As The People Versus Carmichael crowdfunder exceeded its £60,000 target, the embattled former Secretary of State for Scotland has lodged his defences today at the Court of Session. The full text of the election petition lodged against the Orkney and Shetland MP under the Representation of the People Act was published last week.
The petitioners' case follows precisely the lines I sketched in my first blog on the topic last month. The central issue is not the leak. It is not Nicola, or the truth of the memo. It is the cover up. Or as Carmichael's lawyers comically put it today, his decision to "misstate his awareness of the leaked memorandum" and to mislead the viewers of Channel 4 and his own constituents about the extent of his own agency in bringing the government paper to the attention of the Telegraph.
The petitioners argue that in denying any involvement in the leak, Carmichael made a false statement about his own personal character or conduct for the purpose of shoring up his tough general election campaign in the northern isles against the SNP. If the petitioners establish that Carmichael's dishonesty is caught by the Act, several gruesome consequences follow, the most obvious of which being a by-election in which the ousted MP cannot stand. Heather Green, a senior lecturer in law up at the University of Aberdeen, has this compelling and clear blog, putting the case for the prosecution, arguing that Carmichael may be vulnerable.
As has been pointed out by Professor Chalmers and others, however, the petitioners' case faces a range of snags and difficulties, hurdles and uncertainties. The 1983 Act has not been construed by the courts in this way before, extending to lies a candidate may spin about their own mischief and their own nature and character. On any view, this is a test case.
This is reflected in the legal papers which have been submitted on his behalf. So what is the essence of Carmichael's defence? He admits he lied. Barring a few cosmetic corrections to the transcripts of his Channel 4 interview, Carmichael largely accepts the facts as narrated by his disgruntled constituents. Interestingly, however, he denies that he authorised or knew that the Liberal Democrats had issued a statement suggesting that "the leak was not from a Liberal Democrat and that is the end of the matter."
Carmichael also claims that Nick Clegg blabbed without reference to him. When the former Deputy Prime Minister told the media that "Alistair Carmichael's been absolutely clear of course he didn't leak them" – Carmichael's legal papers allege that no discussion had taken place between Carmichael and Clegg about the leak before the former Lib Dem leader started fending off the press and publicly exonerating his senior Scottish colleague. This seems like a remarkable proposition.
Overall, however, Carmichael's defences are mainly of a legal rather than a factual character. In his response to the election petition, his lawyers make two main points. Firstly, they argue that the Liberal Democrat's lies were of a political, not a personal character. Under the Representation of the People Act, only lies about a candidate's personal character or conduct justify the court vacating an election result. We saw this in Watkins v Woolas. But there is other case law, limiting that kinds of lies that leave an MP vulnerable to judicial intervention.
Citing a case lodged by Scottish Tory MP Nicholas Fairbairn against the SNP in the 1970s, his lawyers argue that "the statements regarding the leaked memorandum do not relate to" Carmichael at all. But even if the court disagreed with Carmichael on that, they suggest his nationally broadcast falsehoods "do so purely inferentially and relate solely to his public or official character or conduct."
Put most simply, he is arguing that he was lying purely for political reasons as the Secretary of State for Scotland, not as the humble Mr Alistair Carmichael, prospective parliamentary candidate trying to win a tough seat in Orkney and Shetland. Like a capo di tutti capi who puts a bullet in your kidney, he alleges, it was nothing personal. And in a single bound, free. If the courts accept this argument, section 106 of the Representation of the People Act does not apply. No illegal practice. No vacated election. No by-election. And Carmichael stays on. This is a Yes, but defence.
Secondly, we have the geographical issue flagged up by Professor Aileen McHarg under my first blog. Although Carmichael's fictional account of his own conduct was broadcast on national telly, we have to remember that the election being challenged is his return as the MP for Orkney and Shetland. Under the 1983 Act, purpose is important. In order to kick an MP out of their seat, their lies about personal character or conduct must be "for the purpose of affecting the return of any candidate at the election".
Although his point is not explored in much detail in the Liberal MPs skeleton arguments, he suggests that "the statements made by [Carmichael] during the interview with Channel 4 news were not made for the purpose of affecting the return of any candidate at the election." Another Yes, but defence. I may have lied about leaking like a rusty colander, but I did not do so in order to hoodwink the voters of Shetland or Orkney into returning me.
Whether or not you find these arguments convincing, these matters are now commended to the judgement of the Election Court and Lord Eassie and Lady Paton. Whether they are politically defensible is another story. Carmichael may win on the law, but his arguments have potential to do himself remarkable damage in the court of public opinion. Watch this space.