Wednesday, 25 April 2012

Did Minister act unlawfully in relation to bid for BSkyB ?


The Leveson Inquiry continues to fascinate.   On Tuesday 24th April, the Inquiry published e-mails (Exhibit KRM18) between persons acting for News Corporation and the office of Jeremy Hunt (Culture Secretary) - see The Guardian 25th April - " Jeremy Hunt emails: a legal view."

Writing on Head of Legal blog, the former government lawyer Carl Gardner claims that Mr Hunt acted unlawfully in his handling of the News Corporation bid for BSkyB - Head of Legal blog - "Hunt's handling of the News Corporation-BSkyB deal was unlawful."    The alleged unlawfulness arises here because of the administrative law relating to appearance of bias.  Decision-makers must be free not only of actual bias but there must be no appearance of bias.  Here, administrative law is concerned to ensure that decision-making processes are fair and seen to be fair.

The test relating to apparent bias developed
via case law and is summarised by the House of Lords in a case relating to Police Officers serving as jurors - Abdroikof [2007] UKHL 37 - Lord Bingham at para.14.   The legal test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased - see Magill v Porter [2001] UKHL 67 where this definition was laid down.

Mr Hunt was taken to task about this in the House of Commons on 25th April and, in response, claimed that he conducted the process with scrupulous fairness throughout - see the video at BBC - Jeremy Hunt - I followed due process over BSkyB    Of course, this may be quite true but avoids the point that appearance of bias is fatal to decision-making. 

Earlier posts on the BSkyB bid are here and here 


The Guardian 25th April - Jeremy Hunt visited News Corporation in US as Murdoch considers BSkyB bid 

Daily Mail 26th April - "Hunt at Bay: Tories in crisis as Minister faces three inquiries and his adviser quits over damning Murdoch emails."  It appears that the Financial Services Authority is considering whether an offence of "market abuse" took place.  Also, Mr Hunt has yet to give evidence to the Leveson Inquiry and, according to the Daily Mail article, Leveson LJ is not minded to bring forward the date for Mr Hunt to give his evidence.  (Mr Hunt had requested an earlier hearing).  Then there is the possibility that Mr Hunt breached the Ministerial Code of Conduct in that Ministers have responsibility for their advisers.

For information on Market Abuse see the FSA website  and see the New Statesman article by lawyer David Allen Green - "Hunt and News International: a market abuse angle."

The Guardian 27th April - "Jeremy Hunt to hand over all relevant BSkyB emails and texts"

1 comment:

  1. I must confess to being unable to understand why ministers are supposed to pretend to approach things de novo.

    It can be no more than pretence. What public inquiry into a new terminal or runway turns up anything not known beforehand?

    Of course Hunt was intimately aware of every detail of the case. Of course he had formed an opinion. How could he not? Hadn't everyone else formed an opinion? Why pretend otherwise?

    For interest, here is an opposing view, which suggests that Ofcom is in the wrong, having escaped from its pasture and grazing in the kitchen garden: