23 May 2015

Is Carmichael vulnerable to an election petition?

Under the Representation of the People Act 1983, electors or disappointed candidates can question the result of a parliamentary elections if a candidate or their agents engage in "corrupt or illegal practices". These practices vary from simple bribery, to paying canvassers, treating your electorate to ale and mutton, and the exercise of undue influence.  If the election court is satisfied that the elected candidate or their agents are implicated in "corrupt and illegal" practices during the campaign, the consequences are potentially severe.  If judges find that the new MP is personally guilty of any corrupt or illegal practices, their election is void.

In recent years, judges kicked Phil Woolas out of his Oldham East seat after the 2010 general election for circulating lies about the personal character of his Liberal Democratic opponent. More recently, the election of the Mayor of Tower Hamlets, Lutfur Rahman, was avoided by Richard Mawrey QC for a dizzying array of infractions. In the light of the findings of yesterday's Cabinet Office's enquiry, which unmasked former Secretary of State for Scotland, Alistair Carmichael, as the man behind the Sturgeon memo leaked to the Telegraph -- is there any case to question Mr Carmichael's recent election to the Commons? My immediate response was -- not on your nelly. But taking a more careful look at the legislation, I'm now not so sure.

Under s.106 of the 1983 Act, a person who "makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true." These false statements must have been made (a) "before or during the election" and (b) "for the purpose of affecting the return of any candidate at the election." This provision allows robust political debate on questions of ideology and policy, but if the winning candidate secures election by blackguarding their opponents, it allows the courts to intervene. This is what happened with Phil Woolas in Oldham. 

But read the text of the statute carefully. There is nothing in it suggesting that the rules are limited to making false statements about the personal character or conduct of other candidates. I can't find any historical examples of the law being used to challenge the election of a candidate based on false statements about themselves and their conduct. But in principle, surely fibs about your own behaviour and character are just as capable of misleading the electors and stealing the election than lies and calumnies heaped on your opponents.

Which brings us to the sticky case of Alistair Carmichael, and the memo he instructed his special advisor to leak to Simon Johnson of the Telegraph. In itself, I would suggest, this behaviour doesn't engage the 1983 Act at all. Its target was not Carmichael's SNP opponent in Orkney and Shetland, but Nicola Sturgeon. He may have hoped to destabilise the SNP campaign more generally, to his own benefit. Carmichael now accepts that the contents of the memo did not accurately reflect the First Minister's views -- but the paper itself was clearly authentic, if mistaken. Publishing it did not represent any "false statement of fact in relation to the candidate’s personal character or conduct."

But can the same be said of Carmichael's decision to take to the airwaves and to lie through his teeth about the scope of his own involvement in the document finding its way from the Scotland Office to the public domain? To lie, in short, about his own conduct and character as he sought to persuade his electors to return him to parliament?

When questioned by Channel 4 News, the Liberal Democrat MP claimed that he hadn't heard tell of the document till his phone rang after the Telegraph ran with the story.  He told the media that the responsible person was a civil servant -- a half truth which misrepresented his own agency. He said "these things happen". These are clearly lies by commission and omission. Lies he had the opportunity to correct at any time before the Cabinet Secretary Jeremy Heywood concluded that he was the man behind the curtain. And lies about his own conduct which the voters of Orkney and Shetland may well have found relevant in deciding whether or not to send him back to Westminster on their behalf.

These were, in the language of the 1983 Act, arguably false statements made "for the purpose of affecting the return of any candidate at the election." This looks dangerously close to an "illegal practice" under the 1983 Act which could justify voiding Carmichael's election.

For those hoping to pry him loose, timing is tight. The Representation of the People Act gives electors and disappointed candidates just 21 days to lodge an election petition at the Court of Session, questioning the result of a parliamentary election. Time is a'wasting. Moreover, any petitioners would have to be prepared to foot the bill and take the risk of substantial legal costs on themselves. Legal aid is not available. But if one of Carmichael's opponents, or some of his constituents, wanted to go to law -- it may be worth a punt.


  1. The punt went the way of the euro. But a crowdfunded fiver would be winging its way from me at least.

  2. Even a credible threat of legal action may be enough to dislodge this dishonourable member from his perch. I suppose the support he gets depends on how many of his party members and fellow MPs he's alienated over the years.

  3. Any issues for those of us who might be thinking of fundraising for such a petition on places like Kickstarter?

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  5. Where are Lawyers for Yes when you need them?

  6. I know that this is an article about legality, but it's morally, for me, a non starter. If the constituents of Orkney and Shetland were so stupid as to vote for that numpty and his cackhanded smear campaign, then tough luck! They've made their bed.

    I didn't support Woolas or even Rahman being voted out by judges. It sets a terrifying precedent. In Rahman's case the decision barred him from standing as an MP again, so the voters couldn't even have the final say on whether they agreed with the legal decision.

  7. I'd imagine the fact that this was clearly part of the national campaign, rather then the constituency campaign would be fatal - historically, the reach of RoPA has been limited to the latter - see, e.g., Grieve v Douglas-Home. S106 requires the false statements to be "for the purpose of affecting the return of any candidate at the election".

  8. Even if it means another bloody SNP MP Mr Carmichael should resign. In the immortal words of Chewin' the Fat, he has taken this too far.

    Larry McMurtry comes to mind

    "Ride with an outlaw, die with him," he added. "I admit it's a harsh code. But you rode on the other side long enough to know how it works. I'm sorry you crossed the line, though."
    Jake's momentary optimism had passed, and he felt tired and despairing. He would have liked a good bed in a whorehouse and a nice night's sleep.
    "I never seen no line, Gus," he said. "I was just trying to get to Kansas without getting scalped.”

    - Lonesome Dove

    The line is behind you Mr Carmichael. Do the Right Thing.

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  10. One cynical thought that has occurred to me is that a by-election would not necessarily be in the interests of the SNP.

    It's easy to imagine the Liberals picking a local worthy as their candidate and campaigning on the basis of "send someone to defend local interests, rather than some SNP automaton under orders from Sturgeon, Salmond, etc." Any campaign by the SNP on the basis of Carmichael's falsehoods would be met with the response that Carmichael had "done the honourable thing" and was "no longer on the ballot". The Lib Dems were able to (just about) hold Eastleigh in a by-election even when the (high profile) incumbent had done something far worse than Carmichael.

  11. In any judicial system worthy of the name every attempt should be made to minimise miscarriages of justice.
    The law of perjury exists, as part of that effort, to help ensure that the statements laid before the judge and jury in a trial are, on pain of criminal prosecution, true.

    I would dearly love for something akin to the law of perjury to be extended to elected representatives making any knowingly false statement on any public forum a criminal act. Ideally, enshrined in a written constitution.

    That way, the police could act whenever they believed they had sufficient evidence of breach of that law and not just in particular, tightly specified, scenarios (e.g. about one's direct opponent at election time).

    After all, the electoral process is highly analogous to that of a trial.

    If one envisages a 5 year long 'trial' with a very large 'jury' (the electorate) it does not take a great stretch of imagination to see the parallels. Neither 'jury' can come to a sound decision if the statements they have to go on are untrue.

    And both processes, too, can be seen to be instruments in the service of justice.

    Arguably, the electoral process the more so since it puts in place the legislature which creates the very laws which themselves underpin any system of justice.

    I think a law like that would transform the face of politics in this country, not only in immediately curtailing much of the mendaciousness we have, sadly, come to expect from our current set of politicians, but ultimately, in changing the type of person attracted to politics in the first place.

    It is, of course, for the moment at least, a pipe dream. Turkeys, as they say, do not vote for Christmas, nor Lyre Birds either I expect.

  12. To unknown
    Far be it from me to know what goes on in the collective thinking process of the Libdems, but if I were to attempt a second guess, I think it just as likely, if not more so, that in the event of a re-election, the Libdems would be inclined to pick someone like Danny Alexander or perhaps another 'high profile' recent loss.

    Either way, you may well be correct, the SNP might not win it.

    But that isn't really the point, is it?

    If they still voted in a Libdem, at least then the people there would have spoken in the full knowledge of Carmichael's mendacity.

    If they voted SNP, ditto.

    Either way, democracy and justice would then have been served.

  13. Keeping Carmichael in place may be better anyway as it provides the opportunity to continually point to undesirability of the LibDems or FibDems in the run up to the 2016 elections. The FM can hit Wee Willie every week at FMQ's??

    1. You maybe right but this is about moral integrity which surpasses any future potential political gain which underpins any creditable democracy. Unless one can get rid of this sort of shenanigans for good there will never be any progress.

  14. I agree with you Fourfolksache.

    Also a possible replacing of Alistair Carmichael with Danny Alexander would, I suggest, be a negative for us SNP supporters.

    But sometimes principle transcends such considerations.

  15. The bigger question is not the leak but the innaccurate memo.

    I think it was doctored.

    If you read it closely the first part is neutral, factual, concise, professional in tone. Just what you'd expect from a civil servant.

    The second part is speculative, gossipy, and less concise. This speculates on 'what mischief Alex Salmond will get up to at Westminster' and contains the damaging allegation that Sturgeon secretly prefers a Cameron government, and ends with the faux surprise, that perhaps something was lost in translation...

    But Coffinier confirmed he spoke to the civil servant in English, as did Bermann in her meeting with Sturgeon.

    Carmichael (and Mundell) would have access to these emails. The spad would not. The spad might have leaked the memo, but only after Carmichael had given him it.

    But Carmichael (and possibly Mundell) could have altered a genuine civil servant memo and then passed it on to the spad.

    Both stood to gain from undermining Sturgeon, and both had collaborated in the No campaign and in the Con-Lib coalition.

    Why such a grossly inaccurate memo was produced raises far bigger questions.

    1. Sounds logical Devorgilla but could the Civil Service investigation seriously risk overlooking this? The SNP presumably have access to the full detail of the (£1.4m?) investigation? They showld prolong the debate for as long as possible in any case. I would also like the CS to justify the time taken?

    2. As far as I am aware Heywood was investigating the leak.

      Not how a civil servant came to write such an innaccurate memo.

      That's a different matter entirely.

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    4. If that happened, the question arises as to why the civil servant hasn't landed the perpetrators right in it.

  16. The three constituencies which failed to return an SNP at the GE should all be forced to have another election, and this process should be repeated until they learn to vote SNP

    1. Wouldn't take a lot of doing. The SNP candidate was a very close second in all three constituencies. Scottish voters are learning fast.

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  18. So Carmichael made a false statement about his own conduct with the purpose of affecting his candicacy to be returned as MP for Orkney & Shetland? No wonder they are taking him to court!

  19. Since the accuracy of the leaked memorandum has now been confirmed, it seems likely that Ms Sturgeon was economical with the truth when she denied her remarks. A good thing she wasn't a candidate in the election, then, or she might also face proceedings?

    1. Que? The leaked memo was written by someone who wasn't present during the conversation between Nicola Sturgeon and the French Ambassador. How could it have been an accurate representation of a conversation at which its author wasn't present?