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.
I have been professionally in the middle of similar processes. Without revealing any confidences or anecdotes, I will observe that proponents and opponents to a proposition typically approach the political appointee separately to discuss their points of view. The points of view always turn out to be what they want in their self-interest (or the interest of a “cause” for which they serve as the definer of the cause). It is often one of two goals they seek to achieve - me, I want or mine, you can’t have - expressed as, all I want is an advantage.
Facilitating compromise, avoiding surprise
I have some sympathy for why it is as it is. The essence of good political administration is astute compromise. The essence of bad political administration is surprise. By meeting with the proponents and opponents who can effect your future and that of your agenda you address both issues, facilitating compromise and avoiding surprise. Win-win, as they say. Surely the people are not served by being bogged down in no win scenarios. Such meetings often do help and serve a useful public purpose.
I find most people understand this on broad policy issues. Most are considerably less understanding when it comes to specific transactions that benefit a special interest. This is what the quasi-judicial model is meant to address, by providing the decision maker with a get out of jail free card. The decision maker has no choice. He is the judge. He cannot meet ex-parte concerning a transactional decision, only a policy issue.
Yet it happens. The current UK government appears to have raised (or perhaps lowered) this to a routine.
The problem is, the line between the two, policy and transaction, is often artificial. It is rarely as clean as the quasi-judical model would have it be. Frequently political figures write the legislation that results in transactions with the help of a party or parties who may bid on the resulting transactions and who do bid and do win the bids. Frequently transactional decisions have significant policy implications. The artificiality of the distinction causes no end of headaches, legal opinions, and indeed litigation.
Here comes the judge- right problem, wrong model
I think perhaps the problem here is the model. I am not saying that the decision in question was not a quasi-judicial decision or that it was incorrect of counsel to say this means there must not be ex parte communication, etc. That is the law. I am asking whether the model adopted in the law is the right model for the circumstances.
I will explore this by analogy. Consider the dynamics when the Master of a Pit Bull walks his dog off leash in the park. The dog frisks away. The owner yells at the Pit Bull as he might a toddler. But the dog, like the toddler, runs all the harder in the opposite direction from the frustrated Master. The Pit Bull then encounters someone else walking in the park. An incident follows. Someone is scared or hurt. Something is damaged. The miserable Master tries to explain to the police that the dog really is lovely toward his children. The law destroys the dog and fines the owner. But the next day another Master strolls the park with another Pit Bull off leash.
I won’t go much further with this analogy. People are fond of Pit Bulls. It is far easier to criticize the conduct of public officials. We don’t become so attached them.
The point of the analogy is, the problem in this scenario is, both the owner and the law treat the Pit Ball using inaccurate models. The Owner treats the Pit Ball as another toddler in the family. The Law treats the dog as if it were an anti social ruffian. Worse, we would not destroy a ruffian. We would give him an ASBO. But the dog is just a Pit Bull being a Pit Bull. He is not a willful or naughty child nor a "hoodie."
It isn't the special interest's misconduct, but that of the public official
It is not only appropriate, but necessary-- even critical-- for public officials to meet and confer with stakeholders if the subsequent decision is to be good, effective, or accepted by those whose interests will be governed by it. The value for policy of that interchange isn't disputed, but it is sometimes imagined that transactional decisions can be readily and cleanly separated from policy and treated differently. That is often not the case.
Nor is it surprising that a policy maker uses a political approach to dealing with a transaction of substantial political import. If there is misconduct involved, it is the political figure’s misconduct, but both the political figure and the special interest are just being Pit Bulls doing what Pit Bulls do, often in the best interests of the public.
The right model
The Leveson hearing is actually about what to do systemically, not about crime and punishment.
The easy answer may appear to be to remove public officials entirely from transactional decisions. Give such decisions to a Real Judge. I know thoughtful people who advocate this. It is understandable why lawyers would see it this way. The judge is the lawyer's model for good decision making. But where this model has been tried, the result has been unsatisfying- a box ticking, unresponsive bureaucracy with a decision maker who is not well enough informed and stake holders who have not "been processed" to rough consent, on the one hand, or a corrupt bureaucracy in which the reformer finds he has just transferred the problem from the political realm to the bureaucracy, on the other.
Life isn’t safe. Moreover, good decision making requires informed judgement. Moreover, it isn't the decision of a judge and the process should not reflexively adopt rules of conduct applied to the courtroom. Political decisions require "process" to build their credibility. There is really no substitute for delegating a difficult decision to a decision maker who has good judgement and listening skills.
One cannot cocoon the decision maker in a failsafe process that insulates him from every opportunity where he might risk a tragic misjudgment. Indeed, if you could you would also cut off the opportunity for good judgment.
The problem is, how to deal with corrupted judgment and behavour. The answer isn’t to throw out the possibility of good judgment to avoid bad.
The right model is a system of controls that surfaces bad behaviour when it happens, reliably exposes it to the public (so the public knows who can be counted upon and who cannot) and applies appropriate and measured consequences. There is no substitute for solid public accountability. Both the onus and the enforcement mechanisms should focus without fear or favour on the political figure rather than the special interest.
For that, the Leveson Inquiry (and inquiries like it) is in-of-itself, the model answer.