The integrity of decision-making by ministers and others with public powers is of crucial importance in any liberal democracy.

 

The law quite rightly expects such decision-makers to adhere to strict duties of fairness and due process in public law, just as the law expects similar standards from trustees in private law matters.

 

One aspect of the public law of decision-making is fairness.  There is a prohibition of bias both in terms of actual bias and apparent bias.

 

Like justice, fairness needs to be done and be seen to be done.

 

However, the conduct of the BSkyB decision by the ministerial office of Culture Secretary smacks of apparent bias.

 

Here, it does not matter either that there was no actual bias or, indeed, that changed political circumstances meant that no decision to allow the purchase of the outstanding shares was ever permitted.

 

Had the scale and tone of the emails shared between Hunt’s office and News International – let alone their content – been disclosed at the time then there can be no doubt that any decision by Hunt favourable to News International would have been quashed by the High Court.

 

In other words, there can be no doubt that Hunt’s office was acting unlawfully.

 

Legal blogger, and former government lawyer, Carl Gardner thinks so too: his spot-on analysis is here.

 

Such a botched operation by Hunt’s office also means it seems that Hunt misled parliament on at least three occasions and that it may well be that there was a wrongful disclosure of  sensitive information to constitute market abuse under Financial Services legislation.

 

Currently there appears to be a political holding operation in defence of Hunt: that there was one ‘rogue’ special adviser.

 

Tory MPs – some of whom should know better – are also resorting to saying this is a matter for the Leveson Inquiry, even though not one of the four key allegations (apparent and unlawful bias, breach of ministerial code, misleading parliament, and possible market abuse) is within the scope of the terms of the Inquiry and that the Inquiry will take months to report.

The only explanation for the Tories’ misdirection on this is disappointing partisanship.

 

But such partisanship cannot be sustained in the real world.

 

The integrity of public law decision-making, adherence to the ministerial code, not misleading parliament, and not leaking market sensitive information: all these things matter more than protecting Hunt in his job.

 

There should at least be immediate investigations.

 

However, on the point of unlawful and apparent bias, it is difficult to see what can now be said in his office’s defence – and Hunt’s tub-thumping appearance at the dispatch box last week offered nothing substantial or relevant on his behalf, even though it got easy Tory cheers.

 

In these circumstances, and given Hunt must take responsibility for his office’s unlawful and apparent bias on what was such a momentous significant public decision, Hunt should now resign.

 

 
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45 Responses to Why Jeremy Hunt should resign

  • While admitting that I haven’t heard every broadcast interview on the subject, it’s been disappointing that, in those I have heard, no Tory parroting the “cutting across Lord Leveson’s inquiry” line has been pulled up with the obvious question “what on earth does it have to do with that?”. As you say, to try to refer Hunt’s alleged breaches to the Inquiry smacks of looking for the longest possible grass, however tangentially related, and kicking very hard. Perhaps another statement from his Lordship is needed to the effect that he fails to see what they want him to do about it.

  • Colin Sneddon says:

    Seems a little inconsistent to talk about due process on one hand and call for immediate resignation on the other. I agree that immediate parliamentary investigations are required. Once again, government being damaged by a misplaced sense of personal loyalty.

    • admin says:

      I can deal with this one (I hope) simply.

      Hunt made a ministerial statement on that very issue, as I mention in the post. He chose to spend that statement saying nothing substantial in his defence. He was given a hearing, and attacked Labour instead (as well as dumping on his special adviser).

      So, on that basis, one can call for his resignation.

      The other matters, yes, need investigation.

      But “inconsistent”? I don’t think so; not on the actual point I say he should resign.

  • Hunt’s defence: my subordinates acted without my knowledge; the Murdochs’ defence: our subordinates acted without our knowledge. Have they been to the same advisers?

    If Hunt had said: I take full responsibility, and even though I have done nothing wrong I see that there is enough of a perception of bias for me to resign pending an inquiry, he would have won widespread respect. If he told the truth and was duly cleared, his career would only have suffered a small setback before he returned to paths of glory. Instead he has behaved without honour and has lived up to what James Naughtie called him.

    • admin says:

      I agree.

      • Josh Robson says:

        Ahead of the local elections on 3 May, I believe the only course Cameron, or Hunt, would ever take is that of delay. Indeed, I am sure that any attempts by Hunt to resign until after the election would be expressly refused.

        Until such time as he can be seen to be taking the initiative after the local elections, Cameron’s challenge is to make this delay look begrudgingly necessary. As we saw today, he will do this by belittling Labour objections, and ignoring the points raised in the blog and in comments above and below.

        Particularly apposite here is the following from Yes Minister:

        Sir Humphrey: … Blurring issues is one of the basic Ministerial skills.
        Jim: Oh, what are the others?
        Sir Humphrey: Delaying decisions, dodging questions, juggling figures, bending facts and concealing errors.

        Unfortunately, I am not certain the unlawful nature of Hunt’s actions will have figured too highly, if at all, in the decision to back him today.

    • Dr Aust says:

      Quite.

      An historical question; can anyone name a British minister in any significant scandal who actually has taken full responsibility and resigned – without either having to be burned to the ground in the press first, or ordered to quite by the PM – since Lord Carrington back in 1982 over the Argentinian invasion of the Falklands?

      I suppose there might have been some in the intervening 30 years, but I’m struggling to think of any.

    • Arthur Fowler says:

      This was also Gordon Brown’s defence when the Damian McBride affair came to light. He took full responsibility by sacking MacBride without disciplining any of the other people involved.

  • Simon Carne says:

    I’ve followed your tweets -and now read your blog – calling for Jeremy Hunt to resign. But I still wait to see what exactly it is that he, Jeremy Hunt, did (or is alleged to have done) wrong. You have named the crime (eg breach of Ministerial Code), but not said in what way the breach occurred. Three things stand out for me:

    1 The main challenge to Hunt’s position seems to be that the SpAd has resigned and the Minister is “responsbile” for his SpAd, so the Minister must be in the wrong too. Does this mean that the PM is not “responsible” for his government or should the PM automatically resign whenever someone in the government is forced out?

    2 I’ve seen the quotes that Hunt’s office asked News Corp to provide arguments against Ofcom’s position. How does that differ from a judge, in court, asking counsel “what do you have to say in response to [your opponent]“. The language used by the non-lawyers emailing each other may not have the same tone, but doesn’t it amount to the same thing: “I need to make a decision. Tell me why it shouldn’t be what [X] has told me it should be.”

    3 Likewise, disclosure of the outcome of a trial is often made to the parties the night before, so that they can prepare their next steps. If there is a reason to believe that Hunt’s office expected/intended that News Corp would/should misuse the information when they got it, perhaps we should hear what the evidence for that is.

    I don’t want to see our Government populated by anyone unsuited to high office. But neither do I want to see Ministers depart simply because their opponents can “spin” an adverse interpretation of standard activity.

    Jack of Kent is normally such a good place to find a reasoned argument …

    • admin says:

      “You have named the crime (eg breach of Ministerial Code), but not said in what way the breach occurred. ”

      I have not named that as a crime. Indeed any such breach is not a crime.

      What was unlawful was the apparent bias in the decision-making, and that is made out entirely by the emails disclosed and the minister’s failure to properly account for them in his ministerial statement. That bias also is not a crime.

      But it does mean that the Minister’s office was acting on an unlawful basis and any decision was thereby open to being quashed.

      • Simon Carne says:

        My apoligies: I didn’t mean “crime” in the sense of criminal activity. A layman’s mis-use of language. I should have said “unlawful”. But I would still prefer to have specifics, rather than generalities. No doubt, that is what we will get from an investigation … and why we should wait for one.

  • rob says:

    Although for the reasons given above the matter is not primarily for Leveson I do believe that part of the Leveson remit is to investigate the altogether unhealthy relationship between powerful media groups and the police/politicians.
    This is a prime example of where these relationships can go wrong and and a witness statement from Hunt AFTER he has resigned may prove to be beneficial for future Ministers guidance in these matters .

  • Simon Carne says:

    Wish I’d seen Francis FitzGibbon’s post before submitting mine. May I add a further point?

    4 In a world in which ministerial resignations were only demanded when the evidence pointed strongly to a mis-deed, it might make sense for minsiters to stand aside whilst matters are resolved. But modern opposition politicians (and bloggers, it seems) call for a resignation at the drop of a ministerial hat. Francis Fitzgibbon’s suggestion would only increase the resignation demands (because of the disruption it would cause) and we would have government by locum. If we want more responsibility from those in government, we need more responsibility from the opposition and the press.

  • Isn’t the problem with this that all of the allegations are being based on emails from Fred Michel which we know are at least in part fabricated and untrue. As a result, we have to guess which bits to believe and which bits not to believe, and base all our interpretation of the situation on that analysis. Which, of course, we cannot possibly validate without having seen a lot more evidence.

    • admin says:

      “which we know”

      We don’t.

      • mr_ceebs says:

        This is one of the most troubling of parts of this whole affair. The idea that we are requested to believe that not only was the SPAD acting off the reservation, but that the person he was dealing with was a Walter Mitty character, who was making all of his contacts up to sound more important. In general when faced with a bunch of people claiming something, and a pile of their emails claiming the opposite, I know which of the two I would choose to believe. On top of this, your boss is someone who could pick the phone up and talk to the person you were talking to at any point, and the minister would answer, and you would instantly be exposed.

        The Idea that this is all a work of fiction between advisors just seems utterly ludicrous

      • Well we know that in a number of emails Mr Michel claimed to have spoken to Mr Hunt, but did not and actually spoke to someone else who worked for Mr Hunt, and we know that he got the date of Mr Hunt’s Swan Lake appearance wrong. As you say, we can only guess at the accuracy of the rest.

  • If “any decision by Hunt favourable to News International would have been quashed by the High Court”, then what would have been the remedy? Would it not have meant remitting the decision back to the decision-maker for reconsideration according to law?
    Normally this does not automatically mean the same decision-maker cannot re-make the decision. Although it does seem very difficult for a Minister to be able to remove an apprehension of bias once it has arisen. Presumably a Minister could delegate decision making powers to another Minister about whom there is no apprehension of bias.
    There are often administrative decisions made by Ministers that are overturned by courts on the basis that they have not been made in accordance with law. In that sense they are unlawful. They do not automatically lead to calls for the Ministers to resign.
    In this case, it seems that the unlawfulness of the conduct – which would have prevented a procedurally fair decision being made – is not the real issue. Rather, it is its unethical quality.
    I agree Hunt should resign, but for the unethical character of the conduct of his office and for misleading parliament, not because he may have made an unlawful decision.

  • admin says:

    Michael – that is a very fair point, well made.

  • Nik Walker says:

    ‘Currently there appears to be a political holding operation in defence of Hunt: that there was one ‘rogue’ special adviser.’

    It would seem the politicos have learnt nothing from their masters demise!

    One SpAd and one rogue reporter do not a cast iron defense procure…apparently.

    I think local elections are behind the present ‘delay at all costs’ shenanigans.
    Leveson is just an ideal red herring to flaunt in that ambition, just a smoke and mirror gambit to occupy the chattering classes.
    Bias has got naff all to do with Leveson aside from adding yet more atmosphere to proceedings.
    OFCOM seem to be interested though, along with the competition bunnies!..bet their ears might have perked up ever so smartish recently.

    It seems quite likely after the inevitable Tory meltdown in the locals there will be one more ex-minister spending time with his family, .and the party line is that they have all learnt a valuable lesson and now wish to listen to the electorate…the standard contrite throw away line of defense will echo with an irony only a doting mother could be aware of..

    Considering the pile of odorous grief they have ended up upside down in at the moment that oft abused line kindda rings hollower then ever……Hunt will be the sacrificial goat to pretend ‘all being in it together’ means sacking the deeply unpopular.

    Simply because Hunt and his department committed an arrogant sycophantic act of worship at Murdoch’s alter and that is a completely untenable situation and every punter and his dog knows it!.

  • You talk about law as if it were important, but many do not consider it so.

    The countries that went to war even though it seemed like it was against international law.

    The country that builds settlements that clearly flout international law.

    The lawyers for newspapers who clearly acted illegally.

    The CPS that fails to prosecute a racist policeman; that only did so when caught out.

    The Police who fail to investigate crimes properly and take bribes.

    The human beings guilty of self interest.

    You say precision within the law is important. Well so is enforcement.

    Stop wasting your time calling for people to behave properly and focus instead on calling for a system that punishes those who don’t.

    But how can you do that when it’s the system that’s rotten?

  • Philip Crooks says:

    Unlike war criminals whose defense was they were only obeying orders Mr. Hunt never gave any, how convenient.

  • Antony says:

    I’m particularly interested in whether Jeremy Hunt (and Adam Smith) asked any civil servants in DCMS to do anything unlawful as a result – I blogged at http://adragonsbestfriend.wordpress.com/2012/04/26/did-jeremy-hunt-ask-civil-servants-to-act-unlawfully/ on this. Any thoughts?

  • Jimmy says:

    I like Mr Murdoch and I liked Mr Hunt.
    I’m very disappointed in him.
    He has brought shame upon himself and his party, and all so unnecessarily.

  • Tim says:

    ‘In other words, there can be no doubt that Hunt’s office was acting unlawfully.’

    Jack/David, one of your abiding preoccupations is – rightly – due process. Yet in this case you appear to be content to call for a senior official’s resignation purely on the basis of a cache of evidence whose reliability is untested. Moreover, its source is News International, an organisation whose name is currently a byword for mendacity, distortion and – to quote its chairman and CEO – extensive cover-up. You have no notion of how reliable a witness their author is, what his motives might be and to what extent they constitute a factual account of what actually happened. If these emails were presented as evidence in court, a competent barrister would have a lovely time ripping them (metaphorically) to shreds.

    It simply won’t do to suggest that Hunt’s defence of his own conduct was a bit bombastic and therefore he’s guilty as sin. There has been no detailed scrutiny of what actually happened, and personally I’d like to see an enquiry investigate this. But you wouldn’t summarily sack an employee on the basis of a few emails from a business contact known to have a questionable ethical record; nor would you demand their resignation, unless you’d investigated the matter pretty thoroughly first.

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  • David Somerset says:

    Mr. Cameron has made much of the fact that when Mr.Hunt appears before Leveson he will give his evidence under oath. Given that there is reasonable suspicion that he may have breached the law in relation to market sensitive information should he be cautioned as per PACE before being invited to say anything?

    Indeed – given that Leveson has been at pains to steer clear of the criminal aspects of the matters before him I wonder if Hunt should be giving evidence at all?

  • Jeremy Duns says:

    Page 38 of the Michel email dossier (or page 36 if you go by the black numbering on the bottom right of each page in it) is a very damning document indeed: http://www.guardian.co.uk/politics/interactive/2012/apr/24/jeremy-hunt-news-corp-leveson#document/p38

    This is an email from Fred Michel to James Murdoch, dated 2 December 2010, about two meetings in 10 Downing Street. I think there are several issues relating to this email.

    On December 2 2010, the decision on the BSkyB deal lay within Vince Cable’s remit. Both Cameron and Clegg have said that they were not involved in the decision-making process, which was quasi-judicial. But clearly simply saying that does not prove that they weren’t. They could be lying. They could secretly have influenced, or tried to influence, Cable’s decision, by talking to Cable or his office. Clegg as deputy prime minister and Cameron as prime minister both self-evidently have a great deal of influence over ministers in their cabinet as a matter of course, so I don’t think it is impossible for them to have claimed to have had nothing to do with the decision-making process but in fact to have done so. But they both claim that in this case they didn’t because they were not meant to, and in the absence of any evidence otherwise we must believe them.

    But this email does present evidence otherwise. According to Fred Michel, Nick Clegg’s adviser suggested to News Corp, at a meeting in 10 Downing Street, that they try to get more of Labour onside with the Sky deal, because doing so would influence Vince Cable’s decision towards them. If this is accurate, it is clearly an attempt by Clegg’s office to influence the decision-making process on the Sky deal that was solely the responsibility of Vince Cable. Worse, Clegg’s adviser apparently asked for a quid pro quo in exchange for making encouraging noises about News Corp’s bid: ‘need to support Nick when he makes announcement on copyright which goes against his election promise – timing end January – will be very tough for him with youth voters again.’

    This can’t be an invention of Michel’s because the DEA announcement hadn’t been made (and was in fact made in early February 2011 rather than January). He can only have known about that announcement if Clegg’s adviser raised it, as he writes that he did. It may be that Clegg’s adviser was not as bald in suggesting a quid pro quo for support of News Corp’s bid, but it is very damaging because of the word ‘need’, and because it is so specific: there is a reason why Nick Clegg’s adviser would be very worried about Clegg appearing to contradict his election promises, but there’s no reason for News Corp to have expressed such a concern.

    The meeting with David Cameron’s adviser, Steve Hilton, is also very damaging,particularly these two points:

    ‘Proposition by Steve Hilton to help them campaign on the different elements of their Big Society Programme [Sky programming team very involved aIready]. Will debrief separately on this item’

    ‘On Sky transaction recognised need to look at it only from a pluraIity point of view’

    The latter offers evidence that David Cameron’s office discussed the BSkyB deal with News Corp at a meeting in 10 Downing Street. The discussion was not just of the deal, but of the decision-making process about the deal – Cameron’s adviser recognizing a ‘need’ to only address the plurality issue. This contradicts Cameron’s claims he had nothing to do with the decision-making process around the deal – his office was discussing it with News Corp, and presumably for some reason. Either Cameron’s office was pretending to News Corp that they would be able to influence Cable, or they tried to – but either is a massive problem. The other bullet-point appears to suggest a quid pro quo from Cameron’s office for positive coverage of his Big Society ideas.

    Clearly, Hunt has to resign – some of his office’s contacts with News Corp were self-evidently inappropriate. But some were necessary, of course, as he succeeded Cable in taking over remit for the BSkyB deal. But Cameron and Clegg had no reason to discuss the deal with News Copr at all, let alone in meetings in Downing Street in which they appear to have promised to influence the decision in News Corp’s favour, in exchange for positive coverage of their own policies.

    I think this is much more important than the Culture Secretary. Can anyone explain to me why it is not being reported?

  • Weygand says:

    The takeover did not take place and will not take place and therefore there is no injustice that requires urgent remedy.
    The most important issue is to get to the truth and in as public and transparent manner as possible. The Levenson enquiry with public cross examination in the face of the relevant documentation is far better suited to this aspect of the case than an internal enquiry conducted by a Civil Servant – and the information gleaned by Levenson can still be passed to said Civil Servant to make an adjudication should it seem to support the charges that are being made.
    There is absolutely no national interest (legal or moral) whatsoever in rushing to sack Hunt. If he is guilty he will soon be gone and if he is innocent he should be given the opportunity to demonstrate this in a public arena.

  • Alex Marsh says:

    @Jeremy Duns – This email certainly raises all sorts of questions. Will it be passed off as yet more rogue Spads, with Ministers claiming, however implausibly, that they’ve no idea what was happening, or does it indicate that (Deputy) Prime Ministerial assurances regarding scrupulous non-influence over these decisions are just so much hot air? I know which interpretation I favour. Either way the suggestion that the Govt might be even thinking along the line of bargaining with NI in order to get more favourable coverage for unpopular policy initiatives in exchange for easing the passage of the takeover is pretty repellent. It adds to the general stink of disreputable practice. The potential Clegg element particularly disappointing, given he’s maintained that the LDs haven’t sucked up to Murdoch in any way.

    But I’m not sure the email has a direct bearing on the primary point at issue – whether there was evidence that the Cultural Secretary – who has the decision making power – had fundamentally compromised his ability to make an unbiased decision.

  • Mike Isaacs says:

    Vince Cable “declared war” on Murdoch but I do not recall any clamour for him to resign for being biassed against the takeover. So far you have no proof that Hunt was even sympathetic to the bid yet you insist he resigns!

    As they say, I hope you’d treat a dog better!

  • Jeremy Duns says:

    @Alex Marsh – I agree in full with your first paragraph. And surely this alone is enough to warrant reporting of this email in the media and questions being asked of Cameron and Clegg to explain what went on in these two meetings, and release their minutes about them.

    On your second point, I agree it doesn’t prove that Hunt’s decision-making power was fundamentally compromised. But I think it is a very long way from Cameron and Clegg’s repeated claims that they did not try in any way to influence this deal. If Michel’s report of it is accurate, it seems their offices did. Michel could of course have embellished and exaggerated, but it’s hard to imagine that he entirely invented certain aspects of this. For example, under the heading ‘Nick’s adviser’, Michel wrote:

    ‘Honest discussion on the importance for us of getting Labour on board/comfortable with the transaction as it will influence Cable a lot’

    I don’t think this can plausibly mean that News Corp had commented to the effect that getting Labour more on board. It can only really mean that Clegg’s adviser suggested that. Now, perhaps Clegg’s adviser didn’t put it that baldly, ie ‘Guys, let me be totally honest with you: you need to get Labour more on board with this, because if they’re comfortable with it that will influence Vince a lot.’ He might instead have said something more akin to: ‘Have you considered seeking more support from Labour? That might help with Vince’ or and Michel has then upped ‘influenced’ to ‘influenced a lot’. But unless Michel is a total fantasist coming up with bizarre suggestions for future plans of action for News Corp that they aren’t currently taking, which seems very unlikely, the only reasonable inference from this is that Clegg’s adviser told News Corp that Cable would be influenced in their favour if they had more support from Labourites. And that’s very dodgy, isn’t it? A few emails further down the chain, Michel reports Clegg was shocked that Cable was biased on the deal. But his office advised News Corp on how to influence his decision!

  • Steve says:

    None of this ‘confusion’ would have arisen had the employment of ‘spads’ paid for by the tax-payer been banned.
    Why should the tax-payer pay for advisers to any political party?

    • Ed says:

      To give young political hacks a salary and access to the working of government, so that they never have to get real jobs seems to me to be the reason for this practice. It’s indirect political funding, and I think that it should not be allowed.

  • Ed says:

    I fail to see how why conclusion of apparent bias should be made until the informed observer has all the material facts. What if there had been other SpAds engaging with other parties in a similar way, and this is how it is done, and all know that this goes on and hope to be on the ‘winning’ side? I think it would be fairer to say that the facts known give rise to a strong, almost irresistible, inference of apparent bias. Think of Hoffman and Pinochet, an outrageous situation.

    If a Minister were to resign every time they acted ‘unlawfully’, there would be a rapid turnover in Ministers, as any successful judicial review would lead to a Ministerial resignation.

    I would say that the whole affair certainly doesn’t look like a quasi-judicial process to me, and I would not wish any litigation to be conducted in this way. How much of this sort of thing goes on is the more important question.

    Anyway, poor Mr Hunt wishes to remain in post, presumably at least for the Olympics….

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  • Peter Stroud says:

    I heard a lawyer speaking on Sky News. I’m sorry but I failed to get his name. He claimed that it was against the rules that a SpAd should ever act as a conduit in this sort of quasi legal operation. He was certain that the role should always be undertaken by a civil servant. If this is so then Hunt should resign and, surely, his Permanent Secretary should be disciplined.

  • Mary says:

    No where in the Leveson remit does it allow for an inquiry into the allegations made against Mr Hunt?
    Mr Hunt has not been accused of “phone hacking” or ” illicit payments to police”, nor is he a member of the British media.

    If Mr Cameron wishes the Leveson Inquiry to examine the allegations against Mr Hunt he must widen the remit to the inquiry or identify the heading under which the Leveson inquiry can fully examine the accusations leveled at Mr Hunt and find on them . As it stands evidence from Mr Hunt can only inform the review into” the general culture and ethics of the British media”.

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  • Nile says:

    I can’t see any way in which the parties involved can avoid a lawsuit by a BSkyB shareholder, as there has been a selective disclosure of price-sensitive information to one set of shareholders, but not others.

    This is also a matter of interest to a bondholders – in both BSkyB and News International – as the takeover has implications for risk-based pricing of their debt instruments.

    Note that I say ‘lawsuit’: this isn’t about English law, nor am I discussing a complaint to the FSA, although their silence on the matter is, to say the least, puzzling and disquieting.

    If any BskyB shares, depositary receipts, bonds or warrants have been traded in the United States of America, the investors holding those instruments will be consulting their lawyers.

    Those shareholder lawsuits can be expensive…

    I will be happy to explain the concept of a false market if anyone asks, although I think our host and his professional colleagues can give a better definition of the legal principles involved.

    And there’s an FCP angle: Foreign Corrupt Practices don’t just cover bribery, they extend to gaining a material advantage from any conduct by a foreign official which can demonstrated in a court of law to be illegal and arising from that official’s relationship to the company involved.

    This is, of course, nothing more than speculation and unqualified opinion on my part. But Hunt’s in more trouble than he realises, and his stupidity has landed his boss – Murdoch – with an extremely difficult legal embarrassment.

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