England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBEN1 98/1497/CMS1

(MR JUSTICE POPPLEWELL )

Royal Courts of Justice

Strand

London WC2A 2LL

Friday 26 March 1999

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE HIRST

LORD JUSTICE LAWS

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MOSTYN NEIL HAMILTON

Plaintiff/Respondent

- v -

MOHAMMED AL FAYED

Defendant/Appellant

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR GEORGE CARMAN QC and MR J PRICE QC and MS H ROGERS (Instructed by Messrs D J Freeman, London EC4A 1JU) appeared on behalf of the Appellant

MR DESMOND BROWNE QC and MS A PAGE (Instructed by Messrs Crockers Oswald Hickson, London, EC4A 3NJ) appeared on behalf of the Respondent

MR R CRANSTON QC and MR P SALES (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared as interverners on behalf of the Speaker and Authorities of the House of Commons.

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Friday 26 March 1999

JUDGMENT

LORD WOOLF, MR: This is the judgment of the court, to which all three members have contributed.

The defendant appeals from a judgment of Popplewell J, given on 31 July 1998, by which he refused the defendant’s application to strike out the plaintiff’s claim for damages for libel on the ground of abuse of process. On 24 November 1998 this court (Judge LJ and Sir John Knox) granted leave to appeal against Popplewell J’s decision. As the court then recognised, the case raises issues of great constitutional importance concerning the relationship between the courts and Parliament. The key question, in a nutshell, is whether it is open to a Member of Parliament, or former Member of Parliament, to bring a libel action on a publication made outside Parliament, containing defamatory imputations concerning the MP's activities and conduct as a Member, on which adverse findings have been made by the Parliamentary Commissioner for Standards (PCS), which were subsequently left undisturbed by the Standing Committee on Standards and Privileges (CSP), and by the House of Commons itself.

On behalf of the defendant Mr George Carman QC submitted, in outline, that to allow this libel action to be heard necessarily involves questioning proceedings in Parliament in contravention of Article 9 of the Bill of Rights 1689, whereby such proceedings are not to be questioned in any court, and/or that any hearing of this libel action will constitute a collateral attack upon Parliament's own previous investigation into the conduct of the plaintiff while he was a Member of the House of Commons. These submissions are challenged by Mr Desmond Browne QC on behalf of the plaintiff, and Mr Browne also relies on Section 13 of the Defamation Act 1996 as entitling him to bring this action, and also upon Article 6 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”).

Before us, though not before Popplewell J, HM Solicitor General has appeared to represent the Speaker and the Authorities of the House of Commons. He made it clear that he did so in fulfilment of one of the historic roles of the Law Officers, namely “as servants of the House in their capacity as legal advisers to Parliament” [1]. His intervention has been of much assistance to the Court. He emphasised that his position was one of neutrality as between the parties to the present appeal, and his main criticism was directed to Popplewell J's approach to the problems arising, and in particular the manner in which the judge went behind the formal record of the Parliamentary proceedings, concluded that the result of the Parliamentary inquiry did not represent a final decision against the plaintiff, and expressed views as to the inadequacy of the inquisitorial procedure adopted by the PCS. This approach, he submitted, infringed Article 9, constituted a collateral attack on a decision of Parliament, and failed to respect the wider constitutional principle of mutuality of respect between two constitutional sovereignties.

It is convenient first to describe the facts. The plaintiff, Mr Mostyn Neil Hamilton, who was a Member of Parliament until he lost his seat in the 1997 General Election, complains of a broadcast made by the defendant Mr Fayed in the course of a Channel 4 TV documentary "Dispatches" on 16 January 1997, accusing him of seeking and accepting from the defendant cash for questions asked by him in the House of Commons. The general background to the case is, of course, common public knowledge, but it is necessary nonetheless to analyse the course of events in some considerable detail. At several stages of the history the chronological order of events is significant. There is an overlap between the relevant Parliamentary events and the external events, and we shall describe the latter first.

In the mid 1980's there was a bitter dispute between the defendant and Mr "Tiny" Rowland concerning the acquisition by the defendant and his family of the House of Fraser, and in particular Harrods. In October 1985 Mr Fayed employed Ian Greer Associates as his Parliamentary lobbyists, and there followed a well organised campaign on the defendant’s part both in and out of Parliament, principally during the period early 1987 to late 1989 when the DTI Inspectors who had been appointed to investigate the circumstances of the acquisition reported. During this period the plaintiff made a number of Parliamentary interventions, including questions in the defendant’s interests, and it is the defendant’s contention, flatly denied by the plaintiff, that the plaintiff was paid by him for this purpose, and that the initiative for such payments came from the plaintiff, the first alleged demand for payment being on 2 June 1987.

On 20 October 1994 The Guardian published a front page story derived from the defendant’s allegations under the heading "Tory MP's were paid to plant questions says Harrods' chief". The article stated that the defendant had paid tens of thousands of pounds to the plaintiff and to Mr Tim Smith MP, through the agency of IGA, in return for asking questions in Parliament on his behalf. The defendant was said in terms to be the source of the information. The article also alleged that the plaintiff and his wife had enjoyed a week’s stay at the Ritz Hotel in Paris free of charge, and had had free shopping trips to Harrods at the defendant’s invitation.

The plaintiff issued proceedings for libel against The Guardian , as did IGA and Mr Ian Greer, on the same day as the publication, 20 October 1994. Mr Smith admitted having received money from the defendant and resigned his ministerial post. The Guardian pleaded justification, alleging inter alia that over the two year period 1987 to 1989 the plaintiff sought and received from the defendant in the form of either cash or Harrods gift vouchers a total of £28,000, for the most part in cash, and that such sums represented payments by the defendant for the plaintiff’s services in tabling Parliamentary questions and motions and other Parliamentary services. In his reply the plaintiff asserted that he had never received any payment in cash or kind for any action taken by him in support of the defendant’s cause.

On 21 July 1995 May J (as he then was) stayed both the plaintiff’s and Greer - IGA’s actions, holding that “the claims and defences raised issues whose investigation would infringe Parliamentary privilege to such an extent that they could not fairly be tried” [2]. A significant part of his ratio was that The Guardian would be inhibited in presenting its plea of justification since it would be precluded on grounds of Parliamentary privilege from linking the alleged payments made to the plaintiff with the admitted tabling of the Parliamentary questions. That seemed to be the end of the matter. But on 4 July 1996 the Defamation Act 1996 received Royal Assent. During the passage of the Bill through the House of Lords, Lord Hoffmann moved an amendment on 7 May 1996 which was ultimately incorporated in the Act as Section 13. This amendment was undoubtedly prompted by the stay of Mr Hamilton's action in the preceding July, as Lord Hoffmann's speech made abundantly clear. Section 13 itself came into force on 4 September 1996. The proper construction and effect of this section is strongly disputed, and is of cardinal importance for the disposal of this appeal. The provision is set out later in this judgment. The consequence of its enactment for immediate purposes was that on 31 July 1996 May J lifted the stay imposed by him on 21 July 1995.

However, shortly afterwards the claims against The Guardian collapsed. The actions had been consolidated by order of Sir Michael Davies on 28 April 1995, so that Mr Greer and IGA were being represented by the same solicitors and counsel as the plaintiff. Because of certain facts which had only just come to light (which concerned hitherto undisclosed payments by IGA to a third party) IGA and Mr Greer were advised in September 1996 that their prospects of success were “almost nil”, and they decided to withdraw. The plaintiff considered that he had been betrayed. Counsel and the solicitors took the view that in the events which had happened they could no more continue to act for the plaintiff than for Mr Greer and IGA. In those circumstances the plaintiff, if he was to continue, would have to instruct fresh solicitors and counsel and seek an adjournment of the trial, which was imminent. This was beyond his means; and for that reason (on his account) he too withdrew.

On 16 January 1997 Channel 4 broadcast the “Dispatches” programme by which in these proceedings the plaintiff claims to have been defamed. The programme contained part of a filmed interview given by the defendant. The defendant said (in summary) that he had personally handed over cash to the plaintiff on a number of occasions, and referred also to the free shopping trips and the holiday at the Ritz. On 9 January 1998 the plaintiff issued a writ against the defendant (and, originally, Channel 4 and another company, but they were later deleted by amendment) claiming damages for libel. The plaintiff’s explanation for the year’s delay was that it was only by then that he was able to raise sufficient finance to mount his case. The statement of claim alleged that the words complained of meant and were understood to mean in their context “that the plaintiff had corruptly demanded and accepted from the defendant free shopping, gift vouchers, a holiday on the Red Sea [sic: but the reference is said to be to the Ritz] and cash payments in return for tabling Parliamentary questions and other Parliamentary services on behalf of the defendant”. The defence, served in August 1998 and amended in December 1998, did not admit that meaning but nevertheless pleaded that so far as that was what the words meant, they were true in substance and in fact. Very full particulars of justification were given, which included (para 3.8.1) an allegation of some twelve meetings between the plaintiff and the defendant, in the period from 2 June 1987 to 21 November 1989, upon all or nearly all of which the plaintiff asked for money and was given cash or (on four occasions) gift vouchers. In addition para 3.8.2 alleged that on several occasions within the same period the plaintiff collected or was sent envelopes containing cash. Other paragraphs alleged the free stay at the Ritz in Paris in September 1987, and a trip to Balnagown Castle in Scotland which belonged to the defendant. By way of mitigation of damage, the defendant relied inter alia on what were described as the findings of a Parliamentary inquiry.

The Parliamentary process there referred to formed the genesis of the defendant’s application for an order striking out the claim. That application was made by summons issued on 29 May 1998, and as I have said Popplewell J refused the order sought on 31 July 1998. We may then now turn to the history of the material events in Parliament, as to which we were provided with a very helpful factual summary agreed by all counsel.

On 25 October 1994 the Prime Minister announced the establishment of the Standing Committee on Standards in Public Life, whose first chairman was Lord Nolan. In May 1995 that Committee published its first report. It recommended that “the House should appoint a person of independent standing, who should have a degree of tenure and not be a career member of the House of Commons staff, as Parliamentary Commissioner for Standards (“PCS”)”. Next, on 6 June 1995 the Select Committee on Members’ Interests considered a complaint by Mr Alex Carlile MP that the plaintiff should have declared in the Register of Members’ Interests the visit to the Ritz and his alleged receipt of £6,000 worth of Harrods vouchers. The complaint was subsequently widened to cover also allegations of cash payments. Having regard to the libel action against The Guardian , which was then still on foot, the Committee dealt only with the Ritz visit which the plaintiff admitted; what was in dispute was the interpretation of the Rules for Registration. The Committee concluded that the plaintiff ought to have declared his visit to the Ritz in the Register of Members’ Interests and “it was imprudent of him not to have taken the precaution of consulting the Registrar at the time”. However he had resigned his position as Minister for Corporate affairs following the allegations in The Guardian , and the Committee did not recommend any further action.

There followed what is now numbered Standing Order 150 of the House of Commons, which provided for the appointment of a PCS. In view of the arguments presented to us as to the nature of the PCS’ role, I should set out part of the text:

“150. - (1) There shall be an officer of this House, called the Parliamentary Commissioner for Standards, who shall be appointed by the House.

(2) The principal duties of the Commissioner shall be -

...

(e) 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.

(3) The Commissioner may be dismissed by resolution of the House.”

Standing Order 149 established the Committee on Standards and Privileges (“CSP”):

“149. - (1) There shall be a select committee, called the Committee on Standards and Privileges -

(a) to consider specific matters relating to privileges referred to it by the House;

(b) to oversee the work of the Parliamentary Commissioner for Standards...;

(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 Commissioner; and to recommend any modifications to such code of conduct as may from time to time appear to be necessary.”

After the collapse of The Guardian litigation, the Speaker on 14 October 1996 made an announcement in the House of Commons. She said:

“While the House has been adjourned, very serious allegations have been widely made about the conduct of a number of Members. Indeed, the reputation of the House as a whole has been called into question... I hope that the Committee on Standards and Privileges will find it possible to make an early special report to the House... If the Committee or the Parliamentary Commissioner for Standards needs additional powers, no doubt the House will be invited to decide whether they should be granted... The proceedings should be as transparent as possible so as to maintain public confidence and at the end, the issues ought to be resolved by a decision of the House.”

The allegations there referred to affected 24 Members of Parliament in addition to the plaintiff, but it seems clear, and was confirmed by the Solicitor General, that so far as the plaintiff was concerned the House of Commons had held its hand and foreborn from taking any disciplinary action so long as his claim against The Guardian remained alive.

A fortnight later the CSP asked the PCS “to investigate as a matter of urgency the serious allegations about the conduct of a number of Members referred to by Madam Speaker in the House on 14 October”. The PCS’ terms of reference were:

“To enquire into allegations of misconduct against Mr Neil 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 Select Committee on Standards and Privileges”.

So it was that Sir Gordon Downey, the PCS, came to conduct his investigation. His final report was delivered to the CSP on 1 July 1997. By that date, the Channel 4 broadcast had of course already happened, on 16 January 1997 (though the plaintiff had not yet issued his writ in relation to it), and on 1 May 1997 the plaintiff had lost his seat in the General Election. Sir Gordon’s inquiry was extremely detailed. Both the plaintiff and the defendant, along with many others, gave evidence, though not on oath. There were altogether some 60 witnesses, 13 oral hearings, and some 14,000 pages of documents. Witnesses were not permitted to cross-examine each other; the evidence was tested by Mr Nigel Pleming QC, counsel to the inquiry, and by the PCS himself. The PCS’ own description of the approach to the inquiry which he had adopted (which was to be accepted by the CSP in its 8th report) was as follows:

“This was a parliamentary inquiry and there was no attempt to replicate the procedures of a court action. The proposed procedures were shown in advance to the previous Select Committee and to complainees. The approach was inquisitorial, not adversarial. Its sole purpose was to arrive at the truth, not to achieve a ´conviction’.”

The report was very full and comprehensive, running to some 151 pages, including Annexes. It covered the allegations not only against the plaintiff but also against the other 24 Members of Parliament who had been implicated, including Mr Tim Smith MP, who is referred to in Sir Gordon's findings against the plaintiff. Part VIII of the report is headed “SUMMARY OF FINDINGS AND RECOMMENDATIONS” and includes these passages:

“857. I recommend that the Select Committee should endorse the following findings relating to individual Members:-

...

(i) The evidence that Mr Hamilton received cash payments directly from Mr Al Fayed in return for lobbying services is compelling; and I so conclude. The amount received by him is unknown but is unlikely to have been less than the total amount received by Mr Smith . There is no evidence to indicate that Mr Hamilton received cash from Mr Al Fayed indirectly through Mr Greer.

(ii) The way in which these payments were received and concealed fell well below the standards expected of Members of Parliament.

(iii) There is insufficient evidence to show that Mr Hamilton received Harrods vouchers.

(iv) The hospitality received from Mr Al Fayed at the Ritz and elsewhere was intended, and accepted, as part of his reward for lobbying. It was not, as it should have been, registered.

...

(vii) Mr Hamilton deliberately misled the President of the Board of Trade about his financial relationship with Mr Greer.

...”

The CSP issued its 8th report, in which it considered the case relating to the plaintiff, on 5 November 1997. The plaintiff had appeared before the CSP and put in written statements. He apologised for his error of judgment in failing to register the hospitality he had received at the Ritz, but he vigorously contested many of the PCS’ findings, and in particular consistently denied ever receiving any cash payments from the defendant. The CSP said (para 5):

“We have carefully considered Mr Hamilton’s representations. Essentially, these repeat the evidence he gave to the Commissioner for Standards. We do not consider that Mr Hamilton has brought forward relevant new evidence.”

In para 6 the CSP set out their conclusions in five sub-paragraphs, which included these passages:

“(i) ... The relationship [sc. between the plaintiff and the defendant] was essentially a business relationship in which Mr Hamilton advocated Mr Al Fayed’s cause. He received material benefits. The visit [to the Ritz] should have been registered and Mr Hamilton must have known that it should have been.

(ii) ... The Commissioner’s finding that Mr Heseltine was ´deliberately misled’ appears to us to be justified.

...

(v) The Commissioner found a variety of occasions, most of which are now admitted by Mr Hamilton, when he failed to register his interests. We draw attention to paragraph 813 of the Commissioner’s report...”

Para 813 is then set out. It states that the visit of the plaintiff and his wife to Balnagown Castle as the defendant’s guests should have been registered. It refers to the plaintiff’s having received two Harrods hampers in 1987 and 1988, but the PCS felt that that might not have been registrable according to the understood position at the time. There were a number of other benefits, mostly payments, which the PCS found should have been registered, but these did not relate to the defendant. It is clear that the CSP accepted all these findings. The closing words of para 6 of the report are:

“Cumulatively this list of omissions adds up to a casualness bordering on indifference or contempt towards the rules of the House on disclosure of interests.”

Para 7 is as follows:

“Mr Hamilton’s conduct fell seriously and persistently below the standards which the House is entitled to expect of its Members. Had Mr Hamilton still been a Member we would have recommended a substantial period of suspension from the service of the House. These conclusions are justified by paragraph 6 alone.”

In light of the issues we must decide para 8 is of great importance:

“The most difficult issue is that of the alleged payments to Mr Hamilton by Mr Mohamed Al Fayed. Having regard to the nature of the alleged transactions and the conflict of evidence there can be no absolute proof that such payments were, or were not, made... There is no oral evidence independent of Mr Al Fayed and those who were working with him at the time. Mr Hamilton has consistently denied that he took ´cash for questions’ or was paid for lobbying services. He questioned at length the credibility of witnesses who gave evidence on this matter. We have considered whether it is within our remit to carry out our own investigation. Such an investigation would have involved taking evidence from those witnesses who gave evidence to the Commissioner and also reassembling and reassessing a considerable body of material. The Committee would have become engaged in the details of inquiry which the appointment of the Commissioner was meant to avoid, with no certainty that we could take the matter any further than he had done... We are satisfied that the Commissioner has carried out a thorough inquiry which took the evidence presented to him fully into account. The Committee did not arrive at a practicable way of reaching a judgment which adds to or subtracts from the Commissioner’s findings.”

We shall have to return to para 8, in particular to consider what in its context is meant by the last sentence.

On 17 November 1997 the CSP’s 8th report was debated in the House of Commons, as was the 7th (which dealt with the cases of those Members whose conduct had been investigated by the PCS other than the plaintiff). The House resolved to approve both reports. Just over three weeks later, on 9 January 1998, the plaintiff as we have said issued his writ against the defendant for damages for libel arising out of the Channel 4 “Dispatches” programme.

***

The judgment of Popplewell J

Our conclusion does not with respect turn on the validity or otherwise of Popplewell J's approach, but it is that approach which is the particular subject of the Solicitor General's criticisms. We will therefore first summarise these controversial passages which are material to the concerns which he has expressed:-

(i) Having recorded that in his view Sir Gordon conducted his inquiry "extremely thoroughly and perfectly fairly", the judge held that Mr Browne's criticism of the inquisitorial system of inquiry was justified. (page 7)

(ii) The judge recorded, and appeared to adopt, comments by Lord Nolan in a letter to the Clerk to the CSP dated 29 January 1998 that in his view it was not right that the PCS (as contrasted with the CSP) should be instructed to resolve disputed issues of fact, and certainly not issues involving the honour or credibility of a member. (page 14)

(iii) The judge, in seeking to interpret paragraph 8 of the CSP's findings, which he described as "Delphic in the extreme", took into account the fate of earlier drafts, including in particular a draft (which the CSP rejected by a majority) concluding that "we had no reason to question [the PCS'] findings and we therefore endorse them". (page 15)

(iv) The judge took into account the speeches of various Members during the House of Commons debate on 17 November 1997, in which they gave differing views as to the Committee's intentions in relation to paragraph 8. (page 16)

Otherwise, the judgment comprised a careful review of the law and the relevant authorities to which we refer later in this judgment, and which give rise to the main issues on the appeal. For the purpose of determining those issues we should notice some other findings made by the learned judge. He held (p. 21) that in the last sentence which we have cited from para 8 of the 8th report - “The Committee did not arrive at a practicable way of reaching a judgment which adds to or subtracts from the Commissioner’s findings” - the CSP were saying only that they were unable to judge what we may call the “cash for questions” issue, and were expressing no view of their own about it. And so the judge concluded (p. 21) that “the resolution of the House of Commons accepting the report of the Committee is not self evidently a decision of the House, that the plaintiff received cash payments from the defendant.” The learned judge seems to have regarded this view, formed by him as to the facts of the matter, as conclusive against the defendant of the question whether the plaintiff’s claim constituted an abuse of process as infringing the privileges of Parliament.

The judge also proceeded to address a different question raised on the summons before him, namely (in his words: p. 21) whether it was “an abuse of process for an action to be brought for the purpose of mounting [a] collateral attack on a final decision against the plaintiff made by another court of competent jurisdiction in previous proceedings in which the plaintiff had full opportunity of contesting the decision”. He cited passages from Lord Diplock’s speech in their Lordships’ House in what he described as the locus classicus on the subject, namely Hunter v Chief Constable of the West Midlands [1982] AC 529, and from Smith v Linskills [1996] 1 WLR 763 in the Court of Appeal. We shall have to return to these authorities. Popplewell J said (pp. 25-26):

“For the reasons I have already set out, I am not satisfied that this was a final decision against the intending plaintiff. Secondly because of the inherent flaws in the inquisitorial system adopted and the inadequacy of the appeal procedure, I do not believe that the plaintiff had a full opportunity of contesting the decision.”

The judge also considered an alternative submission made by Mr Price QC for the defendant on this part of the case, namely that the plaintiff’s claim infringed Parliamentary privilege because it sought to “overturn and impugn [the] Parliamentary enquiry into the plaintiff’s conduct”. He seems at first to have treated this as a different argument on abuse of process from that which he had earlier rejected on the footing that there was on the facts no House of Commons decision against the plaintiff. But after citing passages from Prebble v Television NZ [1995] 1 AC 321 and Pepper v Hart [1993] AC 593 dealing with art 9 of the Bill of Rights 1689, he held (p. 30) that “the final decision made by another Court of competent jurisdiction, as envisaged by Lord Diplock in Hunter, must be the House of Commons itself”. His reasoning here appears to turn the various strands of argument addressed to him into a single thread. At length he concluded (p. 36):

“In my judgment in the instant case the procedure imposed upon Sir Gordon Downey and the inadequate appeal procedure together with the delphic conclusions to which the Select Committee came, are a frail basis upon which to oust the jurisdiction of the Courts. Accordingly on neither of the first two grounds raised in the summons shall I do so.”

One other aspect of the hearing before Popplewell J should be recorded, namely that on 30 June the plaintiff's solicitors wrote to the Attorney General setting out the nature of the action, and inviting him to make representations to the Court, to which the Legal Secretary to the Law Officers replied that the Attorney General did not propose to be represented, but would be grateful to be told of the outcome of the application.

There are certain features of the judgment which serve to illustrate potentially important difficulties. First among these is the fact that in considerable measure the result the judge arrived at was grounded in his view that the inquisitorial procedure adopted by the PCS (and what he regarded as “the inadequate appeal procedure”) did not afford to the plaintiff a full opportunity to contest what was alleged against him. There is secondly his conclusion that the PCS’ findings as regards the “cash for questions” issue were not adopted or endorsed by the CSP or the House, and that accordingly there was no affront to Parliamentary privilege.

These two aspects of the judgment below constitute appropriate starting-points for the resolution of two of the major questions canvassed on this appeal, which we may identify at this stage. The first is, does the Hunter principle apply to the facts of this case? The second is, did the PCS’ inquiry, the CSP’s 8th report, and the House of Commons’ approval of it (together or individually) constitute “proceedings in Parliament” for the purposes of art 9 of the Bill of Rights 1689 or of any wider principle which might protect such proceedings from direct or indirect judicial interference? These are manifestly not the only questions in the case. But it is convenient to address and resolve them at this stage.

Hunter

The argument is that the libel action constitutes a collateral attack on a decision of Parliament upon charges or complaints brought against the plaintiff relating to his conduct as a Member of Parliament. The decision is stated to be the resolution of the House to approve the CSP’s 8th report. This argument, which is central to the case, is by no means based exclusively upon an appeal to their Lordships’ decision in Hunter; but that is said to be one foundation for it. Another dimension of the argument concerns the issue, much disputed at the Bar, whether the PCS’ conclusions were in fact adopted or endorsed by the CSP and the House; and that engages the second question which we have just identified. We will first address Hunter distinctly, assuming (strictly for this present purpose) that there are no difficulties in the way of the defendant or the Solicitor General arising from any doubt as to the endorsement of the PCS’ findings by the CSP.

It is important to have in mind that the principle enunciated in Hunter [1982] AC 529 has nothing to do with the special position of Parliament. It is a general principle, evolved to prevent that kind of abuse of process inherent in the re-litigation of an issue already once fairly and fully litigated in a competent court. Lord Diplock said at 541B-C:

“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”

One may compare McIlkenny [1980] 1 QB 283 and Smith v Linskills [1996] 1 WLR 763. It seems to us to be a necessary feature of any application of this principle that the court required to decide whether there is an abuse on grounds that the issue in the case has already been litigated must consider whether the earlier suit allowed the party now seeking to re-litigate the issue a full and fair opportunity to put his case, and meet his opponent’s case. The court, therefore, must judge the procedural quality of the earlier lis. But in relation to the procedures adopted in this case by the PCS, the CSP, and the House of Commons, the argument of Mr Carman QC for the defendant, and that of the Solicitor General, is that such a process is forbidden the court by force of art 9 of the Bill of Rights 1689. For reasons we shall give we consider that this argument is right; the courts have no business passing judgment on the fairness or otherwise of Parliament’s internal procedures. But in that case, as it seems to us, the consequence must be that the principle enunciated in Hunter has no application to the case. We do not think that the defendant or the House of Commons can, in the present context, take what might be called the benefit of the Hunter principle without shouldering its burden.

Any reliance on Hunter is, in our view further undermined by the concession correctly made by the Solicitor General and Mr Carman that where either House of Parliament or a committee of Parliament enquires into and passes judgment upon some matter external to the House’s affairs, such as perhaps a disaster on the railways or other major event affecting the public, the court is not thereby prohibited from looking into the same matter in the course of later defamation proceedings brought in consequence of a publication outside Parliament which repeats what was said to or by the House or committee. That was effectively the position in Dingle [1964] AC 371. In that case the plaintiff, who was the town clerk of Manchester, sued a newspaper for libel in respect of two articles concerning the acquisition by Manchester Corporation of the Ardwick Cemetery. The newspaper had in substance repeated what had been said in a report of a Select Committee. At first instance ([1960] 2 QB 405) it was apprehended that the plaintiff’s counsel proposed to attack the validity of the Select Committee’s report “on the ground that the procedure of the committee was defective”; and the Solicitor General appeared before Pearson J, as he then was, in order to protest against any such course being taken. The learned judge held that to impugn the validity of such a report would be contrary to art 9 of the Bill of Rights; but there was no question of the libel action being stayed, nor any suggestion that the court was not perfectly entitled to adjudicate upon it. Pearson J said at 410-411:

“I had better explain briefly why I say that any comment of that kind is of no materiality, and possibly of no relevancy, to the issues in the action. As to the basic facts of the case, clearly, in my view, this court should make its own findings based on the evidence adduced and on the arguments presented in this court, and that should be done without regard to any decisions reached or opinions expressed or findings made by a different tribunal having a different function, and, probably, different issues before it, and having received different evidence and a different presentation of the case.”

The case went to their Lordships’ House on an issue relating to the damages.

The objection raised in this case to the court’s entertaining the plaintiff’s libel suit on the footing that it might arrive at a conclusion on the merits frankly inconsistent with that arrived at in Parliament is essentially limited to the situation where the subject-matter of the dispute touches the discipline of Members of the House. It is put thus at para 54 of the Solicitor General’s skeleton argument:

“... the doctrine of collateral attack will apply only in relation to determinations by Parliament of charges or complaints brought against its Members (or other persons, in relation to proceedings in Parliament) - for it is in such cases that the analogy with determination of a charge by a Court holds good.”

But if Hunter applies, it applies irrespective of the subject-matter; provided only, no doubt, that the Parliamentary process in question has arrived at a judgment condemning or exonerating the conduct of some person in whatever context. The application of the Hunter principle would mean that the libel proceedings in Dingle should not have been entertained at all. No such position was argued; if it had been, it would have been doomed to failure. Of course we recognise that Dingle was decided well before Hunter. That does not seem to us to affect the principle of the thing.

It follows in our judgment that if the argument as to collateral attack is good, it must be on the footing of some principle quite other than Hunter.

Mr Browne QC for the plaintiff submitted that the inquiry and report of the PCS were not “proceedings in Parliament” for the purposes of art 9 of the Bill of Rights 1689 or of any other or wider rule upon which the argument as to collateral attack might be founded; and that the report’s conclusions on the “cash for questions” issue were not adopted or endorsed by the CSP or the House of Commons, so that there have not been any relevant “proceedings in Parliament” at any stage. As regards the first part of this argument Mr Browne placed some reliance on the decision of Popplewell J in Rost v Edwards [1990] 2 QB 460. In that case it was desired in the course of libel proceedings to call evidence about the Register of Members’ Interests in order to support a plea of justification. Popplewell J said this at 478A-F:

“There are clearly cases where Parliament is to be the sole judge of its affairs. Equally there are clear cases where the courts are to have exclusive jurisdiction. In a case which may be described as a grey area a court, while giving full attention to the necessity for comity between the courts and Parliament, should not be astute to find a reason for ousting the jurisdiction of the court and for limiting or even defeating a proper claim by a party to litigation before it. If Parliament wishes to cover a particular area with privilege it has the ability to do so by passing an Act of Parliament giving itself the right to exclusive jurisdiction. Ousting the jurisdiction of the court has always been regarded as requiring the clearest possible words. Nothing in the authorities, as I have indicated, in any way covers the instant situation. It is true that courts have over the years enlarged the definition of ‘proceedings’ from the formal speeches in the House to other matters, as appears from the various authorities to which I have been referred.

But, as Mr Browne pointed out, there are plenty of areas which are not covered by ‘proceedings in Parliament’. It is clearly not possible to arrive at an exhaustive definition. Counsel for the defendants referred by way of example to Stockdale v Hansard , 9 Ad & El 1, where it was held that no privilege attached at common law to a report by the inspector of prisons even though the publication of the report had been made by order of the House of Commons. As a result the Parliamentary Papers Act 1840 had to be passed. This is an example, says Mr Browne, of what is ancillary to the operation of Parliament. I need not cite all the examples or analogies put forward at the bar. A line has to be drawn somewhere. As Lord Pearce once said: ‘I do not know, I only feel.’

In the result, I conclude that claims for privilege in respect of the Register of Members’ Interests does not fall within the definition of ‘proceedings in Parliament’...”

Assuming, with respect, that this reasoning is correct (some doubt was sought to be cast upon it in the course of argument), it by no means follows in our judgment that the process of inquiry undertaken by the PCS and the report submitted by him do not constitute “proceedings in Parliament”. The PCS’ terms of reference, which we have set out, ran much wider than to require no more than an investigation touching only matters concerning the Register of Members’ Interests; and the genesis of his inquiry is to be found in the Speaker’s statement to the House of 14 October 1996, which itself gave expression to anxieties affecting, as the Speaker put it, “the reputation of the House as a whole”. The PCS and the CSP were established by Standing Orders of the House following publication in May 1995 of the first report of the Standing Committee on Standards in Public Life, which was itself brought into existence pursuant to the then Prime Minister’s announcement in October 1994. In our judgment the inauguration of these bodies and their subsequent actions, the inquiry, the reports, and the resolution of the House constituted at every stage procedures which the House adopted for the better superintendence of its Members’ conduct and the protection of its own reputation. We conclude that the PCS’ inquiry and report, the hearings before the CSP and its report, as well as the resolution of the House, amounted individually and collectively to “proceedings in Parliament” whether for the purposes of art 9 of the Bill of Rights or of any wider rule which enjoins the protection of such proceedings.

In those circumstances it is not strictly necessary to consider whether the CSP (and the House) adopted the PCS’ findings on the issue of “cash for questions”, since those findings in isolation amounted to proceedings in Parliament. However on a fair reading of para 8 of the 8th report in its context, it seems to us that it can at least be said that the CSP decided to leave the findings undisturbed. It seems that some members of the CSP had misgivings about lending the committee’s imprimatur to the PCS’ conclusions; but we do not think it necessary or proper to go into that. In our opinion the text of the 8th report speaks as the committee’s collective decision. It is true that para 8 falls to be contrasted with para 6, in which findings of the PCS were specifically endorsed and the CSP recommended a “notional” penalty in the plaintiff’s case (“notional” because, of course, he was no longer a Member of the House). But the findings relating to “cash for questions” were not dissented from; as we have said they were left undisturbed and went, annexed to the 8th report, to the House for its consideration. If necessary we would hold that those findings formed part of the CSP’s proceedings.

We will next consider whether the argument as to collateral attack upon proceedings of the House may be founded on any rule or principle of the law aside from Hunter. The first possibility is to be found in art 9 of the Bill of Rights 1689.

As is well known, art 9 of the Bill of Rights provides:

"That the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."

It was contended by Mr Carman that to allow the plaintiff’s action to proceed would involve “questioning” proceedings of Parliament and thus would contravene art 9. The Solicitor General did not so submit; as we have said the focus of his concern relating to art 9 was directed to what he saw as the criticisms which Popplewell J had levelled at the inquiry process. The starting point for an appraisal of Mr Carman’s submission is, no doubt, the proposition that art 9 is a provision of high constitutional importance and ought not to be narrowly construed; Lord Browne-Wilkinson so stated in Pepper v Hart [1993] 1 AC 593 at 638D. But he at once continued (638D-G):

“It ensures the ability of democratically elected members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech). But, even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word ‘question’ which the Attorney General urges. It must be remembered that art 9 prohibits questioning not only ‘in any court’ but also in any ‘place out of Parliament’. If the Attorney General’s submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute ‘questioning’ since all members of Parliament must speak and act taking into account what political commentators and others will say. Plainly art 9 cannot have effect so as to stifle the freedom of all to comment on what is said in Parliament, even though such comment may influence members in what they say.

In my judgment, the plain meaning of art 9, viewed against the historical background in which it was enacted, was to ensure that members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament.”

This reasoning seems to us, with respect, to indicate that the reach of art 9 goes only to prohibit (a) the attachment by the courts of any form of legal penalty to a member of Parliament (or, no doubt, any person taking part in proceedings in Parliament) for anything said in Parliament, and (b) direct criticism by the courts of anything said or done in the course of Parliamentary proceedings. Lord Browne-Wilkinson had occasion to return to art 9 in giving the judgment of the Privy Council in Prebble [1995] 1 AC 321, in which he said at 333H-334D:

“Finally, Hunt J [in an earlier case in New Zealand] based himself on a narrow construction of art 9, derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1688 as being, inter alia, the assertion by the King’s courts of a right to hold a member of Parliament criminally or legally liable for what he had done or said in Parliament. From this he deduced the principle that art 9 only applies to cases in which a court is being asked to expose the maker of the statement to legal liability for what he has said in Parliament. This view discounts the basic concept underlying art 9, viz the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect.

Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.”

In our view this confirms that the vice to which art 9 is directed (so far as the courts are concerned) is the inhibition of freedom of speech and debate in Parliament that might flow from any condemnation by the Queen’s courts, being themselves an arm of government, of anything there said. The position is quite different when it comes to criticisms by other persons (especially the media) of what is said in Parliament. Lord Browne-Wilkinson himself drew this distinction in the passage we have cited from Pepper v Hart . The courts could only have legitimate occasion to criticise anything said or done in Parliamentary proceedings if they were called on to pass judgment on any such proceedings; but that they clearly cannot and must not do. Nor therefore should they issue such criticisms on any occasion, for to do so would be gratuitous.

In consequence we think with respect that Popplewell J was wrong to level any assault on the procedures adopted by the PCS; and this conclusion will satisfy the major concerns which have brought the Solicitor General to intervene in the proceedings before us.

This conclusion, however, provides no answer to the question whether this action for libel constitutes an impermissible collateral attack on proceedings in Parliament. This question has now to be considered in the context of s.13 of the Defamation 1996 . The current libel action does not, or at the least need not, involve the imputation of any criticism of the procedures adopted by the PCS, any more than the Dingle case required any assault to be made on the processes of the Select Committee. As long as the requirement to avoid any such criticism is observed, art 9, properly understood, does not mean the plaintiff’s proceedings cannot be allowed to continue.

In Prebble, to which we have just referred, Lord Browne-Wilkinson said at 332D:

“In addition to art 9 itself, there is a long line of authority which supports a wider principle, of which art 9 is merely one manifestation, viz that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v Abbot (1811) 14 East 1, Stockdale v Hansard (1839) 9 Ad & El 1, Bradlaugh v Gossett (1884) 12 QBD 271, British Railways Board v Pickin [1974] AC 765, Pepper v Hart [1993] AC 593. As Blackstone said (1 Bl Com (17th edn) 163):

‘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”.’

(It is to be noted that Blackstone was there citing Coke [3], so that the maxim long antedates the Bill of Rights.) We also here refer to the final paragraph of our first citation from Lord Browne-Wilkinson’s speech.

The cases cited by Lord Browne-Wilkinson for the Privy Council are concerned with the constitutional vice inherent in any direct conflict between the respective jurisdictions of Parliament and the courts. In Burdett v Abbott it was held that the Speaker could not be sued in the common law courts for trespass for breaking into Burdett’s house and arresting him: he had published a paper reflecting on the rights and privileges of the House. On the other hand it was held in Stockdale v Hansard that an assertion of privilege by the House of Commons could not defeat Stockdale’s action for libel against Hansard, who had published the conclusions of a House of Commons inquiry containing potential libels of a book written by Stockdale. Stockdale’s claim succeeded, but the House would not accept the result; and on the House’s instructions Hansard refused to comply with the judgment against him. So the Sheriff of Middlesex, an officer of the court, sought to enforce the judgment; whereupon the House of Commons ordered him to be committed to the Tower. But the sequel was The Case of the Sheriff of Middlesex (1840) 11 Ad & El 273, in which the court refused to issue habeas corpus on the Sheriff’s application. One may compare also Brass Crosby (1771) 3 Wils 188, Gosset v Howard (1845) 10 QB 411, and Bradlaugh v Gossett (1884) 12 QBD 271. Then in Pickin an attempt was made in proceedings relating to the ownership of land to prevent reliance on a provision contained in a private Act of Parliament on grounds that its promoters had misled Parliament by means of a false recital in the preambles; that was given short shrift in the House of Lords.

These authorities demonstrate the existence of a principle of a different dimension to the prohibition contained in art 9. The principle is that the courts will not challenge or assault, by any order of their own, an assertion of authority issued by Parliament pursuant to Parliament’s own procedures. This principle extends to acts and decisions of Parliament which are not part of the process of enacting primary legislation (such as the acts of the PCS, CSP, and the House of Commons in this case). It flows from the court’s recognition of Parliament’s constitutional status as sovereign legislator. Once the it has identified the subject-matter of a dispute as falling within such process, the court will not proceed.

We would cite these two following passages from Pickin, which among others were specifically relied on by the Solicitor General. Lord Morris of Borth-y-Gest said this at 790C-E:

“It must surely be for Parliament to lay down the procedures which are to be followed before a bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark on an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed.

Clear pronouncements on the law are to be found in a stream of authorities in the 19th century...”

Then Lord Simon of Glaisdale at 799D-800E:

“It is well known that in the past there have been dangerous strains between the law courts and Parliament—dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other—Parliament, for example, by its sub judice rule, the courts by taking care to exclude evidence which might amount to infringement of parliamentary privilege (for a recent example, see Dingle v Associated Newspapers Ltd [1960] 2 QB 405)...

A further practical consideration is that if there is evidence that Parliament may have been misled into an enactment, Parliament might well—indeed, would be likely to—wish to conduct its own enquiry. It would be unthinkable that two enquiries—one parliamentary and the other forensic—should proceed concurrently, conceivably arriving at different conclusions; and a parliamentary examination of parliamentary procedures and of the actions and understandings of officers of Parliament would seem to be clearly more satisfactory than one conducted in a court of law quite apart from considerations of parliamentary privilege.”

Other recent authority also in point is to be found in R v Parliamentary Commissioner for Standards ex p. Al Fayed [1998] 1 WLR 669, in which it was said at 672:

“Activities of government are the basic fare of judicial review. Activities of Parliament are not the basic fare of judicial review. Indeed activities of Parliament are accepted in general by Mr. Pannick to be not subject to judicial review. If I may put it this way, if what was being sought here was judicial review of the Standing Committee responsible for supervising the activities of the Parliamentary Commissioner for Standards, Mr. Pannick would accept that judicial review was not available.”

However, the approach of the courts exemplified by these authorities does not of itself bar the plaintiff’s libel action, which involves no assertion by the court of any power to challenge the exercise of authority by Parliament. Manifestly the court would never make any order striking down what has been done by Parliament, or attaching legal sanctions or consequences to it. The defamation proceedings create no risk of this. The most that can be said is that the court might arrive at a different result on some aspects of the factual merits of the “cash for questions” issue from that arrived at by the PCS and (at least) not departed from or objected to by the CSP or the House of Commons.

The approach to this issue must recognise that here the courts are being asked to prevent the plaintiff from proceeding with perfectly properly constituted proceedings in which he asserts a recognised cause of action in order to seek redress for a wrong he claims to have suffered by reason of an event happening entirely outside Parliament. It is important to bear in mind that any extension to the principle preventing the plaintiff continuing with his claim would have effect even if there were a raft of new evidence. As it happens, there are questions in the present case as to the extent of overlap between the subject-matter of the libel action and that of the PCS’ inquiry; and the plaintiff says he has evidence which was not considered in the Parliamentary process.

The court should only decline to hear the plaintiff’s libel claim if it were persuaded that the possibility of a result being arrived at which was inconsistent with the PCS’ conclusions would be to undermine the authority of Parliament so that the action should on that ground be condemned as abusive. It cannot credibly be maintained that such a power ought to be exercised in every single case where litigation covers or overlaps the same ground as has been trodden by an investigation by Parliament into some aspect of its own affairs. As the law presently stands, if a Member of the House repeats outside Parliament what he said in Parliament, he can be sued for it. If a Parliamentary committee – or either House itself - reaches a distinct conclusion as to the merits of a question which does not itself touch Parliament’s procedures, the courts in a later claim based on a common law cause of action arising out of the same facts may arrive at a result wholly at variance with the judgment of Parliament. Dingle shows as much. It is not suggested that these circumstances undermine Parliament’s authority.

Accordingly, were the court in any case to hold that a common law claim should be struck out as abusive because it risked undermining Parliament’s authority, it would do so only upon an appreciation of the case’s facts and circumstances. We do not say that there could not be such a case. But there would probably have to be additional features of the case making this appropriate: for example material tending to show that the plaintiff’s real purpose was not to vindicate himself in relation to the later publication but to attack the Parliamentary process.

On the facts of the present case, it has not been established that the plaintiff’s claim should be struck out as abusive. The Solicitor General was inclined to accept that of the various financial benefits which the defendant alleged were received by the plaintiff, the PCS did not investigate the allegations about free shopping and found insufficient evidence to show that the plaintiff had been given Harrods vouchers; and Mr Browne took other points, into whose details it is I think unnecessary to go, to show that there was no full overlap between the libel complained of and the matters investigated in Parliament. In addition it has not been established that the plaintiff entertains any intent to attack as such the procedures adopted in Parliament. What he seeks is the resolution in court proceedings of his claim that he has been defamed. Very obviously, at this stage this court has nothing to say about the merits or demerits of such a claim; but for the plaintiff to be shut out from asserting it would require the clear demonstration of a threat to Parliament’s authority. We do not think that this has been shown. It involves no reflection on Parliament to say that the courts are better placed to determine the issues which arise here. Parliament itself only embarked on its investigation when it became clear that the courts were not doing so.

The plaintiff accepts that but for s.13 of the Defamation Act he could not have brought proceedings. However, he having waived privilege under s.13 that section is conclusive in the plaintiff’s favour. S.13 of the Defamation Act provides:

“13. - (1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, 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.

(2) Where a person waives that protection-

(a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and

(b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it.

(4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.

(5) Without prejudice to the generality of subsection (4), that subsection applies to-

(a) the giving of evidence before either House or a committee;

(b) the presentation or submission of a document to either House or a committee;

(c) the preparation of a document for the purposes of or incidental to the transacting of any such business;

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and

(e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members' interests.

In this subsection "a committee" means a committee of either House or a joint committee of both Houses of Parliament.”

We have already said that this provision was, in part at any rate, enacted so that the plaintiff might pursue his claim against The Guardian. This is made absolutely clear by Lord Hoffmann’s speech in the House of Lords’ debate in which he promoted the inclusion of what is now S.13 in the Bill. The plaintiff’s waiver of privilege under the section would without question have allowed him to take the Guardian action to trial. Why not, then, the action against the defendant following the Channel 4 broadcast? Mr Carman and the Solicitor General say that the intervening Parliamentary inquiry makes all the difference. But we do not think that is so. Ss.(2) in terms allows evidence, questions, statements, comments and findings to be given, asked or made in relation to “the conduct of a person in or in relation to proceedings in Parliament”, where that person has waived privilege. The section makes no qualification whatever to inhibit or cancel the effect of ss.(2) where there has been a Parliamentary inquiry into the subject-matter in question. To hold that it does would require words to be read into the statute which are not there. The policy of the section is, in our judgment, to allow such defamation claims as this to be brought irrespective of the demands of Parliamentary privilege.

In light of our conclusions it is unnecessary to consider the arguments which have been addressed to us on the Convention. We would only observe (aside from the obvious fact that the substantive provisions of the Human Rights Act 1998 are not yet in force) that, had we been of the view that this libel action ought to be stayed as an assault on the privileges of Parliament, we do not believe that the Strasbourg jurisprudence would have required the court to disapply a rule or principle of such general constitutional importance.

For the reasons we have given this appeal will be dismissed.

Order: Appeal dismissed with costs to be taxed and payable forthwith. Leave to appeal to the House of Lords refused.