The People versus Carmichael: what would have to be proven for legal action to succeed?
The National reports that an election 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 was 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 a statement made by Carmichael about 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 provision 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 public character, not his personal character.
The same argument seems apposite in Carmichael’s case: the Secretary of State for Scotland engaging in the leaking of 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. [See now Update 3 below for a correction on this point.]
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 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 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.
Update (28 May 2015, 10pm): There does not seem to have been any announcement of a petition being lodged today as indicated, but tomorrow will still be within the deadline if one has not been. And credit to Greg Callus (@Greg_Callus on Twitter) who has pointed out the Court of Session Direction which designates the two Court of Session judges who will hear any election petitions: Lord Eassie and Lady Paton.
Update 2 (30 May 2015, 11am): An election petition was indeed lodged yesterday (BBC). This blog has also been cross-posted on Scottish Legal News (unfortunately, before I corrected the typos!) and picked up in reports by the Financial Times and The National. The FT's summary is a fair and accurate one; the National's rather rose-tinted, concentrating on the easy aspect of the petitioners' case as sketched out above (1) and skating over the difficult ones (2-4). A report in today's Herald includes quotes from me and from Aileen McHarg about the chances of the petitioners' case succeeding; both of us consider those prospects very slim. I'm also quoted in a Shetland News report to the same effect. These are not, however, certain predictions of outcome: we don't know how the petitioners have framed their case, and once a case has been tested by legal arguments, its strength (or otherwise) can sometimes look very different from how it first appeared.
The BBC has also published a piece entitled "Can Alistair Carmichael's election be overturned?" Unfortunately, there are certain difficulties with it. The BBC suggests that it would be necessary for the petitioners to show an actual effect on the result; as explained above, that is not necessary if Carmichael himself is guilty of an illegal practice. It also canvasses the question whether Carmichael could be recalled as an MP. But, as Andrew Tickell pointed out almost a week ago, the recall legislation is not yet in force.
Update 3 (31 May 2015, 9.30pm): Heather Green, who, unlike me, is actually an expert on electoral law, now has a post on this at the Scottish Constitutional Futures blog. As that post shows (although she is too polite to say this expressly), one point I made above is wrong. Although the election court in Watkins v Woolas said that it was possible for a statement to relate both to personal and political character, when Woolas applied for judicial review, the High Court decided that was wrong: a statement had to be one or the other. ( EWHC 3169 (Admin) at ). While in principle that seems to make the petitioners' case more difficult than it would be if a statement could be both, Dr Green offers a convincing argument for holding that Carmichael's statement related to a matter of personal character.
Dr Green also notes an alternative route for the petitioners: s 115 of the 1983 Act, which deals with undue influence. A finding that Carmichael had breached this section would also render his election void. Undue influence is constituted by making threats to force a voter to vote in a particular way, or, in s 115(2)(b), by using "abduction, duress or any fraudulent device or contrivance" to impede or prevent "the free exercise of the franchise of an elector or proxy for an elector". That might allow the petitioners to base their case on the leak itself rather than Carmichael's statement about it, although that seems at first glance to present some difficulty. Even assuming that the leak could be considered a "device or contrivance", proving that it was "fraudulent" might require demonstrating that Carmichael did not believe the minute to be true at the time, and could even open up an unattractive dispute on the contents of the minute itself. That would certainly, however, make for more colourful proceedings than mere legal debate on the proper interpretation of the legislation.