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|My Ofcom story|
- November 21 2016
MY OFCOM STORY -- A TALE OF MISMANAGEMENT AND INCOMPETENCE BY THOSE TO WHOM WE ARE ENTRUSTING REGULATION OF THE BBC.
The Rt Hon Karen Bradley MP
Secretary of State
Department of Culture, Media and Sport
September 30th 2016
Dear Secretary of State,
I am writing in response to your letter dated September 19th 2016 and to the request contained therein for me to provide my opinion concerning the serious and defamatory allegations you make of misbehaviour by me during my sadly short period on the main board and Content Board of Ofcom. This is therefore also a response to your declared intention, if such misconduct can be proved beyond doubt, to follow up Ofcom’s removal of me on July 5th from both my roles at that organization by seeking to justify, post the event, the termination of my contract without compensation and thereby reject the settlement I agreed with Ofcom on August 5th.
In response to a direct communication by the DCMS Director of Media Policy, Mr Hugh Harris, on September 20th offering a "no-blame" settlement should I agree to forgo compensation, I requested that the DCMS should provide details of the evidence of misconduct referred to in your letter and his, so that I could at least know to what it is I am being asked to respond. That evidence was supplied on September 25th. This document will therefore first lay out my account of what has happened and will then address the evidence presented in the light of that account.
1.1 The clear conclusion from the analysis below is that I am not guilty of misbehaviour or misconduct, but rather am an innocent victim of a flawed recruitment process. Based on the opinions conveyed to me to by the Chief Executive, Sharon White (SW), it is clear that she decided during May 2016 that I should not have been recruited to the post in the first place – not because of my conduct, which she never questioned, but because in her view the Chair of the Content Board should not and could not be an active professional writer on matters of public policy. She clearly appreciated that I was one of the most senior, successful and world-renowned British editors and am an acknowledged expert on public policy, but simply decided that this was not the profile that Ofcom needs for the role. She had not been involved in the recruitment process.
1.2 The Chairman, Patricia Hodgson (PH), who was closely involved in my recruitment, sought to explain this by saying there had been “a misapprehension” about the nature and extent of my external work, and acknowledged to me that this was not my fault. If so, then this points to a severe failure of due diligence, since all my professional activities are conducted in plain sight and are detectable through my website or a Google search.
1.3 Nothing that I have done since joining the Board of Ofcom on January 1st 2016 has been capable of calling into question Ofcom´s impartiality, when measured by any reasonable test, nor of otherwise breaching the Code of Conduct. The evidence presented by DCMS officials does not provide any proof of breach of the Code, especially given my public recusal from any discussions or decision-making procedures on referendum issues.
1.4 In the manner in which my recruitment and removal have been handled I have been the victim of gross mismanagement by the Ofcom leadership and of their failure to respect the formal practices required by law.
2. My Recruitment
2.1 I was approached by the recruitment firm Egon Zehnder in August 2015 to ask whether I would be interested in becoming a candidate to join the main board of Ofcom and to chair the Content Board. I expressed reluctance, based on my existing commitments and my lack of broadcasting experience. I was however told, both by Egon Zehnder and subsequently in private meetings by PH, that Ofcom was deliberately searching for people with senior editorial experience in print journalism rather than broadcasting because of the need for the next Chair of the Content Board to be seen to be independent from the BBC. PH pressed me hard to apply, stating that it would be in the public interest for such a distinguished and well-reputed editorial figure to take the role, and that she thought as an economist I would be highly suitable as a contributor both on Content Board issues and on Ofcom’s telecommunications regulation.
2.2 With both PH and Egon Zehnder, discussions were held concerning the compatibility of my other commitments with the roles at Ofcom. It was agreed that I would have to step back from any public role in my educational charity, The Wake Up Foundation, because of its association with support for the European Union, and because of its use of the documentary The Great European Disaster Movie of which I had been executive producer, which clearly associated me with a pro-EU position. I would have to avoid any campaigning role during the expected referendum on British membership and would have to be publicly recused from any Ofcom decision-making concerning the referendum.
2.3 Beyond that, I was told that there should be no problem with my other external commitments as I was not a regular columnist in the UK media. I was told there were precedents of Ofcom board members continuing to write professionally, such as Professor Ian Hargreaves. And I was told that as long as I refrained from writing directly about British politics my journalism and lecturing would be acceptable. An example was cited during my private discussions with PH: it would clearly not be appropriate, we agreed, for me to write a series of articles for the Financial Times in 2019/20 assessing David Cameron´s prime ministership since this would be unavoidably political, but articles about broader public policy issues would not cause a problem. No other limits were proposed or considered necessary.
2.4 In these discussions it was fully disclosed that I conducted the following professional activities: I wrote regularly for La Stampa in Italy, Nikkei Business in Japan and Project Syndicate worldwide; that I wrote occasionally for the Financial Times; that I was a visiting professor at a Japanese university; that I was writing a book on the potential for revival of Western economies and societies. These were also apparent to any visitor to my website. No concern was raised about any of these commitments, nor any request made that they should be relinquished.
2.5 This approach was reflected both in the panel interview on November 10th 2015, on which Mr Harris represented DCMS, and in my interview by the then Secretary of State, John Whittingdale, on December 3rd, at which Mr Harris was also present. I was asked at the panel interview whether I would abide by the Ofcom Code of Conduct for Board Members, and I said that I would. I was asked by John Whittingdale not about that but about whether I would be willing to stand up robustly under criticism by the UK media (he cited the Daily Mail), so I pointed to my record in standing up to legal cases brought by the Italian prime minister, Silvio Berlusconi and to what I considered to be my reputation for integrity and independence. No concerns were expressed about my general writing or journalism activities.
2.6 As a consequence of these discussions, which took place over the course of several months, I was persuaded to accept the roles at Ofcom when they were offered to me on December 22nd 2016, and then to make the considerable time commitment required both to learn the roles and to be able to perform them at a high level. I found the roles demanding but extremely interesting and enjoyable, as well as being of considerable public importance.
3. Recusal on Referendum issues
3.1 Immediately that my appointment was announced, the agreement made during the recruitment process was put in place and made public. It was declared and disclosed that I would not participate in any discussions at Ofcom or any decision-making concerning the forthcoming referendum on UK membership of the EU.
3.2 PH took control of the appointment of any Election Committee that might have to adjudicate on any referendum complaints, for that appointment had previously been the responsibility of the Chair of the Content Board. An initial flurry of media criticism of my appointment as Chair of the Content Board, in which I had been described as "a fanatical Europhile", quickly subsided.
3.3 To my knowledge, there has been no subsequent media criticism or comment on my presence at Ofcom nor on any of my professional activities in the UK or international media or social media. Nothing I have said or written has provoked any public questioning of Ofcom´s impartiality on these (or any other) issues. The Recusal procedure has been followed absolutely strictly, with me taking no part in any discussions on the referendum either at the Board or the Content Board.
4. Guidance from Ofcom at induction
4.1 On January 13th and 15th 2016, meetings took place with senior Ofcom executives to provide an induction into the two roles, including meetings with PH, SW, the Director of Communications Chris Wynn and the Ofcom Legal Counsel, Polly Weitzman, and to provide guidance on Ofcom’s procedures
4.2 I was told by PH that I must be careful about tweeting as they had had a previous problem with another board member, the deputy chair, Baroness Noakes, though no details were supplied of what the problem had been nor of how it had been resolved. For other matters concerning my professional activities, I was told I should consult Chris Wynn and read the Code of Conduct. No concerns were raised by either SW or Polly Weitzman about my known professional activities outside Ofcom.
4.3 Chris Wynn´s guidance was that I needed to exercise care about anything that was capable of suggesting political bias in Ofcom decision-making. I needed to exercise my own judgement on such matters, he said, as the issue was not always clear-cut. If in doubt, I should ask him and his communications department colleagues. I did not, I was told, have to ask permission for every article I wrote as this would be impractical, but I should check with the comms department about any high profile or potentially controversial speaking engagements or media interviews. I followed this advice throughout my period at Ofcom.
5. The Ofcom Code of Conduct for Board Members
5.1 As indicated at my induction meeting with Mr Wynn, the relevant sections of the Code of Conduct concerning my professional activities are as follows:
20. Appearances on television or radio, the production of television or radio programmes and the writing of newspaper columns/blogs or contributions to social media (eg Twitter, Facebook, LinkedIn and Google etc) (together the ‘permitted activities’) by Members is not prohibited; however they should be undertaken with caution. For example comments which might have an adverse impact on Ofcom’s reputation (noting that all comments or posts on social media should be considered to be in the public domain) and comments on Ofcom policy should be avoided. Any proposed appearance on, or production of television or radio programming should be referred to the Secretary to the Corporation who will discuss with the Member whether such engagement is acceptable.
Public Speaking and Journalists
31 Particular care should be taken about any invitation to speak publicly, including speaking to journalists, in the capacity as a Member of Ofcom. Care must also be taken in the publication of any articles or use of social media. In any such instance, Members should consult the Chairman or in his/her absence the Chief Executive and in all cases should not express views at variance from agreed Ofcom policy or give rise to the perception of political bias, partisanship or decision making. Members should avoid publicly stating personal opinions on matters where Ofcom policy has not been determined, but is pending or where Ofcom’s reputation may be harmed. Otherwise, personal views may be expressed (subject to consultation with the Chairman or Chief Executive as above) so long as it is made clear that the Member is speaking or writing in a purely personal capacity and stating his or her own private opinion. In general, Members are not restricted from access to the media in their personal non-Ofcom capacity, or in pursuit of a professional interest, for example as performers, experts, critics or commentators. [My emphasis]
5.2 The essential issue under the Code concerning my professional activities is therefore one of what can reasonably be considered to be my “personal non-Ofcom capacity” and my “pursuit of a professional interest”, and how that capacity and that pursuit can and should be reconciled with the requirement to avoid giving “rise to the perception of political bias, partisanship or decision making” and the need to exercise due care.
5.3 The discussions with PH and others during the recruitment process, and then the induction meetings in January 2016, had established clearly that it was acceptable to Ofcom for me to continue to have a “personal non-Ofcom capacity” as a writer on public policy issues, and to continue to pursue my professional interest as an “expert, critic or commentator”.
5.4 On the issue of British membership of the European Union, my appointment as a person with well-known opinions on this matter, which as Ofcom’s leadership were fully aware had been the subject of considerable publicity during 2015 when our documentary The Great European Disaster Movie was aired, meant that a special measure had to be implemented in order to protect Ofcom’s vitally important reputation for impartiality. This was the public declaration of my recusal from all decision-making on referendum issues, outlined in paragraph 3.
5.5 As a result of that declaration, no connection could reasonably be made between my role as Chair of the Content Board and any decision-making by Ofcom on these matters. Although it was still appropriate for me to exercise care on these issues, and not to take any active part in campaigning, this recusal means that Ofcom’s reputation was robustly protected from comments by me or about me on EU issues that might potentially have occurred.
6. Communication from Chris Wynn, February 24th 2016
6.1 On only one occasion between joining Ofcom on January 1st 2016 and being asked to leave on July 5th 2016 did I receive any criticism from the head of Communications for my professional activities. This was on February 24th, in response to a tweet I had made analysing the potential consequences of Boris Johnson´s entry to the referendum campaign on the Leave side and the prospects for Jeremy Corbyn to become prime minister. Here is Mr Wynn´s email in full:
6.2 In response, I wrote, keeping PH in cc:
6.3 The lecture/event referred to in this email exchange was an invitation to me to speak in Zurich at a meeting on June 29th held by the UK-Swiss Chamber of Commerce about the aftermath of the referendum. I had told the organisers that I could not take part in any such event before June 23rd, but that I was prepared to ask Ofcom’s view on whether I could take part in an event after the vote. Mr Wynn granted permission, and I gave the speech.
7. Request for discussion of Ofcom policy on NEDs and social media, March 15th
7.1 At the March 15th 2016 board meeting, another Board member, Ben Verwaayen, proposed to the Chair that at a future board there should be a discussion of what NEDs could and could not do on social media, as he had concerns (he said) that the current policy was unnecessarily restrictive. I spoke up in support of this proposal. However no such discussion was put on the agenda of any of the subsequent board meetings that took place before my exclusion in July.
8. First oral criticism by Patricia Hodgson, May 16th 2016
8.1 I was invited to meet the Chair for tea at the Corinthia Hotel on the above date, the purpose of which I took to be to discuss PH´s presentation to the Content Board which was scheduled for the next day. Instead, she suddenly told me that I needed to think hard about whether I wanted to remain on the Ofcom board. Why, I asked? She said "you have embarrassed us", citing two tweets I had made of other people´s articles.
8.2 One turned out to be a tweet of an article concerning the use of immigration by the Leave campaign (see DCMS evidence below, paragraph 16). The other was a Guardian article about "post-truth politics", on both sides of the Atlantic (not included in the DCMS evidence list). She also said that she gathered I had apparently made some comments to Italian media, though she cited no details of these. I pressed for more information as to why these activities were a problem, so that I could understand how I was causing concern and hence adjust accordingly. She said "talk to Sharon", emphasising that the main source of concern was coming from the chief executive. As I was departing for Italy the next day, I arranged that Sharon White would telephone me on May 18th, and a face-to-face meeting was also set up for May 23rd in London.
9. Conversations with Sharon White, May 18th and 23rd.
9.1 In the telephone call and in the face to face meeting, SW was perfectly clear and consistent. She was not concerned, she said, about tweets. She was concerned, she said, about "articles". Which articles, I asked? "Any articles", she said, on public policy, domestically or internationally. Asked why, SW answered that such articles "could be compromising" in the event of any editorial standards cases arising subsequently that touched upon the topics about which I might have written. Seeking to explore what was really the scope of such a concern, I cited articles about China´s economy or the politics of the South China Sea dispute. Would this be compromising, I asked? Yes, it could be, she said.
9.2 The only conclusion that can be drawn from these comments by the Chief Executive is that she believed that I should not have been recruited in the first place. Her belief that any article on any issue of public policy represented a potential conflict of interest could only mean that in her view no Chair of the Content Board could be granted “access to the media…in pursuit of a professional interest as experts, critics or commentators”, as per paragraph 31 of the Code of Conduct, because any use of that expertise “could be compromising” for Ofcom. In my view, this represented a change in the interpretation and application of the Code, and a breach of the terms under which I had been recruited only five months earlier. I stated to SW that should I be asked to resign for those reasons, I would consider it a breach of contract.
10. Agreement to defer further discussion until after June 23rd
10.1 Following these indications that PH and SW wanted me to leave, I consulted another main board director, Ben Verwaayen, as to what I should do. His judgment, with which I tended to agree, was that this apparent change of position might well reflect the current political atmosphere surrounding the referendum campaign. Therefore we agreed that I should tell both PH and SW that I would be more than happy to have a full and formal discussion of how to proceed in future, including the "dos and don´ts" for me on the Board and Content Board, but should ask that this conversation should take place later in the summer, after the referendum campaign was over. This I did.
10.2 SW agreed on May 23rd to this proposal. In a face to face meeting with PH on May 24th, the chairman also expressed her approval of the idea of deferring discussion of the issue till later in the summer. I added that I was upset and concerned by what had happened and about how I was being treated, and concerned about the implications of what SW had said to me. PH said she was sorry for what had happened. She further said that the problem was that there had been "a misapprehension" about the extent of my writing and speaking activities, "which was nobody´s fault".
10.3 This was a clear indication that I was not being accused of misconduct. It suggested instead a need for an open discussion about what could and could not be considered an acceptable “pursuit of professional interests”. Such a discussion was never allowed to take place.
11. Process of my removal: June 30th and July 5th
11.1 Rather than waiting until later in the summer, SW´s office invited me to a meeting with SW at her St Barnabas club in Soho, to be held on June 30th. She opened the conversation by saying that her thinking about the incompatibility between my professional activities and my roles at Ofcom had not changed: she felt there would always be a potential for conflicts of interest in editorial standards cases. She did not cite any articles of mine or other external communication as having been problematic. She did not wish to discuss any ways in which my professional activities could be made compatible with the role.
11.2 I said that I disagreed: I did not think that proven expertise in analysis of issues of public policy should be a disqualification from chairing the Content Board or being on the main Board. She responded that she believed otherwise. I asked whether she had considered these points when I was being recruited to the Board the previous autumn: she said she had not been involved in that recruitment.
11.3 PH´s office then brought forward a meeting originally planned for late July to July 5th. At the meeting, in her Ofcom office, she told me she wanted me to leave. She said I could do this in various ways: I could resign, giving six months notice and immediately being freed from any Code of Conduct restraints; or I could leave the Content Board and Board and do some unspecified "consultancy" reports in countries I was interested in, while being paid by Ofcom, for an unspecified period. Whatever I chose to do, she said she was removing me as Chair of the Content Board with immediate effect. No proposals were made in writing or otherwise formalised. I replied that I saw no grounds for resignation and that I disagreed strongly with the view she and SW were taking. I said I felt that this was the wrong approach for Ofcom to be taking especially given its future role in regulating the BBC.
11.4 PH responded by saying that she had "taken legal advice". This advice, she said, was an opinion from the Ofcom Legal Counsel, Polly Weitzman, about the potential for conflicts of interest if the Chair of the Content Board were to engage in writing about issues of public policy. She suggested that I speak to Polly Weitzman, which I agreed to do. I told PH that I would revert to her concerning my intentions after that consultation (see paragraph 12) and after taking my own legal advice.
11.5 I reverted to PH by telephone on July 11th. In that call, I informed PH that I would step down as requested but would consider this to be a termination of my contract without cause. I was therefore appointing a lawyer to represent me, and would be seeking appropriate agreement on a public statement on my departure and on compensation. PH proposed that we therefore put this “in the hands of the professionals”, by which she meant the Secretary of the Corporation, Steve Gettings.
12. Legal opinion from Polly Weitzman, Ofcom Legal Counsel.
12.1 As agreed I spoke to Polly on July 8th about the advice she had given PH. She explained her concern about how alleged conflicts of interest could potentially affect standards cases that end up in court. She illustrated the dangers by citing a recent Competition Appeals Tribunal case in which the deputy chair of the CAT had been severely criticised by the judge for not managing the appeals procedures properly. During our telephone conversation, I asked Polly whether she had been consulted about this conflict of interest issue during the recruitment process for the Chair of the Content Board during the autumn of 2015, and she said she had not been. She followed up by providing a written summary of her legal opinion, which she also sent to PH and SW.
12.2 No mention was made by Polly Weitzman of any alleged infractions by me of the Board Members´ Code of Conduct. Everything she said and wrote was presented as highlighting problems in principle rather than being anything specific about me or my actions.
13. Lack of formal communication concerning any misconduct and concerning my removal
13.1 As was indicated in paragraph 6, on only one occasion did a member of Ofcom´s senior executive team raise any concerns in writing about my activities on social media or in conventional media. No written warnings or written expressions of concern were provided by either PH or SW during my time at Ofcom. Nor, following the decisive meeting on July 5th with PH, did I receive any written communication either confirming what was happening or any offer of terms, or any explanation in writing of the reasons for my removal.
14. Exclusion from main Board, July 18/19
14.1 Prior to my removal I had been due to attend a board dinner and full meeting of the main Board on July 18th and 19th. However I was not sent any papers for the main Board meeting. PH had also, at our July 5th meeting, informed me that she had told the other main Board directors about my removal. This indicated clearly that I should not attend on July 18/19 and that I was no longer considered to be a board Member.
14.2 Nevertheless, as I had been due to give an oral report to the July 19th board meeting about the previous meeting of the Content Board, which I had chaired, I submitted a report in writing to every member of the main board. This report was not acknowledged by the Chair or the Secretary of the Corporation, or anyone else.
14.3 I was therefore somewhat surprised when in early September the Secretary of the Corporation emailed to ask me whether I wanted to receive papers for the September Board meeting. This appeared to indicate an attempted change of position concerning whether or not I was still officially on the Board. I responded by reminding him that I had been excluded from the July meeting and had not been sent papers for it. I added that it did not seem to me appropriate to send confidential papers to someone that the Board itself considered to have been removed.
15. Negotiation with Ofcom, July 11th to August 5th.
15.1 Following PH’s placing of matters in the hands of the Secretary of the Corporation, negotiations commenced between Ofcom’s lawyers, at Denton’s, and mine at Wedlake Bell. Those negotiations concerned an agreed public statement about my departure and compensation for early termination of contract without cause.
15.2 The negotiation was conducted in good faith on both sides. On August 2nd, Ofcom’s lawyers proposed a financial settlement of £XXXXX. On August 5th the two sides agreed on both the wording of a public statement and a sum in compensation of £XXXXX plus legal costs. Ofcom stated that the settlement required approval from the DCMS but that following consultations with officials they expected such approval “within days”.
16. DCMS list of "evidence" of my misbehaviour
16.1 On September 26th, I received from Hugh Harris the requested details of the evidence that DCMS officials consider justifies the termination of my contract on grounds of misconduct. I will therefore now respond to each of these items in turn: