Whatever the outcome, the petitioning electors from Orkney and Shetland should be applauded for their case against Alistair Carmichael

A recent internal government inquiry found that the then-Secretary of State for Scotland, Alistair Carmichael, was responsible for a leak which saw the details of an alleged conversation between Nicola Sturgeon and the French Ambassador to the UK end up in the hands of the press. Here, Heather Green gives details of a case launched by Carmichael’s constituents in Orkney and Shetland to unseat him, arguing that they should be congratulated given the failure of conventional politics to offer any form of recourse.

1/4 of the Liberal Democrat parliamentary party (Cabinet Office, CC BY NC 2.0)

On Friday 29 May 2015, the last possible day for lodging an election petition following the May 7 general election, some electors from Orkney and Shetland commenced their legal challenge trying to unseat Alistair Carmichael MP. His constituents’ concerns centre on the actions of the former Secretary of State for Scotland during the election campaign, when he first authorised the leak of a potentially damaging memo alleging that the SNP First Minister desired a Conservative victory and then lied about his role in this affair. The contents of the leaked document were subsequently revealed to be untrue. A Cabinet Office inquiry detected that the leak had originated in the Scotland Office. Alistair Carmichael confessed to the wrongdoing, volunteered to forfeit his ministerial severance pay, and declined to stand down as MP for Orkney and Shetland. Disappointed electors now petition a parliamentary election court to determine if his conduct in this matter breaches election law.

There are two potential routes the petitioners could use to try to establish their case: one addressing the leak, the other tackling the subsequent lie. In either event, they will need to meet the criminal standard of proof required to prove the commission of election offences alleged in the course of petition proceedings. Added to this hurdle is the challenge of seeking to apply provisions of the Representation of the People Act 1983 (RPA 1983) to a novel situation. Arguably, however, the facts of the Carmichael case fall squarely within the policy aims of the relevant election laws: to ensure the free exercise of the franchise by electors and to purge the electoral process of underhand campaigning tactics which cross the moral line between the merely questionable and the clearly unacceptable.

The Leak

The provision most often mentioned in news reports of the case is s106 of the RPA 1983, governing “false statements as to candidates”. This provides in relevant part that ;

“A person who, before or during an election, for the purpose of affecting the return of any candidate at the election, makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true.”

Though the content of the memo was later exposed as a false statement about the expressed position of the First Minister, that statement related to her political position rather than to her personal character or conduct. It is not an election offence to tell political untruths about an opponent. Electioneering is fuelled by misinformation and manipulation of statements by candidates and their opponents about their respective political positions and promises. The law does not punish such actions, leaving election debate to be governed according to the (more or less reliable) moral compasses of its participants. Nor was the false statement directed at “affecting the return of any candidate at the election” as its subject was Nicola Sturgeon who was not standing. The leak was designed to damage her political capital rather than to hamper the prospects of election of any identifiable would-be SNP MP. Further, Carmichael could anyway use (perhaps successfully) the defence that he had, at the time of the leak, reasonable grounds for holding the belief that the memo’s contents were true. So, the elements of the s106 offence could not be established regarding the leak.

A more fruitful route to challenge his actions in authorising or condoning the leak might be to use s115 of the RPA 1983. This criminalises as ‘corrupt practices’ acts that constitute ‘undue influence’. Section 115(2)(b) provides that

“A person shall be guilty of undue influence if by …. any fraudulent device or contrivance, he impedes or prevents or intends to impede or prevent, the free exercise of the franchise of an elector…”

Did the leak constitute a ‘fraudulent device or contrivance’? Perhaps so, if at the time it was authorised he knew it was false (or at least doubted its contents were true) but decided to deploy it anyway. The provision has the potential to capture dirty tricks such as those at issue in R v Rowe ex parte Mainwaring [1992] 1 WLR 1059 where LibDem campaigners produced a mock Labour party election leaflet, presenting Labour policies in a manner likely to be unattractive to their voters. In this case it was found that the offence had not been committed because none of the witnesses attested that their voting choices had in fact been influenced by it. This, however, was prior to reform of the offence by the Electoral Administration Act 2006, s39, which broadened it to cover attempts to impede or prevent the free exercise of the franchise. It seems strongly arguable that the leak, if it can be regarded as a ‘fraudulent device’, did intend to impede or prevent the free exercise of the franchise by electors by discouraging support for SNP candidates.

The Lie

The s106 provision on false statements may apply to Carmichael’s actions in lying about his role in authorising the leak. This is the provision that was used to unseat the former Labour minister Phil Woolas for making false claims that his Lib Dem opponent had been wooing votes from Muslim extremists: Watkins v Woolas [2010] EWHC 2702 (QB). Applying it in this case would require a creative and novel interpretation of the section, but one which is arguably consonant with the policy of this field of law, namely to purge elections of deceptions that found on mistruths about the personal moral character of the people offering themselves to the electorate. Crucially for the Carmichael case, this prohibition, as it is expressed in s106, could apply to lies which seek to laud falsely the moral character of a preferred candidate as well as to those which denigrate the reputation of political opponents. This point was recognised by Richard Mawrey QC, judge in the recent Tower Hamlets election petition:

“Although s106 usually refers to statements made to the detriment of a candidate, the wording is wide enough to encompass a false statement made in favour of a candidate (for example that he was a substantial philanthropist or had been awarded a medal for bravery) which might affect his electoral chances, albeit positively rather than negatively.” Erlam and Others v Rahman [2015] EWHC 1215 (QB), para 104

It could cover too self-aggrandising mistruths made by a candidate to bolster his own electoral prospects: as Andew Tickell has noted there is nothing in the section that requires that the speaker of the false statement be a different person from the subject of the remarks. It is strongly arguable that Carmichael, by denying complicity in the leak, made a false statement about his own personal character as an honest politician. He may not have used the words “I am an honest man, innocent of wrongdoing in this matter”, but by disclaiming knowledge of and involvement in the leak he sought to place himself on a higher moral plane than the person who had done the leaking. Does it matter that this message was merely implicit within his false statement? From the perspective of the policy of the law to protect the purity of the electoral process there seems no reason to privilege implicit statements by excluding the possibility of criminality attaching to them. To borrow Mawrey’s example above, is there a defensible distinction between falsely claiming to be a philanthropist and falsely implying that one is a Minister who respects the ethical principles (such as honesty integrity, accountability and openness) enshrined in the Ministerial Code? Arguably not; and nor should it be relevant that his statement took the form of a denial of misconduct rather than a positive assertion that he possessed a beneficial moral quality.

James Chalmers considers that this false statement is likely to be regarded as being wholly or partly about Carmichael’s public or political character. Such a finding would be fatal to the petitioners’ argument. On a judicial review of the Woolas election petition, the High Court clarified that election courts must determine whether a false statement is about either the personal character or the political position of a candidate. In the court’s view, it cannot be both: hybrid statements are not criminal under s106. On this basis the High Court overturned the election court’s ruling that lying about an opponent breaking a promise to live in the constituency breached s106. That was deemed to be a false statement about a political position, and thus not criminal: R (Woolas) v Parliamentary Election Court [2010] EWHC 3169 (Admin). This ruling turned on the court’s understandable concern not to criminalise the sorts of claims and counter-claims about spurious or broken political promises that often characterise campaigns. Also relevant was the need to respect the Article 10 right of election candidates to speak freely in criticism of opponents. Neither consideration would justify a restrictive reading of s106 in Carmichael’s case.

As the High Court intimated in Woolas, “a statement about a political position can go beyond being a statement about his political position and become a statement that is about the personal character or conduct of a candidate”. The court continued (at para 114):

“A clear illustration is to accuse a candidate of corruption, even if that corruption involved the conduct of a public or political office. What is being said about the candidate is not a statement in respect of the conduct of a public office, but a statement that he is personally dishonest and committing a crime. The statement is not to be characterised as one about his political position, but one in relation to his personal character.”

Transposed as follows, this doctrine captures Carmichael’s conduct:

“A clear illustration is to claim to be a candidate innocent of misconduct within a ministerial office. What the candidate is saying about himself is not a statement in respect of the conduct of the ministerial office, but a statement that he is personally honest and innocent of any breach of the personal ethical principles which happen to constitute also part of his public obligation to abide by the Ministerial Code.”

His false statement reached beyond matters of his public or political integrity and became a statement about his personal character. His assertions were not hybridized claims about his political and private personalities, but were crystallised by their context into a clear communication about his personal integrity. The last element of the offence concerns his purpose in making the misstatements. Did he make them “for the purpose of affecting” his return as an MP? Perhaps his intent was broader, related to damaging the electoral chances of SNP candidates in general, but it seems plausible that his wider purpose encompassed the narrower goal of preserving his own vote share in Orkney and Shetland. Given that his seat was saved by a margin of around only 800 votes, it does not seem unreasonable to think that his actions may have been dual-purpose, embracing the required statutory intent.

Other avenues of redress?

Police Scotland are investigating if election offences were committed, and a separate prosecution could follow either from those inquiries or from a finding by the election court, on trial of the petition, that Carmichael was guilty of corrupt or illegal practices. Such a finding would lead also to voiding of the election for Orkney and Shetland, and a bar on Carmichael standing again for the seat. The length of his disqualification from holding political office would vary from 3 years (if found guilty of the illegal practice in s106) or 5 years (if found guilty of the corrupt practice in s115). By declining to resign, Carmichael has chosen to gamble on his chances of defending the petition. Resigning before the petition commenced would have preserved his opportunity to offer himself afresh to the electors in a by-election in the seat.

The Recall of MPs Act 2015 (which does not bar recalled MPs from standing again) is not yet in force, and anyway contains triggers that are not (yet, at least) met in Carmichael’s case. His fate rests now with the parliamentary election court that will be constituted (in accordance with the RPA 1983, s123) to determine the petition. This is the first parliamentary election petition to be brought in Scotland since the colourful if ultimately unsuccessful attempt by poet and defeated Communist candidate Hugh McDiarmid to unseat the Conservative Prime Minister in Grieve v Douglas-Home 1965 S.C. 315. Petitions are costly to bring and challenging to pursue, as Juliet Wells notes commenting on proposed reforms to the procedure. Whatever the outcome, the petitioning electors from Orkney and Shetland are to be applauded for taking steps to launch the case. Though they do so in the formal name of electors in their own constituency, they are voicing also the interests of all voters in condemning unfair campaigning tactics. They are right to look for legal remedies because politics has failed to provide them, and law is all that is left to protect our notion of free and fair elections.

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This post represents the views of the author and not those of Democratic Audit or the LSE. It originally appeared on the Scottish Constitutional Futures Forum and is reposted with the author’s permission. Please read our comments policy before posting.

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Heather Green is a senior lecturer in law at the University of Aberdeen.