All law students doing the GDL have to demonstrate competence in statute analysis, so this article will be particularly interesting to them.

This article gives an account of the confluence of various statutes in UK law which are likely to affect the shutdown of the #NOTW reported on 7/8 July 2011. In a document entitled, “Ofcom guidance for the public interest test for media mergers”, clear help is given where the Secretary of State for Culture, Media, Olympics and Sport (currently Jeremy Hunt) can intervene in a media merger.

 

Where the Secretary of State intervenes in a media merger, Ofcom has a duty to advise the Secretary of State on whether the merger is in the public interest via the application of the public interest tests under the merger control regime set out in the Enterprise Act 2002 (the Act). The Secretary of State will then decide whether to refer the merger to the Competition Commission.

John Whittingdale MP has represented Maldon in Parliament since 1992. In a comment made by John Whittingdale in the Emergency Debate in the House of Commons on Wednesday 6 July 2011, OFCOM can get involved at any time. On 14 July 2005, he became the Chairman of the Culture, Media and Sport Select Committee. In this role he led the Committee’s 2009/2010 investigation into libel and privacy issues, including the News of the World phone hacking affair. The precise clause in the Enterprise Act is as follows,

42

Intervention by Secretary of State in certain public interest cases

(1) Subsection (2) applies where—

(a) the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a relevant merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;

(b) no reference under section 22 or 33 has been made in relation to the relevant merger situation concerned;

(c) no decision has been made not to make such a reference (other than a decision made by virtue of subsection (2)(b) of section 33 or a decision to accept undertakings under section 73 instead of making such a reference); and

(d) no reference is prevented from being made under section 22 or 33 by virtue of—

(i) section 22(3)(a) or (e) or (as the case may be) 33(3)(a) or (e); or

(ii) Community law or anything done under or in accordance with it.

(2) The Secretary of State may give a notice to the OFT (in this Part “an intervention notice”) if he believes that it is or may be the case that one or more than one public interest consideration is relevant to a consideration of the relevant merger situation concerned.

The Regulation of Investigatory Powers Act 2003 could also be helpful in establishing the criminal liability of directors, if RIPA does indeed apply to the specific issue of phone hacking in the #NOTW affair.

79 Criminal liability of directors etc.

(1) Where an offence under any provision of this Act other than a provision of Part III is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) any person who was purporting to act in any such capacity, he (as well as the body corporate) shall be guilty of that offence and liable to be proceeded against and punished accordingly.

(2) Where an offence under any provision of this Act other than a provision of Part III—

(a) is committed by a Scottish firm, and

(b) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner of the firm, he (as well as the firm) shall be guilty of that offence and liable to be proceeded against and punished accordingly.

(3) In this section “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

The issue of phone hacking could be a possible avenue for a legitimate public enquiry. The involvement of the individuals within the Police, concerning the allegations of acquisition of confidential data, may be further investigated through analysis of Prevention of Corruption Act 1916. The Inquiries Act 2005 may then kick in at this point, which gives guidance on the power to establish an inquiry.

1 Power to establish inquiry

(1) A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that—

(a) particular events have caused, or are capable of causing, public concern, or

(b) there is public concern that particular events may have occurred.

(2) In this Act “Minister” means—

(a) a United Kingdom Minister

(b) the Scottish Ministers;

(c) a Northern Ireland Minister;

and references to a Minister also include references to the National Assembly for Wales.

(3) References in this Act to an inquiry, except where the context requires otherwise, are to an inquiry under this Act.

According to s. 3, the inquiry panel, an inquiry is to be undertaken either— (a) by a chairman alone, or (b) by a chairman with one or more other members.  According to a recent report in the Telegraph, there is an increasing sentiment that this panel should be ‘judge-led’.