Hamilton v Al Fayed [2001] 1 AC 395

C, a Member of Parliament, was accused by D for accepting cash for asking questions in Parliament for which C ended up losing his seat in Parliament. The allegation against C was investigated and were found to be true. A report was created on this allegation by The Committee on Standards and Privileges in which it was neither accepted nor rejected that C was at fault. This report was accepted by a resolution of the House of Commons. C brought a libel action against D after C waived parliamentary privilege under section 13 of the Defamation Act 1996. D asserted that this was an abuse of process or an infringement on parliamentary privilege and sought to have the action either struck out or stayed.

Did parliamentary privilege prevent Hamilton’s defamation action from proceeding, despite his waiver under the statutory provision then applicable to questioning parliamentary proceedings in such litigation?

The House of Lords rejected the application to halt the defamation proceedings on the parliamentary-privilege ground advanced. Section 13 of the Defamation Act 1996 then permitted an individual involved in such proceedings to waive the relevant protection, and Hamilton had done so. That statutory exception allowed the litigation to proceed despite restrictions that would otherwise prevent parliamentary proceedings being questioned. The judgment did not establish a general common-law right of unilateral waiver or remove privilege whenever an MP wished to sue. Its reasoning depended on the enacted provision. That provision was later repealed, so the case must be presented with its historical statutory setting clearly identified.

Hamilton applied the then-existing statutory power permitting an MP to waive parliamentary privilege for defamation proceedings. The statutory exception allowed the litigation to continue despite ordinary restrictions on questioning parliamentary proceedings. That waiver provision was later repealed and must not be presented as current general law.

Hamilton concerns parliamentary privilege and a statutory exception which operated at the time, rather than the merits of the underlying libel allegation. It demonstrates that privilege protects parliamentary proceedings in a way an individual litigant cannot ordinarily disregard for convenience. The repeal of section 13 of the Defamation Act 1996 by the Deregulation Act 2015 makes temporal scope essential. A present-day answer should not invite an MP to use the repealed procedure.