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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The clever ideological trick that could save the Labour party

The Co-operative party could suddenly get a lot more popular. 

It’s do or die for the party’s moderate MPs, who have lost the fight for the soul of Labour and must quickly move on. 

The 172 Labour MPs who backed a no-confidence vote in Jeremy Corbyn earlier this year may not like their newly elected party leader much, but they loathe John McDonnell. 

So it is little surprise that one of them, John Woodcock, reportedly looked “sick to the stomach” when the Shadow Chancellor tenderly invited him for a cuppa in his office following the leadership election result at conference. Reading the tea leaves tells me those talks aren’t going to go well.  

Yet moderate MPs would do well to revisit McDonnell’s off-the-cuff comments from a few years back: “I’m not in the Labour party because I’m a believer of the Labour party as some supreme body or something God-given or anything like that,” he told a small audience in 2012. “It’s a tactic. It’s as simple as that. If it’s no longer a useful vehicle, move on.” 

Two feather-spitting former frontbenchers called for McDonnell’s resignation when these comments emerged in March, saying they revealed his Trotskyist tendencies. "The context (a hard-left gathering) and the company (which included Gerry Downing, expelled from Labour for his comments on 9/11) didn’t make for great publicity, no," a Leader’s Office staffer privately confesses. 

But McDonnell is right: There is nothing necessary, natural or divinely ordained about Labour’s existence lest it can get things done. Which is why the parliamentary Labour party cannot botch its next attempt at power. 

In the wake of Corbyn’s re-election, Labour MPs face a fork-in-the-road: fight this civil war until its bitter end - play the long game, wait until Labour loses the next general election and challenge Corbyn again - or start afresh. 

It is a bleak, binary choice, akin to a doctor delivering test results and declaring the illness is terminal as feared: the patient can go down fighting and die a slow death, notwithstanding a medical miracle, or instead take part in a pioneering new drug trial. This carries the risk of dying immediately but promises the possibility of life as well. Both options are fraught with danger.

The problem with the first option is that moderates have all but lost the party already. A poll reveals Corbyn won 85 per cent - 15 per cent among members who joined after he became party leader and lost 37 per cent - 63 per cent among those who were members of the party before the last general election. The result: victory by 119,000 votes. 

Corbyn has already announced he wants to give these foot soldiers far greater firepower and told Andrew Marr he had asked the NEC to draft plans for increasing the membership and including it in “all aspects of party decision making”. Labour is transitioning apace into a social movement: free of formal hierarchy and ambivalent about parliamentary power. 

So why wait until 2020? There is every chance that MPs won’t any longer have the power to challenge to Corbyn within four years’ time. If Momentum has its way with reselection and shadow cabinet elections, leading rebels may not be around to begin with. 

Even if MPs mount another leadership challenge, few believe organisations like Saving Labour or Labour First could put together a sizeable enough electorate to outgun Corbyn at the ballot box. He would be voted back in by a landslide. 

The alternative is for MPs to create a new centre-left force. The main plan under consideration is to join the Cooperative party, Labour’s sister party, and sit as a bloc of “double hatted” MPs, with their own policy agenda on Brexit and the economy. This new bloc would apply to the Speaker to become the official opposition. 

Plenty of MPs and members recoil at the idea of a semi-split like this because of the mixed message it would send to voters on the doorstep. "So you don’t have faith in Corbyn, but you’re a Co-op MP campaigning on behalf of his Labour?" Many believe a full-split would be worse. They fear being pitted against Corbyn-backed Labour candidates in local constituencies and splitting the left vote, opening the door to Ukip or the Conservatives in marginal seats. 

But if moderate MPs mean what they say when they warn of total electoral wipeout in 2020, risking a new centre-left grouping is intuitively worth it.  What do they have to lose? And how many more times can Labour’s moderates cry wolf - Labour "risks extinction", Sadiq Khan said yesterday - until voters call their bluff and tell them to quit complaining and fall in line behind their leader? 

While Corbyn’s polling remains disastrous, a Co-op/Labour party would boast a mandate of 9.3m people, a policy agenda in line with Britain’s political centre of gravity and a chance of becoming the official opposition: a risk worth taking in the face of electoral oblivion. 

A handful of battle-bruised MPs are talking about coming together. "Time to unite," a deflated Hilary Benn tweeted this weekend. There is a precedent for this: first past the post means the party has always been composed of uneasy coalitions of different groups - take the trade unionists, liberal cosmopolites and ethnic minorities of the New Labour years - and it is arguably no different now.  

Yet this is not about a coalition of diverse interests. It is about two parties within a party, each of which believes Labour is their rightful inheritance. Of the two, moderates are least likely to gain anything by engaging in an all out war. It is time they took a leaf out of McDonnell’s book and accepted it is time, regrettably, "to move on". 

Gabriel Pogrund is a journalist at The Sunday Times and a Google News Fellow 2016.