The People versus Carmichael: what would have to be proven for legal action to succeed?

James Chalmers

Professor James Chalmers discusses the legal requirements that require to be satisfied in order to render Liberal Democrat MP Alistair Carmichael’s election void.

The National reports that an electoral petition against Alistair Carmichael is to be lodged today, backed by a crowdfunding campaign called “The People versus Carmichael”. What would need to be established for this to be successful? Here’s a quick analysis (not, I should acknowledge, based on exhaustive knowledge of electoral law, and so corrections are welcomed).

Section 159 of the Representation of the People Act 1983 provides that “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”. In its terms, that is stark: if a candidate himself is guilty of a corrupt or illegal practice, there’s no need to prove that it affected the result. (Contrast s 164 of the Act, which addresses the situation where illegal practices etc have been committed but not necessarily by the candidate; there, they must be “reasonably supposed to have affected the result” before the election will be void.)

So the petitioners don’t have to prove that the result might have been different as a result of Carmichael’s statement – although that might not be difficult to do anyway given that he was elected with a relatively small majority. What would they need to establish to show that Carmichael was guilty of an “illegal practice”? The relevant section is s 106 of the Act (“false statements as to candidates”).

Looking at s 106, the elements that the petitioners have to prove can be broken down as follows.

(1) They have to prove that he made a false statement of fact. This requirement should present little difficulty. Carmichael said he knew nothing of the minute regarding Nicola Sturgeon’s meeting with the French Ambassador, and now acknowledges this is not the case.

(2) The statement of fact has to be in relation to “a candidate”. This may be trickier than it seems. Does that wording cover Carmichael himself? The statutory provision is generally thought to be about candidates smearing other candidates. But as Andrew Tickell has pointed out, the wording isn’t actually restricted to that. At the same time, it seems unlikely that Carmichael’s representatives would be willing to concede what appears to be a novel point. The statute is aimed (it may be thought) at a particular mischief, and gives the court the power to interfere in a democratic process; it is arguable that it should therefore be interpreted narrowly.

(3) The statement of fact has to be about the candidate’s “personal character or conduct”. In Fairbairn v Scottish National Party 1979 SC 393, the Court of Session said that a distinction had to be drawn between this and “public or official character”. There, the SNP had claimed that Nicholas Fairbairn failed to collect his mail from constituents. Fairbairn argued that the claim was defamatory; he also argued it was an “illegal practice” of the same sort of which Carmichael is now accused. The Court of Session, however, held that the SNP could not be said to be guilty of any illegal practice. The claim was an attack upon Fairbairn’s political character, not his personal character.

The same argument seems apposite in Carmichael’s case: the Secretary of State for Scotland engaging in the leaking a minute for political purposes looks like a matter of political, not personal character. It is, however, possible for something to be both (see Watkins v Woolas EWHC 2702 (QB), paras 30 et seq), and presumably this is the argument the petitioners would seek to make.

It might be argued that Carmichael’s claiming to know nothing about the minute when that wasn’t true is a matter of personal and not political character. But that isn’t quite the point: it’s that statement itself which is the false one here. It must be shown that that statement was a one about a matter of personal character.

(4) The statement has to be “for the purpose of affecting the return of any candidate at the election”. Election here means “parliamentary election”: that is, the poll in Orkney and Shetland, not the General Election as a whole. A relevant case here is Grieve v Douglas-Home 1965 SC 315 (thanks to Aileen McHarg for drawing attention to this case in a comment on Andrew Tickell’s blog mentioned earlier). There, Grieve (Hugh MacDiarmid) had been the Communist candidate in Alec Douglas-Home’s constituency. He argued that the money spent on Douglas-Home’s appearance in party political broadcasts was an illegal practice, and that his election as the MP for Kinross and West Perthshire (the same constituency with which Fairbairn’s case was concerned!) should be voided.

The Court of Session rejected Grieve’s argument: the party political broadcasts were part of the national campaign, not the constituency one. A similar argument may be made about Carmichael’s statement, but the cases are not identical.

In summary: the petitioners have a series of difficult hurdles for the petitioners to overcome, although there are clearly arguments which they could make in their favour for each one. And beyond that, the mere fact of a petition may have the effect of increasing the pressure on Carmichael to resign voluntarily – but that is a political question, not a legal one.

A curious footnote: when Grieve brought his election petition, the trial was initially ordered to be held in Kinross. An application was made to move it to Edinburgh, which the Court of Session acceded to (1965 SC 313): Kinross did not have the necessary books and law reports for the case to be argued. Now, however, the internet allows these arguments to be put together in minutes.