1 September 2015

Lights, camera, court! The People versus Alistair Carmichael...

When the election court convenes in Edinburgh next Monday, Alistair Carmichael's legal argument is fairly simple. "Sure, I lied. Absolutely, I "misstated my awareness" of the memo and how it was leaked on Channel 4. But that fib wasn't about my personal character or conduct. It was only an ickle political lie. And for that reason, m'lud, my election should be upheld." 

Thanks to STV News, that politically unattractive legal argument will now enjoy a much larger audience than it might have. The broadcaster has secured permission from Lord Carloway - the Lord Justice Clerk - for the whole two days of argument to be broadcast live from court one in Parliament House

Election courts are ordinarily held in the constituency they concern. STV's intervention will afford the people of Orkney and Shetland much-needed access to the debate about their election. The hearings next week are about the law. Nobody is expected to give evidence. The former Secretary of State for Scotland must be hoping and praying the case against him can be kicked without entering the witness box.

"You say you "misstated your awareness" of the leak. What did you mean by that Mr Carmichael?" "In ordinary language, that's lying, isn't it?" "Why did you lie, Mr Carmichael?" "Are you seriously suggesting that, in dishonestly covering up your role in his leak, you gave no thought to the voters of Orkney and Shetland?" "Are you telling this court that your lies were quite disconnected from your own reputation with your electorate in the northern isles?" 

It is always difficult to tell, but I am not convinced that Scotland's only Liberal Democrat MP would cut an unflustered figure on the stand, his career, income and future hanging in the balance. He does not want his cross-examination broadcast on national telly. 

So what are the legal arguments likely to be? I canvassed these to some extent back in May and June, when I suggested that raising an election petition might be possible. But there is no harm in refreshing the issues, now that the issue has bounced back up the legal and political agenda. An election petition is a special procedure for challenging elections under the Representation of the People Act 1983.

The grounds on which elections can be challeged are convoluted and technical -- to such an extent that the Law Commissions across the UK are proposing that the whole area of law be brushed up, simplified and modernised. But this case will be heard under the old legislation. The recent Lutfur Rahman case, where the mayor of Tower Hamlets was turfed out of office by Richard Mawrey QC, gives a flavour of the complexity of this area of law.

The case against Carmichael, however, is much simpler. It focusses on section 106 of the 1983 Act, which empowers the election court to void an election where there have been "false statements as to candidates." There are four main elements to this which the election court will have to consider. First, the basic tests: 
  1. Where a person, before or during an election
  2. for the purpose of affecting the return of any candidate in the election 
  3. makes or publishes any false statement of fact in relationship to a candidate's personal character or conduct they shall be guilty of an illegal practice 
  4. unless they can show that they had "reasonable grounds for believing, and did believe, that statement to be true." 
If an illegal practice can be pinned on Mr Carmichael, his election will be void. Under the Act, a candidate is liable for the lies of their campaigners only to a limited extent.  But if the candidate is the person who has spread "false statements of fact" about a candidate's "personal character or conduct", they are personally liable. It doesn't matter whether or not they were "materially assisted" in their election by their lies. It doesn't matter whether or not the lies made a decisive difference to the result. 

There remains a good deal of confusion out there about what the petitioners are arguing in the Carmichael case. "But Nicola Sturgeon wasn't a candidate in the general election?" "Could you argue that Sturgeon's implied slagging of Ed Miliband knocked the Doncaster MP's chances?" Both of these questions approach the case from the wrong angle. Both Sturgeon and Miliband are irrelevant. The veracity of the leaked memo is also, arguably, irrelevant. The petitioners are arguing that Carmichael lied about his own personal character and conduct in the "Frenchgate" affaire. By dishonestly representing himself a man of honest nature and behaviour, and lying in public about his involvement in the leak affair during the campaign, they contend, he sought to influence his election in Orkney and Shetland.  

On the admitted facts, it is clear (a) Carmichael did lie about his knowledge and involvement in the leaking of the memo (b) he did so during the election campaign and (c) he could not have believed that the statement which he gave to Channel 4, denying any knowledge of how the leak occurred, was true. As a result, the case seems likely to focus on three questions:
  1. Can section 106 be applied to false statements about a candidate's own personal character or conduct? 
  2. Did Carmichael lie "for the purpose of affecting" his own return as MP for Orkney and Shetland? 
  3. And, were the lies he told of a "personal" character? Or did he lie only about his political character and conduct?
To unpack those questions a little further. 

1.  The idea of applying section 106 to lies a candidate may have told about their own character and conduct is novel and debateable. To my knowledge, the Act has never been used in this way before. However, as the judge noted in his Lutfur Rahman decision, the statutory wording:
"... is deliberately wide: 'for the purpose of affecting the return of any candidate at the election.' Although s 106 usually refers to statements made to the detriment of a candidate, the wording is wide enough to encompass a false statement made in favour of a candidate (for example, that he was a substantial philanthropist or had been awarded a medal for bravery) which might affect his electoral chances, albeit positively rather than negatively." [para 104]

Although section 106 has mainly been used to toss out candidates who have slandered their opponents to get elected (for example, Oldham East MP Phil Woolas), as Richard Mawrey QC observes, there is nothing in the language of the statute which excludes the idea of voiding the election of a candidate for fibbing about themselves. But there is at least an argument to be made here. Mawrey's remarks are obiter dicta. If Carmichael's legal team convinces Lady Paton and Lord Matthews that Mawrey was mistaken, the election petition will fall and the petitioners will likely have a hefty legal bill to pay

2.  The election court is also interested in intention. It is important why the lies were told. If Carmichael can convince the two judges that his falsehoods had-hee haw to do with his race in Orkney and Shetland, he's home and dry. His skeleton legal argument, published in June, argued the lies he told Channel 4 were not for the purpose of securing his majority in the northern isles. He didn't elaborate on what they were for. If not for that purpose, then what purpose? 

Carmichael's worry, perhaps, is that intention isn't just a matter of law - but of evidence - and might see the bungling parliamentarian called to testify. And that wouldn't be pretty. But judges might be convinced that Carmichael's misrepresentations of his conduct were of such a general nature, to such a general audience, that they couldn't be tied to the race in the northern isles. This is critical. This is a challenge to the result of the election in Orkney and Shetland only. Not the whole 2015 general election campaign.

3. Under section 106, the court is concerned only with lies about "personal character and conduct." A quotation from a past election petition case in North Louth puts the central point clearly:
"A politician for his public conduct may be criticised, held up to obloquy; for that the statute gives no redress; but when the man beneath the politician has his honour, veracity and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations."

Carmichael's argument - which thanks to STV, will be broadcast nationally - is that his lies "relate solely to his public or official character or conduct." Glibly, he was lying as Secretary of State for Scotland, in his official capacity, rather than lying as plain old candidate Carmichael, humbly beseeching the good folk of Kirkwall and Lerwick for their support. It was, in the time honoured phrase, nothing personal

Is this credible? Heather Green has argued not. Politically, you might struggle to convince many punters that this is an important distinction. But it is quite a thing for a court to void a parliamentary election. None of us should be over-keen to see the judiciary, tossing out political candidates which the people, in their wisdom, decided to support. 

General bribery, intimidation and corruption is one thing. Whatever you think of Mr Carmichael - and in my case, it isn't a great deal - his sin here is arguably of a more modest character. By his actions, he has deprived the people of Orkney and Shetland of an open, honest election campaign. He has deprived them of the opportunity to pass judgment upon him with a clear understanding of his personal nature and behaviour. 

That is certainly enough, more than enough, to justify the anger and disappointment of his electorate. But ought it to be sufficient for a court to expel him from Westminster? You would expect Lady Paton and Lord Matthews to proceed in this case with a degree of circumspection. But parliament made these tough election rules. It gave courts responsibility for adjudicating disputes. MPs invested judges with fearsome powers to cut short their political careers. We shall see.


  1. '[I intend] to give the government an independent and, I hope, an intelligent support, so long as it proceeds on the lines of robust and healthy democracy, but I am also here to oppose all fads and 'isms and namby-pamby interference with the liberty and freedom of our common citizenship.

    Horatio Bottomley, maiden speech, House of Commons, 20 February 1906.

  2. "his sin here is undeniably of a more modest character. By his actions, he has deprived the people of Orkey and Shetland of an open, honest election campaign. He has deprived them of the opportunity to pass judgment upon him with a clear understanding of his personal nature and behaviour."

    I don't believe that 'depriving the people of Ork[n]ey and Shetland [...]an open, honest election campaign' is a lesser sin to bribery or corruption.

    Democracy without informed choice is nullified.

  3. I'm intrigued.
    Under what circumstances can the petitioners or legal arguments by their counsel force Alistair Carmichael to give evidence?

    1. The court may decide that it cannot reach a concrete conclusion on how to apply the law - particularly, I wonder, on the question of intent behind the lie - without hearing from him. We'll see. Perhaps the court may dispose of the petition before it gets that far. Perhaps not.

  4. To me it is material in this case that Carmichaeol maintained the lie until immediately after the election then effectively cocked a snook at the electorate with his admission.

    "None of us should be over-keen to see the judiciary, tossing out political candidates which the people, in their wisdom, decided to support. "

    I agree to an extent but are you not overstating the awesome power of the judiciary in this case? Surely they are merely being asked to nullify the election and remit the case back to the proper arbiters: An electorate in full posession of the facts.

    Carmichael could, conceivably, stand again and be elected if the good folk of Orkney and Shetland deem the admitted lie to be insufficient grounds to change their vote.

    1. Not quite, Roddy. I didn't touch on it in this blog, but under the 1983 Act, if Carmichael is reported personally guilty of an illegal practice under s.106 -- he will be barred from standing for parliament for three years, obviously including any by-election in the northern isles.

  5. It matters little. If turfed from the Lower House, he'll just bounce into the Upper House and continue screwing the electorate...

  6. There are Lies, Damned Lies and Statistics. Mark Twain (ibid)

  7. While I am glad that this important constitutional argument is being broadcast to the Scottish electorate, still feel quite sad that it has only been agreed upon because the election court could not be bothered to haul its sorry arse to Kirkwall, where it should have been heard.

    So, we are only going to be able to access matters of importance to us all if we live in Edinburgh, or if the journey is too long and inconvenient for the court and it is obliged to offer an alternate means for the petitioners to access the proceedings?

    Democracy via the Scottish Judiciary...How astonished am I?

    1. I suppose the counterpoint is that, by dint of being in Edinburgh, more people will be able to see proceedings now, thanks to STV. If it had been keld in Lerwick or Kirkwall, I doubt the rest of us would have been able to rubberneck on Monday morning.

  8. Really? Carmichael has a separate "personal" character that stays at home while his "public" or "official" character goes in to work?!

    Hmmmm...I strongly suspect that like everyone else he actually only has one character and claiming to have two morally and legally separate characters is just a legal ploy on his part.

    Unfortunately courts often rule in favour of such nonsense and hilariously call it "justice".

    1. In fairness -- it is a difficult distinction which the courts have applied in this area for some time. Carmichael hasn't dreamed it up.

    2. In fairness, I didn't suggest Carmichael did dream it up.
      I suggested he was going to use it as a legal ploy to try to have the petition dismissed.

      Any ordinary citizen who tried to argue his alleged wrongdoing was "all his public character's fault" while his wholly innocent private character "was home in bed at the time" would be laughed out of court.

      Regardless, I suspect we are about to witness precisely this non-existent distinction being offered up as a defence and - worse - used as a basis to dismiss the petition.

      I sincerely hope I am wrong.

    3. When a lie is told to damage the character of a political opponent the distinction between public and personal character is material, since falsehoods about a candidate’s personal character are illegal.
      However Carmichael’s falsehood didn't damage his public or personal character, it prevented damage to both his public and personal character at the same time, so the distinction between public and personal character is not material to his case.

    4. The statement doesn't necessarily have to be a damaging one. It could be a false statement of fact intended to enhance the prospects of a candidate being elected. As the court has heard today, if a candidate is described as 'Mother Theresa' this may affect his chances of being elected in a positive way. However, if it is a false statement of fact about his personal character for the purpose of affecting his return, then it doesn't matter whether the false statement is condemnatory or laudatory in aim.

    5. Of course, I didn't say the statement did have to be a damaging one. Quite the reverse.

  9. My understanding of the law is weak, but Carmichael clearly sought to conceal a fact related to his own actions. He did something but wanted the public to believe otherwise. What he feared would be the consequences of them knowing at that moment in time can only be suspected. Again he lied to conceal and avoid the public acting on the true knowledge of his behaviour.
    Why isn't this enough?

    1. Tamas - it may well be enough. But this is an area of law which is complex and not often litigated. We'll have to wait and see.

  10. If every politician who said something before election that was shown to be untrue after election was turfed out of his seat we would have a pretty constant turnover in the House of Commons, in Holyrood, and in pretty much every council chamber in the land.