"We wish to hear evidence..."
It's perhaps appropriate that I didn't have time to blog about the election court's Carmichael judgment this afternoon. I was giving a lecture to our young lawyers on Socrates, Plato, and that most basic and most intractable of questions, "what is justice"?
Cast your mind back, if you can, to the two days of hearings earlier this month. The petitioners' case is based on section 106 of the Representation of the People Act, which penalises making "false statements of fact" in relationship to the "personal character and conduct" of a candidate during a general election. The petition has next to nothing to do with Nicola Sturgeon, or at least not directly. Mr Carmichael is the candidate. By advising Channel 4 and the nation that he hadn't the foggiest clue how the Scotland Office memo found its way into the public domain, the Orkney four argue that Mr Carmichael lied about his own personal character and conduct during the general election campaign.
They contend that he did so to maintain his reputation as a man of honour in Orkney and Shetland, better to secure his re-election. They argue that this behaviour is caught by section 106 of the 1983 Act. If they are right, Mr Carmichael will not only lose his seat: he will be barred from seeking elective office for three years, and exposed to the (realistically remote) possibility of criminal prosecution. This is a serious business.
The legal debate earlier this month didn't concern the facts of the case. Carmichael's legal team argued that the election petition could and should be kicked out on the law, without a breath of evidence being heard. They argued that the case was without legal foundation and the Orkney four had simply misread electoral law. Roddy Dunlop QC sought to persuade Lady Paton and Lord Matthews that the Representation of the People Act should be interpreted narrowly. Look at the consequences, he said: this is a penal statute. You have an obligation to construe this law carefully. Against this backdrop, the QC advanced four key arguments. And for the petition to survive, the petitioners needed to prevail on all four points.
Firstly, Dunlop argued, the penalties of section 106 shouldn't extend to what he styled a candidate's "self-talking". That's a funny phrase for something we might put more simply: a candidate lying about themselves rather than about someone else. If you dig through the parliamentary record, he suggested, you find this legislation was intended to punish those who slander their opponents: not those who polish their CVs or deliberately tell national news organisations that they didn't do something which they did, in fact, do.
On this basis, Dunlop suggested, Carmichael couldn't be held responsible under section 106. Secondly, the QC argued section 106 should only apply to false statements which paint a candidate in a negative rather than a positive light. This distinction has no basis in the text of the legislation, which speaks only of falsehoods rather than whether the lie casts the candidate in a positive or a negative light. It finds no echo in earlier caselaw.
Unconvincing? Lady Paton and Lord Matthews thought so. Their opinion reduces this aspect of Carmichael's case to molten slag. The plain text of section 106 extends to everybody who tells lies about a candidate during an election. As Jonathan Mitchell QC quipped during the oral hearing, "Alistair Carmichael is a person". The Act extends to him just as completely as it would his campaigners or his constituents. And the broad language in which the Act is drafted also catches happy lies and nasty lies. Digressions about parliamentary debates in the 1880s are an unhelpful sideshow. The text is clear.
On the remaining two points, the election court's decision is more equivocal. Remember, Carmichael argued that his lies were political, rather than personal. The leak was a political act. Surely lying about whether or not you committed a political act should also be construed as political in character? But why does this matter?
Section 106 punishes only false statements of fact in relation to a candidate's personal character or conduct. The courts have long recognised a protected area of speech - political speech and political debate - which lie beyond the pains and penalties of section 106. If Carmichael can persuade the court his lies were political and not personal in character -- he keeps his seat and gets off scot free. At least in law. Carmichael sought to persuade the judges that this was an open and shut question. He failed. At para [32], Lady Paton offered the court's rationale for rejecting this construction:
"We do not therefore accept the submission by senior counsel for the first respondent that the context of the statement under challenge (namely the fact that he was being asked questions in his capacity as Secretary of State for Scotland, it being understood that the leak had come from the Scotland Office) automatically has the result that the statement should be categorised as one given “in relation to the public or official character of the candidate” (Fairbairn, Lord Ross at page 396).
On the contrary, we consider that a false statement of fact may be “in relation to the candidate’s personal character or conduct” even although it is made in a political context by someone who is the holder of an office in a particular party and relates to events involving politicians, political campaigning, political parties’ offices, staff, publications and so on. Each case must be considered on its own facts, and the question may often be one of fact and degree."
Carmichael also raised the question of motive. The petitioners must show that Carmichael's lies were motivated by his election in the northern isles. They must show, in short, that he lied to save his own skin, rather than to dent the SNP nationally, or to diminish the credibility of Nicola Sturgeon as a political figure.
Lady Paton's opinion is extremely clear here - the court can't reach a conclusion about (a) whether the lie was political or personal or (b) what motivated the cover-up - without hearing evidence. It isn't a decision which the election court can make on the law alone.
"Circumstances can be envisaged where a false statement of fact is of such a nature that the effect in relation to a candidate’s personal character or conduct transcends the political context. In other words, being involved in a political matter will not necessarily provide protection from the effect of section 106. We consider therefore that it is necessary for this court to examine the facts surrounding the statement and its context with some care.
The question of the type of relationship between the statement and the personal character and conduct of the first respondent is one which requires evidence, including evidence as to the motive or reason for giving the false statement. We do not accept, therefore, that it is sufficient simply to provide the court with a written narration of events and to invite the court to reach a view on the basis of the statute and the authorities. On the contrary, we consider that, in a case such as this, there may be subtle but significant inferences and nuances to be drawn from evidence when heard."
Law and fact interact. The election court's decision is necessarily context-dependent. Better to understand that context, evidence must be heard. That doesn't mean the four petitioners will ultimately prevail -- though they must be feeling considerably more chipper, having survived adjudication at the threshold. There remains every likelihood that Carmichael will keep his seat on the court's final analysis. But it seems highly probable that the last Liberal Democrat in Scotland will find himself obliged to give evidence. And that wasn't part of the plan.
Lady Paton's legal opinion is an upset. An upset for those who thought this case was a crackpot and oppressive challenge without any sound basis in the Representation of the People Act. The election court's judgment today is a rebuke to the lazy cynics and a vindication for the Orkney four. This is no screwball use of the legislation. Their case is novel, absolutely. Unusual, for sure. But electoral law is complex, little understood and often arcane. It remains a mystery to me, how many folk who (a) know sod all about election law and (b) didn't bother to find out still felt able to pronounce the petition hopeless, baseless and motivated by ill will. Well, ye ken noo.
Lady Paton's decision also represents a bitter upset for Mr Carmichael, whose last best hope was to have the case kicked on the law. Now there is a distinct possibility that the northern isles MP will find himself in the witness box, answering impertinent questions including "Would you describe yourself as an honest man, Mr Carmichael? Do you think your constituents in Orkney and Shetland regard you as an honest man? Why did you lie? When you told Channel 4 that you were not involved in the leaking of this document, that was a lie, wasn’t it? Do you really think that is a credible explanation for your behaviour, Mr Carmichael?”
Grisly. "We wish to hear evidence." Five of the cruellest words in the English language.
Read the whole decision here.
Originally Posted by QE Harold Flair
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