9 September 2015

Carmichael: making avizandum...

‘Nobody goes to the electorate on the platform of “your secrets are not safe with me”’ In court number one in Parliament House yesterday, Jonathan Mitchell QC laid out the case against Alistair Carmichael. During the 2015 General Election campaign, the Secretary of State took to the airwaves to deny any involvement in leaking an ambassadorial memo to The Telegraph, which suggested that Nicola Sturgeon wanted David Cameron to be reinstalled in Downing Street.

I've got a brief comment piece in this morning's National about the second day of legal arguments before Lady Paton and Lord Matthews in the election court in Edinburgh. Yesterday, it was the petitioners' chance to set out their legal stall, arguing that Mr Carmichael's conduct is caught by section 106 of the Representation of the People Act. I considered Roddy Dunlop's submissions on Tuesday

If, however, you really want to understand the nature of the Orkney four's legal argument, you can't do better than read Jonathan Mitchell QC's note of argument for yourself. If you dipped into the televised proceedings, you may have found them technical and difficult to follow. By contrast, the petitioners' note of argument is short, clear, occasionally colourful and logically set out. It relies, essentially, on the argument first aired here back in May. By disclaiming any knowledge of the leak, the former Secretary of State made a false statement about his own "personal character and conduct." 

But where does the conclusion of legal arguments leave us? The election court has "made avizandum," in that magical old Scots law phrase. The judges are considering the legal arguments and will hand down their judgment in due course. We don't have a timetable for this. It almost certainly won't be a matter of days. Weeks, seem more likely. 

Carmichael argues that the petition should be dismissed as irrelevant on three grounds. If he persuades the election court of even one of these, the petitioners lose and the northern isles MP retains his seat. It is unclear how Mr Carmichael's legal team might respond to a finding against them on the law. While there is no appeal from the election court, it is subject to judicial review by the Inner House of the Court of Session. Lady Paton and Lord Matthews may not get the last word. 

But looking back over the last couple of days, what did we learn from the oral hearing? From my perspective at least, relatively little. Reassuringly, my predictions about the key flash points in the case were more or less bang on. Carmichael's  case is that his lies were political, not personal, and accordingly, the court shouldn't interfere. The 1983 Act, he says, is about heaping crooked calumnies on your opponents. It isn't about political candidates speaking with forked tongue about themselves. The petitioners disagree.

But Carmichael's constituents are seeking to establish new principles of law, in a convoluted, tricky and outdated body of legislation. That is no easy thing. What's more, they are inviting the court to do something it generally doesn't care to do - become embroiled in politics. The election court's decision won't just affect Mr Carmichael and his constituents. Lady Paton and Lord Matthews' conclusions will have a significant impact on how campaigns are fought in future. This case sits in a wider context which we can expect the judges to be mindful of in reaching their decision.

So who will win? On balance, it was always more likely than not that Mr Carmichael will survive - but litigation is an unpredictable business. Despite the burning temptation to do so - you can't read a great deal into judicial body language. I've watched counsel being kicked all around the courtroom by judges and winning in the end, and heard submissions received in polite silence, without a breath of dissent from the bench, going down in flames in the final opinion.

The election court won't spring its findings on us. In a case attracting this level of public interest, we'll be given good notice. But for now, the petitioners and Mr Carmichael can only wait. Anxiously wait.

16 comments :

  1. Actually there are two notes of argument for the petitioners; they're both linked to from https://twitter.com/jjmitchell/status/640911273316773889 . I understood Scotcourts are also putting up the whole pleadings and the notes of argument (including respondents ) but so far there's no link for that.

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    1. Thanks, Jonathan. The one I've linked to is the first of them -- which I suspect will be of most interest to folk, trying to follow the meat of the case.

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  2. Jonathan Mitchell QC's note of argument clarifies for me this idea of a "political statement" (a claim about an opponent that is in the political sphere in the sense such as saying that candidate X plans to impoverish the country with tax rises or whatever). It makes it pretty clear that Carmichael's defence is twisting that term out of recognition to claim that his lie was a political statement.

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    1. It is certainly a robust interpretation of this fairly long-standing distinction in electoral law.

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  3. No query or point, just to say thank you for the tweets - I feel I may even understand the affair.

    It occurs to me that if you ever formed a detective agency with James Doleman - he of the much lauded Sheridan trial updates - this formidable duo would have the best partnership name since Dickens - Doleman & Tickle.

    Oh and if you discussed the outcome with Bernard Ponsonby, I imagine it would go like this -
    https://www.youtube.com/watch?v=ED3tfRW8mG8

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    1. Ha! Am pleased to hear that, Edwin. It is important that folk without years of study are able to understand these things. And folk like me should try to lend a hand with that.

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    2. Apols for misspelling your name - can't even blame spellcheck

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    3. Everyone gets one Tickle, then you die.

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  4. If someone makes a claim of innocence I regard that claim as being a statement about that person's personal character, not a statement about their political character, even if the claim is made by a politician and relates to a political act.

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    1. When Mr Carmichael denied awareness of the leak he was denying personal responsibility for the leak, not offering an impersonal political opinion about it.

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  5. Could the statements on this crowdfunding campaign page be defamatory or contempt of court? http://www.gofundme.com/yh3pe7nc

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  6. I would like to add my thanks Andrew. You've done a great job explaining the finer legal points of the case. You have also added the word 'avizandum' to my personal lexicon!

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  7. If I understand it correctly, the inaccurate record of Nicola Sturgeon's meeting is irrelevant to the plaintiff's arguments. Presumably Mr Carmichael did believe the record to be true as it was an official note captured by a civil servant. So the legal argument would still have to hold if he were lying about the leaking of his shopping list at Tesco, for example. As the argument also depends on Mr Carmichael maligning himself - something that people don't normally do - it's getting to be stretch, I think. Particularly in the context of the court being asked to overturn a democratically arrived at election result.

    Of course there's a context to this court case. Lawyers are not good at seeing the bigger picture in my experience. So who knows?

    Personally I hope the case fails. I don't think it's just motivated by outrage over an MP that lied. I believe it also attempts to remove one of the free remaining alternative choices in a situation where 56 out of 59 MPs are from one party. You can argue that's not the problem of the SNP or its supporters and Mr Carmichael should have thought of that before his cackhanded leak. But it's not just about Mr Carmichael. It's about Scotland. When you dominate to the extent the SNP does, that calls for some discretion and self restarting in my view.

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    1. Sorry, I should check my predictive text BEFORE submitting. The court case aims to remove one of the few remaining alternative voices, in my view, and the SNP dominance calls for some self restraint

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  8. Dear FF , I understand your point ... but it's NOT the SNP pursuing the case as you imply. In fact at least one of the 4 is a member of another party. Who knows .. if Carmichael has to step down, The Liberals may well retain the seat .....

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