Rt Hon Lord Lilley

    Image by: Oxfordmale, CC BY-SA 4.0, via Wikimedia Commons

    Dear Ms White,

    I am writing to refer to you breaches of the Ofcom code by Vera Productions and Channel 4 in their Dispatches programme “Politicians for Hire: Cashing in on Brexit“.

    The programme was due for transmission on Monday 22nd January and to be trailed in the Sunday Times on Sunday 21st January. In the event, both programme and trailer were pulled at the last minute but some of its contents, its derogatory title, its pejorative nature, and the inclusion of my name have been made public. Channel 4 still threaten to broadcast at a later date. I have not sought to prevent its broadcast, only to exclude reference to me which in the context is defamatory and without justification.

    The makers of the programme have infringed Ofcom’s Broadcasting Code in several respects.

    1. Unwarranted use of surreptitious filming. The Code says “Surreptitious filming or recording should only be used where it is warranted. Normally, it will only be warranted if there is prima facie evidence of a story in the public interest and there are reasonable grounds to suspect that further material evidence could be obtained;“.

    I have asked the makers of the programme to identify to me the prima facie evidence that they say they had to justify surreptitious filming but to date they have refused to do so. As you will know the code also provides that the use of surreptitious filming could only be justified if it is the only way the relevant material could be obtained. As I explain below that is not the case.

    In this case there was no prima facie evidence that I was doing or willing to do anything wrong. To my knowledge there have been no suggestions, allegations or rumours of impropriety in respect of my business interests or my interactions with ministers. I always adhere to Nolan principles. Nor did the programme elicit “further material evidence” of me doing, or being willing to do, wrong or breach Parliamentary rules.

    There was not even any prima facie evidence that I was a “politician for hire” hoping to “cash in on Brexit” – the pejorative title of the programme. I have written a number of unsolicited articles about Brexit for newspapers for none of which did I seek or receive payment. The exception, paradoxically, was the Sunday Times which commissioned and paid me for an article, though I had not sought a fee. Since leaving Parliament (or even before) I have not been “offering” my services “for hire” as a consultant on Brexit or anything else. I have responded to one or two approaches from head hunters which related to my experience in the Energy sector (as did the original invitation from Tianfen), not to Brexit.

    In any case, the Code says: “Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted.” Which it defines: “In this section “warranted” has a particular meaning. It means that where broadcasters wish to justify an infringement of privacy as warranted, they should be able to demonstrate why in the particular circumstances of the case, it is warranted. If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy. Examples of public interest would include revealing or detecting crime, protecting public health or safety, exposing misleading claims made by individuals or organisations or disclosing incompetence that affects the public.”

    By no stretch of the imagination can being willing to discuss approaches from an apparently bona fide company offering legitimate employment meet this definition of “warranted“. It raises no issues of “public interest” let alone anything remotely comparable to “revealing crime, protecting public health or safety, exposing misleading claims … or disclosing incompetence that effects the public“. If Channel 4 claim that my being willing to discuss advising a company wishing to invest in the UK is comparable to any of those things, that in itself would be defamatory.

    The Code also says: “The means of obtaining material must be proportionate in all the circumstances and in particular to the subject matter of the programme.” If they wanted to know whether I am willing to consider additional legitimate employment – either advising on Energy or the world post-Brexit – now I am no longer an MP, they could simply have asked me without resorting to deception. If they wanted to investigate whether any conflicts of interest might arise as a result of an MP’s discussions with ministers they could have asked me to discuss that openly. I have a reputation for answering questions frankly on air. By resorting to subterfuge, they imply there is a scandal where none exists.

    Even had there been ‘prima facie’ reasons for resorting to surreptitious filming, the code says: “Material gained by surreptitious filming and recording should only be broadcast when it is warranted.” Nothing in the film shows any wrong doing nor anything relating to me that would warrant its broadcast.

    2. Unjust and unfair treatment by withholding the transcript. This was an attempt at entrapment which failed. They did not elicit any willingness to abuse my residual political connections in respect of each of which I made clear that I would not divulge any confidential or secret information. Indeed, Vera have admitted in writing that I repeatedly made it “crystal clear” that I would not betray confidential information. I also made it clear that I would not lobby ministers or officials nor arrange meetings with them.

    I did not agree to join the Advisory Board let alone agree a fee (not that either would be wrong). So, the programme’s pejorative title “cashing in on Brexit” does not apply to me.

    However, having invested time and money obtaining this film they were determined to create a story which had to show me in as bad a light as they can. They clearly propose to proceed by innuendo, slur, guilt by association, selective editing and omitting all material in the interview which would refute the notion that I am a greedy politician out to “boost my income“.

    Hence their refusal to let me see the transcript of the interview – which meant (and means) I have not had a fair opportunity to respond to their accusations. They refuse to give any reason for withholding it. The only conceivable reason for doing so is to prevent me rebutting their intended slurs.

    In their attempt to find a “public interest” justification for broadcasting they concocted the claim that: since I discuss Brexit with ministers that must give me confidential information; and though they accept that I would not divulge confidential information I might pass on “privileged” information – which they refuse to define or provide any evidence that I would use. I have repeatedly asked them to explain and give examples of information that they consider “privileged” which would not be “confidential” (with examples) and the basis upon which they claim I would use such – but they have refused to do so.  If there is a genuine point of public interest in that claim I would be happy to discuss it with them on air as in my letter to Atkinson of 19th Jan. There would be no need for them to use their surreptitious interview in which this issue was not raised.

    That their intention was to create a defamatory impression was effectively confirmed when the planned Dispatches broadcast and associated article in the Sunday Times were dropped. They dropped it after my lawyers challenged them to provide evidence from the transcript that would justify their accusations. I have not sought to prevent the programme being broadcast – just that they should drop any reference to me in what is obviously a defamatory context.

    I reluctantly involved lawyers only hours before the programme deadline because I had, naively, assumed that Vera/Channel 4 would give me the transcript enabling me to clear my name and respond fully to the issues that they raised.

    The Code requires that: “Broadcasters must avoid unjust or unfair treatment of individuals .. in programmes“. The programme makers have made the complete transcript available to Sir Alistair Graham whom they are using as prosecutor, judge and jury against me. It is palpably “unjust and unfair” to allow the prosecutor, judge and jury to see the transcript but refuse to let me see it.

    There is currently great public and media concern about the withholding of evidence from defendants in Court trials. Surely it is also unjust deliberately to withhold evidence in trial by media?

    I strongly urge you to insist that the programme makers release the transcript to me to comply with the requirement to be “fair and just” before the programme is re-scheduled, if they intend to broadcast.

    The interview took place nearly three months ago. I cannot be expected to remember verbatim what I said on 1st November 2017.

    But I am confident that the transcript will show (in addition to what has been admitted – that I made clear that I would not disclose confidential information), for example, that I made it clear that:

    Money is not my main concern: I would only consider a role which was worthwhile and interesting. (Most people would agree that helping a business bring investment, and jobs, to the UK is worthwhile).

    I refused to lobby or arrange access to ministers.

    Nor would I contact civil servants and told them how to approach civil servants direct rather than use paid advisers.

    That if I go into the Lords, as by convention former cabinet ministers do, I would be unable to attend Board meetings while Parliament was sitting, reducing my eligibility for the Board.

    I did not agree to join the Board let alone agree any fee.

    However, it is clear that Vera intended to ignore these points.

    3. Use of Sir Alistair Graham to make unfounded accusations. The Code says: “Broadcasters should not give undue prominence to the views and opinions of particular persons”. It defines this: “Undue prominence is a significant imbalance of views aired within coverage of matters.” Yet the programme makers intend to use Sir Alistair Graham to add spurious authority based on his past role as Chairman of the Committee of Standards in Public Life.

    I presume that when he held that role he acted with complete impartiality and judicial balance – listening to both sides; separating the roles of prosecutor and judge; allowing the accused access to evidence; applying the rules as they were not as he might wish them to be. However, since leaving that post he has behaved quite differently. He is free to do so. But it is wrong to present him as a balanced, judicious person and give his views “undue prominence“.

    He is not politically impartial. His life has been largely in the Labour and Trades Union movement – yet he is asked to cast aspersions on three Conservative politicians without disclosing his allegiance.

    He now uses the prestige of his former office to behave in a way that would have been wholly improper when he held it. He reaches judgements without listening to the defence.  (I was presented with his views in the initial letter sent by the production company without any response from myself). He acts as both prosecutor and judge. For instance, he reached the outrageous verdict that I “could make information available to a private company at a time when the government has had a real issue about transparency over their ideas on Brexit issues and they say they can’t make that available because it would undermine their negotiating position.”

    I possess no such information. If I did I wouldn’t make it available to anyone. As Vera admit, the transcript – which Sir Alistair has seen, but ignores – shows that I repeatedly made it crystal clear that I would not reveal any secret or confidential information. It is absurd (and highly defamatory) to suggest I would “undermine the government’s negotiating position“.

    Sir Alistair frequently appears on programmes to castigate politicians and invariably finding them guilty. He believes no MP should accept work outside Parliament. He is entitled to that view but not to imply that Parliamentary rules or Nolan principles forbid it. I am not sure if he realises that I am no longer an MP but his general animus against outside employment seems to apply to me.

    It is inconsistent with the Code to give his views such prominence without someone giving a balancing view.

    To the extent that it is your position that you cannot intervene before a programme is broadcast I would ask that you keep this letter on file so you have a record of my serious concerns and ill treatment before such.

    Yours sincerely

    The Rt Hon Peter Lilley