By John C. Dyer, UK Correspondent
Act III in a Shakespearean tragedy called “Murdoch” began to unfold in London on 24 April 2012. Leveson Counsel Robert Jay and Judge Leveson both questioned one-time Murdoch heir apparent, James Murdoch, over a period of several hours. Rupert Murdoch followed his son on 25 Apr 2012.
Hours telecast of James Murdoch "on the hook"
BBC telecast James Murdoch’s testimony in its entirety. During the afternoon, Jay focused on communications between Murdoch and his representatives, on the one hand, and government political appointees, on the other. While there is much more to come, it may have said it all when Murdoch, asked what he thought of his PR man's comment that his procurement of confidential information had been "illegal" replied that he, Murdoch, had considered it "a joke." At the time Murdoch had already been grilled by Parliament on hackgate.
A quasi-judicial decision bumbled, twice
These communications concerned a quasi-judicial decision before government Ministers last year. The government had to decide whether or not to approve News Corp’s bid to completely take over the independent television network, BSkyB. News Corp already partially owned BSkyB (and still does). Other television networks and newspapers opposed the approval.
As a quasi-judicial decision the law’s expectation was and is that the process would be even handed, the decision maker impartial in making the decision. The law requires the decision maker to show both proponent and opponents due process of law.
The decision first landed on the desk of Business Secretary Vince Cable. After a news sting showed Secretary cable to be biased against the bid, the Prime Minister transferred decision making to Culture Secretary Jeremy Hunt.
Levenson Counsel Jay quickly exposed James Murdoch’s rebuffed efforts to meet with Secretary Cable separately from the opposition. By the character of his questions, Jay coloured these efforts “inappropriate,” and Secretary Cable’s desire to “remain independent,” “appropriate.”
Murdoch disagreed, arguing that it was important, necessary and usual for someone making such an important decision to meet and discuss viewpoints with parties. Murdoch testified he expected the other side was doing the same. Murdoch also pointed out that, as it turned out, he, Murdoch, had reason to be concerned, citing Cable’s exposure as biased.
Jay countered, pointing out that Cable’s bias led to his removal from the process. His bias and communications were inconsistent with the role of a quasi-judicial decision maker. Jay continuously described that role, throughout his examination of Murdoch, as “the judge.”
Jay then exposed a number of “ex parte” communications with government agents, including Jeremy Hunt. These communications seem to show that others working on behalf of Hunt indiscreetly revealed the contents of confidential, high level deliberations among the government officials considering the situation. Those communicating with Murdoch seemed to continuously reassure the mogul that things would work out. Murdoch’s substantial anxiety on this score provided significant documentation.
The smoking gun e-mail
One specific email appears to be the smoking gun. Hunt aide Adam Smith wrote Murdoch PR consultant, disclosing the details of the speech Hunt did in fact make the very next day in the Commons. This email undercuts the spin that the claims were a PR man's braggado with his client, as does another email telling Murdoch that he, Hunt, wanted to talk with him by phone, a conversation which subsequently took place.
It should be noted that Hunt subsequently issued a statement saying this could all be explained. Conservative MPs point out that the documents in question attribute statements to Hunt but are not from Hunt. They in fact expressly disclaim direct contact. Smith resigned 25 April, taking "the bullet" for the team.
It is true that even a smoking gun from an aide is not necessarily proof of Hunt's misconduct. However, the Ministerial Code makes Hunt responsible for the conduct of his aides on his behalf, so it is not a get out of jail free card. A fair reading of Hunt's performance before the Commons on 25 April, putatively to explain and clear it all up, is that Hunt did provide some evidence that conflicts with a presumption of undue influence, but Hunt failed to clear up major elements of the issue and only intensified the calls for his head.
Again, Jay characterized Hunt as “the judge,” colouring the communications as indiscreet, ex-parte, and showing bias. Jay further raised the comparison between the Prime Minister relieving Cable for inappropriate behaviour but not Hunt. Hunt eventually was spared the final decision by Murdoch’s decision to withdraw the bid.
Again, Murdoch disagreed with Jay’s characterization. Murdoch argued it was and is entirely appropriate, necessary and usual for such discussions to take place.
Decision making in a political environment
The question whether it was, or was not, appropriate for Cable to have met with James Murdoch, or Hunt (if true) and other officials to communicate with James Murdoch in light of the quasi-judicial nature of the decision-making process goes to the heart of how public officials deal with self- interest politics. The narrative Jay exposed is closer to situation normal than perhaps many would find comfortable to believe, and it is for good reasons. It is practical political realism.