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.)

Getty Images.
Show Hide image

The Brexiteers' response to John Major shows their dangerous complacency

Leave's leaders are determined to pretend that there are no risks to their approach.

Christmas is some way off, but Theresa May could be forgiven for feeling like Ebenezer Scrooge. Another Ghost of Prime Ministers Past in the shape of John Major is back in the headlines with a major speech on Brexit.

He struck most of the same notes that Tony Blair did in his speech a fortnight ago. Brexit is a blunder, a "historic mistake" in Major's view. The union between England and Scotland is under threat as is the peace in Northern Ireland. It's not unpatriotic for the defeated side in an electoral contest to continue to hold to those beliefs after a loss. And our present trajectory is a hard Brexit that will leave many of us poorer and wreck the British social model.

But, as with Blair, he rules out any question that the referendum outcome should not be honoured, though, unlike Blair, he has yet to firmly state that pro-Europeans should continue to advocate for a return to the EU if we change our minds. He had a note of warning for the PM: that the Brexit talks need "a little more charm and a lot less cheap rhetoric" and that the expectations she is setting are "unreal and over-optimistic".

On that last point in particular, he makes a point that many politicians make privately but few have aired in public. It may be that we will, as Theresa May says, have the best Brexit. France may in fact pay for it. But what if they don't? What if we get a good deal but immigration doesn't fall? Who'll be blamed for that? Certainly we are less likely to get a good deal while the government passes up pain-free opportunities to secure goodwill from our European partners.

As with Blair, the reaction says more about British politics after Brexit than the speech itself. Jacob Rees-Mogg described it as "a craven and defeated speech of a bitter man". Iain Duncan Smith, too, thinks that it was "strangely bitter".

There is much to worry about as Britain leaves the European Union but the most corrosive and dangerous trend of all is that section of the Leave elite which requires not only that we implement Brexit but that we all pretend that there are no risks, no doubts and that none of us voted to Remain on 23 June. That Blair and Major's speeches - "You voted for it, so we'll do it, but it's a mistake" - are seen as brave and controversial rather than banal and commonplace statements of political practice in a democracy are more worrying than anything that might happen to the value of the pound.

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.