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.