Why Jeremy Hunt’s claim of no bias is a nonsense

Robert Henderson

Jeremy Hunt’s defence against accusations of bias when judging the bid of the Murdoch family  to gain full control of BskyB  is simple: he says  that regardless of his own pro-Murdoch  views,   he behaved with absolute propriety and impartiality in his conduct of the matter, taking what he claims was independent advice throughout and always  acting upon it.

The problem for Hunt’s argument  is that he was in a quasi-judicial situation.  This means that he had to comply with the dictates of natural justice which applies  “equally to the decisions of administrative and domestic tribunals and of any authority exercising an administrative power that affects a person’s status, rights or liabilities. Any decision reached in contravention of natural justice is void as ultra vires . There are two principal rules. The first is the rule against bias (i.e. against departure from the standard of even-handed  justice required of those who occupy judicial office.) – nemo judex in causa sua ( or in proporia causa) (no man may be a judge in his own cause)This means that any decision,  however fair it may seem, is invalid if made by a person with any financial or other interest in the outcome  or any other known bias  that might have affected his judgement.  The second rule is  known as audi alteram partem (hear the other side). It states that a decision cannot stand unless the person directly affected by it is given a fair opportunity both to state his case and to know and answer the other side’s case.  (Oxford Dictionary of Law 1996 edition P261)

The bias rule means that not only must the person in the judicial or quasi-judicial position behave without bias, they must be seen as having no conflict of interest which could lead to a reasonable suspicion of bias. Like Caesar’s wife, Hunt needed to be above suspicion.  Clearly he was far from being that because  of (1) his severally expressed  desire to see  News International gain full control of BskyB , including  enthusiastic written support just before Cameron appointed  Hunt to replace Vince Cable as the minister responsible for making the decision on the News International bid,  (2) the incestuously chummy behaviour of his special advisor Adam Smith when dealing with News Corp  lobbyist Fred Michel and  (3) his own texts and emails including compromising ones with his political colleagues.

A month before Hunt replaced Cable as overseer of the BskyB bid,  he wrote to David Cameron asking for a meeting with Cameron and Cable to discuss the handling of the bid. In the note Hunt was concerned that referring the bid to  Ofcom might leave the Government  “on the wrong side of media policy” and  expressed the view that it would be  “totally wrong” for ministers to “cave in” to News Corp’s opponents. (http://www.telegraph.co.uk/news/uknews/leveson-inquiry/9288966/Jeremy-Hunt-and-the-secret-BSkyB-memo-to-David-Cameron.html).  Sir Gus O’Donnell,   the  cabinet secretary at the time when  Hunt was given Cable’s job .  O’Donnell’s job  was  to decide whether Hunt was  qualified to be Cable’s replacement for the job of overseeing the News Corp’s bid for total control of BskyB.   This judgement included the question of bias.  O’Donnell made his judgement inn ignorance of  Hunt’s memo to Cameron because neither Hunt nor Cameron  disclosed it to O’Donnell.

Just before Hunt was given the job of handling the BskyB takeover bid he was effectively lobbying on News Corp’s’ behalf :

‘Hunt email to [Andy] Coulson, [then the  director of communications at No 10] timed at 4.10pm,  21 December 2011: “Could we chat about this. Am seriously worried Vince [Cable] will do real damage to coalition with his comments.”

Two minutes earlier, at 4.08pm, he [Hunt]  texted Osborne: “Cld we chat about Murdoch Sky bid am seriously worried we are going to screw this up. Jeremy.”

Almost immediately he fires off another text to the chancellor: “Just been called by James M. His lawyers are meeting now and saying it calls into question legitimacy of whole process from beginning ‘acute bias’ etc.”

Osborne responds to intimate that Hunt has got the job of overseeing the News Corp/Sky bid, texting him at 4.58pm: “I hope you like our solution “. ‘ (http://www.guardian.co.uk/politics/2012/may/31/jeremy-hunt-george-osborne-bskyb-bid)

Hunt did this despite having been given legal advice that he should not try to influence the outcome of the BskyB bid (http://www.telegraph.co.uk/news/uknews/leveson-inquiry/9290934/Leveson-Inquiry-Jeremy-Hunt-tried-to-intervene-in-Vince-Cable-scrutiny-of-News-Corp-bid-for-BSkyB.html)

The extent of the contact between Hunt, the DCMS and Adam Smith and News Corps after Hunt was appointed to the position Cable had vacated  is extraordinary.   Hunt and DCMS officials exchanged  799 text messages with News Corp; Adam Smith 257 with Fred Michel of News Corp.  (http://www.telegraph.co.uk/news/uknews/leveson-inquiry/9287284/Leveson-Inquiry-DCMS-exchanged-799-texts-with-News-Corp-during-BskyB-bid.html)

The  nature and tone of the texts are as remarkable as there frequency. Here are few examples of Hunt’s:

“2011 20 Jan

Michel to Hunt

Following minuted meeting in DCMS with News Corp to discuss the bid:

Great to see you today, we should get little [names of children] together in the future to socialise. Nearly born the same day at the same place! Warm regards, Fred.

Hunt to Michel

Good to see you too. Hope you understand why we have to have the long process. Let’s meet up when this resolved.

Jan 21

Michel to Hunt

You were very impressive yesterday, and yes, let’s meet up when it’s all done. Warmest regards, Fred.

March 3

Michel to Hunt

Mr Hunt had announced he was accepting News Corp’s Undertakings in Lieu, which meant Sky News would become an independent company

 You were great at the Commons today. Hope all well, warm regards, Fred.

Hunt to Michel

Merci. Large drink tonight!  “

(http://www.telegraph.co.uk/news/uknews/leveson-inquiry/9287671/Leveson-Inquiry-the-texts-between-Jeremy-Hunt-and-Fred-Michel.html)

No judge would have failed to disqualify himself if he had had such contact with someone appearing before him, although no judge would have dreamt of having such contact with someone appearing before him.  Nor would any third party (in this case Adam Smith)  have been acting on behalf of a judge in a way guaranteed to compromise the ability of a  judge.

Whether Hunt behaved impartially in his consideration of the BskyB takeover bid is actually  irrelevant,  because the facts of his behaviour both before and after his appointment to adjudicate on the bid give ample ground for suspecting that he would be biased in his judgement.  Moreover, it is possible that someone who  appears to be biased would act unfairly in the opposite direction, that  is, treat  unfairly the person whom it was suspected he was biased towards  to allay claims of partiality.

There is also  the question of  whether those opposed to the BskyB bid had a meaningful opportunity to answer the  Murdoch case (the second primary rule of natural justice).  If Hunt accepted submissions from the opponents of  the Murdoch bid, and it would be extraordinary if he did not, those making the submissions would not be able to fully answer the other side’s case because they would not know the facts of what was happening between Hunt and his special advisor and  the Murdochs.

The fact that Hunt is trying to hang-on regardless of the mountain of evidence of inappropriate ministerial behaviour and David Cameron is desperately  attempting to protect him by refusing to refer Hunt’s behaviour to Sir Alex Allan, the independent adviser on the Ministerial Code tells you all you need to know about the Coalition, namely, that they have learnt nothing from the various scandals encompassing politicians in the past few years and believe that when shove comes to push that ministers can behave more  or less as they wish short of outright criminality  provided they retain the support of the Prime Minister.   Hunt’s behaviour should  have been referred to Allan because the Ministerial Code echoes the bias rule of natural justice , viz: :“ f. Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests” (http://webarchive.nationalarchives.gov.uk/+/http://www.cabinetoffice.gov.uk/media/409215/ministerialcodemay2010.pdf).

Cameron’s reluctance to act over Hunt is plausibly linked to his own close connections with the main News Corp/News International players, especially Rebekah Brooks and his appointment of an ex-news international editor Andy Coulson as No 10 Communications chief, a man  being investigated over phone-hacking while the editor of the News of the World and  now charged with perjury over a separate matter relating to the trial and conviction of the erstwhile  Scottish SMP Tommy Sheriden. There is also the fact that Cameron made the decision to appoint Hunt despite knowing of Hunt’s  bias in favour of the News Corp bid when he appointed him.  To that can be added the approval of George Osborne for the appointment  as shown in the text quoted above from Osborne to Hunt in which Osborne describes the appoint of Hunt to replace Cable as “the solution” to Hunt’s worries about News Corp failing to gain full control of BskyB   (http://www.guardian.co.uk/politics/2012/may/31/jeremy-hunt-george-osborne-bskyb-bid).

There is also evidence that 10 Downing Street aides had a good deal of contact with News Corp generally, viz: :

 “Two of David Cameron’s most senior and trusted advisors were having back door text chats with News Corp’s chief lobbyist at the height of the Milly Dowler scandal, it emerged tonight.

Gabby Bertin, the Prime Minister’s press secretary, exchanged numerous messages with Fred Michel in the days after true extent of phone hacking at the News of The World became apparent.

She also contacted the then chief executive of News International Rebekah Brooks to offer her support and was given early warning of the decision to close the News of the World.

At the same time Craig Oliver, David Cameron’s Director of Communications, was also in contact with Mr Michel and the pair met for dinner at a “discreet location” the day after the Dowler revelations came to light.

The text messages also show that there were a significant number of – up till now undisclosed – telephone conversations between Downing Street and News Corp as the extent of the scandal became apparent.”  (http://www.independent.co.uk/news/media/tv-radio/cameron-aides-cosy-chats-with-news-corp-7788308.html).

Cameron’s problem is that if Hunt goes he is also in the firing line because he has been too closely involved with both Hunt’s appointment and News Corp generally. .

It is nauseating to compare the ministerial misbehaviour  Cameron has tolerated  with his 2010  foreword to the Ministerial Code :

“Our new government has a particular and historic responsibility: to rebuild confidence in our political system. After the scandals of recent years, people have lost faith in politics and politicians. It is our duty to restore their trust. It is not enough  simply to make a difference. We must be different.

We have promised the people a coalition government united behind the key principles of freedom, fairness and responsibility. Every day of this government we  must make good on that promise, acting in a way that reflects these principles.

In everything we do – the policies we develop and how we implement them, the speeches we give, the meetings we hold  – we must remember that we are not masters but servants. Though the British people have been disappointed in their politicians, they still expect the highest standards of conduct. We must not let them down.

We must be different in how we think and how we behave. We must be different from what has gone before us. Careful with public money. Transparent about what we do and how we do it. Determined to act in the national interest, above improper influence. Mindful of our duty. Above all, grateful for our chance to change our country.

DAVID CAMERON (Ibid)”

Truly, Britain’s  leading politicians have no shame.