12 November 2015

Three days in November

Alistair Carmichael must have had better weeks. For three days, his character has been under the judicial microscope. If Tavish Scott seemed black-affronted by the idea of testifying before the election court, Mr Carmichael's experience must have been altogether more mortifying. The former Secretary of State for Scotland appears to have approached his evidence as a repenting sinner.

Wisely, he didn't try to defend the indefensible. When he was caught in a lie, he owned up to a lie. But where was this candour when Channel 4 came calling? Where was this impulse to disclose the truth, the whole truth, and nothing but the truth, when cabinet office investigators chapped on his door? "Now I'm under oath", he quipped to Lady Paton and Lord Matthews, explaining why he should now be treated as a credible and reliable witness. Tommy Sheridan's much-merited fate remains a salutary example to all witnesses. Good.

But the nature of the evidence Carmichael gave makes it extremely difficult to discriminate between truth and falsehood, candour and calculation. How can you tell what was in a man's head? How can you open up a window into his soul? Ultimately, it will come down to a question of trust. And as Jonathan Mitchell argued yesterday, Mr Carmichael's copy-book is more than blotted. His inkpot overfloweth.

The National asked me to write a wee comment or two on reports of the proceedings. Other commitments prevented me from toddling over to the Court of Session on Monday and Tuesday, but I was able to catch almost all of the final day yesterday, helpfully televised by STV. Wednesday was full of legal submissions, and brought the case against the former Secretary of State to a close. You can read my thoughts in the paper this morning.  An excerpt: 

"Avizandum! And we’re done. Dismantle the arguments and pack up the papers, slam shut the record and peel off the wigs. Barring an extraordinary appeal on point of law, the People vs Alistair Carmichael is now over. After two days of evidence from six witnesses and a full day of closing arguments from QCs Jonathan Mitchell and Roddy Dunlop, the MP’s fate lies in the hands of Lady Paton and Lord Matthews. In closing the case, they gave little away. Their final decision may be weeks – if not months – away. No harm in the election court taking its good time. The legal issues are knotty, the consequences severe. “Bruiser” Carmichael will never recover his reputation for political sturdiness, but if nothing else, the wait will teach him the virtue of patience. His life now lies in the balance."

You can read the whole article here. On last night's BBC Scotland 2015, there was some confusion about the consequences of all of this. Will the election court have the last word? Can the House of Commons review any decision taken? You'll find the answer in section 144 of the 1983 Act. 

It isn't for the Commons, but for the court to decide whether or not the election is void. MPs won't have to "rule" on Carmichael's fate. If Lady Paton and Lord Matthews decide the Lib Dem is personally guilty of an illegal practice under s.106 of the Act, he's done. Section 156 of the Act makes all this perfectly clear: "if a candidate who had been elected is reported by an election court personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void."

The role of MPs is limited to putting the sanctions into place, and moving the by-election writ at a suitable juncture. They can't make their own assessments of the merits and demerits of the case against him after the fact. Andrew Nicoll is mistaken about that. But now? Now we wait.


  1. From your article in the National: "For Carmichael, Roddy Dunlop hit back, appealing to the court that “a man is not to be convicted on an ambiguity” arguing that “to end a man’s political career on the basis of something blurted out in a TV interview” would be disproportionate. "

    Isn't it far more likely for a person to "blurt" something out than a politician? I.e. when Carmichael blurted out his lie, it was as a person, not a politician? In which case Dunlop's summing up could go against Carmichael.

    On such little things, weighty matters might rest.

  2. I have found your careful summaries very helpful. It would have been very interesting to have had a commentary based on observations from inside the court room.

    Perhaps the concept of a 'political lie' makes sense in legal arguments, but how can a lie not be personal? It's one of the strengths of the British electoral system - we choose people as candidates, not functionaries who appear on a list drawn up by their party. And the 'lie' on Channel 4 could easily have been tempered, perhaps by being restricted to a simple denial of having instructed the leak. I wonder what led him to say too much?

    1. I thank Mr Mochrie for raising this concept of a 'political lie'. Is there really a distinction between the 'political' and the 'personal' or is this the kind of precious distinction, which gives lawyers a bad name amongst the general public? (Cf the distinction being peddled between Rangers Football CLUB and the 'company' which owned or ran the 'club'.) I was disappointed to hear, on Scotland Tonight, Robert Brown, who is a former MSP and member of the LibDems, but a pretty decent man for all that, seek to continue this distinction and for Bernard Ponsonby to try to provide an explication of the distinction. I think Lesley Riddoch was right to emphasise the point about what public opinion believes. Now of course 'public opinion' is pretty inexact and capable of misrepresentation (the raison d'etre of most of the press), but there is an important issue in that we as electors are voting for a PERSON to be an MP, MSP, councillor, MEP. That this person happens to be a POLITICIAN, who in that capacity, is allowed to tell lies and that this permissible goes against the grain. Let us hope that both judges who have shown good common sense in asking for evidence to be presented, continue to apply this common sense to their judgement.
      Thanks, Peat Worrier for seeking to enlighten us.

    2. In his submission Mr Mitchell, QC for the petitioners, drew a clear distinction between a "political, or public, lie" and a "personal, or private," lie.

      A "political, or public, lie" is one where a politician openly makes an accusation against a political opponent, the opponent can deny it, and the electorate can judge for themselves which, if any, is telling the truth.

      A "personal, or private lie" is one where a politician conceals from the public a secret about themselves that no political opponent is in a position to deny, since only the liar himself and perhaps one or two of his close colleagues has access to the truth and, as such, no contradictory position can be put before the public.

  3. I admire the eloquence and readability of your summaries.

    Just two questions which I've not seen any comment on:

    to what extent was the "Frenchgate memo" inaccurate as Carmichael confessed to it being in his apology


    did the distinction drawn by Carmichael in the Channel 4 news interview that all this is "on record" have any significance?

  4. "So with curious eyes and sick surmise
    We watched him day by day,
    And wondered if each one of us
    Would end the self-same way,
    For none can tell to what red Hell
    His sightless soul may stray."

  5. I still find it impossible to believe that any court will find against a Unionist MP.
    With my own bias already against Carmichael I can see those biased for him down playing and minimizing his actions. In their minds its a minor infraction. Part of the game.

    What has changed for me is that I really want to see laws in place that will hold politicians to account with stiff immediate penalties. If I could I would have them take a legal oath before appearing on TV or any interview with the media or any statement they publish. No more Ian Smart or his opposite appearing on TV as a "party spokesman or pundit" then scream abuse an hour later on the internet where it becomes "personal opinion".

    I would load great weights on these "rulers" make them keep their feet firmly on the ground not flying above us saying how we look like little insects.

  6. "I wonder what led him to say too much?"

    Who can say for certain, but perhaps because he never imagined (even if he was caught out) that there would be an consequences. Or that this was part of the pre-arranged smear agreed with other "person or persons" as yet unknown, or because he's stupid and lets his mouth run away before engaging brain.

    Not sure which one of more likely to be honest.

  7. As far as the long term considerations, the longer Carmichael clings to power and patronage, the better for the independence cause. It will fester like an open wound for the the next 4 years. It will also ensure that the LibDems will be destroyed as a political force, even in their island stronghold. Folk just do not like dishonest people. The unionist in their "at all costs" attempt to keep Carmichael as "one of them" will sow seeds of dissent into reasonable folk that voted NO in the referendum into thinking that there must be a better options to run a country

  8. Andrew

    In your blogpost of 9th June you wrote: "Put most simply, he [Carmichael] is arguing that he was lying purely for political reasons as the Secretary of State for Scotland, not as the humble Mr Alistair Carmichael, prospective parliamentary candidate trying to win a tough seat in Orkney and Shetland. Like a capo di tutti capi who puts a bullet in your kidney, he alleges, it was nothing personal."

    It has been reported that this week Mr Carmichael admitted in court he was not acting in any government capacity during an interview with Channel 4. In fact, at the start of the interview he clearly identified himself as "the Liberal Democrat candidate for Orkney and Shetland", before going on to utter the falsehood which has become the pivotal issue being decided in this case.

    To put it simply, does this not strongly suggest that when Alistair Carmichael uttered the falsehood it was indeed as "humble Mr Alistair Carmichael, prospective parliamentary candidate trying to win a tough seat in Orkney and Shetland" and that, completely unlike a capo di tutti capi who puts a bullet in your kidney, it most certainly was "something personal"?

  9. Carmichael did not own up to lying until after the election. Is it not likely that he did this to avoid affecting his reputation with his constituents and his chances of re-election? The lie could have been for political reasons but maintaining it was personal.

  10. "The real reason that we cant have the ten commandments in a courtroom: You cannot post " thou shall not steal", "Thou shall not commit adultery", Thou shall not lie" in a building full of Lawyers, Judges, and Politicians, it creates a hostile work environment." (George Carlin)

    "A courtroom is not a place where truth and innocence inevitably triumph, it is only an arena where contending lawyers fight, not for justice, but to win" (Clarence Darrow : Lawyer 1922)

    Alistair Carmichael former Lawyer, and now proven as a man of no substance, integrity or a modicum of fair play, is merely playing the system to his own means and dishonest agendas, and certainly not as astute as his own mind thinks he is. It's just all very sad.

  11. The Cabinet Office enquiry statement


    "There is no evidence of any political motivation or dirty tricks"


    Yet Alistair Carmichael defence was that it was all politically motivated

    Two complete opposites