The Justice Game

by Geoffrey Robertson

  I watched it take shape with the emotion of a medical scientist diagnosing a fatal disease from a stool sample. It showed Ian Greer at the centre of a spider’s web of influence – peddling in Westminster. When hired by Al Fayed, he immediately called on Hamilton, who tabled in Parliament some questions critical of Al Fayed’s enemy, Tiny Rowland. These were reported, under privilege, in the press, in stories that were pro-Fayed and anti-Lonrho. The proprietor of Harrods was mightily impressed: Greer was the wizard in the Parliamentary court, who could conjure up questions and (subsequently) early-day motions and adjournment debates and meetings with powerful DTI ministers. Greer organised his MPs like an army. The snipers – Tim Smith, then Sir Andrew Bowden and Neil Hamilton – at the front, firing questions. The captain – Sir Michael Grylls – encouraging them from behind the lines. The general – Sir Peter Hordern – parading these troops as a show of force to the DTI and its ministers. These moves were masterminded by Greer, under the regimental colours of the Tory back-bench Trade and Industry Committee.

  These mercenaries did not disclose the fact that they were being rewarded. (As Tim Smith later admitted to Downey, ‘his representations might be more effective if they were thought to come from the Conservative Party back-bench Tory Trade and Industry Committee rather than from a paid lobbyist for Mr Al Fayed’.) The exception was Hordern, whose role was to be the upfront man, always scrupulously declaring his own retainers with the House of Fraser as he introduced the others as officers of the Trade and Industry Committee. (He did not tell anyone how much he was being paid by Harrods: a whacking £24,000 a year.) Hordern represented the old-fashioned, genteel form of lobbying, taking money for services rendered by standing order and declaring it on the record. The new breed of Thatcherites wanted their ‘commissions’ in ways which need not be declared on the Register of Members’ Interests.

  It was an unattractive game even when played by gentlemen – the knights from the shires like Grylls and Hordern and Bowden, honoured for ‘services to politics’ which were sometimes difficult to distinguish from services to themselves. In their pinstripe suits with dandruffed collars, they had swarmed over the fabulous Egyptian like flies on a pile of ordure. These honourable members, whose constituencies were hundreds of miles from Knightsbridge, became the Members for Harrods: they worked to stave off the DTI inquiry into Al Fayed’s honesty for a year or so; they had one of its inspectors removed; they persuaded the minister not to refer the House of Fraser take-over to the Monopolies and Mergers Commission; and they managed to delay the evil day of publication of the damaging DTI Report for about two years. All this by purporting to represent back-bench interests in Britain’s trade and industry, to which Al Fayed contributed rather insignificantly. It was Greer’s genius to make Al Fayed matter to ministers and MPs who should not have cared less about him. His enemy, Tiny Rowland, paid the Tory MP Edward du Cann £400,000 each year to run the Lonrho counter-attacks. Rowland was aptly described by Edward Heath as ‘the unacceptable face of capitalism’ while Al Fayed had been denounced by the DTI inspectors. These MPs involved themselves in a billionaires’ grudge match, of no conceivable interest to their constituents or to the public weal. The arteries to the heart of the body politic were clogged with grease and it was time for open-court surgery.

  In the last week before the trial was due to commence, the case somehow became too much for the plaintiffs to bear. Telephone records from Harrods purported to show that Hamilton had called up to request an ‘envelope’ – should it be couriered to him in Cheshire? There were several intriguing messages from Greer: ‘remind Mohammed that he still owes £5,000 for the last three months’. What could this mean? Greer’s retainer was paid by standing order, and these messages made no sense unless they referred to some undisclosed arrangement with Al Fayed. The secretaries who had taken the messages, Alison and Iris, could not have been ignorant of what was going on, but our problem was that Al Fayed had always sought to protect them from publicity and harassment. In the final week he was prevailed upon to allow them to be interviewed.

  Meanwhile, the law had levers that could be pulled in the interests of justice. The civil courts have a process called ‘discovery’ by which each party is obliged to disclose all documents in their possession which are relevant to an issue in the case. Hamilton had disclosed virtually nothing; he had lost all his Al Fayed files and his relevant diaries when he had moved ministerial offices in 1993. Greer had disclosed most of the letters written in the course of the Harrods campaign, but we knew there must be important documents about his financial arrangements with Hamilton and other MPs. We applied to a High Court judge, ten days before the trial was due to start, to require him to disgorge this material, and to obtain an order that Hamilton should disclose his tax returns. Both plaintiffs undertook to comply.

  The information in Greer’s accounts was sensational. It transpired that he had been paying Hamilton in ways which the MP had never disclosed to Parliament. Christine went shopping for garden furniture on Greer’s account at Peter Jones. Greer paid for summer travels in 1988 to New Orleans and Aspen, Colorado. The MP purchased a picture at a gallery in Cornwall and sent the bill to the lobbyist. These benefits were part of £10,000 worth of ‘commissions’ paid by Greer in return for Hamilton introducing him to new clients. But one of these clients – the National Nuclear Corporation – was his constituent. Hamilton was paid from the public purse to advise constituents, and his action in pocketing a secret profit from this activity was in my opinion a breach of his public trust. The generous payment of £12,000 for introducing another client – US Tobacco – he shared with his old Monday Club buddy Michael Brown MP. Neither disclosed it, as Parliamentary rules required, on the Register of Members’ Interests, nor to the taxman nor to the ministers they lobbied in the cause of allowing children to buy ‘Skoal Bandits’, a nicotine chewing gum which causes cancer of the mouth. They were not the only MPs in receipt of payments from the lobbyist: tens of thousands of pounds went to Sir Michael Grylls, under the all-purpose rubric of ‘commissions’. The amount of £5,319 was paid into the ‘Andrew Bowden Fighting Fund’, shortly after Bowden had put down four questions on Al Fayed’s behalf, drafted for him by Greer. The plaintiffs were claiming that the ‘sting’ of the Guardian’s libel was this quotation from Al Fayed: ‘Mr Greer said you need to rent an MP like you need to rent a London taxi’. If that defamed anyone it defamed London taxi-drivers, who at least work for a fixed fare and do not stop for a free week at the Ritz.

  We were compiling a jury album – Hamilton’s Travels. It started with photographs of Room 356 at the Paris Ritz; then Ballnagown, Fayed’s Scottish castle where he had holidayed; then the sumptuous hotels where he stayed in New York and even London at the expense of US Tobacco. We would ask for the jury to be taken on what lawyers term ‘a view’ in order to appreciate the evidence – a Eurostar trip to Paris, to see with their own eyes the opulence of the Ritz and L’Espadon restaurant. The judge would probably demur – ‘surely your photographs are enough to make the point’ – but other evidence could be admitted at the trial. In the witness box, Al Fayed would produce £2,500 in crisp banknotes, and demonstrate how he would place them in a brown envelope. The envelope would then be handed to the judge, made an exhibit and passed around from juror to juror, to give them a feel for the sensation Fayed alleged that Tory MPs craved.

  It would, under the onerous libel rules, be for the Guardian to satisfy the jury that Al Fayed was telling the truth. They would hear the cross-examination of Hamilton, and his counsel’s challenges to Al Fayed. The defence case would no longer hinge on his word alone. A few days before the trial three witnesses came forward to support Al Fayed. There was Alison Bozak, now a trainee solicitor with a city firm, who said she had stuffed cash in envelopes for Hamilton and Greer. There was Iris Bond, who recalled couriering the cash and preparing envelopes for collection. Then there was a security man at Al Fayed’s block of flats in Park Lane, who said he had handed the plaintiffs
‘brown envelopes’ on several occasions. Were these new witnesses all prepared to lie under oath, or would their evidence be compelling? Hamilton had brought this case so that a jury would decide, one way or the other.

  There was another surprise in store. On the Thursday before the trial a judge ordered the government to hand over documents relevant to Hamilton’s resignation. Memories of Matrix Churchill flooded back, as I saw the familiar DTI letterhead, with ‘secret’ stamped on the top and hand-written notes about ‘presentational difficulties’ in the margins. I pored over these documents, reading beneath the redactions and decoding the Whitehall euphemisms. The documents showed the government to be more concerned to avoid embarrassment than to conduct a proper investigation into Al Fayed’s allegations. The whips had manipulated the Tory majority on the Privileges Committee, and self-regulation had taken its gentlemanly course. The only minister who emerged with credit was (as in Matrix Churchill) Michael Heseltine. He had demanded Hamilton’s assurance that he had never had any financial relationship with Greer. Hamilton gave it, and Sir Robin Butler minuted that ‘Mr Hamilton has given him (Heseltine) an absolute assurance that he had no financial relationship with Mr Greer.’ What stood out from this minute – assuming it was accurate – was one unforgettable fact: Neil Hamilton had misled Michael Heseltine, and through him the Prime Minister and the Cabinet Secretary. Might it not seem possible to a jury, if it accepted that he deliberately misled the President of the Board of Trade, that he was prepared to mislead them?

  The Guardian’s legal team had little sleep that night: the next day, Friday, we ran on adrenalin. We had to put all the last-minute evidence into fresh pleadings, and prepare a bundle of documents for the trial the following Tuesday. By lunchtime we were ready to call our opposite numbers: curiously, they were unavailable to take our calls. What was happening? I felt a personal concern for Dick Ferguson, the plaintiff’s QC, who would need to see the fresh evidence as soon as possible, so I called him at his home at 5.30 p.m. Before I could utter more than a pleasantry he asked whether my clients would agree to ‘walk away’ from the case. That meant settlement: if the plaintiffs withdrew, would the Guardian refrain from demanding any legal costs?

  This was the action that could never settle: the parties had been baying at each other for two years. Only a fortnight ago Hamilton had issued a press release promising to prove the Guardian guilty of telling ‘sensationalist lies’. But when the word ‘settlement’ is spoken at this point in libel cases it almost always follows. In that part of a barrister’s brain which tingles at the prospect of a cause célèbre I felt the beginnings of a dull ache, the onset of ‘courtus interruptus’. But my duty was to obtain victory without firing a shot, so I told Dick I would consult with my client and return him an answer the following afternoon. The Guardian’s response was that it could not stop the plaintiffs from withdrawing, but was not prepared to induce them to do so by paying any of their costs, or promising not to republish their allegations. It would want a significant contribution to its own costs – my brief fee of £30,000 would be appropriate – to emphasise its victory. Dick (whose fee was the same) said he would relay it – he was no longer instructed to act at the trial because of the conflict which had arisen between the plaintiffs. This was not some ploy to postpone the case until after the election? No, Dick assured me, and I believed him: it is one of the great advantages of the Bar that counsel never mislead each other. (They leave that sort of thing to solicitors).

  Quite why the plaintiffs were self-destructing I could not tell. The discovery of the misleading of Heseltine had damaged Hamilton, but not Greer, who had most to lose from a withdrawal (his claim for £10 million for a start). What catastrophe had befallen them so suddenly? Greer maintains that he was advised his chances had slumped to zero because we discovered he had misled a Select Committee about the number of his secret ‘commission’ payments to Michael Grylls – he owned up to three, and we had found at least six in his books. Hamilton was furious with Greer, but then Greer hit the roof when he discovered that his co-plaintiff had apparently lied to Heseltine. At a conference on the Friday with their barristers and solicitor, the Hamiltons exploded with such disgust over Greer’s ‘culpability’ that the lawyers found it professionally impossible to represent both – or either – of these clients, and so had to withdraw from the case. The tactical course for both plaintiffs, since a genuine conflict had erupted, was to obtain an adjournment (which the judge would have been obliged to grant) to instruct fresh solicitors and counsel or at least to take stock of their position. Once this long case had slipped from its October mooring in the busy court list it could not have been brought back until mid-1997, after an election at which Hamilton would certainly have been returned as MP for Tatton. The case would have stayed sub judice: there would have been no ‘sleaze’ headlines, no Downey Investigation, no Martin Bell (the BBC war reporter who won at Tatton) – and a lot more Tory MPs would have been elected. It remains one of the minor ‘what ifs’ of history: ‘What if Hamilton and Greer had simply asked for their case to be adjourned?’ (It need never have been brought again to trial, had Hamilton wished to avoid the expense of further action.) From their own accounts, it appears the plaintiffs fell out so badly that lawyers could not put them together again.

  The fear in the Guardian camp over that dramatic weekend was that the plaintiffs would simply kick the case into touch by applying for an adjournment. Alan Rusbridger was champing at the bit: he wanted the trial to begin immediately, so all the evidence would emerge in open court. I had to tell him that since the plaintiffs’ solicitors and counsel had withdrawn, the court would be certain to grant them a long adjournment to obtain new lawyers, so the trial would in all probability not begin until after the election. He winced. ‘That would be the worst possible scenario.’ Could it be prevented, perhaps, by offering some inducement: if they withdrew now rather than adjourned, the newspaper would not insist on claiming the costs run up by Geraldine’s firm, or even my brief fee. Geraldine invited the plaintiffs to ‘walk away’ by paying the brief of my junior (Heather Rogers) which was £15,000. (This was bluff. Although it wanted some costs as a signal that the Guardian had won, what the paper was really playing for now was the right to publish the evidence it had prepared.) The plaintiffs’ lawyers made desperate efforts to have Geraldine agree to lessen their clients’ humiliation with apologies or corrections or statements in open court, but to no avail. By Monday afternoon they had capitulated, and agreed to signal the Guardian’s victory by publicly paying £15,000, the cost of spoiling Heather Roger’s summer holiday.

  I telephoned the judge to tell him that his trial for the morrow had been cancelled, and set out for the Guardian. It was an unprecedented night in the newsroom. Alan had chosen for the front page a large picture of Hamilton, under the headline ‘A Liar and a Cheat’. The next eight pages summarised the evidence that the Guardian would have produced had the case gone ahead. This was a one-sided substitute for a trial, but the plaintiffs had brought it on themselves. They could have postponed the match, and they might actually have done better had they eventually played it. Instead, they had cut their own throats during the warm-up. But to everyone’s amazement both Neil and Christine turned up in court the next day for the formal withdrawal, for all the world as if they had won. I heard groans when the judge described the Guardian as ‘a responsible newspaper’ which had ‘published matters of constitutional and national importance’. Afterwards the MP posed in front of the Gothic towers of the High Court, his chin jutted out like one of its flying buttresses. Someone suggested a picture caption: ‘You can’t keep a bad man down’. The editor rejected it: ‘The Guardian is not a tabloid newspaper.’

  Britain is a nation beguiled by its own history. It clings to the illusion that it has the least corrupt Parliament in the world. As the Daily Telegraph put it, after the Hamilton saga: ‘Anybody who knows anything about national politics in this country knows that, by and large, they are remarkably unco
rrupt’. That depends on what you mean by corruption. Thirty per cent of MPs in the last Parliament accepted payment in return for ‘parliamentary services’: they described them as ‘consultancy fees’, but they were inducements to ask questions and meet ministers, not on behalf of constituents or on matters of national interest, but for the private interests which paid them. Over two-thirds – 450 MPs – were moonlighting with second jobs – as barristers, company directors, farmers, solicitors, consultants and even, incredibly, as parliamentary lobbyists. This, they said, gave them experience of real life, although one would hope they have that before they are elected. What it gave them experience of was real money, on top of a parliamentary salary which was more than three times the average wage, plus perquisites of a kind which most citizens can only dream about (free first-class travel, secretarial services, overseas trips, an additional £11,000 for having a constituency outside London). What emerged from Greer’s aborted libel action was only a small part of one man’s operation, a single case study made possible by the documents obtained through discovery. How many dozens of AI Fayed-type operations had gone on every year, through the agency of Parliamentary lobbyists? How many other clients were advised ‘You need to rent an MP like you rent a London taxi’ – and how often were lobbyists paid to do exactly that?

  A committee chaired by Lord Nolan was set up as a result of the Guardian’s revelations, but the minds and bottoms of its members were firmly set in the green leather armchairs of the Gentlemen’s Club. It recommended that MPs should continue to regulate themselves, for no better reason than that Parliament has always regulated itself. The addition of an investigator like Sir Gordon Downey to report to the Privileges Committee is not sufficient: he would not have reported into the ‘cash for questions’ case at all had the Guardian not agreed, after the collapse of the trial, to make formal complaints against the MPs and to supply most of Downey’s evidence. Other advanced democracies have rejected the idea that MPs can be relied on to regulate themselves. They have established independent commissions, headed by a judge and staffed by skilled investigators, with a remit to investigate corruption allegations made against any public officials, from ministers and MPs to policemen and bureaucrats. Hearings are in public; witnesses who lie face prosecution for perjury, and high officials are not allowed the luxury of the privilege against self-incrimination. With an investigative machine of this calibre, errant MPs as well as ministers (over whom neither the Privileges Committee nor anyone else has jurisdiction) are much more likely to be detected: if found accepting bribes they are handed over for prosecution in the courts. The constitutional lesson of Neil Hamilton’s case is that self-regulation of Parliament is as unsatisfactory as self-regulation of the press.