In Parliament House in Edinburgh today, Lady Paton and Lord Matthews reconvened the election court, investigating the return of Alistair Morrison Carmichael as MP for Orkney and Shetland. Earlier, the two Court of Session judges held that the case against Mr Carmichael under s.106 of the Representation of the People Act 1983 couldn't be kicked on legal grounds alone. "We wish the hear evidence", the two judges said. Today, the judges set down a timetable for the hearing of that evidence. And equally importantly, deciding (a) where it would be heard and (b) whether STV would be entitled to film the oral evidence of the former Secretary of State, and other witnesses.
So what are the important details? Firstly, the case has been set down for four days from Monday the 9th of November. The final list of witnesses will have to be produced later this month. This is a formidable length of time to hear evidence. Reports of today's by order hearing are limited and incomplete -- but the time scheduled suggests that the election court may hear from a significant number of witnesses. The petitioners are seeking to establish that Carmichael's lies related not only to his political conduct and character -- but extended to his personal conduct and character also. It remains unclear how precisely this will be demonstrated -- but we might hear from a surprising range of people in pursuit of this aim.
Secondly, there is to be no change of venue. Generally speaking, election petitions should be heard in the constituency concerned. This, to allow locals - electors - to attend the court proceedings and to hear the case both for and against the Member of Parliament they have returned. Today, Lord Matthews and Lady Paton have decided that the Carmichael case should continue in Edinburgh. There will be no decamping to the sheriff court in Lerwick to hear testimony.
But the judges have also kiboshed the idea that the evidence - and cross-examination - of witnesses should be televised. This, argued Lady Paton, would "create a risk to the proper administration of justice". The final submission of lawyers for the two sides can be broadcast -- but unless you hie yourself along to the Court of Session -- you won't be able to see the former Secretary of State's account of himself and his behaviour. On one level, this decision is unsurprising. Cameras are a new phenomenon in Scottish court rooms. It was, perhaps, naive to image that the election court would cross the rubicon so hastily, and allow the evidence in this case to be broadcast live. Instead, we'll have to rely on scribbled transcripts in the media.
A few other questions suggest themselves. Firstly, could Carmichael avoid all this by simply standing down and contesting the subsequent by-election in the northern isles? Under the Representation of the People Act -- he couldn't. Under s.139 of the 1983 Act:
The election court will sit until it reaches a conclusion. The court's judgment - one way or the other - is now inescapable. But could the former Liberal Democrat Secretary of State simply decline to give evidence before Lady Paton and Lord Matthews? Again, the answer is no. Carmichael must appear if summoned. Under section 140 of the Act, the election court has power to require witnesses to appear before it. And if they fail to do so? They commit a contempt of court. There's no escaping this assize.
But even if Carmichael appears in the witness box, does he really have to answer all of the questions put to him? Can't he stonewall, or evade, or otherwise decline to assist the court in its deliberations? No dice here either. Under section 141, witnesses don't even enjoy a privilege against self-incrimination before an election court. And a prevaricating witness commits a contempt of court. There is no escape -- no legal bolt hole -- for Mr Carmichael in the four corners of the 1983 Act. He has no option but to stand in the witness box, and to answer the questions which will be put to him directly and truthfully. For a politician, more used to fencing with journalists, and providing apt but evasive answers -- this is likely to be an unfulfilling, embarassing, and potentially disastrous personal experience.
Mr Carmichael may have escaped the horrors of a televised cross-examination, but he must be anticipating the next stage of this case with little relish. His way is littered with thorns. Every step - every misstep - risks slurping this tarnished, unbruising bruiser, into another political sinkhole. Wise man say: help me Rona.