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.