The Carmichael case shows that we need a stronger public understanding of the key democratic role that election courts perform

Alistair Carmichael, the Liberal Democrat MP who served as the Secretary of State for Scotland in the 2010-2015 Conservative/Liberal Democrat coalition, has survived the court case which threatened to strip him of his Orkney and Shetlands parliamentary seat. Heather Green follows up on her previous article for Democratic Audit, arguing that it is disappointing that public comment on this case has tended to dwell on presumed partisan machinations, and to overlook the reasoned and peaceful means by which the court brought about a legal resolution to the political melodrama that triggered the case in the first place.

This piece originally appeared on Democratic Audit – Scotland

The first two questions were answered in the affirmative: in the judges’ words ‘he told a blatant but simple lie about his lack of awareness’ of the leak, as a form of ‘self-protection to avoid presenting as a less attractive electoral candidate for the voters in Orkney and Shetland’. On the determinative third point, the court decided that his false statement to Channel 4 news that he was unaware of a leak that he had in fact authorised was not a direct articulation of a personal characteristic. So, had he for example, glossed his denial with a remark like ‘and I would never authorise such a leak as I am a man of integrity and honour’, the court would likely have found him guilty of the election offence of making a false statement about his personal character or conduct.

Carmichael has secured a technical legal win, but the moral victory lies with the petitioners: the court censured his approach to the Cabinet Office inquiry into the leak as ‘unimpressive’ and ‘at best disingenuous, at worst evasive and self-serving’. The judges observed that they ‘had no concerns about the credibility or reliability of the witnesses [in the court hearing], with one exception’: Carmichael. Unabashed, he is now reported to be preparing to pursue the petitioners for his legal costs, an amount of around £150,000. It is morally indefensible that this added financial burden should fall on those individuals who have performed a public good on behalf of all voters (in Orkney and Shetland, as elsewhere) by raising a potential breach of the criminal law governing elections.

With other crimes, the state bears the burden of prosecution. While election offences can be investigated by the police in the usual way, they are more often exposed via the trial of election petitions. An unsuccessful election petition is still a publicly valuable event: it airs and processes issues that threaten to de-legitimate the election process. Launching a petition is brave step, given the financial risks, a point stressed by the judge in the election court that tried the Tower Hamlets election petition earlier this year, who observed that petitioners often risk bankruptcy to do so. The petitioners in this case raised resources to bring the case by crowdfunding, but the amount raised so far will not meet Carmichael’s claim.

Media reports have represented the trial as an expression of the great fault line in Scottish politics that has opened up since the independence referendum between Nationalists and Unionists. (The SNP reduced Carmichael’s majority from almost 10,000 to a mere 817 votes in May). Carmichael’s response to the ruling, rather than the contrition that the judges’ assessment of his behaviour warrants, was to lambast the petitioners for bringing a ‘politically motivated’ case. After giving evidence to the court, LibDem MSP Tavish Scott declared to TV cameras that this was a ‘political show trial’. It is interesting though, that the LibDems were not so quick to condemn petition procedure as partisan opportunism when one of their own number deployed it successfully to unseat former Labour minister and MP Phil Woolas in 2010, a case also involving the offence of making false statements.

What the lurid condemnations of the Orkney and Shetland petitioners’ case miss is that all petitions have their genesis in the partisan political contests we call elections. That is why the law is structured to permit losing candidates to challenge winners; and also to allow disappointed voters to raise cases tackling allegedly illegal tactics by victors from political parties that we may presume those petitioning do not support electorally. Petitions provide a formal process by which disappointed electoral participants may ask the court to scrutinize the legal propriety of the conduct of election winners. The law constrains challenges to election winners by providing this exclusive and impartial means of contesting a declared poll result. Detailed rules govern the legislatively approved boundaries of candidates’ campaigning conduct. Judges, as they do in all legal disputes, interpret and apply this law to the facts of the case. The resultant court rulings contribute to the maintenance of free and fair elections by legitimating victories or calling them out as unfair.

To seek to caricature this case as a political show trial or ‘attempted putsch’ (the i newspaper, 10.12.15) is damaging and irresponsible rhetoric: it maligns the petitioners for exercising a legal right that serves valuable democratic goals; it also challenges the institutional legitimacy of the election court. LibDem condemnation of the petitioners’ supposed (and from the perspective of the law, irrelevant) Nationalist affiliations and motivations has risked collaterally damaging public understanding about, and respect for, the role of the court and the rule of election law. The election court has been implicitly institutionally stigmatized as a state vehicle for carrying forward Nationalist political preoccupations from the election campaign into the legal arena.

That this is a mischaracterisation of the role of the court would hopefully be obvious to citizens tuning in to the historic live televised hearings in the case in September (and the final submissions in November), and to anyone reading the carefully reasoned judgment. This reality did not deter journalists from scrutinizing the former political activism of Lord Matthews, one of the two judges trying the case. Those historic activities (pre-dating his appointment as a judge two decades ago) had been properly disclosed in advance of him taking on the role. Both sides in the case were content with the situation. Yet the implication that this is newsworthy hints at media suspicion of the phenomenon of judicial involvement in election challenges.

The way to address such caricatures of this type of court proceeding is to demystify the institution that is the election court. Election courts are rarely constituted. They sit as specialized tribunals that exist only for the life of the case before them. They are exceptional politico-legal creatures that exist because Parliament conferred on them jurisdiction to determine questioned elections that used to lie with the House of Commons itself. They are not undemocratic usurpers of the role we ascribe to electors on polling day; rather they are vital guardians of core principles of fairness, legality and transparency in elections. If the petition succeeds, it is Parliament and not the court that formally effects the removal of the vanquished MP.

The court formally certifies its findings to Parliament, reporting its view that the election is either valid or void. (If the two judges disagree, the election cannot be declared void.) The Speaker’s statement announcing the court’s decision to the House of Commons signifies the transfer back to Parliament of democratic authority to respond to the court ruling. The Edinburgh court’s work provided the basis upon which legal finality and democratic legitimacy was this week granted belatedly to the election contest in Orkney and Shetland, closing off further formal challenges. (There is no right of appeal; and in this case there are no plausible grounds for a judicial review of the court’s approach, a permissible path followed without much success in the Woolas litigation.) Public discourse in this sphere, political and journalistic, needs to be reoriented to embrace a stronger understanding of the defensible and integral role that election courts perform within our democracy.

It is disappointing that public comment on this case has tended to dwell so heavily on presumed partisan machinations, and to overlook the orderly, reasoned and peaceful means by which the court brought about a legal resolution to the political melodrama that triggered the case.

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