Ruling

21062-23 Benton v The Times

  • Complaint Summary

    Scott Benton MP complained to the Independent Press Standards Organisation that The Times breached Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in the preparation and publication of an article headlined “Tory MP in gambling cash-for-access scandal”, published on 7 April 2023.

    • Date complaint received

      8th May 2024

    • Outcome

      No breach - after investigation

    • Code provisions

      10 Clandestine devices and subterfuge

Decision of the Complaints Committee – 21062-23 Benton v The Times


Summary of Complaint

1. Scott Benton MP complained to the Independent Press Standards Organisation that The Times breached Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in the preparation and publication of an article headlined “Tory MP in gambling cash-for-access scandal”, published on 7 April 2023.

2. The article – which appeared on the front page and continued on page two – reported on the outcome of an undercover investigation initiated by the publication. The front-page headline was followed by a sub-headline which read: “Politician [the complainant] offered to lobby ministers on behalf of betting industry in return for payments”. An image of the complainant at the meeting was also published on the newspaper’s front-page. The article alleged that an undercover investigation had found that the complainant “offered to table parliamentary questions, leak a confidential policy document and lobby ministers on behalf of gambling industry investors who proposed paying him thousands of pounds a month…”. It further alleged that the complainant “was prepared to help an investment fund influence policymakers and obtain ‘behind the scenes’ information despite rules prohibiting MPs from lobbying in return for payment”. The article explained that the complainant had been secretly filmed by undercover reporters posing as investors with an interest in the betting and gaming industry who were looking for an adviser.

3. The article also included a bullet-point summary of what the complainant had allegedly said during the meeting:

“The MP:

· Guaranteed he could leak a copy of a forthcoming white paper on gambling reforms to the company at least 48 hours before it went public, potentially allowing it to profit from market-sensitive information.

· Offered to submit parliamentary questions and said he had done it on behalf of companies before.

· Boasted of his ‘easy access to ministers’ and said he was prepared to ’literally sit outside’ a minister’s office if the company needed an urgent answer to a question

· Claimed that many MPs who accepted corporate hospitality were willing to table a written question or make a point during oral questions in return.

· Said he could ‘call in favours’ from colleagues, who would be happy to support the company’s interests, and offered to host a dinner at the Commons.”

4. The article then reported: “MPs have long been banned from paid lobbying and accepting money to raise issues with ministers or ask questions in parliament on behalf of clients. Under a change of rules after the Owen Paterson lobbying scandal, they are now also barred from serving as a parliamentary adviser or consultant and advising on how to influence parliament. […] Benton’s proposed actions would amount to a breach of the longstanding rules prohibiting ‘paid advocacy’ as well as flout the new restriction on providing parliamentary advice that came into effect several days before the meeting.”

5. It then went on to report that, when “[a]sked how much he would be expecting to earn, [the complainant] indicated he was happy with a proposed sum of between £2,000 and £4,000 a month for about two day’s work.”

6. A longer version of the article also appeared online, under the headline: “Exposed: How Tory MP offered to lobby for gambling investors”. This version of the article was published on 6 April 2023. The online article included a video of the complainant at the undercover meeting described above. It also included various quotes which the complainant was reported as having said at the meeting including: “’As long as I’ve gone on public record and say I’m declaring an interest . . . I wouldn’t have to say Company X [has] asked me to [table the question],’ he said. Benton said that the threshold for declaring an outside financial interest was ‘quite low unfortunately’”. [Square brackets inserted by publication].

7. The online article also stated that, when contacted by the newspaper for comment following the meeting :

“Benton said he had agreed to meet to find out what the role entailed. He said he had not provided his CV as had been requested during the meeting because ‘I was concerned that what was being asked of me was not within parliamentary rules’. He said he later ‘contacted the Commons registrar and the parliamentary standards commissioner who clarified these rules for me and had no further contact with the company’. ‘I did this before being made aware that the company did not exist and the individuals claiming to represent it were journalists,’ he said.”

8. The complainant said that the publication had breached Clause 10, as journalists who worked for the publication had posed as businessmen, initiated a meeting with him and covertly filmed it – he also said that the journalists had asked leading questions to generate a story. The complainant said that, at the time of the meeting, he believed he had been contacted and agreed to meet a legitimate company. His position was that there was no public interest in reporting the story, as it did not expose any ongoing wrongdoing on his part, which he said was the test which had to be satisfied. Following an investigation by the Independent Office of the Registrar of Consultant Lobbyists (ORCL), the complainant said that it had concluded on 28 April 2023 that he had “not conducted unregistered consultant lobbying activity” and had “not received payment or benefits in kind in return for lobbying.” This, he said, demonstrated that there was no legitimate public interest in the story which would justify the covert measures used by the publication.

9. The publication accepted that subterfuge was used for the purpose of its investigation. However, it argued that this activity was justified by the public interest in exposing the complainant’s conduct, which it had reason to believe was breaching parliamentary rules. It did not accept the complainant’s position that the definition of reporting in the public interest was limited to the exposure of “ongoing wrongdoing”.

10. The publication also did not accept the complainant’s position that he had been asked leading questions for the sake of generating a story where there would otherwise be none. The publication said that its line of questioning during the meeting was reasonable and in line with the public interest served. It said that, as reported in the article, during the meeting the complainant had guaranteed he could leak a copy of a forthcoming paper on gambling reforms to the company at least 48 hours before it went public – potentially allowing the invented company to profit from market-sensitive information. The publication said he had also offered to submit parliamentary questions, claiming that he had done it on behalf of companies before, and had boasted of his “easy access to ministers”. According to the publication, the complainant said he was prepared to “literally sit outside” a minister’s office if the company needed an urgent answer to a question and he claimed many MPs who accepted corporate hospitality were willing to table a written question or make a point during oral questions in return. The publication also said the complainant claimed he could “call in favours” from colleagues who would be happy to support the company’s interests and offered to host a dinner at the House of Commons. The publication said that these actions would amount to a breach of the longstanding parliamentary rules prohibiting paid advocacy as well as flout the restriction on providing parliamentary advice.

11. The publication said it was not clear how the ORCL investigation, which it considered to be narrow in scope – focusing only on whether the complainant had actually conducted unregistered lobbying, rather than whether he had simply agreed in principle to do so – and which was reliant on assurances given by the complainant, might affect the public interest in its reporting of the meeting.

12. The publication noted that, in response to its reporting, an investigation had been opened in April 2023 by the Parliamentary Commissioner for Standards under Paragraph 11 of the Code of Conduct for Members of Parliament. Paragraph 11 of the Code states that: “Members shall never undertake any action which would cause significant damage to the reputation and integrity of the House of Commons as a whole, or of its Members generally.” The publication said that, as the Commissioner’s decision to investigate made clear, any possible breach of Paragraph 11 of the Code of Conduct by an elected MP was, in and of itself, clearly a matter of the highest public interest.

13. The publication said that the complainant’s role as an MP was to represent the public interest; this was reflected in the Code of Conduct setting out the standards MPs are expected to uphold. The publication highlighted the first two principles of the Code of Conduct: Selflessness – “Holders of public office should act solely in terms of the public interest”; and Integrity – “Holders of public office must avoid placing themselves under any obligation to people or organisations that might try appropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends.” It also noted other vital principles set by this Code, such as Accountability and Openness. It said that any failure on the part of an elected official to follow these principles would represent a matter of the strongest public interest.

14. The publication said that, if an elected representative was not acting with selflessness, integrity, accountability and openness, the public had a right to know and that – following various parliamentary lobbying scandals – the publication decided to re-examine this issue. It said an investigation into lobbying by the gambling industry followed conversations with MPs, peers, and other knowledgeable Westminster and industry sources. It said these sources had described how the gambling industry seemed to have become particularly sophisticated and effective in its lobbying in Westminster and in its efforts to secure the support of MPs and peers. The publication also explained how it assessed the reliability of the sources: it said the reporters involved had spoken to a dozen people including eight members of both Houses of Parliament, two professional lobbyists, and two other Westminster contacts. The information given by these sources was then assessed by editors and reporters who decided that: the sources were in a position to have knowledge of the matters discussed; that their seniority, access and experience made them credible; and that claims were corroborated by more than one source.

15. The publication said it was a matter of public interest if politicians were acting in support of the commercial interests of a powerful industry accused of causing significant harm to its customers, at a time when legislative reform of that industry was a matter of live debate in Parliament. It said that, as lobbying takes place largely through private conversations, Freedom of Information requests and other similar methods to obtain documentation would be very unlikely to reveal the evidence it sought. The publication’s aim was to understand how the gambling industry interacted with MPs and Westminster and, to meet this aim, it needed evidence of what precisely politicians were prepared to do in exchange for hospitality or other inducements. As it had strong grounds to suspect individuals were breaching parliamentary rules – having been tipped off by sources with a knowledge of Westminster lobbying – it said they were highly unlikely to discuss the matter openly or respond to enquiries from journalists in the usual way. Therefore, it said subterfuge was required, as the information it needed to support its reporting in the public interest could not be gained by other means.

16. The publication then explained how, prior to undertaking its investigation, it had reached the decision that employing subterfuge was necessary to serve the public interest.

17. It said that, in July and August 2022, reporters acting on behalf of the publication conducted research into Westminster lobbying. This involved: submitting Freedom of Information Act requests; analysing politicians' declarations of outside interests and hospitality, and their interventions in Westminster in areas that were relevant to those interests; and carrying out interviews with political sources. It said the sources in questions had set out their suspicions about specific named MPs who they believed were working to further the interests of the gambling industry, an industry from which they had received financial benefits. The sources also described attempts by colleagues to circumvent parliamentary transparency rules. The publication said that one of the MPs named by the sources was the complainant, and – while the sources had strong suspicions about the complainant’s interactions with the gambling industry – they were unable to provide conclusive evidence that the complainant had breached parliamentary rules. For this reason, the publication considered whether subterfuge might justifiably and proportionately be employed to test the allegations.

18. To this end, prior to setting up a meeting with the complainant, the reporters produced a detailed dossier of evidence which formed the basis of its proposal to use subterfuge. It provided a memo which accompanied this document to IPSO; this set out that the purpose of the investigation was “to obtain evidence and ascertain the accuracy of claims that politicians are prepared to abuse their position and/or break the rules in exchange for indirect financial benefits (hospitality/tickets) or paid roles offered by the gambling industry”.

19. The memo went on to specifically discuss the complainant. It claimed that he had: “[R]eceived nearly £10,000 in hospitality from gambling firms since he entered parliament in 2019”; “tabled repeated written parliamentary questions to Public Health England over its assessment of economic harm from problem gambling”; and referred to letters he had written to various ministers and the Gambling Commissioner which appeared to be broadly pro-gambling.

20. This dossier was then discussed at meetings attended by the publication’s lawyers. The proposal detailed the public interest as above and explained why the material it sought – proof that named individuals, including the complainant, were prepared to breach parliamentary rules in pursuit of lobbying interests – could not be obtained any other way. The publication provided a redacted copy of the nine-page investigation proposal to IPSO.

21. The publication said that following this meeting, in October and November 2022, a detailed plan for the subterfuge was drawn up. This included the creation of a fake company and accompanying back story for the undercover journalists. In November there was a further meeting with lawyers and senior editors to again discuss the public interest and justification for going undercover. After this, the fake company's website was built and serviced office addresses and telephone answering services in London and India were secured. At the start of December there was a meeting with the Head of the Editorial Legal department, who had discussed the proposal with the Editor the previous day. It was agreed that the public interest test was met, and approval was given for the undercover meeting to go ahead.

22. Once this approval had been given, in January 2023, the publication said there was a further meeting attended by reporters, lawyers, and senior editors to consider the specifics of what they intended to discuss with the complainant. This included a discussion as to how the questions would be framed to ensure they were not leading questions and there was no inducement to respond in a particular way. The complainant was contacted in February and the meeting which formed the basis of the report took place on 6 March.

23. The publication said that the complainant was secretly recorded because it reasonably believed that this was the only way to capture him speaking freely about what precisely he was prepared to do in the interest of a gambling company. It said that the investigation - including the covert recording of the complainant - was undertaken from the start with a view that it would be published on multiple platforms; therefore, all considerations of the public interest that occurred prior to publication took into account the fact that a video recording may be subsequently published online. It said its assessment of the public interest in the use of subterfuge was conducted and constantly reviewed, with publication in mind.

24. The publication said the public interest in its investigation had been discussed at a further editorial meeting – once the meeting between the complainant and the undercover reporters had taken place – to assess whether publication of the information obtained by subterfuge was justified in the public interest. It said what the complainant said to its reporters during the meeting was consistent with the lines of enquiry being investigated. Therefore, it considered that the same consideration regarding the public interest it had considered prior to publication still applied, as its interaction with the complainant had – in the publication’s view – confirmed the allegations made by its sources. It therefore considered that the public interest outweighed any privacy rights of the complainant with regard to the information which would be disclosed by the article.

25. The publication acknowledged that the information had been obtained in a conversation where the complainant did not realise that he was talking to a journalist. However, in circumstances where an MP is in conversation with a member of the public, as the complainant thought he was, the publication considered his rights to privacy over such a conversation to be negligible.

26. Regarding publication of the video showing the meeting, which had been recorded by a hidden camera, the publication noted that it was a multimedia publisher, producing content on multiple platforms. It said the public interest in exposing the willingness of MPs to breach parliamentary rules in lobbying for the gambling industry was considered sufficient to justify both the use of subterfuge in an investigation and publication of material obtained by subterfuge in the course of that investigation. The publication said extracts from the recording of the interview were published as they confirmed the veracity of what it was reporting and allowed viewers to make their own unmediated assessment of the complainant’s remarks, demeanour and tone in engaging with representatives of a gambling company. And as such, viewers could see the article was not distorting or mischaracterising his conduct in its reporting.

27. The publication said the choice of material published to expose and illustrate the complainant’s conduct was a matter of editorial discretion and consideration was given to the public interest in the material selected for publication. It said there was a meeting after the complainant had been covertly filmed where the transcript was reviewed and the relevant parliamentary rules discussed. It said the reporter discussed the public interest with editors and lawyers and came to the view that as it understood the complainant to be saying that he had broken parliamentary rules before and was seemingly prepared to do so again, there was a clear public interest in publishing a report of the meeting with the complainant. At this meeting, the publication considered whether any parts of the conversation disproved the conclusion which the publication had drawn from the complainant’s comments. The publication provided the reporter’s notes, which it said summarised some of the discussions that took place and set out a rough timeline from the interview through to publication. The publication also highlighted other parts of the conversation between the undercover reporters and the complainant – which it considered showed the complainant in a bad light – which it had decided to remove as it considered them not to be in the public interest to publish.

28. On 14 December the publication shared with IPSO a document from the House of Commons Standards Committee, published following the completion of its inquiry into the conduct of the complainant. Following the inquiry, the Standards Committee had suspended the complainant from Parliament for 35 days. The publication highlighted an excerpt from the inquiry’s outcome, which it believed confirmed the significant public interest in the publication’s investigation and reporting:

“Mr Benton does not specifically raise with us the issue of entrapment, but it is proper to record that the events in question were the result of a ‘sting’ operation by a national newspaper. In a report on a previous case in 2019 our predecessor committee considered the issue of entrapment in relation to Members’ conduct.71 It distinguished between entrapment which ‘fostered’ misconduct and entrapment which ‘exposed’ it. In this case there is nothing to suggest that Mr Benton was being inveigled into doing anything he was reluctant to do, and we do not consider that the entrapment crossed the line into ‘fostering’ impropriety.

In our view Mr Benton breached Paragraph 11 of the Rules and it was an extremely serious breach. The bar for breaching this rule is a high one but Mr Benton significantly exceeded it. The message he gave to his interlocutors at the 7 March meeting was that he was corrupt and ’for sale’, and that so were many other Members of the House. He communicated a toxic message about standards in Parliament. We condemn Mr Benton for his comments which unjustifiably tarnish the reputation of all MPs. This makes it all the more important that Parliament deals decisively with cases like the present one where a Member shows themselves to be unworthy of the position they hold in public life.”

29. In response, the complainant highlighted the following excerpts of the Parliamentary Commissioner for Standards' report:

· “I have found no evidence to support a finding that Mr Benton had breached parliamentary rules outside of this meeting. During the course of my inquiry, I also considered the possibility [that] he had previously breached other rules of the Code. Having considered the matter, I found no evidence to justify formally extending my inquiry into considering whether Mr Benton had previously breached any other rules. “

· “Mr Benton has frequently referred to the fact that this was a “sting” operation […] I have some sympathy with Members who are misled by journalists to create stories. […] Mr Benton was not aware at the interview that the company representatives were undercover reporters. “

· “The meeting [with] the undercover reporters was not in any sense of Mr Benton’s seeking, and there is no evidence that he has ever sought opportunities to make improper financial gains from his position as a Member. “

· “Mr Benton explained that many of the comments he made during the meeting were as a result of the ‘vast majority’ of questions from the company representatives being ‘leading’. I accept that some questions were encouraging Mr Benton in a certain direction.”

· “The rules are clear that Members cannot enter any contractual arrangement which fetters their complete independence in the performance of their parliamentary functions […] a contract was not signed [by Mr Benton…] Mr Benton reiterated numerous times during his interview with me that he did not sign a contract, which I accept. […] I accept that Mr Benton did not sign a contract at or after the meeting and that he did not contact the company following the meeting.”

· “In his interview with me Mr Benton was insistent that he did not agree to work for the company at any point and he told me that this is supported by the fact that he never contacted the company following the interview, and no other steps were taken to progress the matter. […] Mr Benton stated that he threw away the contact details of the firm as soon as he left the meeting as he considered the meeting to have been a waste of his time as it was apparent to him that the role offered would not be compliant with the House’s rules. […]I have no reason to doubt Mr Benton’s evidence that he discarded the company’s details immediately after the meeting. “

30. In response to the publication’s wider position, the complainant denied any wrongdoing and said that he had never made a secret of the fact that he was broadly in favour of the UK’s legal gambling industry. He said the industry provided many jobs in his constituency and across the UK. He also said that tax revenues from the industry provided millions of pounds each year to the exchequer. He said that companies in the sector had said it was difficult to get ministers to understand their concerns about over-regulation in the industry, and that anti-gambling lobby groups appeared to have an easier time in influencing public policy. He also said that companies in all sectors of the UK economy regularly meet with MPs to discuss their industries and most large organisations specifically employ public affairs staff to communicate their wishes and concerns to elected members and officials. The complainant believed the publication picked a “controversial” topic – gambling – and decided to target MPs it thought might be sympathetic to the causes of the industry in the hopes of generating an undercover “scoop”. The complainant said that he only met the fictious company once, signed no contract and took no action on their behalf. He said he did not accept their offer or contact them again.

31. The complainant said that citing unnamed senior political sources was vague and not sufficient justification for the publication to mislead and secretly record him. The complainant questioned what the publication’s evidence was for his supposed prior misconduct which would justify using subterfuge and entrapment to try to expose wrongdoing in the public interest. He said that it was impossible for the publication to have evidence which would justify the tactics used to “engineer entrapment”. He said there was no wrongdoing to expose, so the publication’s entrapment and subterfuge did not expose any wrongdoing but, rather, fostered it. The complainant said he had not initiated the meeting with the false company; it has approached him. He said it was a targeted, pro-active approach to him in his identifiable role as the Chair of the All-Party Parliamentary Group on Betting and Gaming. He said the meeting was led by the organisers of the “sting” and he contributed nothing to it save for attending and engaging in ways which he considered not to be in breach of parliamentary rules.

32. The complainant said he attended the meeting as a private individual, rather than in his capacity as an MP, and that he attended to discuss potential employment opportunities after his career as an MP. He said he was entitled to privacy and the suggestion that an MP’s private conversation is not entitled to privacy on the same basis as anyone else was wrong and opened up a slippery slope into the rights of individuals and overreaching by the press.

33. The complainant said that he did not suggest that he had previously broken parliamentary rules during the meeting, as the publication claimed. He said that he mentioned that on 7 March 2023, he had submitted a question on behalf of a company. He said the claim that this would have broken parliamentary rules was incorrect as companies or organisations can ask MPs to submit parliamentary questions on their behalf, as long as the relevant interests, if appropriate, are declared. He said it is unacceptable and against the rules to take payment for submitting such questions and that he received no payment. He explained that when he offered to table such a question at the meeting with the reporters, he had not mentioned taking any payment for the question and this was within the rules. He further said the Parliamentary Commissioner for Standards had considered whether he had broken any rules previously – such as whether he had submitted parliamentary questions previously on behalf of a company against the existing rules – and the Commissioner had concluded that he had not broken any rules. He said this disproved the publication’s claim that he had previously broken rules and therefore undermined their rationale for proactively targeting him.

34. On 15 January the complainant informed IPSO he was appealing the decision of the Standards Committee. The appeal was not successful.

Relevant Clause Provisions

Clause 10 (Clandestine devices and subterfuge)*

i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held information without consent.

ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

The Public Interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

1. The public interest includes, but is not confined to:

· Detecting or exposing crime, or the threat of crime, or serious impropriety.

· Protecting public health or safety.

· Protecting the public from being misled by an action or statement of an individual or organisation.

· Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.

· Disclosing a miscarriage of justice.

· Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

· Disclosing concealment, or likely concealment, of any of the above.

2. There is a public interest in freedom of expression itself.

3. The regulator will consider the extent to which material is already in the public domain or will become so.

4. Editors invoking the public interest will need to demonstrate that they reasonably believed publication - or journalistic activity taken with a view to publication – would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time.

5. An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16.

Findings of the Committee

35. It was not in dispute that reporters acting on behalf of the publication had engaged in subterfuge and misrepresentation when they had initiated a meeting with the complainant: They had met with him while posing as representatives of a fictional company and filmed the complainant using a hidden camera. The terms of Clause 10 were therefore engaged. The question for the Committee was whether the activity engaged in by the publication and the publication of the information in the article breached Clause 10. The Committee was, therefore, required to consider whether the public interest was served by the subterfuge and by publication of the article and, if so, whether the subterfuge was proportionate to the public interest.

36. Following the backdrop of previous lobbying scandals and concerns that the gambling industry appeared to be gaining more influence in Westminster, the publication had conducted what appeared to be wide-reaching research into the influence the gambling industry had in Westminster. The publication said that, as a result of this research, anonymous sources had named the complainant as an individual who might be willing to breach parliamentary rules on behalf of gambling companies, although they were unable to provide conclusive proof. The publication had, therefore, decided that subterfuge was needed to investigate the claims and to expose any potential breach of parliamentary rules. Given that the investigation had the potential to expose an MP - an individual who represents the interests of the public – breaching parliamentary rules, there was a clear public interest in seeking to verify the claims made by sources. The Public Interest portion of the Editors’ Code explicitly references exposing serious impropriety, and raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public. The Committee considered that the publication had demonstrated that, prior to the meeting with the complainant, the publication had considered which element of the public interest would be met by undertaking the planned subterfuge.

37. The newspaper had detailed the considerations which had taken place between senior editorial staff and the publication’s lawyers at each stage prior to engaging in the subterfuge. It had also shared with IPSO copies of the public interest memo and reporter’s notes. The Committee considered that these documents demonstrated that it had considered whether engaging in subterfuge would serve, and be proportionate to, the public interest it had identified. In addition, given that sources which the publication considered to be reliable had speculated the complainant was prepared to break parliamentary rules,  the Committee was satisfied that the newspaper could not have investigated these claims without engaging in subterfuge; it was reasonable for the newspaper to believe that it would be unable to ascertain any possible willingness to breach parliamentary rules without employing subterfuge and misrepresentation, and that the complainant would be unwilling to discuss the matter with a journalist. The reporters therefore posed as a fictitious gambling company to gather first-hand evidence and recorded the conversations with the complainant in order to provide the newspaper with an accurate account of these conversations and a video which it could publish to support the article’s claims.

38. The Committee considered that the publication had demonstrated that the decision to engage in subterfuge had served the public interest; it next considered whether it had served the public interest in a proportionate way. The Committee noted that the subterfuge had been extensive, however– given that the complainant was an MP – the Committee considered that the publication had demonstrated that the use of undercover reporters was proportionate to the public interest served, as the information could not have been otherwise obtained.

39. The Committee noted that, after the meeting with the complainant, further discussions had taken place with senior editorial staff and lawyers prior to publication of the article. It noted that the undercover meeting had, in the publication’s view, confirmed that the complainant was willing to break parliamentary rules. It had also decided not to publish parts of the conversation which did not relate to the original purpose of its investigation; only matters relating to the considerations set out in its pre-publication memos and dossiers had ultimately been published. This demonstrated that the publication had balanced the research prior to the investigation with the information obtained during the investigation in reaching the decision on whether publishing the information obtained was in the public interest. In reaching this decision, the Committee took into account the complainant’s position that he attended the meeting to discuss potential employment opportunities once he was no longer an MP; that he had not followed up with the fictitious company, signed any contracts with the company or received any payments and therefore, in his view, the meeting did not expose any wrongdoing. The Committee’s role was not to make a finding on the conduct of the complainant and whether he had breached any parliamentary rules, but rather to reach a view as to whether publication of the article could be justified on public interest grounds. The publication had not said that the purpose of its subterfuge was to demonstrate that the complainant would follow up with the company, sign contracts with the company, or to show that he had received payments. Its position was that the investigation was undertaken to gain an insight into what the complainant would say when he was approached by a private company in the gambling sector. The publication, therefore, was not required to demonstrate that the complainant would enter into any formal agreement in order to justify its subterfuge or the publication of the article. The use of undercover reporters to ascertain the complainant’s response to the approach and the publication of the article was justified in the public interest and therefore did not breach the terms of Clause 10.

40. The Committee next considered whether filming the complainant using a hidden camera – and subsequently publishing the footage– breached the terms of the Clause. The Committee noted that the use of such devices is generally prohibited by the Code, but that their use may be justified, provided the tests set out by the Public Interest portion of the Code are met. The Committee was, for the reasons previously explained, satisfied that the publication had demonstrated that there was a public interest served by the investigation itself. However, the publication was required to go beyond this to demonstrate that the use of the hidden camera served the public interest in a proportionate way. The Committee considered that the use of a hidden camera both enabled the publication to keep an accurate record of the interaction – a crucial part of ensuring that matters are correctly reported, and which is of vital importance when reporting on matters in the public interest – and the publication of portions of the video served to illustrate a matter of public interest to the article’s readers.

41. Further, the Committee recognised that other methods of ensuring accuracy such as taking notes, or using a visible recording device, were not practical in the context of an undercover investigation. The Committee further noted that it was only the part of the meeting in which the complainant discussed possible engagement with the company and previous companies which had been published – rather than, for instance, other ministerial business – which indicated that the publication had exercised discretion over the material published and therefore took into account the proportionality of whether it served the public interest. Taking all these factors into consideration, the Committee considered that the use of undercover cameras served the public interest in a proportionate way and there was no breach of Clause 10.

Conclusions

42. The complaint was not upheld.

Remedial action required

43. N/A


Date complaint received: 03/10/2023

Date complaint concluded by IPSO: 22/04/2024