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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