What next for Metgate?

Why this story won’t go away.

When the New York Times published its report into the phone-tapping scandal last Wednesday, not many British commentators immediately realised its significance.

After a day or so when only a very few on Twitter and the blogosphere promoted the story, it was taken up by Tom Watson MP and then by John Prescott. By the time Prescott had taken advantage of the benefits of being a former deputy prime minister by airing his concerns on the Today programme, the story had legs.

Yesterday, the Home Secretary, Theresa May -- in a fairly unconvincing performance -- refused to announce an inquiry into the affair. This was in response to an urgent parliamentary question by Watson. The chairman of the House of Commons select committee on culture, media and sport has also said that his committee will not reopen the inquiry. Other bodies asked to look at it have so far not yet responded.

It would seem that the story has hit the buffers and lost all momentum; this seems to be a scandal with nowhere else to go.

However, such a view would be misconceived.

To see why, it is important to grasp the single most important element of the New York Times article -- an element that has not been addressed properly or been addressed at all, either by the Home Secretary or by the reported statements of the Metropolitan Police and News International.

The New York Times raised an important allegation about the relationship between the Metropolitan Police and News International. It is this allegation that demands investigation, as it goes to the confidence the public should place in the operational activities of the police and the conduct of the mainstream media.

Once it is realised that this is the nub of the issue, the seeming evasions and stonewalling of the Home Secretary, the Metropolitan Police and News International all become irrelevant and embarrassing to watch.

For example, the Home Secretary repeatedly said there is no "new" or "fresh" evidence. But that contention, which is incorrect in any case, starkly misses the point: the allegation is that the Metropolitan Police already holds a mass of evidence, that it has not properly examined or disclosed this evidence, and that this is because of its relationship with News International.

Here it is important to have a sense of the chronology of what happened. According to the New York Times and the excellent journalism of Nick Davies in the Guardian, a troubling sequence of events can be made out.

In November 2005, the royal household raises concerns about unauthorised access to mobile telephone messages. By January 2006, the Metropolitan Police are investigating these concerns. A mass of evidence is accumulated. In May 2006, Davies reports an internal Met document stating:

A vast number of unique voicemail numbers belonging to high-profile individuals (politicians, celebrities) have been identified as being accessed without authority. These may be the subject of a wider investigation in due course. A number of the targets of this unauthorised access have been informed.

However, in July 2006, a decision is made to "ring-fence" the investigation, even though the evidence points to widespread illegality. There is no good explanation for this. Only then are search warrants obtained, limited to searching only Glenn Mulcaire's home and Clive Goodman's desk at News International. The searches appear to have taken place on 8 August 2006. No search warrants are obtained in respect of any other reporters or editorial staff.

Nonetheless, a substantial amount of evidence is seized from the home of Mulcaire. According to the New York Times, this evidence included 2,978 complete or partial mobile-phone numbers and 91 secret (ie, non-factory-set) Pin codes. The New York Times and Davies report that detectives then came under further pressure to narrow their investigation, an investigation that had been "ring-fenced" even before the search warrants were obtained.

Only Mulcaire and Goodman are arrested. At this point the mass of evidence collected before the warrants were obtained, and the evidence seized from Mulcaire other than that relating to a handful of victims, are not followed up.

Moreover, almost none of those whose voice messages were unlawfully accessed were notified by the Metropolitan Police so that civil actions could be brought. Any civil action would have had to have been brought promptly, as the mobile telephone companies retain the relevant records for only a limited period. This has the effect -- intended or not -- of being to the advantage of the defendant in such civil actions, News International.

The alleged failure to properly consider the mass of evidence collected both before and as a result of the 8 August 2007 search warrants, when combined by the failure to alert potential victims of unlawful access to messages, raises grave concerns.

As the bulk of the evidence at issue is already possessed by the Metropolitan Police, the Home Secretary's protestations about there being no "new" or "fresh" evidence are, of course, hollow. The form of words she uses may even be cynical. But, in a way, the Home Secretary's motivation is irrelevant: her response to the allegation made by the New York Times is a non sequitur. The allegation will persist for the simple reason that it has not been addressed.

Writing for Index on Censorship, Brian Cathcart correctly observes:

As the New York Times points out, the relationship between the Metropolitan Police and News International is now a matter of public concern. Would any other organisation or corporation whose staff were under suspicion have received such gentle treatment at the hands of detectives and prosecutors?

So, where can the story go next?

The Metropolitan Police may reopen the investigation if presented with new evidence. They may even look properly at the evidence they already have.

More interestingly, current and impending criminal cases and civil actions may uncover further information. The excellent Scottish legal blog Love and Garbage points out that the upcoming Tommy Sheridan trial may require Andy Coulson to answer questions under oath about the conduct of the News of the World newsroom. Mark Lewis is bringing a claim for libel against the PCC and the Metropolitan Police, which may lead to further disclosures.

So, even without any engagement by a regulatory body or an official inquiry, it looks as if this story will not go away.

The interest of Labour politicians in exploiting the story to discomfit the current government may ensure that any new information gets wider attention.

In my view, an independent inquiry is required into the relationship between the Metropolitan Police and News International. This inquiry should be open and fair to all those involved, and it can be either a judicial inquiry or by a parliamentary committee. It could be by the Inspector of Constabulary or the PCC, though some may not have confidence in such an investigation.

There are sufficient grounds for such an inquiry. This is not say that there is sufficient evidence -- fresh or otherwise -- for a conviction, a prosecution, an arrest, or even an arrest warrant.

The threshold for an inquiry is quite different. The allegation is serious and consistent with the facts available; the allegation is made by a reputable and serious newspaper; there is witness and documentary evidence to support the allegation; and there is an overwhelming public interest in the allegation being addressed.

So, either the story can be closed down by skilful political and media manoeuvring, or it can be dealt with properly. And the prospect of more information coming to light over the coming months suggests that the first approach may not work this time.

David Allen Green is a lawyer and writer. His Jack of Kent blog was shortlisted for the Orwell Prize in 2010. He will now be blogging regularly for the New Statesman on legal and policy matters.

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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After Richmond Park, Labour MPs are haunted by a familiar ghost

Labour MPs in big cities fear the Liberal Democrats, while in the north, they fear Ukip. 

The Liberal Democrats’ victory in Richmond Park has Conservatives nervous, and rightly so. Not only did Sarah Olney take the votes of soft Conservatives who backed a Remain vote on 23 June, she also benefited from tactical voting from Labour voters.

Although Richmond Park is the fifth most pro-Remain constituency won by a Conservative at the 2015 election, the more significant number – for the Liberal Democrats at least – is 15: that’s the number of Tory-held seats they could win if they reduced the Labour vote by the same amount they managed in Richmond Park.

The Tories have two Brexit headaches, electorally speaking. The first is the direct loss of voters who backed David Cameron in 2015 and a Remain vote in 2016 to the Liberal Democrats. The second is that Brexit appears to have made Liberal Democrat candidates palatable to Labour voters who backed the party as the anti-Conservative option in seats where Labour is generally weak from 1992 to 2010, but stayed at home or voted Labour in 2015.

Although local council by-elections are not as dramatic as parliamentary ones, they offer clues as to how national elections may play out, and it’s worth noting that Richmond Park wasn’t the only place where the Liberal Democrats saw a dramatic surge in the party’s fortunes. They also made a dramatic gain in Chichester, which voted to leave.

(That’s the other factor to remember in the “Leave/Remain” divide. In Liberal-Conservative battlegrounds where the majority of voters opted to leave, the third-placed Labour and Green vote tends to be heavily pro-Remain.)

But it’s not just Conservatives with the Liberal Democrats in second who have cause to be nervous.  Labour MPs outside of England's big cities have long been nervous that Ukip will do to them what the SNP did to their Scottish colleagues in 2015. That Ukip is now in second place in many seats that Labour once considered safe only adds to the sense of unease.

In a lot of seats, the closeness of Ukip is overstated. As one MP, who has the Conservatives in second place observed, “All that’s happened is you used to have five or six no-hopers, and all of that vote has gone to Ukip, so colleagues are nervous”. That’s true, to an extent. But it’s worth noting that the same thing could be said for the Liberal Democrats in Conservative seats in 1992. All they had done was to coagulate most of the “anyone but the Conservative” vote under their banner. In 1997, they took Conservative votes – and with it, picked up 28 formerly Tory seats.

Also nervous are the party’s London MPs, albeit for different reasons. They fear that Remain voters will desert them for the Liberal Democrats. (It’s worth noting that Catherine West, who sits for the most pro-Remain seat in the country, has already told constituents that she will vote against Article 50, as has David Lammy, another North London MP.)

A particular cause for alarm is that most of the party’s high command – Jeremy Corbyn, Emily Thornberry, Diane Abbott, and Keir Starmer – all sit for seats that were heavily pro-Remain. Thornberry, in particular, has the particularly dangerous combination of a seat that voted Remain in June but has flirted with the Liberal Democrats in the past, with the shadow foreign secretary finishing just 484 votes ahead of Bridget Fox, the Liberal Democrat candidate, in 2005.

Are they right to be worried? That the referendum allowed the Liberal Democrats to reconfigure the politics of Richmond Park adds credence to a YouGov poll that showed a pro-Brexit Labour party finishing third behind a pro-second referendum Liberal Democrat party, should Labour go into the next election backing Brexit and the Liberal Democrats opt to oppose it.

The difficulty for Labour is the calculation for the Liberal Democrats is easy. They are an unabashedly pro-European party, from their activists to their MPs, and the 22 per cent of voters who back a referendum re-run are a significantly larger group than the eight per cent of the vote that Nick Clegg’s Liberal Democrats got in 2015.

The calculus is more fraught for Labour. In terms of the straight Conservative battle, their best hope is to put the referendum question to bed and focus on issues which don’t divide their coalition in two, as immigration does. But for separate reasons, neither Ukip nor the Liberal Democrats will be keen to let them.

At every point, the referendum question poses difficulties for Labour. Even when neither Ukip nor the Liberal Democrats take seats from them directly, they can hurt them badly, allowing the Conservatives to come through the middle.

The big problem is that the stance that makes sense in terms of maintaining party unity is to try to run on a ticket of moving past the referendum and focussing on the party’s core issues of social justice, better public services and redistribution.

But the trouble with that approach is that it’s alarmingly similar to the one favoured by Kezia Dugdale and Scottish Labour in 2016, who tried to make the election about public services, not the constitution. They came third, behind a Conservative party that ran on an explicitly pro-Union platform. The possibility of an English sequel should not be ruled out.  

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