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The Court of Appeal will soon be delivering judgment in a high-profile clash between the head of Thailand’s football federation, Dato Worawi Makudi, and Lord Triesman, the former chairman of the FA, which raises an issue of high constitutional importance.

The background is all too familiar to any supporter of English football.  Between 2007 and 2010, the FA stretched every sinew to bring the 2018 FIFA World Cup to England.  No English icon was left untapped.  Prince William, David Beckham and Sir Bobby Charlton were paraded before the FIFA Executive Committee.  The bid was even announced by Adrian Chiles.  A total of around £16 million was spent.  Two votes were garnered.

In May 2011, Lord Triesman sought to explain this depressing outcome in evidence given to the Culture, Media and Sport Committee of the House of Commons.  During that evidence, Lord Triesman alleged that Mr Makudi, who was a member of the FIFA Executive Committee with a vote on the World Cup bids, had attempted personally to secure the broadcasting rights to a proposed fixture between Thailand and England, and that it was “hard not to think” that Mr Makudi had been “…unaware of the idea settling in my mind, or in the minds of people in this country who are responsible for the bid, that these things would be linked”.

That evidence was, in itself, protected by absolute Parliamentary privilege.  Article 9 of the Bill of Rights 1689 provides that the “Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”  This is a “provision of the highest constitutional importance” (Pepper v Hart [1993] AC 593 at 638 per Lord Browne-Wilkinson) which ensures that evidence given to Parliamentary Committees cannot result in any civil or criminal penalty.

But what if a person repeats statements made in Parliament, or expressly relies upon such statements, in a situation which is not protected by absolute privilege?  After Lord Triesman’s evidence to the Select Committee, the FA set up an inquiry.  Lord Triesman tried to be careful not to add to his Parliamentary evidence.  But he did repeatedly say, to the Chairman of the inquiry, that the inquiry should “rely upon” or “refer to” such evidence, and even gave a statement saying that his “…evidence in respect of” a particular issue was “set out in the transcript” of his evidence to the House of Commons.

It is well established that a person who has made a statement in Parliament which is protected by absolute privilege may lose that privilege simply by stating outside Parliament that he “did not resile” from that earlier statement: see Buchanan v Jennings [2005] 1 AC 115.

Relying upon that principle, Mr Makudi brought defamation proceedings against Lord Triesman, alleging that Lord Triesman’s statements to the FA inquiry were not protected by absolute privilege and were defamatory.  Mr Justice Tugendhat struck out those proceedings, partly on the basis that a plea of qualified privilege by Lord Triesman raised an issue as to alleged malice, which could not be examined “…without also enquiring into his state of mind when he gave his Parliamentary evidence”, which the Judge ruled to be impermissible ([2013] EWHC 142 (QB) at para 101).

The High Court may have gone too far in this aspect of the ruling.  In the MPs’ expenses case (R v Chaytor [2011] 1 AC 684), the Supreme Court ruled that: “…where a Member of Parliament affirms outside the House a statement made in the House. Such an affirmation can found a claim in defamation. This may well involve a challenge to the good faith of the defendant in affirming the statement, which will inferentially challenge his good faith in making the original statement” (para 45 per Lord Phillips).  These observations reflected those of Lord Bingham in the Buchanan case, that “In such a case there will inevitably be an inquiry at the trial into the honesty of what the defendant had said, and if the defendant's extra-parliamentary statement is found to have been untrue or dishonest the same conclusion would ordinarily, although not always, apply to the parliamentary statement also. But such an inquiry and such a conclusion are not precluded by article 9, because the plaintiff is founding his claim on the extra-parliamentary publication and not the parliamentary publication.”

It therefore appears to be the law that an inferential inquiry into the good faith or otherwise of Lord Triesman’s statements to the Select Committee is not precluded by Parliamentary privilege.  This issue raises a question of high constitutional importance, which is no doubt one of the reasons why the Court of Appeal decided to hear the case.  Indeed, in early November 2013 the Speaker of the House of Commons, John Bercow, took the unusual step of writing to the Court of Appeal in order to express concern at the potential impact of the case upon freedom of speech in Parliament.

The case has been heard by a panel comprising Lord Justice Laws, Lord Justice Tomlinson and Lady Justice Rafferty, and their judgment will be eagerly awaited by both sports lawyers, public lawyers and media lawyers alike.

(James Segan was junior counsel in the MP’s expenses case, led by Lord Pannick QC.)

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