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.