Archive for March 20th, 2010
A couple of weeks ago I wrote a blog post about Tony Baldry, the MP for Banbury, in which I referred to some rather surprising allegations that have been made about him by a grassroots anti-corruption group, the Nigerian Liberty Forum. I had been prompted to look into the issue after I read that the Independent had withdrawn an article about it, following libel threats from Tony Baldry.
A few days later, I myself was contacted by Baldry’s lawyers, Olswang, who claimed that my blog post was defamatory, and copied me on a letter that they had sent to my webhosts, WordPress, threatening to sue them for libel, and demanding that the entire post be taken down. In their email to me, Olswang also stated that “we will advise our client to take all necessary steps to protect his reputation should there be any repetition of these allegations”, which I took to be a threat of libel against me.
(Readers can make up their own minds about the degree to which the Olswang letter accurately reflects what I wrote. The original version of the blogpost is available here.)
What surprises me most about this was that, to the best of my knowledge, Tony Baldry has not made any threats of libel against my original source, The Nigerian Liberty Forum. Their allegations and are still freely available all over the internet, and their criticisms arguably far more detailed and damning.
The dispute centres around a letter that Tony Baldry wrote to the British government in September last year, in which he discussed a UK corruption investigation into James Ibori, the former governor of Nigeria’s oil-rich Delta State region, alongside a number of his associates. Tony Baldry (through his lawyers, Olswang) has been at pains to make it clear that he wrote this letter in his capacity as a barrister (one of his second jobs outside of Parliament), and that in writing this letter he was not seeking to get the criminal investigation shelved:
1. The letter was written on the notepaper of 1 Essex Court, and it states clearly that Mr Baldry has been instructed by solicitors to represent James Ibori. The letter was clearly written in Mr Baldry’s capacity as Counsel for Mr Ibori, not as an MP.
2. There is no suggestion anywhere in the letter that Mr Baldry is seeking any course of action which would benefit Mr Ibori. The letter specifically summarises its purpose by saying that perhaps after the outcome of the criminal proceedings is known, relevant agencies might want to reflect on lessons learned.
The Nigerian Liberty Forum has argued, and I agree, that the quickest and easiest way of clarifying this issue to everyone’s satisfaction would be for Mr Baldry – or the UK government – to publish the disputed letter in full.
Unfortunately, the Foreign Office has refused a Freedom of Information Act request from the NLF. Given the lack of resources allocated by the government to the Information Commission for FOI appeals, it also seems likely that the decision will not be reviewed for many months – if not years.
So we’re left wondering what exactly what was in that letter, and what the purpose of writing it really was.
The decision to take down my original blog post was made by me. I didn’t think it was fair that WordPress were getting threatened over something that was my responsibility. While I knew that Tony Baldry was insistent that he had written his September 2009 letter in his capacity as a barrister rather than an MP, and I had made that quite clear in the article, I hadn’t actually been aware that Tony Baldry disputed the purpose of that letter as it had been described by the Nigerian Liberty Forum. And it seemed somewhat futile to get into a dispute with the author of a letter I hadn’t seen, over that letter’s contents – especially as I had merely been referring to what others had alleged, rather than making that allegation myself.
I also figured that once I’d had the chance to look into it in depth I could always return to the issue again.
My point in that original blog post – as it is now – was really that even if we take only the facts about this story that are not contested, it seems to raise some worrying questions.
1. Potential conflicts of interest
Firstly, it seems to me very surprising that our Parliamentary system should allow MPs to hold a second job which involves a) acting on behalf of people who are under criminal investigation (perhaps especially when this involves allegations of large-scale corruption) by the UK courts over which Parliament ultimately has sovereignty and b) making representations on behalf of such people to the same government ministers they face daily on the floor of House of Commons in their capacity as an MP.
The potential for such an arrangement to create conflicts of interest seems very clear, and quite worrying. Even in the terms that Tony Baldry himself has described it, I believe that this case does not look good, and I doubt that it will look good to many outside of the “Westminster bubble”. If this is what the rules allow then it seems to me that those rules urgently need to be changed.
2. Transparency and accountability
Secondly, an effective democracy depends on our being able to scrutinise the activities of our elected representatives. Yet we are unable to do that fully in this case, because the letter that Tony Baldry wrote to the UK government is protected from FOI disclosure. As I believe the “exemptions” listed here make clear, one of the main reasons for this is precisely because he wrote it confidentially in his capacity as a barrister acting on behalf of a client.
(As it happens, it appears that the letter only came to light in the first place because its existence was leaked to the Nigerian Liberty Forum – had this not happened, then we and the voters of Banbury would presumably have never have even heard about this issue).
The Nigerian Liberty Forum have also alleged – and it should be clear here that I am referring to an allegation rather than endorsing it – that just days before writing his September 2009 letter to the UK government about James Ibori, Tony Baldry had met with the Nigerian President, and discussed the Ibori case with him.
Again, my point here is not to suggest that Tony Baldry broke any Parliamentary rules. My point is rather that it’s very difficult for us to scrutinise what, in practice, those rules are allowing, and form our own judgements about whether we agree that this is reasonable and appropriate behaviour for our elected representatives.
One analogy might be the controversy around MPs’ expenses. Parliament had published the broad rules guiding what MPs were, and were not, allowed to claim, and these seemed reasonable enough to many. Yet it was only when the specific details emerged of what, exactly, had been allowed under those rules, that we got a really meaningful picture of what had been going on. And at that point many of us came to the conclusion that the rules were not appropriate, and needed changing.
It seems to me that the more “second jobs” that an MP holds, the harder it is going to be to scrutinise their external activities, and satisfy ourselves that those activities are appropriate, whether or not they are “within the rules” that Parliament writes for itself.
Tony Baldry’s external activities are listed by They Work For You as follows:
1. Remunerated directorships
Chairman (non-executive), Westminster Oil Limited; a BVI registered company, development of oil licences and exploration.
West African Investments Ltd; investing in infrastructure and natural resource projects in Sierra Leone and elsewhere in West Africa.
Halcyon Oil Limited; a Hong Kong registered company focusing on oil exploration and discovery projects in Central Asia.
Mastermailer Holdings plc; development of stationery and stationery products. I am a non-executive director, and my duties involve attending board meetings…
2. Remunerated employment, office, profession etc
Practising barrister, arbitrator and mediator…
Executive Partner in Diamond Film Partnership; a UK partnership promoting UK film and television production rights.
Chairman of the Advisory Committee of Curve Capital Ventures Ltd, c/o Apex Fund Services (Mauritius) Ltd, Suite 2005, Level 2, Alexander House, 35 Cyber City, Evene, Mauritius; a sector neutral investment company that predominantly invests in India, China and Africa and advises companies on strategic growth and global expansion.
The Oxford Mail reports that since last July alone, Tony Baldry has earned more than £111,000 from his external interests – significantly more than his £64,766 MP’s annual salary.
3. Why was the letter written?
Thirdly, I remain very confused about why Tony-Baldry-the-barrister would have written this controversial letter to the UK government in the first place.
The lawyer and journalist Allen Green had these thoughts on that issue in this week’s excellent article in the Lawyer:
The other aspect of the Independent on Sunday apology which intrigued me was the notion of a barrister – especially in a matter where solicitors are instructed – writing a letter.
I have never before come across it.
Settling draft letters to go out under the letterhead of the instructing solicitor or the client is common. Indeed it is sensible if one takes litigation seriously, not least as it prevents the barrister from blaming the solicitor for screwing up pre-action correspondence.
But a barrister sending a letter under their own name? Whilst there is nothing at all wrong with this, it must be unusual. In my experience it sometimes difficult to get barrister to even sign the pleadings they are supposed to put their name to.
So Allen Green wrote to Tony Baldry and asked him:
Why did you write the letter on behalf of the client when solicitors were instructed?
(It is highly unusual for barristers to write any correspondence in their own name (rather than pleadings), especially when solicitors are instructed.)
But the only answer to this that Tony Baldry gave was:
The letter was written in my capacity as a Barrister, instructed by solicitors.
Tony Baldry states that in writing the letter he was not seeking to secure any “benefit” for James Ibori. We can take this at face value, yet still be confused about why a barrister would be employed to act in behalf of a client towards a particular purpose (eg. in this case writing to the UK government) if that purpose held no benefit at all for the client.
The picture gets even more confusing when we look at the reasons reportedly given by the UK government for refusing to disclose the letter following a Freedom of Information Act request. These include an exemption under Section 27(1)(a) of the Act, which “allows us to withhold information if its disclosure would or would be likely to prejudice relations between the United Kingdom and another state.”
What could possibly have been in that letter – which we’ve been told was written by a barrister acting solely in his capacity as a barrister on behalf of a client in a criminal investigation – that would have such wide-ranging political implications as to risk undermining international relations were it to be disclosed?
4. Libel should not be used to suppress political scrutiny and debate
Fourthly, it seems to me extremely worrying that an elected MP should be so quick to respond to public criticism by threatening to sue newspapers and web-publishers for libel. Tony Baldry is by no means alone in this. One of the reasons I became interested in this issue in the first place is that I’ve begun to lose count of the number of times an MP or Lord has used our notoriously draconian libel laws to try to get a news article censored.
Among the worst offenders was Michael Martin MP during his time as Speaker of the House of Commons. Martin’s multiple failures during the expenses scandal ultimately brought about his downfall (though he still got to sit in the House of Lords, where he has continued to do damage). But for a long time he had great success in using libel threats to get critical media coverage withdrawn.
These people are public figures whose actions in office can impact on us all. There is a clear public interest in being able to scrutinise and question their behaviour, freely and without intimidation. As public servants, it seems to me that our politicians therefore have a duty actively to support robust and open debate, and to avoid doing anything which might deter critical scrutiny.
Yet we have somehow got used to the idea that our MPs can routinely resort to heavy-handed legal tactics at the slightest of provocations. This week it was revealed that the Respect MP George Galloway was suing over a critical comment left on a blog. Regardless of the objectionable nature of the comment (and I’m no great fan of the website in question) this decision – and in particular the scale of damages being demanded - seems quite extraordinary. I hope that George Galloway, who interviewed me on his radio show (in his capacity as a radio presenter, not an MP, I hasten to add) when Don’t Get Fooled Again was first published, will soon realise how bad this looks to the neutral observer and reconsider what he’s doing.
There is now a palpable reluctance in large sections of the media to ask critical questions about our politicians’ behaviour, and the rules by which they govern themselves. It strikes me that this is very bad for our democracy. I think that our elected representatives need to develop a thicker skin, and we need to start being more critical when MPs make inappropriate libel threats.
I am genuinely amazed that Tony Baldry chose to address this controversy by threatening to sue my webhosts. I do not believe it reflects well on him that he chose to do so, especially as the airing of similar allegations in stronger terms elsewhere appears to have gone unchallenged.
Neither does it look good, as Allen Green has noted, that Tony Baldry demanded the removal not only of the comments he deemed inaccurate and defamatory, but the entire blogpost.
I have no desire to say anything about Tony Baldry which is untrue or unfair, and am happy to take corrections when necessary. But on the basis of the evidence I have seen, I do believe that there are serious questions that need to be asked about this case, and that asking those questions is manifestly in the public interest.