The Justice Game

by Geoffrey Robertson

  This was actually fair enough. It was a rough quid pro quo for the absolute privilege MPs enjoy from legal action over anything they say in the House. They can, and sometimes do, make the most false and scurrilous accusations – against people who are afforded no right of reply – and it is not therefore unreasonable that they should themselves suffer suggestions that when they shoot their mouths off, someone else is pulling the trigger. Neil Hamilton and his wife Christine did not see it that way: they went to see John Major and his Attorney General, Nicholas Lyell, to demand that something be done to enable them to pursue the Guardian for libel. The Attorney came up with the answer: an amendment to the Bill of Rights (for the first time in its three-hundred-year history), designed to enable MPs in Hamilton’s position to bring libel actions if they waived their parliamentary privilege. By an incredible lobbying effort (expertly stage-managed by Ian Greer) and furtive government support, the necessary changes were rushed through Parliament. Many MPs were motivated by self-interest: they would retain the right to hide behind the coward’s cloak of parliamentary privilege in order to defame others, while enjoying a new power to sue any newspaper critical of their own conduct in the House. But they also believed in Hamilton: if he was so obsessively determined to proceed with his libel action, it stood to reason he must be innocent.

  The ‘Hamilton amendment’ received Royal Assent in July 1996. Suddenly, an action put to sleep more than a year before sprang to life. In the normal course it would take many months to come to trial, but in August the plaintiffs pulled off another coup: a slot for a long trial to start on 1 October suddenly became available, and they persuaded a judge that their case should fill it. It was the only slot available before the elections, and Hamilton demanded that the court allow him to vindicate his reputation before he stood again for the constituency of Tatton. The Guardian was horrified: it needed six months to prepare, but instead was given only six weeks. The newspaper did not even have a QC, and the Bar was away, en bloc, on summer vacation. The call from the newspaper’s solicitor came while I was staying at John Mortimer’s villa in Tuscany. I mentioned, over dinner, that I had been asked to defend the Guardian. ‘You poor chap,’ joked a guest, Tony Blair, ‘if the story is anything like their usual level of accuracy.’

  Win or lose, I hoped the case would provide an opportunity to teach politicians a lesson about the dangers of tampering with our few ancient liberties. Now that they could sue for libel over stories about what they did in Parliament, their behaviour in the House would for the first time be open to examination in a court. They might come to rue the day they cavalierly tore up a small piece of the constitution in order to win money from the press. Now that lawyers could investigate MPs’ conduct – with implements for opening cans of worms, like subpoenas and orders for discovery – their whole hopeless system of self-regulation might be called into question. If counsel were to examine MPs’ in-House conduct before a libel jury in the High Court, there could be no objection to examining it before a jury down the road at the Old Bailey. It would be far better for MPs to be prosecuted and jailed if they really were corrupt, or acquitted by a jury if they were not, rather than politely ticked off by their colleagues on the Privileges Committee. This would have the great advantage of making MPs subject to the laws they have laid down for everybody else.

  To do justice to this challenge would require lengthy and detailed preparation but the sting in the tail of this brief was that it had to be mastered in a few weeks. The timetable was well-nigh impossible, but I had at least the consolation of knowing that my slog would not be wasted, because this was the case that could never settle. The Guardian could not back down: it had staked its credibility on this story. There was no possible compromise, because Neil Hamilton and Ian Greer would not bottle out at the last moment – their political and business future depended on winning a resounding victory. They claimed the Guardian article meant that they were corrupt – a libel worth a large sum at going rates, and together with a bill for the legal costs, this case could easily cost the newspaper a million pounds. Not content with this prospect, the plaintiffs demanded more: Hamilton claimed that the Guardian story had forced his resignation, and so demanded ‘special damages’ for loss of his ministerial salary. Greer went much further, alleging that the Guardian article had lost him clients and projects worth £10 million. If his damages claim for that amount succeeded, there would not be much to read in the slimline Guardian when the time came to pay out. And succeed all these claims would, unless the newspaper could prove that Mohammed Al Fayed, a man condemned by an official DTI inquiry some years before as a liar, was telling the truth.

  I rushed back to London to take stock of the evidence. It showed that the Hamiltons had a week-long pig-out at the Paris Ritz at Fayed’s expense, where every night they ran up a bill of £400 (at today’s prices) in its restaurant, sometimes followed by a champagne breakfast the next morning. Still, much as he might be a glutton whom you would never invite home for dinner, was there proof that the MP had received thousands of pounds in brown envelopes? The defence case, at this stage, rested largely on the word of Mohammed Al Fayed. It was the same with Greer, and if the case against him were lost, his unprecedented ‘special damages’ claim for £10 million would then succeed, at least in part. The Guardian, unlike most publishers, was not insured against libel, a fact which freed it to fight this action (libel insurers would long ago have cut their losses by insisting on apologies to both plaintiffs) but made it a fight unto the death.

  Neil Hamilton insisted that nothing he had ever done in his political life needed any apology. It was his belief in laissez-faire competition which provided the reason why he had taken up Al Fayed’s cause so vigorously. He had acted, not for reward but out of deep fellow-feeling for this poor Egyptian, attacked by a virulent media just as Hamilton had been when the BBC’s Panorama mistook his high-spirited Thatcherism for fascism. (He had sued, and won £20,000 when the BBC withdrew – a victory which may have convinced him that it would be easy to win another.) Christine Hamilton had worked for ten years as secretary to Sir Michael Grylls MP, marrying Neil and then becoming his secretary when he was elected an MP for the safe seat of Tatton in Cheshire. They made a career choice to have no children, but had aged parents who were distraught when they read allegations about the MP’s cash-and-carry arrangements at Harrods. The country was to see Christine in Tatton a few months later not so much standing by her man as standing over him, but in court she would seem a delicate bloom callously and cruelly scythed by the Guardian.

  To add to these woes, there had been a devastating ruling from the judge who had ordered the case to be tried so precipitously. The Guardian had always clung to one common-sense support for Al Fayed. He alleged he had paid ‘cash for questions’ not only to Hamilton, but to the dour accountant Tim Smith, who had admitted to receiving ‘fees’ from Al Fayed which he had not disclosed on the Register of Members’ Interests. He had resigned from the government, and the Prime Minister had described his conduct as ‘seriously wrong’. Now if Al Fayed was telling the truth about Smith, why was he not telling the truth about Hamilton? As a jury point this was impressive (Downey later found it compelling), but a legal catch would prevent it from being made on behalf of the Guardian. When Parliament gave MPs the right to waive their privilege and sue for libel, it limited the waiver to the MP who was the plaintiff. Tim Smith had not waived his privilege: indeed, he was taking legal steps to prevent his name from even being mentioned at the trial. The judge had indicated that nothing could be said to the jury which might ‘question’ Smith’s conduct. The Prime Minister might describe it as ‘seriously wrong’ but the paper’s counsel could not. The judge agreed that this would be unfair to the Guardian, but it was an unfairness decreed by Parliament through the botched way it had amended the Bill of Rights.

  A month before the trial, Ian Greer says, both plaintiffs were assured by their lawyers that their prospects of victory were ninety per cent. This was the stag
e at which my solicitor, Geraldine Proudler, asked me to meet the Guardian executives because ‘they are becoming very nervous’. There was no tranquilliser I could prescribe: I estimated their chances as reasonable on Hamilton (because most jurors would take a dim view of his behaviour at the Ritz) but shaky on Greer. Even if the jury awarded him the libel raspberry (the lowest coin in the realm) that would mean not only paying his costs but enduring a second trial over his £10 million damages claim. The only way to improve the odds was to go on the offensive, spending much more money in the hope it might save millions later. We needed a team of journalists and accountants, and approval to issue expensive subpoenas to obtain government documents and to summons to the witness box an array of government figures including John Major, Michael Heseltine, and the Cabinet Secretary Sir Robin Butler. These requests were granted, not so much as a vote of confidence as a throe of desperation.

  ‘I think it would be a good idea if you met Mohammed Al Fayed,’ said Geraldine, with her usual engaging understatement. There had been no contact with him for over a year, and although he had supplied a short witness statement, it was in his solicitor’s words, not his own (which were said to be littered with four letters). So much was being staked on him, despite the DTI report – which claimed he had lied about his background, his assets and his life when he obtained consent to take over the House of Fraser (which owned Harrods). He had even lied, it said, about his year of birth. ‘Mr Fayed, when exactly were you born?’ would make a good opening question for any cross-examiner. So we ascended to his fifth-floor offices, via the Harrods escalators. It was like a magic carpet ride through Aladdin’s cave, with tempting treasures offering, as the Harrods motto has it, ‘something for everyone everywhere’. By the time you reached the top, anyone would crave a brown envelope. I wondered how I might introduce myself to this vital witness, to win his confidence, and decided to mention that I sat occasionally as a judge of Knightsbridge Crown Court, in the large building just behind Harrods. The court had moved to Southwark while its premises were, we understood, being refurbished.

  The fact that I was a judge of Knightsbridge Crown Court did not have the expected effect. Al Fayed threw back his head and roared with laughter. ‘I have just bought it.’ I begged his pardon. ‘I have bought it from the Lord Chancellor’s Department,’ he guffawed, ‘I will use it for office space.’ This turned out to be true: Mohammed had bought the court. (You could now buy anything at Harrods, they would say, including justice.) At least he would be entertaining for the jury: a dumpy man, with a hook nose above a mouth that grinned or looked grim by a fractional change of the same muscle: it was a face uncannily resembling that of Mr Punch, whose magazine he was relaunching that very day. It cheered him when I begged a free copy, to cushion his pained look when I refused the Harrods silk ties he was about to propel across the table in my direction. I had steeled myself to refuse all gifts because I did not want to hear the laughter in court when my opponent cross-examined Al Fayed about his legendary generosity. ‘Now tell us, what did you give my learned friend?’

  We chatted pleasantly for half an hour. His cross-examination by my opponent, Richard Ferguson, would be a bewildering cultural duel for the jury to referee. Dick’s portentous Northern Irish Protestant vowels would beat the courtroom air, above the frank and fractured English of this effusive Egyptian. When he looked accusingly across the crowded courtroom at Greer and Hamilton, would they shiver and shrivel under his gaze? This was the man they had fawned upon for four years: the more their counsel accused him of being corrupt, the more their own grovelling letters to him in that period would return to haunt them. In view of the DTI report, I would have to say something about his credibility, like: ‘Mr Fayed, members of the jury, may not have a head for detail. He may not know when he bought a house or a limousine. But he knows when he has bought a man.’ Would the jury buy the argument? That would depend on his – and Hamilton’s – performance in the witness box.

  My view of Mohammed Al Fayed was at first that of prosecuting counsel, grateful he agreed to turn Queen’s evidence but not excusing him for paying any bribes to which he was prepared to confess. As we talked, a kinder characterisation suggested itself. He had grown up in Alexandria at a time when Egypt was still British. He had been taught to believe in Britain and its institutions, by comparison to the decay and corruption all around him. When he discovered, after settling here, that much of this was a confidence trick, he became disillusioned, and then angry and then almost Messianic. He was determined to make Parliament – like Harrods, like the Ritz, like Punch – the exemplar he had in his youth imagined it to be. (Ex-colonial reformers of my own circle – Peter Hain, Bryan Gould, Patricia Hewitt – have I suspect been similarly motivated, to make Britain live up to the expectations their school lessons aroused.) ‘Ah, you have understood my idealism,’ Al Fayed beamed as I ventured this tentative fellow feeling. ‘I am indeed working on a new democracy, a new political advance for Britain. It is being prepared by Lord Anthony Lester and Alex Carlile. Perhaps you would like to join them?’ I explained that if I had wanted a peerage I would have joined the Liberal Democrats long ago. Mohammed would be buying the Garrick Club next, and almost certainly the Observer – if its sister paper the Guardian lost this case.

  To prevent that, we were going on the offensive, with a salvo of subpoenas. John Major and Michael Heseltine could give evidence which was relevant to rebut Hamilton’s claim for special damages, so they could not refuse to take the stand. A summons to attend the High Court on 1 October was served on the Prime Minister by a process server, together with a cheque for 90p. This is what the law terms ‘conduct money’: the cost of public transport to the court. In this case it was the price of a bus fare from Downing Street to the Strand. ‘MAJOR SUMMONSED FOR SLEAZE CASE’ screamed the Sun, ‘WORLD-EXCLUSIVE’. It had, clearly, the most alert mole in Downing Street. The Prime Minister was so rattled that his wife Norma was immediately required to withdraw from a book-signing session arranged for her – at Harrods.

  Hamilton issued a press statement predicting that he would smash the Guardian. Rusbridger responded valiantly that we had all the evidence we needed to win. We hadn’t, although we were working on it. And how hard everyone was working: Geraldine and her team, the Guardian journalists, my junior Heather Rogers, extradicted from her summer holiday in Canada, the forensic accountants (who were being paid more than any of us). In a kind of pious panic, I read every word Neil Hamilton had ever uttered in the House of Commons since he had entered it in 1983. I read every edition of the Register of Members’ Interests and every report on the subject of declaration of MPs’ interests, every book and press cutting that existed on lobbying, Lonrho, the House of Fraser and the political interests of major Greer clients. I read Neil Hamilton’s book on taxation, and decided to subpoena his tax returns. Most significantly, as it turned out, I read The Right to be Heard, Ian Greer’s book on the art of lobbying. It drew attention to the importance of back-bench Conservative committees as a means of putting pressure on ministers, and highlighted the potential of one in particular – the Trade and Industry Committee. Its chairman at the relevant time was Michael Grylls, and its vice-chairmen were Tim Smith and Neil Hamilton.

  The contemporary genre of courtroom fiction, popularised in the novels of John Grisham and Scott Turow, is peopled by proactive trial lawyers who take depositions and harangue judges and meet crucial witnesses in hotel rooms in mid-trial and find, by the last chapter, the smoking gun. It’s not like that in Britain. Here, you just read and read and read. (I had bought an office carousel for my forty-eight red lever-arch files which began sprouting tabs of adhesive yellow paper like fields of daffodils in spring.) Then you bend double over your desk for a week, summarising everything of conceivable relevance in chronological order: every meeting, every letter, every telephone message, every government decision. Only then, when the master chronology is printed out, can you see clearly what had happened, years ago. It’s not a process
which offers much to the descriptive novelist, punctuated as it is in real life only by cups of strong black coffee, Mars bars and travels to and from the toilet. The drama – and it is dramatic – is all in the mind, as the jigsaw takes shape. This is the process that worked in Antigua, as the telephone calls enmeshed the conspirators at vital times and on vital days; it worked in Matrix Churchill, where the chronology proved that HMG must have known. A fortnight before this trial, the third draft of the master chronology was fifty pages long, and the picture of parliamentary democracy in the 1980s was coming nicely into focus.