Government by corporate text messages: what is left of the British constitution after Leveson?

The picture of collusion between the Cameron government and Murdoch's NewsCorp is enough to make you LOL - or cry. A British citizen is aghast.

Stuart Weir
27 May 2012

It is no longer just a question of whether or not Jeremy Hunt should resign as Secretary of State.  The Leveson inquiry has thrown up bigger questions. Most immediately, should Prime Minister David Cameron accompany Hunt on his way out of government?  More fundamentally, still, is it not time that the notion that government ministers can be entrusted with “quasi-judicial” decisions which by their nature transcend the party political is abandoned?  And that the constitutional rules, or conventions, governing the relationship between ministers and their special advisers are more clearly defined and enforced.

There can be no doubt that the relationship between the Prime Minister, his ministers and their minions and the News Corporation was corrupt, going way beyond innocent social activities, slangy nicknames and kisses. These were symptoms of a deeper complicity from which both parties gained.  Remember that this complicity was skilfully concealed behind professions of friendships and high-minded statements about “due process”, both of which are still being used as a screen: it is simply the unprecedented release of detailed documentation by Leveson that has revealed the full extent of its political and commercial effects.

Let’s take two damning illustrations of how bad things were.  Hunt’s urgent memo in November 2010 on behalf of News Corporation to Cameron begins with these words: “James Murdoch is pretty furious at Vince’s referral to Ofcom [of News Corp’s bid to take over BSkyB] . . .”  These words are addressed to Her Majesty’s principal minister, the Prime Minister of the United Kingdom, by one of her Secretaries of State, and they place a plea to intervene in the handling of a “quasi-judicial” function by another Secretary of State firmly within the framework of a private individual who is actually party to the process of adjudication.  Who the hell is this “James Murdoch” that he is so privileged? Why does Hunt assume that the Prime Minister will think his anger is so important?  Why did he ignore legal advice from within his department that he should not intervene in the first place?

Hunt’s position was clearly partisan. And yet, when Vince Cable was forced to recuse himself from handling the bid on the grounds that he wasn’t impartial, having declared to two journalists that he was declaring war on the Murdochs, Cameron appointed Hunt as Cable’s successor.  He failed to disclose Hunt’s memo to Gus O’Donnell, the cabinet secretary, who was overseeing the propriety of the appointment; and ignored the opportunity to appoint a  minister less committed either way.

At the very time when David Cameron denounced News Corporation in the House of Commons in a show of indignation over the Milly Dowler phone-hacking revelation, stating strongly that “everyone” at News International had to “ask themselves some pretty searching questions”, Craig Oliver, his Director of Communications, was meeting the News Corp lobbyist, Frederic Michel, for dinner, requesting that it take place at a “discreet location”.

Gabby Bertin, Cameron’s press secretary, exchanged numerous messages with Michel, texting him to say, “Another hard core day. X”. He replied: “Yes....mon dieu....incredible. DC [David Cameron] was very good at PMQ. We need to get through this.”  The following day before the announcement that the News of the World was to close, Michel sent Ms Bertin a message saying: “I do need to speak to you in 1 hour. Very important. Our ‘last call’. Xx”  She texted back: “Ok x”.   She also contacted Rebekah Brooks, then still chief executive of News International, to offer her sympathy and was given early warning of the decision to close the News of the World.

Were Cameron’s staff  asking “pretty searching questions" in their discreet meetings? Michel told the Guardian that the dinner was a social occasion and no business was discussed! Implicit in these goings-on was the assumption that they were all on the same side.

This brings me to the unfortunate Adam Smith, Hunt's special advisor (or SPAD) who was obliged to resign when his his close dealings with Michel became public. , briefing the lobbyist in intimate detail on the views and activities of the  minister for whom he was acting.  His text messages to Michel were frequently passed on in similar terms to Michel’s superiors minutes after being received and the information that was passed on suggests that Smith was acting as a back-channel of communication with News Corp. 

According to Smith, Hunt initially reassured him that he had “only been doing his job” and that he wouldn’t be sacked. All the evidence suggests that Hunt’s reassurance over his conduct was accurate, if not over his position.  Hunt and Smith were known to be almost joined at the hip, and Smith was renowned for his close understanding with his boss. Smith told the Leveson inquiry that Hunt and senior figures in his department were all “generally aware” of his activities “from a combination of . . . the discussions at our meetings and more informal contact”; and that his close contact with Michel could not have been a surprise. Jonathan Stephens, the permanent secretary at the department, wrote to Smith to say that he had been the “best and straightest” special adviser he had known in 30 years in Whitehall.

Under the ministerial code, Hunt has responsibility for Smith’s conduct and should accept responsibility now. Hunt either knew what was being done in his name, or he himself failed to ensure his aide’s commitment to due process. The ultimate arbiter on this question is the Prime Minister. If he does not discharge his own duty to enforce the code in this case, he will leave an ambiguity about the role of special advisers that will inflict further damage the integrity and reputation Whitehall, its quality and honesty. 

Hunt himself was mates with Michel though he was “very careful” to cease personal communications with the lobbyist when he took on his “quasi-judicial role”.  But he stands charged with misleading Parliament when he told MPs that he had never sought to influence the outcome of the BSkyB bid.

The affair also casts serious doubt on the role of the civil service in Downing Street and across Whitehall.  On the face of it,  O’Donnell was mistaken in his rejection of Labour shadow John Denham’s request that Hunt should not be appointed in view of known public pronouncements (which would certainly have broken the rules that apply to local councillors hearing planning applications). Throughout the affair, senior civil servants have acted rather as seconds to the Prime Minister and his colleague, not guardians of the public interest and due process. Indeed, the appearance of due process, adopted “very carefully”, has been a screen behind which its absence in reality has been concealed, along with insider dealing.

One unpleasant sign of the deference of civil servants to ministers came from the office of the Cabinet Secretary, Sir Jeremy Heywood, which sought to re-write Smith’s resignation letter in typically Whitehall slippery terms to make it seem that he acknowledged that he had exceeded his remit. They proposed that the letter should read, “While I believed it was my role to keep News Corporation informed . . .”, instead of the original, “While it was part of my role to keep News Corporation informed . . .”  Smith objected strongly and successfully to the amendment because “the department had known that that’s what my role had been”.

I hope that one or more of the various organisations concerned with the quality of democracy and governance in the UK will consider two related issues.  How viable is the idea that ministers can be entrusted with “quasi-judicial” decisions in an era when party political considerations are so dominant?   Secondly, government deals incessantly with large corporations; and as David Beetham has shown in his Democratic Audit paper, Unelected Oligarchy (which he updates on OurKingdom), major financial and business institutions exercise huge power and influence over government through a variety of means. It is time to ask, “Who rules Britain?” and explore how best to check the public, let along the surreptitious, means through which corporations like News International exercise their power of influence. 

As for Cameron, he will do all he can not to resign. His party takes comfort in the knowledge that the affair supposedly does not resonate with the public. Yet he has goofed badly and proved himself to be both impatient with the rule of law and the conventions that uphold it and incompetent. The combination may yet be his undoing.

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