Kimathi & Ors v Foreign And Commonwealth Office [2017] EWHC 3379 (QB)

[2017] EWHC 3379 (QB)Case No HQ13X02162
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/12/2017
Before
MR JUSTICE STEWART
Between
Kimathi & orsClaimantForeign and Commonwealth OfficeDefendant
Simon Myerson QC (instructed by Tandem Law) for ClaimantsMathew Gullick & Simon Murray (instructed by Government Legal Department) for DefendantSaira Salimi (instructed by Office of Speakers Counsel) for Intervening by way of written submissions.Hearing Hearing date: 11 December 2017
Judgment Approved

Introduction

[1]I am asked to determine the application of Article 9 of the Bill of Rights and Parliamentary Privilege to documents relied on by the parties. The Claimants seek to rely on 356 extracts from Hansard. Of these 308 are relied on solely for the fact that Kenyan issues were discussed in Parliament. This is not controversial. The remaining 48 are relied on for their content. The Defendant seeks to rely on 2 Hansard extracts.[2]I have skeleton arguments from Mr Myerson QC for the Claimants and from Messrs Gullick and Murray for the Defendant, and full written submissions and additional submissions from Saira Salimi, the Speaker’s Counsel. I heard oral argument from Mr Myerson and Mr Gullick.[3]Article 9 of the Bill of Rights 1689 provides:
“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
It is common ground that it is for the Court to determine whether the use to which the material is put constitutes an infringement of Article 9. In R vChaytor [2010] UKSC 52 at paragraphs 15-16. it was said:
“15. It is now accepted in Parliament that the courts are not bound by any views expressed by parliamentary committees, by the Speaker or by the House of Commons itself as to the scope of parliamentary privilege. On 4 March 2010 the Clerk of the Parliaments wrote to the solicitor acting for Lord Hanningfield a letter that had received the approval of the Committee for Privileges. This stated: “Article 9 limits the application of parliamentary privilege to ‘proceedings in Parliament.’ The decision as to what constitutes a ‘proceeding in Parliament’, and therefore what is or is not admissible as evidence, is ultimately a matter for the court, not the House.”
This statement was correct… “16. Although the extent of Parliamentary Privilege is ultimately a matter for the Court, it is one on which the Court will pay careful regard to any views expressed in Parliament by either House or by bodies or individuals in a position to speak on the matter with authority”.

Historical Background

[4]In Chaytor in the Court of Appeal [2010] EWCA Crim. 1910 Lord Judge CJ gave a helpful summary. He reviewed the case of R v Eliot (Sir John) and others [1629] 3St.Tr.294 and its subsequent reversal by the House of Lords [1668] 3St.Tr. 331-333 . Eliot and other members of the Commons were proceeded against for making seditious speeches in Parliament and for conspiracy to keep the Speaker in his chair by physical force. The House of Lords reversed the earlier decision of the Court of King’s Bench stating:
“…the charge of uttering seditious words in the House, which was fully answered by the plea of Privilege, was mixed up with the charge of causing a riot in the House, which was not.”

Lord Judge summarised the position prior to the Bill of Rights:

For a further and helpful history, see “The Privilege of Freedom of Speech in Parliament”: D.R.Mummery (1978) 94 LQR 276 “…the courts had no jurisdiction over any words spoken in Parliament by a member of Parliament, but the jurisdiction to consider criminal offences committed in the House remained.” The Court then went on to consider whether this common law principle had been altered subsequently and in particular by Article 9 of the Bill of Rights. See also on the pre 1688 position the judgment of Lord Rodger in the Supreme Court at paragraphs 114-118. He there points out that the House of Lords in the Eliot case was careful not to express a concluded view on the matter as to whether privilege extended to a member committing an ordinary crime in the House or its precinct. Until Chaytorno such privilege had ever been claimed.[5]It fell to the Court in Chaytor to determine whether, in the context of charges against members of Parliament for false accounting in connection with Parliamentary expenses and allowances, Parliamentary Privilege could be claimed for crimes allegedly committed within the precincts of the House. The Supreme Court determined that there was no privilege. As Lord Phillips said:
“48…Scrutiny of claims by the courts will have no adverse impact on the core or essential business of Parliament, it will not inhibit debate or freedom of speech. Indeed it will not inhibit any of the varied activities in which Members of Parliament indulge that bear in one way or another on their parliamentary duties. The only thing that it will inhibit is the making of dishonest claims.”

The Rationale for Article 9

[6]The principal matter to which Article 9 is directed is freedom of speech. As Lord Phillips said in Chaytor:
“47.The jurisprudence to which I have referred is sparse and does not bear directly on the facts of these appeals. It supports the proposition, however, that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.”
See also Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593 at 638, cited with approval by Lord Phillips in paragraph 31 of Chaytor.[7]The reference in paragraph 47 of Chaytor to freedom of speech etc being “the principal matter to which Article 9 is directed” raises the question as to the other matters to which it is directed.[8]A helpful starting point here is the decision of Stanley Burnton J (as he then was) in Office of Government Commerce v Information Commissioner (Attorney General Intervening) [2008] EWHC 774 (Admin) . He said:
“46. These authorities demonstrate that the law of Parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our Constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts. 47. Conflicts between Parliament and the Courts are to be avoided. The above principles lead to the conclusion that the Courts cannot consider allegations of impropriety or inadequacy or lack of accuracy in the proceedings of Parliament. Such allegations are for Parliament to address, if it thinks fit, and if an allegation is well-founded any sanction is for Parliament to determine. The proceedings of Parliament include Parliamentary questions and answers. These are not matters for the Courts to consider.”
[9]One of the key decisions referred to in Office of Government Commerce was the Privy Council case of Prebble v Television New Zealand Limited [1995] 1 AC 321 . The Television Company made allegations against the former government of New Zealand and became Defendant in a defamation action. The Defendant relied mainly on statements and actions outside the House of Representatives, but also alleged that the Plaintiff and other Ministers had made statements in the House calculated to mislead it, or which were otherwise improperly motivated. Those latter particulars were struck out by the Judge and that decision was upheld by the Privy Council. After citing Article 9, Lord Browne-Wilkinson said at page 332:
“In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 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…As Blackstone said in his Commentaries on the Laws of England,17th ed. (1830), vol. 1, p. 163: “the whole of the law and custom of Parliament has its origin 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.””
[10]In Prebble this principle was sought to be undermined on the basis of a decision of the High Court of Australia (Hunt J). That decision had been reversed by statute in Australia by section 16(3) of the Parliamentary Privileges Act 1987 Section 16(3) provides “for the avoidance of doubt” in relation to proceedings of the Parliament of the Commonwealth “in proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of –(a) questioning or relying on the truth, motive, intentional good faith of anything forming part of those proceedings in Parliament;(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything from part of those proceedings in Parliament.” . Lord Browne-Wilkinson said that the 1987 Act “declares what had previously been regarded as the effect of Article 9 of the Bill of Rights 1689 and section 16(3) of the Act of 1987 contained what, in the opinion of their Lordships, is the true principle to be applied.” He continued: “It is, of course, no part of their Lordships' function to decide whether, as a matter of Australian law, the decision of Hunt J was correct. But Article 9 applies in the United Kingdom and throughout the Commonwealth. In their Lordships' view the law as stated by Hunt J was not correct so far as the rest of the Commonwealth is concerned. (My underlining) First, his views were in conflict with the long line of dicta that the courts will not allow any challenge to what is said or done in Parliament. Second, as Hunt J recognised, his decision was inconsistent with the decision of Browne J in Church ofScientology of California v. Johnson-Smith…(subsequently approved by the House of Lords in Pepper v. Hart…) and Comalco Ltd. v. Australian Broadcasting Corporation (1983)…, in both of which cases it was held that it would be a breach of privilege to allow what is said in Parliament to be the subject matter of investigation or submission.” (Page 333)[11]In Hamilton v Al-Fayed [2001] 1 AC 395, the House of Lords decided that section 13 of the Defamation Act 1996 allowed a person whose conduct in proceedings in Parliament was an issue in defamation proceedings to waive the protection of Parliamentary Privilege, so far as it concerns him. Their Lordships said that, absent that statutory provision, Parliamentary Privilege would have prevented a fair trial to Mr Hamilton in the defamation action. Lord Browne-Wilkinson specifically said (page 407) that, absent section 13, Mr Hamilton’s position would have been covered by Parliamentary Privilege. In this the House disagreed with the Court of Appeal.

The Scope of Parliamentary Privilege

[12]I turn now to consider the width of the scope of Parliamentary Privilege. In Hamilton at page 403 Lord Browne-Wilkinson said “The wide scope of parliamentary privilege was fully discussed in the Prebble case which was not criticised before your Lordships.” Paragraph 15 of Counsel for the Speaker’s submission says:
“That the analysis of the Australian legislation (section 16(3)(c) of the Commonwealth Parliamentary Privileges Act 1987) in Prebble reflects the law of England and Wales may be seen from its citation in Hamilton v Al-Fayed, and in other cases such as Office of Government Commerce v Information Commissioner (Attorney General Intervening), in which Stanley Burnton J quoted extensively from Lord Browne-Wilkinson’s judgment, and said, in particular (para. 32), “It is clear from the judgment of the Privy Council that, in relation to Parliamentary Privilege, the law of New Zealand, which was the subject of the judgment, is the same as the law of England and Wales.””
[13]It is undeniable that the law of New Zealand on Parliamentary Privilege was, therefore, the same as the law of England and Wales. However in relation to s16(3)(c) of the 1987 Act, it is important to consider Stanley Burnton J’s judgment in Office of Government Commerce more carefully, focusing in particular on paragraphs 30-51: (i) At paragraph 34 Stanley Burnton J says that Lord Browne-Wilkinson used a narrow formulation of the rule in his judgment in Prebble at page 337A and added a caveat. The relevant citation from Prebble is:
“For these reasons…Their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception…But their Lordships wish to make it clear that if the defendant wishes at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to that course.” (Italics added by Stanley Burnton J) (ii) Stanley Burnton J then goes on to consider what “other questioning” means. (iii) First, he refers to the Australian decision in Comalco Limited v Australian Broadcasting Corporation [1983] 50 ACT R1 where the Court ruled that Hansard was admissible to show what had been said in the Queensland Parliament as a matter of fact, without the need for the consent of Parliament. The passage he relies on states: “…I think that the way in which the Court complies with Article 9 of the Bill of Rights 1689, and with the law of Privileges of Parliament, is not by refusing to admit evidence of what was said in Parliament, but by refusing to allow the substance of what was said in Parliament to be the subject of any submission or inference.” (My underlining) (iv) Secondly, he refers to the judgment of Browne J in The Church of Scientology of California case [1972] 1QB 522 where Browne J said: “But the Attorney-General limited what he said about the probable attitude of Parliament to the use of Hansardby agreement by saying that Hansardcould be read only for a limited purpose. He said it could be read simply as evidence of fact, what was in fact said in the House, on a particular day by a particular person. But, he said, the use of Hansardmust stop there and that counsel was not entitled to comment upon what had been said in Hansardor to ask the jury to draw any inferences from it…But the general principle is quite clear, I think, and that is that these extracts from Hansardwhich have already been read must not be used in any way which might involve questioning, in a wide sense, what was said in the House of Commons as recorded in Hansard.”
Stanley Burnton J says that the judgment of Browne J was approved by the House of Lords in Pepper vHart. It is to be noted, however, that in Pepper v Hart at p639D-E it was said about Browne J:
“To the extent that he went furtherso as to suggest that in no circumstances could the speeches be looked at other than for the purposes of seeing what was said on a particular date, his remarks have to be understood in the context of the issues which arose in that case. Those issues included an allegation that the defendant acted improperly in Parliament in saying what he did in Parliament.” (v) Thirdly, Stanley Burnton J notes that Lord Browne-Wilkinson in Hamilton expressly endorsed “the wide scope of Parliamentary Privilege” as discussed in Prebble and the formulation of the rule in section 16(3) of the Parliamentary Privileges Act 1987 of Australia, including paragraph (c) of the subsection, which makes no reference to misconduct. Nevertheless, as Stanley Burnton J states, the Hamilton case itself concerned an allegation of impropriety, and that in part of Lord Brown-Wilkinson’s speech at this point he restricts the formulation to allegations that “a witness in Parliamentary proceedings deliberately misled Parliament”. (vi) Fourthly, in reliance on the Hamilton case at page 407F Stanley Burnton J says it is not permissible to challenge by cross-examination in a later action the veracity or propriety of evidence given to a Parliamentary Committee. He then adds that veracity is “apt to include accuracy”, such that “Parliamentary Privilege precludes the Court from considering a challenge to the accuracy of something said in Parliament.”
Paragraphs 39 and 40 (vii) Fifthly, Stanley Burnton J says that it is plain from Hamilton that, in the absence of statutory authority, the rule enacted by Article 9 cannot be waived by the parties Paragraph 40 referring to Hamilton at page 404 and Weir v Secretary of State for Transport [2005] EWHC 2192 (Ch) at [233]-[243]. . (viii) At paragraphs 41 and following Stanley Burnton J deals with a controversy that paragraph (c) of the Parliamentary Privileges Act 1987 was not in fact declaratory of the common law. It was accepted as common ground that (a) and (b) of the Act were declaratory of the common law. It is to be recalled that paragraph (c) made it unlawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament by way of, or for the purpose of “(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.” cf the citation from the case of Comalcoreferred to above. The argument was that, applied literally, paragraph (c) would prevent any reference to a Parliamentary proceeding notwithstanding that there was no allegation of impropriety, inadequacy or inaccuracy. Stanley Burnton J tended to the view that the wider formulation in section 16(3) was unnecessary to the decision both in Prebble and Hamilton and that the ratio of both decisions was to be found in Lord Browne-Wilkinson’s own narrower formulations which were confined to allegations of misconduct in Parliamentary proceedings. However he agreed that the search for the ratio may be academic since in Prebble itself Lord Browne-Wilkinson narrowed the scope of the rule by limiting it to cases in which there is some “questioning” of Parliamentary proceedings. Prebble page 337 and see paragraph 13(i) above (ix) A construction narrower than that found in sub paragraph (c) of the Australian statute as being the rule of English law, finds support in the judgment of Bean J (as he then was) in R (Bradley &ors) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin) especially at paragraph 32 and Stanley Burnton J in R (Federation of Tour Operators) v HM Treasury [2007] EWHC 2062 (Admin); in this case Stanley Burnton J relied upon Toussaint v The Attorney Generalof St Vincent and the Grenadines [2007] UKPC 48 as establishing that “It is proper for a Claimant to rely on evidence of what was said by a Minister in Parliament to show what was the motivation of the Executive’s action outside Parliament, in that case the compulsory purchase of Mr Toussaint’s land. .

References To Parliamentary Proceedings – Common Ground

[14]Having set out at some length a number of key decisions of the Courts as to the relevant principles, it is right to record what is common ground between the parties. This can be summarised as follows:(i) Having regard to a clear Ministerial statement as an aid to the construction of ambiguous legislation does not amount to questioning or impeaching the proceedings in Parliament or otherwise contravene Article 9 of the Bill of Rights. In Pepper v Hart [1993] AC 593. See also Lord Keith in Pickstone v Freemans Plc [1989] AC 66 at page 112b, relied upon by Lord Browne-Wilkinson in Pepperat page 631. Lord Browne-Wilkinson said at page 638 “The purpose of looking at Hansard will not be to construe the words used by the Minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the Court would be giving effect to what is said and done there.” It is to be noted at page 646 Lord Browne-Wilkinson said “Neither the letter from the Clerk of the Commons nor the Attorney General have identified or specified the nature of any privilege expanding beyond that protected by the Bill of Rights.” In this case, unlike in the subsequent cases decided and referred to above in the judgment, there was no possibility of infringing the principle of the separation of powers.(ii) A mere reference to events in Parliament does not of itself infringe Article 9 See Prebble page 337; also The Office of Government Commerce case at paragraph 49; in R (Miller)v The Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court at paragraph 13 referred to statements in the House in 1971 and 1972 by the then Prime Minister, Mr Heath and the then Chancellor of the Duchy of Lancaster, Mr Rippon. . It is on this basis that the 308 references mentioned in paragraph 1 of this judgment are not controversial.(iii) Parliamentary material can be considered in determining whether legislation is compatible with the European Convention on Human Rights. See Wilson v First County Trust Limited [2003] UKHL 40 at paragraph 65 .

Article 9 and Parliamentary Privilege: Discussion

[15]The starting point is helpfully encapsulated in R (on the application of theFederation of Tour Operators and others) v HM Treasury [2007] EWHC 2062 (Admin) where Stanley Burnton J said:
“[120] In my judgment, the Speaker's submissions, and the authorities to which I have referred, demonstrate the importance of identifying the purpose for which evidence of proceedings in Parliament is relied upon. Like Bean J in Bradley, it is the relevance of that material as well as its origin that the Court must consider. It is necessary to consider whether this material would otherwise be admissible on or relevant to the determination of the Claimants’ substantive claims, before deciding whether its origin precludes their adducing it in evidence.”
[16]Three elements in Article 9 need to be considered, namely “proceedings in Parliament, “impeached or questioned” and “in any court or place out of Parliament””. I shall deal with these and with two other issues raised by the Claimants, namely the effect of death of the maker of the statement and waiver.[17]As to “proceedings in Parliament”, subject to limited exceptions, if a statement is made in proceedings in Parliament but is also made or published elsewhere, then the protection of Article 9 does not apply to that separate making or publication of the statement. The exceptions to this principle appear to be limited and confined to:• Cases which involve both(1) public interest in repetition of the Parliamentary utterance which the Speaker ought to reasonably to serve and(2) so close a nexus between the occasions of his speaking, in and then out of Parliament, that the prospect of his obligation to speak on the second occasion (or the expectation or promise that he would do so) is reasonably foreseeable at the time of the first, and that his purpose on speaking on both occasions is the same or very closely related See Makudi v Triesman [2014] EWCA Civ 179 (paragraph 25). .• The protection offered under section 2 of the Parliamentary Papers Act 1840 which protects the publisher of a copy of a Parliamentary document from “Any civil or criminal proceedings hereafter to be commenced or prosecuted for or on account or in respect of the publication of any copy of such report, paper, votes or proceedings.” Section 4 of the 1840 Act says it is not intended to “affect the privileges of Parliament in any manner whatsoever.” The 48 Hansard documents of the Claimants and the 2 of the Defendant were clearly “proceedings in Parliament”.[18]Next, the Hansard documents are sought to be used in court. The important criterion is whether their use amounts to impeaching or questioning what happened in Parliament. (i). Impeached or questioned –Belief in the truth of the statement/truth of the statement.[19]The Claimants’ argument is that Hansard material can be used so to prove that what the Member said was believed by him/her to be true, this evidential inference flowing from the fact that Parliament is a serious place where people take their responsibilities seriously; emphasis is put on Ministers providing reliable information to give to Parliament and there being nothing in the evidence in this case to suggest that any Member did not believe what was told to Parliament. Further, the Claimants say that to argue that nothing said in Parliament can be relied on as to the truth of what was said, is an odd proposition as the purpose of Ministers giving Parliament information is that Parliament and the public are well informed. Therefore, reliance on Hansard is to prove that a Minister (or Member) believed what he/she said was true and (b) it was in fact true cannot, according to this submission, amount to impeaching or questioning Parliament.[20]It must be recalled that “Parliamentary Privilege precludes the Court from considering a challenge to the accuracy of something said in Parliament.” The Office of Government case at paragraphs 39 and 40; also para 47. The Claimants’ application is an unusual one because it is sought by them to rely on what was said in Parliament to prove(a) that facts which occurred extraneous to Parliament but were mentioned in Parliament were true and(b) that the person who related those facts in Parliament believed them to be true. To the extent that (a) is suggested, then in civil litigation parties may agree facts, in which case reference to Hansard or what was said in the House becomes irrelevant. Those facts are agreed for the purposes of the case. However, here the Defendant does not admit those underlying facts, in which case the Claimants cannot rely upon Hansard for the truth of what was said. If they were to be able to rely on it for that purpose, the Court would then be in a position of having to decide the accuracy of the content of the proceedings in Parliament, so as to determine if those facts had been proven. This is expressly forbidden. The Claimants submit that the Defendant is making them jump through hoops to provide a different source of information when the accuracy of the information given to Parliament is not doubted by either party, and that this makes a nonsense of the litigation process. However, the Court cannot force a party to admit facts. The Defendant says the Claimants are seeking to rely on what was said in Parliament about extraneous facts in order to prove these facts, which the Defendant does not admit. The Defendant does not admit these because, at this point in time, unless they are otherwise proved, the Defendant does not know whether they were accurate or not. It must be noted that when Stanley Burnton J, at paragraph 49 of the OGC case, said the court could receive evidence of proceedings in Parliament “when they are simply relevant historical fact”, he did this with specific reference to paragraph 35 of his judgment which in turn refers to Prebble at page 337; in that citation Lord Browne-Wilkinson says there is no objection to alleging “the occurrence of events or the saying of certain words in Parliamentwithout any accompanying allegation of impropriety or any other questioning…” (my underlining). Here the events sought to be proved did not occur in Parliament; also, for the reasons given, there is “other questioning”. As to (b) unless the Claimants are impugning the honesty of what a Member said to the House, it is unclear what purpose is served, save to assist in proving (a) i.e. by seeking to rely on an assertion that a Member believed what he or she said, then that assists in proving that the statement was in fact true. If the purpose is to assist in proving (a), then it is impermissible for the reasons already given. Further, on the basis that the Defendant neither admits nor denies the subjective belief of the maker of the statement, that would be an issue which the Court would have to determine. That again would amount to questioning the subjective belief of the Member in a court. This, too, is impermissible. This can be tested in the following way: assume that the Claimants used non-parliamentary evidence to prove the number of detainees at a particular point in certain camps in Kenya, or to evidence the nature of the relationship between the Defendant and the Kenyan Government. Would it be permissible for the Defendant to rely upon a statement in the House which in any way called into question the Claimants’ evidence? The answer is no, even though the Defendant was seeking to use those statements (a) to show that they were true and (b) to show that the Minister believed them to be true. Alternatively, assume that, because the evidence was not positively disputed, though not agreed, the Court permitted the Claimants to adduce evidence that a Minister said there were 12,000 detainees in Manyani camp on a certain date. The Court would have to rule on the accuracy of that. That might be almost a formality in the absence of any contrary evidence. Nevertheless, the Court would be ruling on its accuracy. The problem is exacerbated if there is a piece of evidence somewhere in the documents which indicates, however feebly, that there were in fact no detainees there on that date. The Court would then have to evaluate the accuracy of the Minister’s statement in the light of the other evidence and rule on its accuracy. It is nothing to the point that (a) the Defendant may not positively assert that there were no detainees on that date or (b) the Claimants say that in those circumstances they would withdraw reliance on the Minister’s statement. Therefore, unless an extraneous fact is positively agreed (in which case any evidence as to what was said in Parliament is irrelevant), it is inadmissible to use Parliamentary material as evidence since the Court would then have to rule upon the truthfulness/accuracy of that material. In summary, the Claimants’ attempted use of Hansard for these purposes i.e. in relation to facts extraneous to Parliament is wholly distinguishable from the reliance permitted in Pepper v Hart (i.e. as an aid to statutory construction, or e.g. in Toussaint (i.e. “to explain executive action and enable its judicial review” – paragraph 34).[21]The Claimants also submitted that the following can be proved by the Hansard material:
“That it formed part of the basis upon which D made its decisions regarding its governance of Kenya. That, again is an evidential inference derived from consideration of all the evidence and what was said by the Minister in Parliament.”
The Claimants’ skeleton paragraph 19d. In fact, this related to Items 1,3,4,7 and 13 of the Appendix attached to this judgment, reliance on which was withdrawn by the Claimants at the end of the hearing. I therefore do not deal further with it.[22]Of course, nothing that the Defendant has submitted is calculated to deny the truth or accuracy of the statements to the House. The Defendant’s position is that it does not know and it is not in a position to admit those matters, thereby removing them from consideration by the Court.[23]In paragraph 19c of the Claimants’ skeleton it says that the Claimants do not need to refer to Hansard to prove information provided from Kenya, “although it is the easiest route.” If the Claimants do not need to refer to Hansard to prove matters which they wish to prove then they can prove, or could have proved, those matters by alternative admissible evidence. As the Defendant submitted “…reliance by parties to litigation on Hansard as evidence of the truth of the facts stated to Parliament is not and should not be a substitute for research into the correctness of the underlying facts.” An example which the Defendant gives is that when the Claimants seek to rely on Parliamentary statements as to, for example, the number of detainees held in Kenya at any particular time, such reliance is not permissible since it risks improper questioning of the veracity/accuracy of the statement made to Parliament.[24]In this regard, it is helpful to refer to three other authorities: (i) Coulson v Her Majesty’s Advocate [2015] SCCR 219 (The Scottish Criminal Appeal Report) : in that case, as part of the proof of the alleged falsity of Mr Coulson’s evidence, the prosecution wanted to refer to evidence given by him to a Select Committee of the House of Commons. The Court held that this would breach Parliamentary Privilege and at paragraph 20 said:
“Article 9 of the Bill of Rights provides that proceedings in Parliament ought not to be “impeached or questioned”
. It is true that these are words with a primarily negative connotation, certainly in modern English but also, as it would appear from the Oxford Dictionary, seventeenth century English. That does not mean that it is only criticism of Parliamentary proceedings that is prohibited by the doctrine of privilege; it also applies when they are in any way put in issue. As we have already indicated, in Prebble the Privy Council adopted the terms of section 16(3) of the (Australian) Parliamentary Privileges Act 1987 as an accurate statement of the principle….They prohibit the leading of evidence questioning anything forming part of proceedings in Parliament but they also prohibit the leading of evidence for the purpose of relying on the truth etc of anything forming part of proceedings in Parliament; otherwise establishing the credibility etc of any person; or inviting the drawing of inferences or conclusions wholly or partly from anything forming part of these proceedings. Parliamentary proceedings are simply off-limits when it comes to litigation. They cannot be relied on either to make or to rebut a case and it does not matter whether, for the purposes of litigation, their integrity is being disputed or is being endorsed.” (ii) R (Age UK) v Secretary of State for BIS [2009] EWHC 2336 (Admin) : Blake J considered the authorities and then said:
“51. In my judgment,…the constitutional principles identified in…Prebble…, Hamilton, Bradley and Office of Government Commerce cases…are as follows: (i) The court must be astute to ensure that it does not directly or indirectly impugn or question any proceedings in Parliament in the course of judicial proceedings. (ii) “Impugn or question” extends beyond civil or criminal sanction for any statement in Parliament but includes a judicial determination as to whether a statement in Parliament is right or wrong. The Judge cannot receive evidence of what is said in Parliament for the purpose of agreeing or disagreeing with it...” (iii) R (Butt) v SSHD [2017] EWHC 1930 (Admin) : Ouseley J said: “171. I have referred to some only to explore, without questioning, whether they contained "evidence" on a particular topic. I have read the contributions of the persons named by Mr Bowen to a debate in the House of Lords but consideration of them in this context seems to me to invite impermissible approbation, qualification, disagreement or comment on others whose contributions had been lauded by successive speakers. Any further use of the Parliamentary materials seems to me to fall foul of Article 9, and to create the risk that its use is unfair because it cannot be rebutted or criticised where it is against a party's case. It may be that I have gone too far anyway, but its absence would not alter my decision.”
[25]In confirmation of this, s16(3)(b) of the Parliamentary Privilege Act 1987 does not permit “otherwise questioning or establishing the credibility, motive, intention or good faith of any person” (my underlining). Unlike s16(3)(c), s16(3)(b) has never been controversial and has always been judicially recognised as declaratory of the common law. By its terms s16(3)(b) prohibits using Hansard to establish the truth/accuracy (“credibility”) and honest belief (“good faith”) of a person’s statement in the House. (ii). Effect, if any, of Death[26]The Claimants submit, based on Prebble, that Parliamentary Privilege no longer covers statements by Members of the House of Commons or House of Lords once the maker of the statement has died. The argument is that the rationale of Parliamentary Privilege is to protect free speech in the House so that the maker of the statement cannot be made liable in proceedings for defamation, or criminal proceedings. I have not been referred to any authority in support of this proposition, nor am I aware of any authority which specifically deals with the statement of a now deceased Member of either House.[27]It is perhaps less surprising than at first sight might seem to be the case that there is no previous decision since:(a) The paradigm case of Parliamentary Privilege involves protection of free speech and has traditionally focused on statements made by living Members.(b) Statements made by dead members would be more likely to arise in historical cases where a party is seeking to rely on them for the truth of their content to prove extraneous facts, as here – a situation I have previously described as unusual, prior to rejecting the Claimants’ submission.[28]However, the matter goes further. Perhaps the reason there is no authority is because the submission is wrong. There are reasons for this.[29]First, protection of free speech by an individual member is not the only rationale for Parliamentary Privilege. The Claimants submit Skeleton paragraph 18f that the questioning of Parliament has a particular meaning insofar as the Courts are concerned in one respect, namely attempting to utilise what is said to prove truth or malice in defamation proceedings. Yet, clearly Parliamentary Privilege is much wider than that and I revert to the two principles distilled by Stanley Burnton J in Office of Government Commerce Paragraph 46 which form the basis of Parliamentary Privilege. These are in summary the need to avoid any risk of interference of free speech in Parliament and the separation of powers. This separation of powers cannot be affected by the death of an individual Member. See Lord Browne-Wilkinson in Prebble at page 334. Further at page 335 he said “The privilege protected by Article 9 is the privilege of Parliament itself. The actions of any individual member of Parliament, even if he has an individual privilege of his own, cannot determine whether or not the privilege of Parliament is to apply….The decision of an individual member cannot override that collective privilege of the House.” See also Makudi v Triesman [2014] EWCA 179 at paragraphs 20 and 21.[30]Second, there are, by reason of statute, actions which continue against the estate of a deceased alleged tortfeasor. The common law rule was that most actions in tort died with the person, whether the person dying was the injured person or the wrongdoer See Clerk & Lindsell on Torts Twenty First Edition paragraph 28-77:
“action personalis moritur cum persona”
. However, that common law rule was reversed by section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, whereby a cause of action subsisting against an alleged tortfeasor (or vested in a potential claimant) shall survive against or for the benefit of that person’s estate. Defamation is an exception to that statutory provision See section 1(1) “provided that thissubsection shall not apply to causes of action for defamation…” . It cannot be the case that if, for example, a member was a potential party in a personal injury action and he then died, the Claimant or the Estate could rely upon something the Member had said in the House as evidence in the subsisting action against the Estate or by the Estate.[31]Third, it might be thought to affect the free speech of a Member if he or she was aware that upon death what was said could be challenged in the Courts. As a matter of interest, as was pointed out by Counsel for the Speaker, by the time the House of Lords considered and reversed the decision in Eliot’s case, Eliot himself was dead and there was no suggestion that his death had made any difference to the case. (iii). Waiver[32]It is important to be clear that the terms of Article 9 are absolute. If Article 9 does apply then there are no qualifications or exemptions.[33]The Claimants’ submission based on what I have found to be an erroneous contention, namely that Parliamentary Privilege is just to preserve free speech, asserts that a living Member can waive the privilege. Further, that if Parliamentary Privilege can be waived by a living MP, then its application as a matter of principle depends on overall justice and that the Speaker ought to waive Parliamentary Privilege in this case. It is said that preventing the examination of events does not protect free speech or permit Parliament a jurisdiction it can or proposes to exercise. Finally, it is said that the effects of the Office of Speaker’s Counsel’s stance is that what was done is fossilised forever, regardless of whether it was right or wrong.[34]In my judgment, Parliamentary Privilege cannot be waived for the following reasons:(i) As stated above, Article 9 is absolute.(ii) Article 9 is the Privilege of Parliament itself. Therefore no individual member nor the Speaker of the House can waive the privilege. In this regard: (a) Prebble at page 335 “The privilege protected by Article 9 is the privilege of Parliament itself. The actions of any individual member of Parliament, even if he has an individual privilege of his own, cannot determine whether or not the privilege of Parliament is to apply. The wider principle encapsulated in Blackstone's words quoted above prevents the courts from adjudicating on issues arising in or concerning the House, viz. whether or not a member has misled the House or acted from improper motives. The decision of an individual member cannot override that collective privilege of the House to be the sole judge of such matters.” (b) In Hamilton the House of Lords made it clear that absent section 13 of the 1996 Act Mr Hamilton could not waive Parliamentary Privilege Page 406G-407A; see also paragraph 40 of the Office of Government Commerce case. [Section 13 has now been repealed by paragraph 44 of Schedule 23 to the Deregulation Act 2015 such that there is now no provision permitting waiver]. . (c) Article 9 is a statutory provision. It is simply not open to anybody to waive it. That is why, during the course of its operation, section 13 of the Defamation Act 1996 was required. Only statute can affect the provisions of section 9. Support for this is also to be found in Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament Twenty Fourth Edition 2011 at page 230, footnote 45, where, in referring to a suggestion the House of Commons might have elected not to assert its privileges, the author states “there is no evidence to this effect and in any case, since the privilege concerned was enshrined in statute – the Bill of Rights – it is hard to see how, short of legislation, the House could of its sole authority have permitted the Court to interfere.” Erskine May at page 229-230 refers to the resolution by the House of Commons on 31 October 1980 which gave leave for reference to be made in future court proceedings to the Official Report of Debates and to the published Reports and Evidence of Committees without a petition for leave having to be presented to the House. [See Pepper v Hart at page 623E-624C]. Erskine May highlights the fact that this resolution “made clear…that the statutory protection afforded to proceedings in Parliament by the Bill of Rights was not affected by the relaxation.” Finally, Erskine May says that the relaxation was one of the exclusive cognizance of Parliament in contra distinction to the statutory Bill of Rights. This is therefore supportive of the conclusion that Parliamentary Privilege cannot be waived save by statute, whereas the non statutory exclusive cognizance may be. (d) Further, as Mummery says op. cit. page 288 “If such a vicarious waiver by Parliament were possible, it would place the individual Member – and through him the legislature – under the duress of public opinion every time some question of veracity in Parliament became of urgent general concern. Endless demands could arise for executive enquiries into the accuracy of statements in Parliament. This would appear to be contrary to the very purpose of Article 9 as elucidated by the Court.” Mummery continues on the same page to the effect that, at the date of the article (1978) i.e. before the further clarification in the case law to which I have referred, judicial opinion appears to suggest that waiver cannot be effected. In Dillon v Balfour [1887] 20 L.R. Ir. 600 Palles CB, in discussing the effect of letting the case go by default in an action for defamation for words spoken in Parliament said: “Assume that the Defendant shall decline to plead…judgment by default can be marked…can anyone contend that these proceedings will be regular, or that this Court, in permitting them, would not be lending itself to a commission by the Plaintiff of a breach of Parliamentary Privilege? We are not prepared to adopt any such course…[a Court must] give effect to the privilege, as if it were its own.” (e) If the Speaker, or even the House, could waive privilege, an individual Member might be deprived of its protection.(iii) In short, the Privilege is for the protection of Parliament as a whole, as well as for the protection of individual members. Indeed, as seen in the Hamilton case, it may operate against the interest of individual members. If the Privilege is that of Parliament it can only be waived by Parliament changing it by statutory provision. (iv). In Any Court or Place out of Parliament[35]The Claimants submit that questioning Parliament does not mean challenging what an MP has said, and continue:
“Were that so, no historian or newspaper columnist would be permitted to do so. There is no special rule for the Courts.”
Later their skeleton says:
“There is no difference in principle or reality between “any court or place out of Parliament”,…It is for D and the OSC to explain why Historians are not regularly brought before Parliament and subject to contempt allegations. If the answer is that OSC or D chooses not to do so, then this would appear to be an arbitrary application of a rule.”
See skeleton paragraphs 18e and 29y.[36]I propose to deal with this matter shortly in the light of the extensive treatment of the issues based on authority already set out in this judgment. Insofar as the Claimants’ argument might seek to undermine my conclusions on the meaning of “impeached or questioned”, or on the effect of death or on the possibility of waiver, I reject those submissions. Nevertheless, for completeness, I will consider the point.[37]It is strictly unnecessary for me to rule on the meaning of the term “in any Court or place out of Parliament.” The use of Hansard as proceedings in Parliament is specifically sought in litigation before this Court and amounts to impeaching or questioning what was said to Parliament. I add only these observations:(i) Journalists and historians regularly question what has been said in Parliament. Of that there can be no doubt. It cannot be right that Parliament intended in Article 9 of the Bill of Rights Act that there would be no such questioning. This has never been argued so far as I am aware.(ii) There are good reasons for considering “a place out of Parliament” to be restricted to bodies which share some of the characteristics of the Court. Support for this is found in Hamilton in the Court of Appeal [1999] 1 WLR 1569 at 1586F-G; this point was not considered by the House of Lords in Hamilton, even though they differed from the Court of Appeal’s reasoning. where it states:
“this confirms that the vice to which Article 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…”
Also in Erskine May op. cit. page 239 is the passage:
“The Joint Committee on Parliamentary Privilege expressed the view that “place” would include a tribunal appointed under the Tribunals of Inquiry (Evidence) Act 1921 but not a non statutory inquiry, even if by a Judge. The Joint Committee recommended that “place” should be defined by statute to refer to any tribunal having power to examine witnesses on oath, but that Article IX should not apply to a tribunal appointed under the 1921 Act when both houses so resolve at the time the tribunal is established. The 1921 Act was repealed by the Inquiries Act 2005. The question of whether inquiries under the Act would constitute a “place” has not yet been judicially considered. I remind myself in relation to the statement by the Joint Committee of paragraph 16 in Chaytor in the Supreme Court where Lord Phillips said that the Court would pay careful regard to any views expressed in Parliament by the House or by bodies or individuals in a position to speak on the matter with authority. In fact at paragraph 91 the Joint Committee in referring to “place out of Parliament” said “To read the phrase as meaning literally outside Parliament would be absurd. It would prevent the public and the media from freely discussing and criticising proceedings in Parliament. That cannot be right, and this meaning has never been suggested….”
In Toussaint Lord Mance at paragraph 10 relied on this passage when stating that “the general and somewhat obscure wording of Article 9 cannot on any view be read absolutely literally.” ” (iii) In effect, the sole premise of the Claimants’ argument is the passage of Lord Browne-Wilkinson in Pepper v Hart, which the Court of Appeal in Hamilton cited on the preceding page before using His Lordship’s words in support of the distinction which the Court of Appeal itself drew. That passage from Pepper v Hart [1993] AC 593 at 638 is:
“I find it impossible to attach the breadth of meaning to the word “question” which the Attorney-General urges. It must be remembered that article 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 other will say.” Given that I do not have to determine for the purposes of my ruling precisely what is meant by “place out of Parliament”, I cannot, especially in the light of the Court of Appeal’s statement in Hamilton, construe Lord Browne-Wilkinson’s words as the Claimants suggest. I note also that they were said when rejecting the Attorney General’s submission on a wide meaning of the word “question” and that there appears to have been no argument in Pepper v Hart as to the meaning of “place out of Parliament”. (iv) It is further interesting to note in this context that counsel for the Speaker submitted that section 9 cannot be used to interfere with freedom of expression by persons outside Parliament, except in the context of courts and similar institutions where it operates as a bar to the admissibility of material. It was said that Parliament would not, on the wide construction of “any place out of Parliament” have needed to legislate to provide for the removal of protestors in Parliament Square. Those protestors were making remarks which clearly impeached or questioned proceedings in Parliament. In fact, Parliament legislated Section 132ff Serious Organised Crime and Police Act 2005 so as to control protests in Parliament Square. This was on the basis, according to counsel for the Speaker’s skeleton, that the Bill of Rights contains no sanction for breach of Article 9. She said:
“It would have been meaningless to attempt to use Article 9 against Mr Haw, because no one could have enforced it. Therefore, in practice, it cannot be used to interfere with freedom of expression by persons outside Parliament, except in the context of courts and other institutions like the courts…”

Application of Principles in this Case

[38]I attach an Appendix to this judgment giving my ruling in relation to the 48 extracts upon which the Claimants seek to rely. Those extracts marked with an asterisk are those which the Claimants say have been adduced in evidence. My rulings are not intended to determine that issue or whether the Claimants should be able to adduce documents late. The rulings deal only with Parliamentary Privilege.[39]The two extracts on which the Defendant seeks to rely are now non controversial:(a) The statement to the House of Commons by the then Foreign Secretary on 6 June 2013 following the settlement of the Mutualitigation. The Defendant relies upon this as setting out its position following the allegations made in, and the settlement of Mutua, and in relation to the issue of whether exemplary damages should be awarded in this litigation. This statement was repeated and published outside Parliament, namely on the government website. Therefore Parliamentary Privilege does not apply. See paragraph 17 above and Makudi paragraph 21. The Speaker’s Counsel, by letter dated 8 December 2017 said “I agree with the Defendant’s proposition that, the republication…would not except in very unusual circumstances be privileged by virtue of Article 9. On the facts available to me, I see no such unusual circumstances in this case.”(b) The reference to the dilution technique in the House of Commons on 8 May 1957. This is relied on solely for the fact that the dilution method was mentioned in Parliament and therefore was not a secret. It is not relied upon for the factual content. On that restricted basis there is no objection.[40]In the light of my rulings, I would ask that in due course an Index be provided to the Claimants’ Opening stating what is to be redacted.

Cited in 9 later judgments