7 September 2015

Carmichael: My lying was political, nothing personal...

The election court has just nipped off for a quick cheese and pickle sandwich and a mug of bovril. Roddy Dunlop QC has completed two parts of his three chapters of legal submissions, arguing that the petition which has been lodged against Alistair Carmichael under section 106 of the Representation of the People Act should be thrown out. As predicted, the former Secretary of State for Scotland's argument falls into three main parts. 

Dunlop's opening gambit focussed on general principles of statutory interpretation. What key ideas should Lord Matthews and Lady Paton keep in mind, when reading and applying the 1983 Act to the case before them? Dunlop submitted that the court must adopt a narrow, or strict, approach to the legislation. Why? Because the consequences are severe. If Carmichael loses, he is not only turfed from office. If the election court finds him personally guilty of an illegal practice under s.106, the procurator fiscal can consider criminal proceedings against him. Admittedly, these are of a fairly minor character. Under the Act, the maximum penalty Carmichael might face is a £5,000 fine.

Nevertheless, Dunlop argued, this means that the judges should proceed carefully, and define the illegal practice the Orkney and Shetland MP is accused of narrowly. Dunlop also delved into the statutory records to ask, why did Westminster adopt this legislation in the first place? What was the "mischief" it was adopted to amend? The QC also took us - unexpectly - into the law of shipping and wrecks for reasons why needn't detain us. His basic point? The election court should play it safe and approach the prospect of unseating any candidate conservatively. Having painted in that conceptual scenery, Dunlop focussed on two main questions this morning, echoing those I flagged up at the weekend but in much greater detail.

1. Does the Act apply to a candidate lying about themselves? And does it apply to false positive statements about a candidate's personal character and conduct?

2.  Were Carmichael's lies personal - or were they political lies falling outside the election-voiding illegal practice defined in the Representation of the People Act? 

On the first point, Dunlop argued that section 106 doesn't extend to statements made by the candidate about their own character at all. Rummaging through the parliamentary record, the QC produced evidence that the Representation of the People Act was primarily aimed at the slandering of others, rather than politicians claiming honour and probity dishonesty. He pointed out that other sections of the Act - setting out other dodgy election practices, explicitly mention lies the candidate might tell about themselves. Section 106 does not. As a consequence, he suggested, given the strict interpretation of the Act which is necessary because of its penal consequences -- the court should hold that s.106 doesn't apply to Carmichael. The legislation's true purpose is to stam out rotters like the former MP for Oldham East, not for rotters like the former Secretary of State for Scotland.  

Dunlop wheeled out his big guns for point two. His argument, essentially, is that all of Carmichael's falsehoods were political rather than personal in character. Remember, under the Representation of the People Act, it is only an illegal act to lie about the "personal character and conduct" of a candidate. Over the years, the courts have developed an important distinction between personal character on one hand, and political or official character on the other. If your lies are political in character rather than personal - like those involving mad old Nicky Fairbairn in his election petition in the 1980s - Carmichael is home and dry. You can lie and lie till the cows come home, without fear of losing your seat.

The reasons for doing so are perfectly understandable.  Courts don't want to become embroiled in the political fray too readily. Democratic processes, messy, bruising, slippery and sometimes half-disclosing, must - to some extent - to be left to their own devices. The people's wisdom must be trusted to sort all this stuff out, to believe and disbelieve, to weigh up and test the claims their candidates make.

Dunlop contends that Carmichael's fabricated innocence of the leak, the document, and how it found its way into the public domain was essentially a political act from top to bottom. Invoking the authority of Woolas, he suggests that conduct must either be classified as being political or personal in nature. At least for the purposes of section 106 of the 1983 Act. It cannot be both. "From the beginning to the end, this matter was political", he argued. As anticipated, this is a "yes but" defence. While it is well grounded in electoral law - it is just the kind of angels on the head of a pin case which tend to disgust ordinary people with lawyers. 

Dunlop also asked -- where does the logic of this case end? It would, he argued, make politicians effectively strapped politicians "to a lie detector and administered a truth serum" during election campaigns. "Is that such a bad thing?" Lord Matthews quipped. And you can see the logic of Roddy Dunlop's argument. If any victorious candidate tells a lie - a lie less egregious than Mr Carmichael's - should that be grounds to void the election? The election court doesn't have any additional discretion to weigh up the importance of a lie. If they find that a candidate has made a false statement under s.106, the election to parliament is void, a three year ban from elective office is applied. Case closed. If a line has to be drawn, where should we draw it? Dunlop's answer - a tough distinction between political and personal lying - saves Mr Carmichael's political career. 

On twitter, Scott Hames offered this droll, snarky summary: "I invite my learned friends to pause before jeopardising our hallowed traditions in political lying." To many, this will sound like a pettifogging argument and an empty, even unethical, distinction. Politically, for Mr Carmichael, it is toxic, radioactive. But to my mind, this is perhaps the strongest aspect of Carmichael's legal case. It appeals to judicial caution, above all, and the traditional distribution of power between our judicial and democratic institutions.  

I expect Dunlop's remaining submissions - pencilled in to take ten minutes this afternoon - will focus on the third question I highlighted.  Whether or not the court decides Carmichael's fibbing about the leak related to his personal or his political or official character - how did it relate to the election in Orkney and Shetland? We await developments, and Jonathan Mitchell QC's opportunity to launch the petitioners counterblast against this morning's accomplished and often persuasive motion to dismiss. 

33 comments :

  1. This comment has been removed by the author.

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  2. Intrigued how obscure past cases are used as part of argument,are hours an hours of researching required?

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    1. Yes. Cases aren't necessarily obscure. Often cases cited in argument once set important precedents, however long ago, and are reasonably well known to lawyers.

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    2. Reasonably well-known -- and often the most recent and relevant statement about how a particular, often obscure, turn of phrase ought to be interpreted. We have some old law, still on the statute book. As today demonstrated.

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  3. How exactly does lying about your own actions not personal statements or statistical information or points of law ect, be political? He abused his office's powers. He then to protect himself from the consequences of the public knowing lied about it in a widely televised interview.
    I still don't get the difference.

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  4. If his lies are "political" yet not "personal" then there is no reason to continue to hold elections at all, because majority-rule referenda and/or the deepest-pocket-wins representation make actual MPs with individual consciences and votes entirely otiose.

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  5. Dunlop appeared to be threatening the judiciary with unlimited swarms of dissatisfied electors if the electoral court reaches the "wrong" decision. Is the Recall of MPs bill never to be enacted then?

    Are the outraged electorate of the UK to continue funding criminals twice over, by paying their wages, expenses, perks and pensions and crowd funding petitioners who want to call them to account?

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  6. I am not a bankrupt, vote for me. Seems to me to be personal speaking. If the candidate is in fact a bankrupt they are seeking to mislead the constituents for electoral advantage. If Roddy Dunlop QC is to be believed this is, and will continue to be, okay.

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  7. "the QC produced evidence that the Representation of the People Act was primarily aimed at the slandering of others, rather than politicians claiming honour and probity dishonesty."

    So accusing the FM of secretly harbouring desires—which she strenuously denies—isn't slander?

    Or does the happy buffer of several civil servants somehow negate this?

    "it is just the kind of angels on the head of a pin case which tend to disgust ordinary people with lawyers."

    Indeed... present company excepted. For now...

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  8. The reasons for doing so are perfectly understandable. Courts don't want to become embroiled in the political fray too readily. Democratic processes, messy, bruising, slippery and sometimes half-disclosing, must - to some extent - to be left to their own devices. The people's wisdom must be trusted to sort all this stuff out, to believe and disbelieve, to weigh up and test the claims their candidates make.

    That is an interesting pont, in that case let's make that for this Act that any judegement made is made by the people via a jury and not Lords sitting in judgement. If the people are good enough to decide the Goverment then they should be good enough to decide if a candidate has lied and therefor gained an advantage.

    Bruce

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  9. As it's turned out, Dunlop's argument that parliament intended s.106 to cover only instances where false defamatory statements were made about a candidate seems to have fallen apart, especially when Mitchell gave evidence about the rejection of a proposed amendment to rephrase false statement of fact to 'false and injurious' in the 1895 Act, an amendment sponsored by the Act's promoter but rejected by parliament, the rejection being replicated in the 1983 Act.

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    1. Must say, I never thought this point - either the "self-talking" as Dunlop insisted on describing it or the defamatory/laudatory distinction were the strongest aspects of Carmichael's defence. Divining statutory intent in ancient statutes is - by today's example - often not a particularly edifying or instructive process to come to a view of meaning, significance and so on.

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  10. Have I got this right?
    His 'defence' is that, ' i'm a lying bastard, but because i'm a politician it's perfectly acceptable to smear an opponent, and lie that you knew anything about it?'
    Or is there more to it?

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  11. " The people's wisdom must be trusted to sort all this stuff out, to believe and disbelieve, to weigh up and test the claims their candidates make."

    I think that this is the essential point. What is so terrifying about many of the people who are trying to force Carmichael out is their assumption that benign legalistic authorities can be naturally or always trusted to make decisions about the "truth" behind an election. These people will be supporting martial law next ie. because the army are not corrupt, lying, expenses-claiming etc

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    1. Though to give the counterpoint -- parliament has adopted these rules and given judges these powers. Normatively, we might have a scrap about whether they ought to have these responsibilities. In the old days, it was a House of Commons responsibility to try these things.

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  12. I watched the end of the Dunlop submission and most of Mitchell's initial points. Dunlop is the Establishment QC of choice and it came across with the painstaking delivery of fine points of Scottish pleading. I found Jonathan Mitchell's argument that the Election Court is a UK and not a Scottish institution very persuasive. Our system of written pleadings and debates on the relevancy is anachronistic and a total puzzle to anyone other than Scots lawyers, very much not an argument for independence. Mitchell is playing this to get a proof, at which Carmichael can be totally skewered and shredded. The advocate's dream, to get a self-confessed liar in the witness box with nowhere to hide!

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  13. If judges rule its political ---no case to answer

    If judges rule its personal--guilty

    am I right or meringue?

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    1. Essentially -- assuming that the petitioners win on the other two points of argument, and the 1983 does extend to candidates telling lies about their own conduct and the election in question concerned Orkney and Shetland.

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  14. Surely the matter can be both political and personal?

    Political failing: This man is known to leak memos
    Personal failing: This man lies about his conduct to the electorate

    No?

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    1. Carmichael's lawyer has an argument on that score. The Woolas judgment held that statements could not be both political and personal. It must be one or the other. You may regard that as an artificial and overstated distinction.

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  15. Did he stand for election as a person or a politician?

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  16. Surely a bit sad that both QCs spent an inordinate amount of their time educating the judges on housekeeping the process and their actual submissions, rather than arguing their cases. One is tending towards the impression that judges in the election court don't have the faintest idea what they are doing, unless somebody else tells them why they are there.

    After watching the entirety of the case, thought both QCs were excellent; Mitchell calmer and more apposite in his submission. As a disinterested observer, it made me wonder about the competency of Scottish judges.

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    1. It is worth remembering: the whole debate is premised on written papers which the judges have had sight of before hand. If you have access to them -- all the better. But certainly for Mr Dunlop's submission, his reasoned case wasn't in the public domain, making it all the harder to keep hold of for the watching punter.

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  17. Question: My understanding was the petitioners were seeking a ruling on whether Carmichael's false statement about his involvement in the leak was a political or personal matter. Today we heard Lord Matthews questioning whether the leak itself was a political or personal matter. There was no complaint about the leak in the petition lodged with the court, so whether the leak itslef is a political or personal matter is surely totally irrelevant?

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    1. But the logic is that under the 1983 Act, false statements must be made "in relation to" personal character and conduct. If the leaking was itself political conduct, you might well ask - wans't lying about it lying about political rather than the personal conduct, struck at by the Act? That's the logic undergirding Lord Matthews' question.

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    2. The leak was political conduct but lying about awareness of the leak was a matter of personal character and that is struck at by the Act.

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  18. Andrew, in passing, may I say how stunning your avatar is,

    wig exquisitely powdered, cravat perfectly tied; as for your buttons—

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  19. I will even concede that lying about the leak was political conduct, but no one will ever convince me that lying itself is not a matter of personal character.

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  20. The only truly political lie I can think of was when Callaghan assures the Irish Government that he was not going to devalue the pound when he intended to within hours. He though this lie would cause less damage than a run on Sterling. He did resign voluntary, not for the devaluation but for deliberately lying to the Irish.

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