Hunt and News International: a market abuse angle

Was there a wrongful disclosure of price sensitive information?

One potential issue for Culture Secretary Jeremy Hunt and his former special adviser Adam Smith in the developing scandal of how the News International bid for the remaining shares of BSkyB was handled is the possible application of the law relating to the unauthorised disclosure of market sensitive information.

As the BBC’s Business Editor Robert Peston blogged this morning
 
Many of the emails by News Corp's director of public affairs, Fred Michel - which were published yesterday - speak to this point. But I will simply look at the one sent to James Murdoch on 24 January which contains the resonant phrase (in bold), "managed to get some infos on the plans for tomorrow (although absolutely illegal..>!)."
 
This discloses to James Murdoch that Mr Hunt would make a press statement at 7.30am and a statement to parliament at 9.30am.
 
This statement would confirm that Ofcom felt the BSkyB takeover would harm plurality and should be passed to the Competition Commission - but would also say that News Corp would be given an opportunity to come up with remedies (or undertakings in lieu, to use the jargon), to prevent the Commission investigation.
 
Now Mr Hunt's planned statements to the press and parliament were confidential and price sensitive (with a bearing on the share prices of BSkyB and of News Corp). I know this because the DCMS said this to me, explicitly, at the time.
 
But Mr Michel had learned what Mr Hunt would say, from Mr Smith (or so Mr Michel says). And Mr Michel was discussing Mr Hunt's planned statement with Mr Murdoch at 3.21pm, the time of the email, or while markets were still open. 
 
So, on the face of it, Mr Michel and Mr Murdoch should not have been given this information, or at least not without signing a formal confidentiality agreement.
 
Mr Michel implied, with his "absolutely illegal" comment, that no confidentiality agreement had been signed.
 
Now it may be that the transmission of this information was covered by some general duty of confidentiality. But it does all look a bit odd.
 
The wrongful disclosure of market sensitive information can come under the prohibition on various market abuses in the Financial Services and Markets Act 2000 (FSMA), which in turn can lead to rigorous enforcement action by the Financial Services Authority (FSA).
 
The FSA refused to comment on any particular case, and it also would not confirm whether any complaint about Hunt or Smith has been made.
 
Today Hunt told parliament that he is looking forward to giving his side of what happened to the Leveson Inquiry.  It may well be that concerns of an unauthorised disclosure are baseless. 
 
But given the robust policy of the FSA in respect of possible market abuses, Hunt may need to explain exactly how the information Michel was providing to James Murdoch  was not gained through an unauthorised disclosure contrary to the FSMA.
 
David Allen Green is legal correspondent of the New Statesman
 
Many thanks to Patrick Osgood.
Is the sun still shining for Jeremy Hunt? Photograph: Getty Images

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Over a Martini with my mother, I decide I'd rather not talk Brexit

A drink with her reduces me to a nine-year-old boy recounting his cricketing triumphs.

To the Royal Academy with my mother. As well as being a very competent (ex-professional, on Broadway) singer, she is a talented artist, and has a good critical eye, albeit one more tolerant of the brighter shades of the spectrum than mine. I love the RA’s summer exhibition: it offers one the chance to be effortlessly superior about three times a minute.

“Goddammit,” she says, in her finest New York accent, after standing in front of a particularly wretched daub. The tone is one of some vexation: not quite locking-yourself-out-of-the-house vexed, but remembering-you’ve-left-your-wallet-behind-a-hundred-yards-from-the-house vexed. This helps us sort out at least one of the problems she has been facing since widowhood: she is going to get cracking with the painting again, and I am going to supply the titles.

I am not sure I have the satirical chops or shamelessness to come up with anything as dreadful as Dancing With the Dead in My Dreams (artwork number 688, something that would have shown a disturbing kind of promise if executed by an eight-year-old), or The End From: One Day This Glass Will Break (number 521; not too bad, actually), but we work out that if she does reasonably OK prints and charges £500 a pop for each plus £1,000 for the original – this being at the lower end of the price scale – then she’ll be able to come out well up on the deal. (The other solution to her loneliness: get a cat, and perhaps we are nudged in this direction by an amusing video installation of a cat drinking milk from a saucer which attracts an indulgent, medium-sized crowd.)

We wonder where to go for lunch. As a sizeable quantity of the art there seems to hark back to the 1960s in general, and the style of the film Yellow Submarine in particular, I suggest Langan’s Brasserie, which neither of us has been to for years. We order our customary Martinis. Well, she does, while I go through a silly monologue that runs: “I don’t think I’ll have a Martini, I have to write my column this afternoon, oh sod it, I’ll have a Martini.”

“So,” she says as they arrive, “how has life been treating you?”

Good question. How, indeed, has life been treating me? Most oddly, I have to say. These are strange times we live in, a bit strange even for me, and if we wake up on 24 June to find ourselves no longer in Europe and with Nigel Farage’s toadlike mug gurning at us from every newspaper in the land, then I’m off to Scotland, or the US, or at least strongly thinking about it. Not even Hunter S Thompson’s mantra – “When the going gets weird, the weird turn pro” – will be enough to arm myself with, I fear.

The heart has been taking something of a pummelling, as close readers of this column may have gathered, but there is nothing like finding out that the person you fear you might be losing it to is probably going to vote Brexit to clear up that potential mess in a hurry. The heart may be stupid, but there are some things that will shake even that organ from its reverie. However, operating on a need-to-know basis, I feel my mother can do without this information, and I find myself talking about the cricket match I played on Sunday, the first half of which was spent standing watching our team get clouted out of the park, in rain not quite strong enough to take us off the field, but certainly strong enough to make us wet.

“Show me the way to go home,” I sang quietly to myself, “I’m tired and I want to go to bed,” etc. The second half of it, though, was spent first watching an astonishing, even by our standards, batting collapse, then going in at number seven . . . and making the top score for our team. OK, that score was 12, but still, it was the top score for our team, dammit.

The inner glow and sense of bien-être that this imparted on Sunday persists three days later as I write. And as I tell my mother the story – she has now lived long enough in this country, and absorbed enough of the game by osmosis, to know that 17 for five is a pretty piss-poor score – I realise I might as well be nine years old, and telling her of my successes on the pitch. Only, when I was nine, I had no such successes under my belt.

With age comes fearlessness: I don’t worry about the hard ball coming at me. Why should I? I’ve got a bloody bat, gloves, pads, the lot. The only things that scare me now are, as usual, dying alone, that jackanapes Farage, and bad art. 

Nicholas Lezard is a literary critic for the Guardian and also writes for the Independent. He writes the Down and Out in London column for the New Statesman.

This article first appeared in the 23 June 2016 issue of the New Statesman, Divided Britain