention restriction of the right in the interests of the maintenance of the rights and freedoms of Parliament. On the contrary, article 6(1) permits only exclusion of press and public from all or part of the trial in the interests of morals, public order, national security, etc.

  7.  In these circumstances, it seems to me that no question arises of enquiring whether the protection of Parliament from interference with its exclusive jurisdiction over its own affairs is a legitimate object, or whether the restriction of the right in a particular case is proportionate to that object. That enquiry can arise in a case where the existence of a substantive defence to an action for defamation (such as absolute or qualified privilege) is said to restrict unduly the right to a fair hearing to vindicate reputation, see Fayed v United Kingdom, cited above. The text of the article does not seem to admit of any such enquiry, in a case where the court simply declines to hear an action for libel where the Plaintiff admittedly has a good claim according to the national law, subject to any defences which might be established were there to be a hearing,

  8.  In any event, it is (to say the least) doubtful that the European Court of Human Rights would regard it as legitimate or proportionate to deny a Plaintiff his civil rights on the basis of a blanket prohibition on Courts investigating any form of parliamentary proceeding. Since the passing of section 13 of the Defamation Act 1996, this argument could scarcely be run, since it is only too apparent that Parliament passed the section for the very reason that it was not thought fair to deny a Plaintiff his civil rights on this ground. Section 13 by no means brings English law into line with article 6(1) of the ECHR, see below.

  9.  There cannot be any doubt that English law is correctly stated in Prebble. The effect of article 9 of the Bill of Rights 1689 and the great 19th Century cases of Stockdale v Hansard (1839) 9 Ad and E 1, and Bradlaugh v Gossett (1884) 12 QBD 271, is without doubt to prevent the Courts from enquiring into or deciding the issues to which Mr Maudling's case gave rise. Therefore, logically the Courts can do only one of two things: (1) stay the action, thus denying the Plaintiff access to the Courts to obtain redress for a breach of his civil rights, and placing the UK in breach of article 6(1) of the ECHR; or (2) strike out the defence of justification, which pleads the matters into which the Courts are forbidden by article 9 of the Bill of Rights from inquiring. To strike out the defence of justification in such a case would be a gross interference with freedom of expression, and would without doubt place the UK in breach of article 10 of the ECHR.

  10.  In short, article 9 of the Bill of Rights, as interpreted and applied in the case law, cannot be reconciled with the ECHR.

  11.  Had section 13 of the Defamation Act 1996 been in force, Mr Maudling would presumably have waived parliamentary privilege. The problem would then have arisen as to what, if anything, the Court was to do with the determination of the House of Commons, after full investigation, acquitting him of any wrongdoing. If the Court were simply to ignore it, there is a risk of the Court and the House of Commons reaching contradictory conclusions on a matter which has traditionally been regarded as exclusively within the jurisdiction of Parliament, not the Courts. Such a result could make a mockery of parliamentary investigation and determination, and bring the parliamentary process into contempt. See Bradlaugh v Gossett (1884) 12 QBD 271:

"The jurisdiction of the Houses over their own members, their right to impose discipline within their walls is absolute and exclusive. To use the words of Lord Ellenborough, 'They would sink into utter contempt and inefficiency without it.'" (Lord Coleridge at p 275).

"Blackstone says: 'The whole of the law and custom of Parliament has its original from this one maxim, that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.'" (Stephen J at p 278. The whole section of Stephen J's judgement at pp 278-9, commencing with the passage quoted, is worth studying).

"I do not say that the resolution of the House is the judgment of a Court not subject to our revision; but it has much in common with such a judgment. The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns practically invests it with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a Judge whose decision is not subject to appeal." (Stephen J p 285).

MR HAMILTON AND MR GREER

  12.  A more recent case, Neil Hamilton MP and Ian Greer v Guardian Newspapers, led directly to section 13 of the Defamation Act 1996, since, as I understand it, it was lobbying on Mr Hamilton's behalf which resulted in the section being inserted into the Bill during its passage through the House of Lords, where the Bill started.

  13.  In October 1994, The Guardian accused two Members of Parliament, Mr Hamilton and Mr Tim Smith, of having accepted cash sums from Mr Mohamed Al Fayed for parliamentary services, in particular asking a large number of parliamentary questions over a period of months or years in Mr Al Fayed's interest, and of having failed to declare the payments in the Register of Members' Interests. Mr Greer, a well known parliamentary lobbyist, was alleged to have been the conduit for some of the payments, both to Mr Hamilton and to Mr Smith. The Guardian's source was, of course Mr Al Fayed, and his credibillity, and any corroboration which could be obtained for his evidence, would have been the main issue at the trial. Immediately after the publication of the Guardian's story, Mr Smith resigned his ministerial office. In his letter of resignation to the Prime Minister, he admitted having accepted payments from Mr Al Fayed, which he had not declared. Mr Smith did not sue The Guardian, and thereafter steadfastly declined to elaborate on his letter to the Prime Minister, until the Parliamentary Commissioner for Standards commenced his investigation of the matter in October 1996, at the request of the Committee on Standards and Privileges.

  14.   The Guardian defended the action, principally by entering full pleas of justification, in which the series of parliamentary questions and other interventions by Mr Hamilton and Mr Smith, and the series of payments allegedly made by Mr Al Fayed to Mr Hamilton and Mr Smith, and Mr Greer's alleged role as a conduit for some of those payments, were fully set out. May J stayed the action on the 21 July 1995 on the ground that the essential issues in the action could not be fairly or properly tried without infringing article 9 of the Bill of Rights 1689. There was no appeal. The action was revived in September 1996 after the coming into force (on the 4 September 1996) of section 13 of the Defamation Act 1996, and after Mr Hamilton had waived parliamentary privilege so far as concerned his conduct. In the result the action was never tried, because, very close to trial, it was dropped in circumstances which are not relevant for present purposes.

  15.  Mr Smith did not waive parliamentary privilege so far as concerned his conduct. At the time the action was dropped, he was proposing to apply to set aside a subpoena served on him to produce documents in his possession relating to the payments. If necessary, in order to prevent a breach of privilege in relation to his conduct, he was also proposing to apply to have all references to him in the pleadings deleted. The result would have been that the Jury would have heard only half the case. The allegation was that Mr Smith and Mr Hamilton were the principal members of a lobbying group put together by Mr Greer to pressMr Al Fayed's case in Parliament, and closely co-ordinated and briefed by Mr Greer as Mr Al Fayed's paid lobbyist. It would have been artificial to exclude all reference to Mr Smith's conduct. In any event, Mr Smith's conduct, and the alleged payments to him by Mr Al Fayed, were directly relevant to the case against Mr Greer. The subpoena directing Mr Smith to produce evidence such as bank statements might have proved decisive (one way or the other). Furthermore, had the Jury head the evidence concerning Mr Smith (that he was secretly paid around £18,000 in cash in brown envelopes during the course of the lobbying operation), they might well have regarded it as powerfully bolstering Mr Al Fayed's credibility in relation to allegations originally made to The Guardian newspaper in 1993, and at the time strenuously denied.

  16.  It is difficult to escape the conclusion that section 13 of the Defamation Act 1996 was tailored for the Hamilton and Greer case, which was clearly its genesis, so as to enable Mr Hamilton to waive privilege, while protecting Mr Smith from the embarrassment of having his conduct scrutinised in the Hamilton and Greer trial. Given the potential significance of the evidence concerning Mr Smith, it is arguable that the application of section 13 in the Hamilton and Greer trial would have placed the United Kingdom in breach of article 6(1) of the ECHR. The exclusion of the evidence might have been unfair to The Guardian, or Mr Greer, or both.

  17.  For this reason, and for the reasons given below, section 13 is indefensible as it stands. Either the Court should be permitted to make a proper investigation of such issues of parliamentary conduct as arise in the litigation, or it should not. It is absurd that the Court should be confined to investigating the conduct only of those individuals who choose to waive privilege.

  18.  What if Mr Hamilton had taken the same course as Mr Smith, leaving Mr Greer to sue alone? Mr Greer could have waived parliamentary privilege, so far as concerned his conduct. There is nothing in section 13 which confines the power of waiver to Members or former Members of Parliament. The Court would then have found itself in the absurd position of being enabled to investigate Mr Greer's conduct, but not that of Mr Hamilton or Mr Smith (or for that matter, of Mr Al Fayed, if he declined to waive privilege). That would plainly be an impossibility. Mr Greer's action would have had to be stayed, notwithstanding the passage of section 13, which was supposed to remedy the unfairness of Mr Hamilton's and Mr Greer's position. It should be noted that Mr Greer claimed in the action that The Guardian publication had all but destroyed his large business, which he had spent years building up, and had caused him to have to lay off a number of members of his staff. Certainly Mr Greer is now out of business.

  19.  In the example given (of Mr Greer suing alone, and Mr Hamilton and Mr Smith both declining to waive privilege), the UK would be in breach of article 6(1) of the ECHR, by denying Mr Greer access to the Courts to obtain redress for what he claimed to be a serious invasion of his civil rights. There is no reason to think that this situation will not arise with some regularity. All corrupt transactions, and much parliamentary misbehaviour, involve more than one person. If one waives privilege and the others do not, the Court is stymied, and the position is absurd.

  20.  It is in any event inherently unsatisfactory that the responsibility for waiving parliamentary privilege should be placed in the hands of an individual, who may or may not be a Member or former Member of Parliament. Probably, in the present state of the law, not even the House of Commons or the House of Lords can waive parliamentary privilege (the New Zealand Privileges Committee so concluded in the Prebble case). The individual will, of course, base his decision whether to waive privilege on his perception of whether it suits his interest in the particular piece of litigation. He will waive privilege if it prevents him from suing. He will decline to waive it if its effect is to exclude evidence which he does not like.

  21.  This reduces parliamentary privilege to the level of a personal privilege for use at the whim and in the personal interest of an individual. It is without parallel or precedent to place such a power in the hands of one party to litigation, when the decision to waive or not to waive may seriously affect the interests of the other.

MR ALLASON

  22.  In 1995, Mr Rupert Allason MP sued in respect of an article in the now defunct Today newspaper alleging that he had been banned from tabling an Early Day Motion on the grounds that it named certain past and present Members of Parliament as agents of influence for the KGB. The article alleged that he had not been prevented from tabling a motion some time previously making similarly unproven allegations against a journalist.

  23.  The action was stayed on 14 July 1995 by Owen J on the grounds that the issues raised by the Defendants' plea of justification would infringe article 9 of the Bill of Rights. It was revived in October 1996 when the Plaintiff served a waiver of parliamentary privilege. The action has not yet been tried.

  24.  The Plaintiff's waiver obviously permits the Court to investigate his conduct in tabling Early Day Motions. The Members and former Members of Parliament allegedly named in the Plaintiff's EDM have also waived privilege. The problem which remains is that the leave of the House of Commons is required to permit officers of the House to give evidence. The Defendents consider the evidence of the staff of the Table Office to be crucial, in particular on the question whether the Plaintiff was banned from tabling a motion defamatory of past and present Members of Parliament, but not banned from tabling a motion defamatory of a journalist. The Clerk of the Journals has written to the Defendants' solicitors warning (no doubt correctly) that it would be a contempt of Parliament for a subpoena ad testificandum to be served on a clerk in the Table Office.

  25.  It is difficult to see how justice can effectively be done, to either side in the litigation, if the Plaintiff is permitted, because of section 13 of the Defamation Act 1996, to give evidence of what he says were his dealings with the Table Office, while the Defendants are prevented from obtaining or adducing evidence (documentary or oral) from the Table Office on the same point. If it is a matter of right for the Plaintiff to adduce his evidence of his conduct in Parliament, it should be a matter of right for the Defendants to adduce the evidence they need on the same point.

  26.  Refusal of access to the evidence of the Table Office would be likely to infringe the procedural equality (or equality of arms) requirement inherent in article 6(1) of the ECHR. Each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions which do not place him at a substantial disadvantage vis-a"-vis his opponent. See Dombo Beheer NV v The Netherlands (1994) 18 EHRR 213, paragraph 33 of the judgment.

CONCLUSION

  27.  In passing section 13 of the Defamation Act 1996, Parliament has abandoned the principle that proceedings in Parliament should not and may not be impeached or questioned in the Courts. Once the principle has gone, it is difficult to see why some proceedings in Parliament may be questioned, and some may not, depending on whether an individual, who may or may not be a Member of Parliament, chooses to waive privilege. There seems to be no remaining reason to prevent the Courts from doing justice by investigating proceedings in Parliament whenever such proceedings are properly in issue in civil litigation. That does not mean to say that anyone should be liable to be sued for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament, or that any proceeding in Parliament should be amenable to judicial review. Those are quite unrelated questions. See X v Austria (ECHR 1969)No. 3374/67, 12 YB 246.

  28.  If the investigation of proceedings in Parliament by the Courts is to be made effective, so that justice can be done, then Members and Officers of each House will have to be subject to the normal processes of law, in particular, subpoena.

  29.  It may be thought undesirable that decisions of either House, after full investigation, on the conduct of Members or Officers in Parliament or in relation to parliamentary proceedings, should be liable to be examined or overturned in the Courts. Prior to the passing of s13 of the Defamation Act, this would indisputably have been a gross breach of parliamentary privilege and invasion of the exclusive jurisdiction of Parliament, which the Courts would not have contemplated, see paragraph 11 above. This is a situation which the framers of s13 perhaps did not contemplate. It seems unlikely that waiver by an individual, who may not be a Member of Parliament, should have this effect. For example, what if a person aggrieved by an adverse finding of the House wished to complain of breach of natural justice or error of law in the proceedings which led to the finding?

  30.  If a Member or Officer, who was the subject of an adverse finding by either House, were permitted to sue on an extra-Parliamentary statement or publication to the effect that he or she was guilty of the conduct in question, the issues decided by the House would have to be relitigated in the Courts, with the possibility of the decision of the House being rejected. (Such a statement or publication would be the subject of qualified privilege in the law of defamation only if published in the form of a fair and accurate report of a parliamentary proceeding). In order to avoid relitigation of issues determined in Parliament, adverse findings of either House in relation to the conduct of a Member or Officer could be placed on the same footing as convictions in the criminal Courts. See section 13 of the Civil Evidence Act 1968 as amended by section 12 of the Defamation Act 1996.

  31.  This would not prevent Members or Officers who have been cleared of misconduct by either House, from facing an investigation and possible adverse finding on the same point in the Courts. In other words, it would not help persons who found themselves in the same position as Mr Maudling. But that is what happens in the Courts already: where a person has been acquitted on a criminal charge, he may face an adverse finding on the same point in a civil court. There is no inconsistency in the findings of the criminal and civil court in such a case, because the burden of proof is different. A newspaper, or anyone else who, before or after a Member or Officer had been cleared of misconduct by either House, suggested that he was guilty, could not, I think, be prevented from pleading justification in defence to a defamation action, without placing the UK in breach of article 10 of the ECHR. The newspaper, or other person making the allegation, would not have had the opportunity of presenting their evidence to, and addressing, the Committee of the House or the House itself, and so could not properly be bound by the finding.

  32.  If the finding of either House in a disciplinary matter is to be accorded the status of a conviction for the purposes of the law of defamation, it will have to be a matter of record. Furthermore, if parliamentary disciplinary procedures and findings are to have such a status, and are to be immune from other forms of challenge or review by the Courts, then it seems to follow that such procedures must themselves comply with article 6(1) of the ECHR. I do not know enough to take this further. It may be thought to be difficult to fault the procedure followed by the Parliamentary Commissioner for Standards in the case of Hamilton and others.

James Price QC

26 January 1998