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CORRUPTION BY COMMITTEE; SCRUTINISING THE SCRUTINEERS

July 22, 2013 8:00 am by: Category: Features, News, Scots Legal News, UK Legal News Leave a comment A+ / A-

Writing for the FIRM, David J Black, argues that corruption comes in many forms, including Parliamentary Committees…

On the face of it, Parliamentary Select Committees look like a thoroughly good thing. Ostensibly independent of the party whips’ offices, they may, according to the official handbook, ‘decide for themselves their methods, focus, and levels of work’. They provide backbenchers with an opportunity to hold ministers to account, which sounds re-assuring. Unfortunately their very informality can become a recipe for an arbitrary cherry-picking approach whenever the prevailing political agenda requires it.

Independence is the cri de coeur but the term is a relative one. The members of of these mini-commissariats are approved after a ballot which takes place under the watchful eyes of the party whips. Maverick free-thinkers in the mould of Labour’s Paul Flynn are tolerated on certain select committees – Transport, Welsh Affairs, Environmental Audit, and Public Affairs, in his case – but rarely on such major ones as Culture, Media, and Sport, where Flynn, an author and ex-broadcaster, might have had something useful to contribute.

The Culture Committee makes for an interesting case study in a complex area. The Department of State of which its members have oversight, DCMS, is largely an England-only affair. Culture, per se, is devolved to ministers in Edinburgh and Cardiff, which may explain why the committee places in Westminster are divied-up between the three main UK parties, with nationalists excluded. The remit, however, includes non-devolved areas such as broadcasting, which it has been scrutinising this week. Other areas – the budget-busting costs of the London Olympics and the National Lottery, for example – have an obvious impact on all parts of the UK.

Non-English representation is not disbarred from the committee – one of its members is the Scottish MP Jim Sheridan; yet Mr Sheridan’s record doesn’t altogether suggest that he prioritises Scottish interests. He seems to have more important fish to fry. His disdain for the press is well known – at one time he suggested that journalists should be banned from parliament, while his recent grilling of Lionel Barber of the FT and Chris Blackhurst of The Independent underlined a hawkish reputation in matters of statutory press regulation.

My own erstwhile connection with John Whittingdale’s Culture Committee has been very educational, but not in a good way. In 2011, I referred a matter to it which concerned the alleged unlawful activities of a state regulator, and the department to which it was accountable, DCMS. This concerned the damaging effects which these activities were having on British craft manufacturing businesses – and specifically on one such business in the Borders. Since the matter raised included allegations of breaches of criminal law, I initially assumed Mr Whittingdale might take something approaching an active interest.

That was a mistake. A summary document was sent to him in early June. By late August, when I bumped into the former Labour MP Bob Marshall-Andrews, I hadn’t received as much as an acknowledgement. I don’t know if the fact that I mentioned this to Mr Marshall-Andrews had a galvanising effect, but the following day I opened my email and found a response from the committee clerk. This began with an apology, and continued with an explanation. ‘As I am sure you can appreciate, we have received an unprecedented volume of correspondence related to the committee’s work on phone-hacking and are still coping with the backlog of work that has given us.’ I was informed that the issues I’d raised might be considered as a topic for inquiry in 2012.

The clerk, of course, had a point – though I fail to see why she couldn’t have told me about this earlier. Most reasonable people would agree that phone hacking is indefensible, as well as illegal, and it was seen at its worst in the case of Millie Dowler, whose voice mails were accessed after her death. The police and the courts were already dealing with the matter, yet surely it was valid, in a public interest context, for backbench MPs to examine witnesses in an open forum. At times, however, style has a habit of trumping substance.

The examination process adopted by the committee during the phone-hacking inquiry raised more questions than answers. Watching the televised proceedings, it was difficult to avoid the impression that this might – just might – have been something of a revenge trip for a number of politicians who’d found themselves embarrassed by the previous year’s expenses scandal. News International and the Murdochs were obviously the focus of their wrath, but the belief that committee members might be out to give the press, in general, a good kicking could not be entirely relegated to the realms of fantasy. If it looks like a kicking, and it feels like a kicking, the chances are it’s probably a kicking.

Nor did it help that the most voluble committee member, Tom Watson MP, just happened to be co-writing a book, ‘Dial M for Murdoch.’ Mr Watson clearly had reasons to soap his subject up, which is precisely what he did. His more intemperate observations included a comparison of the Murdoch empire with the mafia. The fact that he his co-writer was a journalist meant that he was possibly more inhibited than his fellow inquisitor, Jim Sheridan, when it came to marking the press’s card, though he wasn’t sparing the horses as far as the Murdochs, Andy Coulson, and Rebekah Brooks were concerned.

From our Borders perspective this didn’t look too good. We were realists, of course, and appreciated that the redundancies of a dozen or so artisans working in a small community a long way north of Luton didn’t amount to a hill of beans inside the M25. Even so, our company was manifestly being discriminated against by a regulator which had set out to be our commercial rival. That regulator had formed a joint venture which would import cheap product from China though it had claimed, on its official website, that it wasn’t imported from China. It was making distorted rulings which appeared to suit its own commercial interest. So what’s not to investigate?

The Culture Committee’s sound and fury over telephone hacking, while no doubt a valid matter of public interest, was galling. Whatever the Murdochs may, or may not, have been guilty of, there was something tawdry about the grandstanding morality of a room full of posturing parliamentarians venting their televised spleen on an elderly press baron while obdurately refusing to look into matters of alleged lawbreaking in their own backyard.

I’m sure I wasn’t the only person to catch the distinctive whiff of hypocrisy. In the phone hacking inquiry, there was a great deal of playing to the camera, with some committee members sententiously posing as champions of the underdog. Certainly, in the case of Millie Dowler’s grieving parents it was impossible not to feel sympathetic – these were ordinary people who had been subjected to an extraordinary act of cruelty.

Whether Steve Cougan, Charlotte Church, Max Mosely, Hugh Grant, and Sienna Miller could be described as underdogs, however, is another matter, even if their various complaints were well grounded. Obviously, in the great national scale of just causes, we were well outclassed. We simply couldn’t offer the Culture Committee A-listers of this quality for Mr Watson to include in his book. We were just people who made things.

One of the things we’d made was a further attempt in May 2012 to persuade John Whittingdale and his star-struck committee to consider an inquiry into the matter raised the year before, but to no avail. He didn’t respond, but his former committee clerk informed me that she’d moved on, and would forward my concerns to her successor. We continued to wait. After several months it became obvious that the Culture Committee was guilty of the same egregious vice that it had accused News International of indulging – wilful blindness.

Another email was sent to the new clerk, but this it was ignored. We’d all but given up on the Culture Committee when it was announced that it intended,

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yet again, to recall Rupert Murdoch for further questioning after the man himself had himself been ‘hacked’ at a private meeting with News International journalists where he’d appeared to offer support to some of those who might be facing charges. This may have been a misguided thing to do on his part, although whether or not the Culture Committee might be deemed to be infringing his right under Article 10(1) ECHR to ‘receive and impart information and ideas without interference by public authority’ is a point worth pondering, even if, on a bizarre technicality, the Culture Committee can claim not to be a public authority.

From the viewpoint of a small manufacturing company in the Borders, however, it wasn’t so much a matter of what was right or wrong for the Murdochs – it was a question of the blatant double standards of a so-called scrutinisng committee which refused to look into what appeared to be the restrictive, anti-competitive, unlawful and commercially damaging behaviour of a regulator operating within the committee’s assigned sphere of competence. We had set out our putative charges against English Heritage in black and white. Like Lord Nelson, it had raised its scrutinising telescope to the blind eye, and seen nothing.

On July 10th last I sent yet another email to the committee clerk. This time I asked for a copy of the code of conduct governing committee members and administrative staff. This time the response vindicated our growing belief that the major defect of this particular committee was its institutionalised hypocrisy. After the usual opening ‘apology’, we were informed that ‘the Culture, Media, and Sport Committee does not investigate individual cases, and constitutionally has to be very wary of trespassing into the judicial area, especially in respect of potential criminal offences – ‘

This claim might have been almost credible, but for one thing. The Committee had just announced that it would be recalling Rupert Murdoch in the autumn – when Rebekah Brooks and other News International executives could be on trial. It would appear that Whittingdale et al don’t merely seek to restrict Mr Murdoch’s rights under Article 10(1) ECHR – they also assume some sort of entitlement to interfere with the proper administration of justice by potentially prejudicing the outcome of a court case.

That certainly isn’t being ‘constitutionally – very wary of trespassing into the judicial area’ as most of us would understand it. The Committee seemed to exemplify the notorious Humpty Dumpty principle, as cited in 1942 by Lord Atkin in Liversidge v Anderson. “When I use a word,” Humpty Dumpty said, in a rather scorful tone, “it means just what I choose it to mean – neither more nor less.” This is a Committee which tramples all over the judicial area in the case of the Murdochs, yet neglects to undertake any action at all for fear of ‘trespassing’ in that same judicial area when it comes to investigating its own regulator!

As it happens, the Culture Committee’s penchant for flexing its muscles while a legal process is underway has already attracted comment. In a 2012 Constitution Society Report, Select Committes and Coercive Powers – Clarity or Confusion? (Richard Gordon QC; Amy Street) it is stated that

the wider public interest is, arguably, damaged where different inquiries or investigations address the same overlapping subject-matter but using entirely different methods. A recent example of how third party interests may be adversely affected is afforded by the various investigations into media phone hacking being undertaken during the same period by:(i)the Culture Media and Sport Select Committee, (ii) the police investigation and (iii) the Leveson Inquiry.

This is a committee, it should be remembered, which, despite not being a formally constituted tribunal or court of law, can make far-reaching claims under the cloak of parliamentary privilege. Rupert Murdoch, for example, was damned as being ‘not a fit person to exercise the stewardship of a major international company’. This immensely damaging opinion had scant legal value, but was widely reported throughout May 2012 – at around the very time, indeed, when the committee’s gatekeepers were manifestly obstructing our request to look into the alleged unlawful behaviour of one of their own regulatory authorities, English Heritage!

According to a Nuffield Foundation funded report from the Constitution Unit of University College, London, Selective Influence; the Policy Impact of House of Commons Select Committees (Meg Russell; Meghan Benton) the role of select committees is ‘exposure and generating fear’. This was published a matter of weeks before James Murdoch had written to John Whittingdale indicating that both he and his father were prepared to testify before the Culture Committee, though he expressed the somewhat forlorn hope that it should be borne in mind that other legal processes were underway, and should not be compromised.

Russell and Benton said nothing about the Culture Committee, other than a passing reference to its views on alcohol regulation, but of course when their report hit the desks there probably wasn’t much to say. Tom Watson hadn’t at that point performed his grand inquisitor act, though he had overcome his own chairman, who was less than happy that his committee of backbenchers should include a publicity-savvy MP who was not only co-writing a book on the case, but had also been made Labour Deputy Leader.

Watson’s successor, Ben Bradshaw, may have a similar conflict, having previously been a culture minister who refused to instigate an investigation into the complaints we raised against his regulator. Will this mean he will be both witness and interrogator at any future inquiry into The English Heritage Fireplace Collection? If so, he will be in the same position as Margaret Hodge. We continue to await a response from the clerk to her Public Accounts Committee, but we aren’t holding our breath. Mrs Hodge, too, refused to look into our case when she was a DCMS Minister.

Having noted that our company would have long ago ceased to exist if it hadn’t been for the loyalty of our American customers, I contacted the Public Accounts Committee clerk on the 4th of July. The details of our case were copied in to every member of the committee, Mrs Hodge excepted. Other than a few automated replies, we’ve had not a squeak. Perhaps the Public Accounts Committee, like the Culture Committee, takes more than a year to respond to a formal request. Perhaps it won’t respond at all. It’s members don’t seem to care about British workers losing their jobs, that’s for sure.

During this six year long saga of political indifference we did have help and support from one quarter. News International. In March 2009 The Sunday Times covered our plight in detail in a well researched article which left English Heritage looking worse than shabby. The government’s reaction? A threat to sue. I wish the Murdochs well in their appearance before this ‘independent’ committee – assuming they feel the need to attend.

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