30 September 2015

The Little Engine That Couldn't

Choo, choo. At the risk of repeating myself, we really have to nail this one down: the Scottish Government does not have the legal power to take railways into any kind of public ownership. There aren't shades of grey here. There aren't knotty legal complexities. It is clear as day. Clear, apparently, to everybody except the new leader of the Labour Party. 

Interviewed by Gary Robertson on BBC Good Morning Scotland this morning, Jeremy Corbyn decided not to retreat from the inaccurate charges he laid at the door of the Scottish Government last Sunday. Instead, he chose to reiterate and elaborate on his allegations (from 02:40:00 in). And it is sorry, sorry stuff.

Robertson: "You also said on Sunday that they [the SNP] were behind the privatisation of ScotRail. Do you accept that that was wrong?" 
Corbyn: "No I don't think it was wrong at all, because I think - again - they could have taken a different option and could have pushed for public ownership rather than handing it over to the Dutch public." 
Robertson: "But that was about - again - that was about the franchise, wasn't it? Their argument is that in 1993, that was when ScotRail was privatised." 
Corbyn: "The franchise, yes. But I do think they had a choice, and they could have exercised it to ensure that ScotRail remained - or, er turned, rather - into full public ownership. Surely that would be a much better way of doing things. And indeed the Labour policy, overall, is to return the franchises and the rail operating companies into public ownership, so that we all get the benefits of the rail service and the profits that go with it."

This is a mess. Actually, it is worse than a mess: it is a sleekit politician's answer. And worse, I'm afraid, it is a lie. So let's strip it all back to basics. If Holyrood passes legislation which "relates to reserved matters", the law is void. If Scottish ministers act beyond their powers, they behave unlawfully and a costly and damaging trip to the Court of Session beckons. If we rummage through Schedule 5 of the Scotland Act 1998, which sets out these reserved matters, we find the "provision and regulation of railway services". Holyrood can't change the Railways Act of 1993

And it is the 1993 Railways Act which sets out the legal process for tendering rail passenger services. This was the instrument of rail privatisation - not the Scottish Government's October 2014 decision to award the new tender to the Dutch company, Abellio. Only Westminster can change the rules. And what do we find in section 25 of the 1993 Act? Oh look. A provision which says - clear as day, black and white - that "public sector operators" can't be rail franchisees. And how are we defining public sector operators? That is any company or subsidiary which is majority owned by ministers, or civic government. That test binds the Scottish Government. That seems to catch the kind of operation Mr Corbyn has in mind. 

The new Scotland Bill finally proposes to tweak the Railways Act to make it clear that, in future, section 25 will not "prevent a public sector operator from being a franchisee in relation to a Scottish franchise agreement." In future, a "people's Scotrail" will be possible, in Scottish Labour's campaigning phrase. This is well and good: a positive development which will allow the merits and demerits of a public sector bid to be explored during the next round of tenders. But on the 8th of October 2014, the Scotland Bill was a dim speck of light on the horizon. 

On the 8th of October 2014, Lord Smith of Kelvin hadn't even held his first meeting with party representatives to negotiate the next stage of devolution. There was no timetable to change the tendering rules, no legislative proposal being scrutinised. Just wooly aspirations, a Tory government and a Labour party dragging its feet on the future powers of the Scottish Parliament. Until the ink was dry on Smith, and the Bill had been introduced, it was anything but clear whether Holyrood would be empowered to consider the kind of public sector bid the new Labour leader understandably favours.

But don't believe me. I refer you to the analysis of Kezia Dugdale's predecessor as Scottish Labour leader, Jim Murphy, who blogged that he wanted to:
“... see better, cheaper public transport. The Smith Agreement means we can have a ScotRail that is serving commuters, not shareholders. The current ScotRail franchise sees money going straight from the public purse to shareholders pockets. The incoming one will see Scottish public money support transport infrastructure in Holland. Neither deal is the best deal for Scotland when commuters are waiting on late running services, paying over inflated fares whilst being squeezed against train doors on overcrowded journeys. The best deal for Scotland is a People’s ScotRail, a railway company whose commitment is not to a group of shareholders or a foreign Government, but to the people of Scotland.”
The merits of a public sector bid are one thing. But even the People's Scottish Jim for Scotland - not averse to throwing any old brickbat at the SNP - recognised that what he wanted to do with the railways wasn't yet legal. Even Mr Murphy declined to slag off the Scottish government for failing to do something which the law prevents them from doing. And yet, given a golden opportunity to clarify his remarks - in the interests of straight talking and honest politics - Mr Corbyn doubles down on his wrong-headed claims. 

So taking all of that into account, a few questions. In what sense, Mr Corbyn, could the Scottish Government "have taken a different option" on rail franchising? What "choice" of "full public ownership" did the law give them? Are you seriously suggesting that failing to convince the UK parliament to change the law amounts to an SNP privatisation agenda in all but name? Does that seem fair to you? Do you think most people, listening to your interview, would have understood this was really what you meant? Or do you think the half-attending average punter would be left confused and deceived by your remarks?

You began by suggesting the SNP privatised the railways. Now that has morphed into a claim that they could have considered a public sector bid, but failed to do so, which was bad. But a thorough examination of the law shows us that the parliament in which you sit made it legally impossible for Scottish ministers to entertain the public sector bid you desire. The Scotland Bill, currently going through the parliament in which you sit, underscores the point and fatally undermines your argument. So in what sense did the SNP privatise the railways? Oh dear Jeremy. Straight talking, honest politics my foot. 

I think I can, I think I can, I think I can, said the Little Engine That Could. But thinking doesn't make it so. 

29 September 2015

"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.

28 September 2015

"Straight talking, honest politics..."

A crib sheet can be a dangerous thing. Like the actor's prompt, they allow the harried speaker to cut corners and to maintain a superficial veneer of plausibility on an unfamiliar topic.

If you trust the person who has pulled them together for you, in their judgement and in their diligence, they can be gold -- just so long as nobody asks you too many searching or well-informed questions. But as everyone who has ever been obliged to mug up for an unfamiliar tutorial at short notice well understands, danger as well as security lurks behind these primers' superficially reassuring and well-honed lines and cues. 

Is this right? Up to date? Am I missing something important here? Like a rat in a pantry, such doubts can gnaw away at you, preying on your confidence, distracting you. And they ought to. You may well be peddling bullshit. Bullshit of the ripeness and heft we heard the sainted Jeremy Corbyn peddling on the Andrew Marr show this weekend. Against the charming backdrop of Brighton's cyan sea, Corbyn launched the first of what is likely to be a salvo of rhetorical exocets against the Scottish National Party. And Corbyn's comments were classic crib sheet work. Calmac, privatised. Scottish railways, privatised. Colleges, gutted. Local government funding, put to the sword. Much of this was straightforward fiction -- presumably pressed into the new leader's BBC briefing pack by Labour's Scottish operation. 

As any fule kno, the Calmac ferry routes are currently out to tender. No decision has been taken. To suggest otherwise is either an out-and-out lie, or a blunder born of cluelessness, indifference and slap-dash preparation. In Mr Corbyn's case, I'm still inclined to suspect a muddle rather than a fiddle. It is becoming increasingly clear that the Islington North MP has never contemplated UK constitutional politics in his puff. He couldn't give a ha’penny jizz about politics north of the Tweed. They've never troubled him before.

And now, Jezza is reduced to parroting attack lines written for him by someone else. It is pretty tawdry. He seems signally indifferent to Scotland. The concept of a united Ireland may stir his passions, but Corbyn seems listless and intellectually semi-detached on the question of our own united or disunited Kingdom. I don't hold this indifference against him. From his London borough, local politics and world affairs will have, understandably, seemed more pressing. But more is expected of the head that wears the crown. 

Today, his new shadow chancellor, John McDonnell, took to the conference stage in Brighton full of the same patter. In that gruesome, zombie phrase, McDonnell argued that Scots should "come home to Labour", which he suggested "is now the only anti-austerity party". All of which, to coin another phrase, seems pretty chuffing rich. Get back to us, John, when you can coax a few more of your colleagues into the Westminster lobbies actually to oppose the Welfare Reform Bill. You talk of a grassroots anti-austerity movement. Wouldn't it be spiffy if your green benches actually showed any enthusiasm for that cause? Are you seriously contending that only the views of your isolated, embattled and increasingly compromised Labour party leadership matters here? Forget the glum Commons faces, and the missing dissents? Spare me. But back to the boats. 

The Scottish Government is obliged to tender ferry routes under European Union law. To fail to do so would be to expose the Government to enforcement action from the European Commission. If Derek Mackay took to his pins in the Scottish Parliament, and gave a categorical pledge that the tendering process was a sham, and Calmac were guaranteed to win the contract providing link shipping to many of Scotland's islands, Calmac's competitors would drag Mackay off to an expensive and impossible to defend judicial review, almost certainly dooming Calmac's commercial bid for the contract. That may sit uncomfortably alongside the "save Calmac" agitpop, the hashtagging and the twibboning, but it is the law. Such is the price of the single market and European competition. 

Corbyn's case for the prosecution on railways is even more tenuous. He told Andrew Marr that the perfidious Nationalists "were behind privatisation of Scot Rail." Which is also straightforwardly untrue. As trainspotters everywhere know, the Railways Act of 1993 was the key instrument which enabled the UK government to distribute rail assets back into the private sector. At worst, Corbyn might indict the SNP government for failing to foster a public sector bid for the rail franchise, ultimately won by the Dutch company, Abellio. This is a long-standing charge which has been launched by Scottish Labour at Nicola Sturgeon's government for some months now. But there is crucial missing context here which dynamites the glib, schoolboy indictment the new leader guilelessly read out on Marr on Sunday.

A cursory inspection of the Scotland Act reveals - shock horror - that the "provision and regulation of railway services" is a reserved matter under Schedule 5 of the Scotland Act 1998. If you burrow down into the new Scotland Bill, you'll find a new clause 49, which makes it clear that the general reservation "does not prevent a public sector operator from being a franchisee in relation to a Scottish franchise agreement." Significantly, the topic was altogether missing from Scottish Labour's Smith Commission submission back in 2014, despite their noises-off grousing. But these changes aren't yet on the statute book. Legally, Holyrood cannot pass legislation which "relates to reserved matters". The courts could and would reduce any such legislation to ashes. 

The Scottish Parliament's powers are trussed up and limited by the devolution legislation. We may wish it were otherwise. We may wish that the Scottish Government had more autonomy over transport policy, and much else. But to indict the Nats for failing to do something which the law - passed by Westminster - says they cannot do? That's the politics of the playground. It is not, in today's Labour Conference's all too worthy slogan, "straight talking" or "honest politics". 

I have considerable sympathy with some of Mr Corbyn's views, and very little with some others. Nevertheless, I feel a twinge of instinctive - if paradoxical - protectiveness towards the party, watching the likes of John McTernan on BBC Daily Politics today, being granted a bully pulpit, almost entirely unchallenged, to crucify, flay and savage the leadership of his own party. It is grim.

By all means, challenge the Scottish Government. Question its performance. Advance different priorities. Name hypocrisy and backsliding and caution when you see it. Show me the soul who believes that any government leaves behind it a perfect record, and I'll show you a fool. But for crivven's sake, Jeremy, my rumpled companion, my bearded, tieless fellow traveller - take a little time to cast a critical eye over the gormless cribs elbowed your way by your comrades in arms. The snark is rising. 

27 September 2015

"Quod me nutrit, me destruit..."

A Latin motto is written in the top left-hand corner of a portrait which hangs in Corpus Christi College Cambridge, thought to represent the playwright Christopher Marlowe: Quod me nutrit, me destruit. "That which nourishes me, also destroys me." This Elizabethan sentiment was often symbolised by an upturned torch, its flame burning brightly, but consuming its own substance: Quod me alit me extinguit

The motto has served generations of chemically-dependant artists - the mad, the bad and the dangerous to know - perfectly well. And now? Now, the Scottish Conservative Party seem to be taking it as their political mantra. All other unionists are to be put to the torch, even if only to secure a temporary Tory illumination.

Strategy is to be sacrificed on the altar of tactics. Unionism is to be harnessed, to destroy the other parties of the union. If I were a Liberal Democrat, or a Labour supporter, I'd be raging. And as a Nationalist? As a Nationalist, only an evil chortle. To adapt Jacques Danton's phrase, like Saturn, the lack of a revolution on the 18th of September 2014 is now eating its own children. The internecine conflicts which gripped Better Together only presaged the general cannibalism which has followed. And we now have every indication that the Scottish Tories are sharpening their teeth for 2016.

Under Margaret Thatcher, the Tories campaigned under the symbol of a blazing torch, symbolising enlightenment and freedom. In 2006, David Cameron replaced this robust imagery with an unsmoking, altogether woolier oak tree. In the years that have since past, the logo's green sap has slowly turned a truer shade of blue. It was Peter Mandelson and Neil Kinnock who folded up the old red flag in 1986, exchanging the deepest lifeblood of the martyred fallen with "the people's rose in shades of pinks," in Tony Benn's disgruntled phrase.  But Ruth Davidson and her colleagues seem to be in the mood to reclaim the torch. And to lay the fiery brand at the root of their erstwhile allies in the Better Together campaign.

On Twitter on the 19th of September, I wondered: "are the Scottish Tories lining up to run a "second vote for the Union" strategy in 2016?" In the last week, it is quite remarkable how quickly the green shoots of that strategy have broken into unholy growth. And with a tactical hat on, you can see the appeal. Taunted and tempted into the concession by Gordon Brewer, the Tories intend to make Kezia Dugdale pay for the idea that pro-independence sorts are welcome in the Labour Party. "The only party you can really trust with the union," they argue, is the Scottish Conservative and Unionist Party. And more and more of their politicians are laying on the burning brand with gusto. They intend to leave that pinko rose good and charred:

Given the Conservative Party's divisive general election campaign, constructing the Nats as alien interlopers keen only to smash your Royal Doulton and to micturate on your Victoria sponge, you can understand the dismayed response of Labour politicians to all of this. It is all a bit rich, from a cynical Tory campaign which has shown every sign, since the referendum, across the UK, of subordinating its unionist inclinations to every over political twinge and priority going. "EVEL now." "We stand up for England." "Brexit now." And so on, and so on. But Ruth is determined to set a watchman, and if necessary, to consume the substance of her former allies to secure a little extra light for the fading campaign that is Scottish Conservative and Unionist politics. Quod me nutrit, me destruit. Tactically, this all seems perfectly sound. Strategically, it is mental.

If the Tories represent the only viable unionist future - the union is doomed. But if exploiting the unionist/pro-indy dynamic represents a viable electoral strategy? We should expect Ruth Davidson and her colleagues to mine the seam for all it is worth.  In the referendum aftermath, the #indyref mood swept the SNP to 56 of 59 Westminster seats. Which shouldn't unionists, or at least some unionists, benefit politically from the majority who scorned independence on September the 18th?

Now, all of this sits uneasily - let's be charitable - with the idea that it is the SNP who are obsessed with the constitution, while Ruth Davidson spends her days in the pantry, vexed by the bread and the butter of education, justice, health. But as the 2016 election approaches, we can expect such niceties to be dispensed with. Which campaign will win the Tories the most votes? What rhetorical frame are they trapped in? Can the Tories change the political conversation?

Possibly, with Kezia's help, but with some difficulty. But can the Tories exploit the preoccupations of the political status quo to advance on their pretty dismal recent performances? Mibbes aye. It is becoming increasingly clear that the Tories intend to fight the 2016 election on constitutional terrain -- to the extent that the party leader now seems to be composing personal messages to welcome new ultra unionist to her ranks.

The #SNPout pinwheel of density was doomed in 2015 because there just weren't enough unionist ultras who you could be tempted into tactical-voting to deprive the fifty six SNP MPs of their majorities under first past the post. But Holyrood in 2016 is a different beast entirely. It is worth reminding ourselves just how poorly the Scottish Tories have performed in recent elections. In the 2011 Holyrood campaign, the Tories secured 13.9% of constituency ballots and 12.4% of regional votes, losing three constituencies and falling from seventeen MSPs to fifteen. Their vote, unsurprisingly, was unevenly distributed across the country, from the heights of the Borders to the arid territories of Ruth Davidson's "sewn up" Glaswegian operation.

Central Scotland: 6.4%
Glasgow: 6.1%
Highlands and Islands 11.6%
Lothian 11.7%
Mid Scotland and Fife 14.1%
North East 14.1%
South Scotland 19.5%
West Scotland 12.7%

Hearing any kind of obvious regional vote strategy from the Scottish Tories would be a novelty. "Second vote Green" is now a well-established mantra, recognising the party's weakness in constituency battles, but appealling to voters to take them seriously for a regional list preference. And remember "Alex Salmond for First Minister" in 2011? In the Holyrood election of that year, the SNP ferociously framed the regional paper as a choice between the - but this time, stricken - Iain Gray shadow cabinet and the incumbent government. 

It is sometimes forgotten that a key demographic appealled to by this message were those who regarded Scottish Labour as their principal political opponent. The subtext of "Alex Salmond for First Minister" was "vote SNP to keep Labour out." And this framing of the election proved remarkably effective. "But all means, support your local Conservative candidate in the constituency race, but remember, if you want to keep Labour on the opposition benches - only an SNP government will get the job done." Such was the allure of this prospect that even the Spectator's Alex Massie was ensnared. Though Alex doesn't often care, amid his recent thunderings against the Scottish Government, to recall this fact.

Some of the psephology from the campaign is fascinating. Take Ayr. In 2011, the constituency was a straight up fight between the Tories and the SNP.  On the night, the Conservatives snaffled the seat with 12,997 votes, to the SNP's 11,884 - 1,113 votes ahead. But when the Ayr regional ballots were opened? A different story. The Scottish Conservatives secured only 8,539 second votes to 14,377 for the Nationalists. How to explain the discrepancy? Perhaps John Scott, the Tory incumbent was a solid and workmanlike local performer. Perhaps his competitor, Chic Brodie, did not come off tremendously well. But as regional vote strategy goes, since 1998, the Tories have been nowhere. But inverting that torch - plunging the Tory flare into the already bruised flesh of the Labour Party? That's a temptation which will be difficult - perhaps impossible - to resist.

In 2016, the Scottish Conservatives may burn a little more brightly but -- but it is difficult to see how an ever closer alignment between unionism and the Conservative Party does anything to extend the union's longevity.  It is bleakly ironic. With the flitting of its pro-independence membership, the Scottish Labour Party must be more unionistic now than it has been in decades. But to scratch a few percentage points' advantage from the polls - to ride the pro-union surge - Ruth Davidson seems prepared to thrust the Tory torch into the dry kindling of the Labour Party, and to cackle as it burns. Quod me nutrit, me destruit. 

24 September 2015

A roughly familiar beast?

It has been a summer of Yeats. A year of Yeats, I suppose. In the wake of the independence referendum, much seems "changed, changed utterly." I'll commend to your better judgement whether a terrible beauty has been born or not.

For some, it has been a political year vexed to nightmare. For others, the political hour seems to have come around at last. The political machine of Scottish Labour has been reduced to a smouldering slagheap. The SNP, for long the party of what seemed like a crackpot minority - remain in the ascendant as the 2016 Holyrood election begins to peek over the horizon. 

As a Scottish National Party tribalist -- all of this is thoroughly gratifying. But the experience has also been a curious and curiously unsettling one. Scottish Labour's hubristic and ultimately catastrophic sense of entitlement - I now realise - found a precise perverse reflection in my own political imagination. 

During the referendum, I wrote a series of pieces for the Drouth - visiting the hipsters for independence to the over-refreshed unionist Old Soldier. In a long read in the new edition of the arts periodical - themed around the Contemporary - I try to get my head around some of the continuities and discontinuities of politics in Scotland after the general election. Here's a taster:

"Much of what once was solid in Scottish public life has melted into air. Our politics, which for so long seemed dominated by steady and dependable assumptions, has become strangely contemporary.  The old maps and charts give out. Poles have reversed, polls have reversed, and the compass doesn't understand its points."

23 September 2015

Civil partnerships: "I want the choice..."

Conversation 1.

"Marriage is the union between a man and a woman."
"Says who?"
"God. The natural law."
"But I'm not religious. We should have a secular society and secular laws. We've had civil marriages and divorce for decades in Scotland. What right do you have to impose your beliefs on me?"
"But think of the children. Marriage is about the procreation and protection of the family."

"Are you suggesting that infertile couples should be prevented from marrying? What about older couples? Marriage must be about more than children."
"Alright then: tradition. For centuries, marriage has been understood - and only understood - as the union between a man and a woman. Not women and women and men and men. We shouldn't set that understanding  - that teaching - aside lightly."
"But why should tradition determine what we do today? Homophobia was also a hallowed tradition in this country for decades. Are you seriously arguing that the prejudices of the dead should govern the living? What kind of authority is that?"

"If I can draw your attention to the definition of marriage in the Oxford English Dictionary, I think you'll find --"
"But you're just avoiding my question. What kind of authority does the dictionary have? Can't concepts change, and evolve? The idea of marriage is just a human construct. Throughout history, you can find plenty of examples of marriages which don't fit your one man one woman model. Just go to Utah. And our understandings of marriage haven't remained static. Until 1991, the traditional definition of marriage made if perfectly legal for a husband to rape his wife. But the law changed. Changed late. And changed for the better."

"I wouldn't disagree with that."
"So where is this eternal, traditional idea of marriage you were defending a moment ago? It is fictional."
"I just don't agree with you. A marriage is between a man and a woman."

Conversation 2.

"It is alright for you. You can get a civil partnership. We can't. It is unequal. Unfair."
"But why do you want a civil partnership anyway? 
"I just don't like the social baggage. Patriarchy. Religion. The idea of marriage just seems to come with many so many traditions, teachings and connotations that I disagree with."
"But hasn't all that changed? We've had civil weddings here for donkey's years. They've got nothing to do with God, or religion, or chattel wives. And just the other year, Holyrood introduced gay marriage. Haven't we moved on from all that stuff?"

"I'm just not confortable with the idea of it."
"But you support equal marriage, right?"
"Oh, absolutely. I'm right behind it. The arguments made against it were ridiculous. Natural law? Marriage doesn't belong to the churches. Of course people should be able to choose to be married. It is about love, isn't it? Forget the history and the tradition. It is about love, now." 
"But you were talking a bit about history before. Isn't the history of civil partnerships pretty dodgy?"
"What do you mean?"

"Well, they were just a stop-gap, weren't they? A softly-softly way of giving LGBT folk a few more rights without pissing off social conservatives? Didn't they just legislate for inequality?" 
"I just want the choice too. I don't see why heterosexual couples shouldn't be afforded the same legal rights and choices as gay couples."
"Oh, I agree. But surely, if we just abolished civil partnerships, then we'd all be equal too? With the same choices and options? Job done?"
"But what about those who've already got civil partnerships? What happens to them?"
"That's a fair question. A good question. But I can't help but notice that you haven't answer mine. Wouldn't abolishing civil partnerships also represent a kind of equality?"

"I just feel a civil partnership would allow me to live a better, fairer life without compromising my beliefs and values, that's all." 
"So is this isn't really about equality at all, is it? It's about the fact you see marriage as a traditional and religious institution. An institutional signalling the subordination of women to men." 
"I want the choice."
"Except, that is, when you're arguing for LGBT couples to be able to marry. Then marriage is all about love."
"It is about choice. I want the choice."


The Scottish Government is coming under some fire in the media this morning over a consultation on the future of civil partnerships in Scotland. Much of the critique is framed in terms of equality. And this has an intuitive appeal. But if we burrow down into the debates, and remember how the campaign for equal marriage was framed just a few years ago, the case for extending civil partnerships beyond same-sex relationships to seems a little odd. 

The rejection of the authority of traditional and religious understandings of marriage were at the heart of the case for the Marriage and Civil Partnership (Scotland) Act in 2014: equal rights, equal recognition, equal respect. Things change, times and understandings change, and the law should reflect that. The idea that marriage is now essentially concerned with love rather than procreation, or religious ideas, or tradition predominated.

By contrast, and perhaps ironically, the Scottish Government's critics today begin to sound rather like the religious and traditionalists advocates who insisted that weddings were only about "Adam and Eve rather than Adam and Steve." They argue for the choice of civil partnerships, in great part because they see marriage as inevitably soaked in reactionary religious and gender norms.  The case for extending civil partnerships seems to be that the churchmen were right in the equal marriage debate of 2014. The concept of marriage really is theirs. So which is it? Has the idea of marriage shed its old skin, or not? 

There is clearly an inequality in the current family law. A decision will have to be taken either to eliminate or to extend civil partnerships. But the heart of the debate is not a question of equality. It is about what distinctive good, if any, an idea of civil partnership can have, in a country were the right to marry is already civil, godless and genderless. What are civil partnerships for?

13 September 2015

On David Greig's "Lanark"

On Tuesday the 8th of September, Lady Rae sentenced Alexander Pacteau to life for the murder of Karen Buckley. The facts of the case are horrific, the consequences desolate. "I find it extremely difficult to find words appropriate to describe the dreadful crime to which you have pleaded guilty," the judge said. The 21 year old belatedly expressed remorse for his actions through his counsel, but Pacteau’s motivations for killing a young woman who he did not know, within minutes of meeting her, remain in darkness, obscure and unexplained.

We can only guess. What has been reported of Pacteau’s life offers hints from which a highly-speculative pen portrait might be drawn. A life lived at odds with the wealth and privilege of his upbringing. One characterised by transgressive dishonesty. Sexual and emotional frustration. Problematic attitudes towards women. Rage. You might begin to piece together an image of a consciousness, capable of doing what he did.

But as the judge pronounced the penalty in the High Court, my mind turned reluctantly towards my appointment with Lanark at the Citizens Theatre that evening. Adapted by David Greig from Alasdair Gray’s celebrated novel, I was already feeling ambivalent about the production. I first read Lanark as a teenager, and returned to it recently. It is a book which I both admire, and find profoundly repulsive. For a great many people, Lanark is simply a book to be cherished, some people's favourite.

It was a mine which blasted open Scottish literature, shattering preconceptions about what Scottish novels could and should aspire to express and to explore. A book which composed, in fine detail, a recognisable image of Glasgow, which used this city to paint and to people other worlds. It situated the city at the heart of a cosmic drama of life and death, of love and rebirth. It was recognisable, but showed sweeping ambition. It embodied a central lesson of Greek drama: the war between the great forces of the universe play out -- even in Riddrie. On your own street. In your own school. Tragedy plays out, day and daily, in small places, close to home. 

Of the four books from which the novel is built, the most naturalistic ends with Duncan Thaw – sick, obsessed, failed, ravaged – walking into the sea. But before the waves claim the artist as a young man, drunken, miserable, and unhinged, Thaw throttles the object of his frustrated love in the muck of the Necropolis, its old monuments blackened and watchful. “I think I murdered you,” Lanark later says to Rima, the reincarnation of the spirit killed among Glasgow’s ancient dead. Neither the novel nor the play make it clear whether this episode is merely a conjuration of Thaw’s fragmented mind, or if the character has indeed choked the life from a young art student for declining to satisfy his emotionally inarticulate and increasingly embittered sexual desires. 

But either way, the episode illuminates the often overlooked darkness and ugliness of Gray’s central character. In the Citizens, Lanark and Rima’s reflect lightly on this conclusion to Duncan Thaw’s short, unproductive and emotionally bereft life. But for me at least, the memory of Karen Buckley robbed the moment of any levity. The idea of writing the Bildungsroman of Alexander Pacteau would seem more than tasteless – it would seem gruesome and perverse. But in some respects, this is precisely what Lanark is. 

It is a thing of wonder to me how Alasdair Gray can be regarded as a mild and genial eccentric. Some folk would draw a distinction between Lanark and Gray’s more explicitly kinky later work - 1982 Janine, for example – but such a distinction seems to be mistaken. For me, Lanark is a remarkable, unstinting depiction of a kind of profoundly unattractive male consciousness. It is the precision of Gray’s depiction of a sexually and emotionally underdeveloped beta-male which is the novel’s chief achievement. The book is a finely-detailed monument to the subjective experience of Scottish misogyny. It is disturbingly recognisable. If they were prepared to be honest, I imagine most men could find part of themselves – however guilty and reluctantly – in Duncan Thaw’s faltering relationship with the world and in his masturbatory fantasies of frustrated desire. 

I’m yet to meet the post-pubescent man who has not had entertained Thaw’s erotic dream of rescuing their beloved from some calamity, suddenly transforming her cool indifference towards you into obligation and love. The car careening out of control down the slope. The fatal projectile coolly deflected by your quick thinking. But for Thaw, the world of fantasy extends far beyond the gendered trope of rescuer and rescued, into grandiose rape fantasies, and sadomasochistic visions of torture and control. Gray’s literary (and to some extent, personal) candour here is unsettling, but impressively unyielding. Psychologically, the depiction is remorseless and confessional. 

Self-loathing gnaws at Thaw, but the combination of desire, entitlement, frustration and profound resentment towards women is a witch’s brew. It is rape culture, playing out in a single dowdy, conventional, not particularly attractive human heart. I’ve rarely seen this imaginative task performed more acutely than in Lanark. The misogynist of most drama is flash: an alpha male, confident, smooth. A user, yes, but caddish. Duncan Thaw, with his tight chest and his crusted scrotum, is anything but. The autobiographical dimensions of the prose also make this acuity disquieting. But fundamentally, I despise the central character. 

I had wondered, feared really, that the Citizens' Lanark might become a couthy index of Glaswegianisms. “Glasgow is a magnificent city”, said McAlpin. “Why do we hardly ever notice that?” “Because nobody imagines living here”, said Thaw.” “Work as if you live in the early days of a better nation.” Unexpectly, however, Greig’s staging had precisely the opposite effect. By compressing the heroic sweep of the novel into just under four hours of drama, and stripping the tale away to its essentials, the misogyny of Thaw’s consciousness and choices was, if anything, amplified. 

Audience members anticipating a cosy exegesis of a national treasure’s untroubling Scottish classic could only have been disappointed. I was delighted. This may well be projection, but you could detect a slight unease as times from the Citizens audience as Graham Eatough’s technically impressive play rolled on through its sparkling second Act, and into the final third. The writer, Karen Campbell, put it well on social media shortly afterwards. While ‘technically superb’, the production left her unsure of her reaction, ‘like I was observing with awe rather than experiencing’ the show. I can understand precisely why, for the same reason why I am always bemused when women say Lanark is their favourite book, and disturbed when men reach the same conclusion. 

This is no slight on Greig’s adaptation or the talented ensemble of actors who have brought it to life. Despite the tender humanity Sandy Grierson’s sensitive and understated performance brought to the role – Lanark/Thaw remains essentially unsympathetic. If we strip away the beguiling novelty of the Glaswegian setting, the creative imagination and ambition of Gray’s parallel universes, Lanark is essentially a feeble, self-pitying beta-male's sticky wet dream. Lanark is a book of blistering misogyny. Lanark is a book in which women are cyphers. It is a teenaged book, emotionally. A book shot through with those all too familiar sinister twins of men’s desire for and hatred of women. 

Greig’s adaptation exposes this magnificently. It is precisely the Lanark I remember, but it is not the Lanark of popular memory, embodied in the tun-bellied, peering, (and safely sexless) figure of Alasdair Gray. I sometimes wonder if the qualities of Gray’s art displaces - or at least obscures - understandings of his prose. Perhaps more people claim to have read Lanark than have ever completed it. But there is a friendliness to Gray's drawing and painting, his murals and friezes. While his work can be voluptuous and sensual, in its gentleness, I find it captures none of that fizzing resentment, the spiritual smallness and inarticulacy, the toxic combination of desire and hatred, without which Lanark cannot be understood. Gray may look like a genial eccentric. He doesn’t write like one.

9 September 2015

Carmichael: making avizandum...

‘Nobody goes to the electorate on the platform of “your secrets are not safe with me”’ In court number one in Parliament House yesterday, Jonathan Mitchell QC laid out the case against Alistair Carmichael. During the 2015 General Election campaign, the Secretary of State took to the airwaves to deny any involvement in leaking an ambassadorial memo to The Telegraph, which suggested that Nicola Sturgeon wanted David Cameron to be reinstalled in Downing Street.

I've got a brief comment piece in this morning's National about the second day of legal arguments before Lady Paton and Lord Matthews in the election court in Edinburgh. Yesterday, it was the petitioners' chance to set out their legal stall, arguing that Mr Carmichael's conduct is caught by section 106 of the Representation of the People Act. I considered Roddy Dunlop's submissions on Tuesday

If, however, you really want to understand the nature of the Orkney four's legal argument, you can't do better than read Jonathan Mitchell QC's note of argument for yourself. If you dipped into the televised proceedings, you may have found them technical and difficult to follow. By contrast, the petitioners' note of argument is short, clear, occasionally colourful and logically set out. It relies, essentially, on the argument first aired here back in May. By disclaiming any knowledge of the leak, the former Secretary of State made a false statement about his own "personal character and conduct." 

But where does the conclusion of legal arguments leave us? The election court has "made avizandum," in that magical old Scots law phrase. The judges are considering the legal arguments and will hand down their judgment in due course. We don't have a timetable for this. It almost certainly won't be a matter of days. Weeks, seem more likely. 

Carmichael argues that the petition should be dismissed as irrelevant on three grounds. If he persuades the election court of even one of these, the petitioners lose and the northern isles MP retains his seat. It is unclear how Mr Carmichael's legal team might respond to a finding against them on the law. While there is no appeal from the election court, it is subject to judicial review by the Inner House of the Court of Session. Lady Paton and Lord Matthews may not get the last word. 

But looking back over the last couple of days, what did we learn from the oral hearing? From my perspective at least, relatively little. Reassuringly, my predictions about the key flash points in the case were more or less bang on. Carmichael's  case is that his lies were political, not personal, and accordingly, the court shouldn't interfere. The 1983 Act, he says, is about heaping crooked calumnies on your opponents. It isn't about political candidates speaking with forked tongue about themselves. The petitioners disagree.

But Carmichael's constituents are seeking to establish new principles of law, in a convoluted, tricky and outdated body of legislation. That is no easy thing. What's more, they are inviting the court to do something it generally doesn't care to do - become embroiled in politics. The election court's decision won't just affect Mr Carmichael and his constituents. Lady Paton and Lord Matthews' conclusions will have a significant impact on how campaigns are fought in future. This case sits in a wider context which we can expect the judges to be mindful of in reaching their decision.

So who will win? On balance, it was always more likely than not that Mr Carmichael will survive - but litigation is an unpredictable business. Despite the burning temptation to do so - you can't read a great deal into judicial body language. I've watched counsel being kicked all around the courtroom by judges and winning in the end, and heard submissions received in polite silence, without a breath of dissent from the bench, going down in flames in the final opinion.

The election court won't spring its findings on us. In a case attracting this level of public interest, we'll be given good notice. But for now, the petitioners and Mr Carmichael can only wait. Anxiously wait.

7 September 2015

Carmichael: My lying was political, nothing personal...

The election court has just nipped off for a quick cheese and pickle sandwich and a mug of bovril. Roddy Dunlop QC has completed two parts of his three chapters of legal submissions, arguing that the petition which has been lodged against Alistair Carmichael under section 106 of the Representation of the People Act should be thrown out. As predicted, the former Secretary of State for Scotland's argument falls into three main parts. 

Dunlop's opening gambit focussed on general principles of statutory interpretation. What key ideas should Lord Matthews and Lady Paton keep in mind, when reading and applying the 1983 Act to the case before them? Dunlop submitted that the court must adopt a narrow, or strict, approach to the legislation. Why? Because the consequences are severe. If Carmichael loses, he is not only turfed from office. If the election court finds him personally guilty of an illegal practice under s.106, the procurator fiscal can consider criminal proceedings against him. Admittedly, these are of a fairly minor character. Under the Act, the maximum penalty Carmichael might face is a £5,000 fine.

Nevertheless, Dunlop argued, this means that the judges should proceed carefully, and define the illegal practice the Orkney and Shetland MP is accused of narrowly. Dunlop also delved into the statutory records to ask, why did Westminster adopt this legislation in the first place? What was the "mischief" it was adopted to amend? The QC also took us - unexpectly - into the law of shipping and wrecks for reasons why needn't detain us. His basic point? The election court should play it safe and approach the prospect of unseating any candidate conservatively. Having painted in that conceptual scenery, Dunlop focussed on two main questions this morning, echoing those I flagged up at the weekend but in much greater detail.

1. Does the Act apply to a candidate lying about themselves? And does it apply to false positive statements about a candidate's personal character and conduct?

2.  Were Carmichael's lies personal - or were they political lies falling outside the election-voiding illegal practice defined in the Representation of the People Act? 

On the first point, Dunlop argued that section 106 doesn't extend to statements made by the candidate about their own character at all. Rummaging through the parliamentary record, the QC produced evidence that the Representation of the People Act was primarily aimed at the slandering of others, rather than politicians claiming honour and probity dishonesty. He pointed out that other sections of the Act - setting out other dodgy election practices, explicitly mention lies the candidate might tell about themselves. Section 106 does not. As a consequence, he suggested, given the strict interpretation of the Act which is necessary because of its penal consequences -- the court should hold that s.106 doesn't apply to Carmichael. The legislation's true purpose is to stam out rotters like the former MP for Oldham East, not for rotters like the former Secretary of State for Scotland.  

Dunlop wheeled out his big guns for point two. His argument, essentially, is that all of Carmichael's falsehoods were political rather than personal in character. Remember, under the Representation of the People Act, it is only an illegal act to lie about the "personal character and conduct" of a candidate. Over the years, the courts have developed an important distinction between personal character on one hand, and political or official character on the other. If your lies are political in character rather than personal - like those involving mad old Nicky Fairbairn in his election petition in the 1980s - Carmichael is home and dry. You can lie and lie till the cows come home, without fear of losing your seat.

The reasons for doing so are perfectly understandable.  Courts don't want to become embroiled in the political fray too readily. Democratic processes, messy, bruising, slippery and sometimes half-disclosing, must - to some extent - to be left to their own devices. The people's wisdom must be trusted to sort all this stuff out, to believe and disbelieve, to weigh up and test the claims their candidates make.

Dunlop contends that Carmichael's fabricated innocence of the leak, the document, and how it found its way into the public domain was essentially a political act from top to bottom. Invoking the authority of Woolas, he suggests that conduct must either be classified as being political or personal in nature. At least for the purposes of section 106 of the 1983 Act. It cannot be both. "From the beginning to the end, this matter was political", he argued. As anticipated, this is a "yes but" defence. While it is well grounded in electoral law - it is just the kind of angels on the head of a pin case which tend to disgust ordinary people with lawyers. 

Dunlop also asked -- where does the logic of this case end? It would, he argued, make politicians effectively strapped politicians "to a lie detector and administered a truth serum" during election campaigns. "Is that such a bad thing?" Lord Matthews quipped. And you can see the logic of Roddy Dunlop's argument. If any victorious candidate tells a lie - a lie less egregious than Mr Carmichael's - should that be grounds to void the election? The election court doesn't have any additional discretion to weigh up the importance of a lie. If they find that a candidate has made a false statement under s.106, the election to parliament is void, a three year ban from elective office is applied. Case closed. If a line has to be drawn, where should we draw it? Dunlop's answer - a tough distinction between political and personal lying - saves Mr Carmichael's political career. 

On twitter, Scott Hames offered this droll, snarky summary: "I invite my learned friends to pause before jeopardising our hallowed traditions in political lying." To many, this will sound like a pettifogging argument and an empty, even unethical, distinction. Politically, for Mr Carmichael, it is toxic, radioactive. But to my mind, this is perhaps the strongest aspect of Carmichael's legal case. It appeals to judicial caution, above all, and the traditional distribution of power between our judicial and democratic institutions.  

I expect Dunlop's remaining submissions - pencilled in to take ten minutes this afternoon - will focus on the third question I highlighted.  Whether or not the court decides Carmichael's fibbing about the leak related to his personal or his political or official character - how did it relate to the election in Orkney and Shetland? We await developments, and Jonathan Mitchell QC's opportunity to launch the petitioners counterblast against this morning's accomplished and often persuasive motion to dismiss. 

4 September 2015

The People vs Carmichael: A Postscript

Thanks to a couple of inquisitive and eagle-eyed readers, I realise I omitted an important detail or two in earlier blogs on the potential consequences of Monday's election petition case in the Court of Session. In the comments, Roddy Macdonald suggested I might be "overstating the awesome power of the judiciary in this case." Surely, Roddy suggested, Lord Matthews and Lady Paton are:

"... merely being asked to nullify the election and remit the case back to the proper arbiters: An electorate in full posession of the facts. Carmichael could, conceivably, stand again and be elected if the good folk of Orkney and Shetland deem the admitted lie to be insufficient grounds to change their vote."

It is a suggestion echoed in the mainstream media yesterday. Writing about the election court case for the Scotsman, Euan McColm asks: 

"And so, on Monday, for the first time since 1965, the Election Court will sit in Edinburgh, under the joint chairmanship of judges Lady Paton and Lord Matthews. At stake is Mr Carmichael’s political future. Should they agree that, yes, his actions do merit a re-run of the election in the constituency, it seems unthinkable that he would make a credible candidate. Who would bet against the SNP taking the seat?"

A perfectly fair point on the credibility front -- but a critical point of detail is missing. If the judges find the case against Mr Carmichael is made out, he will not be allowed to stand in the subsequent by-election in the northern isles. Under section 160 of the Representation of the People Act 1983, if Carmichael is found to be personally guilty of illegal practices - and making a false statement under section 106 is an illegal practice - he will not only be kicked out of his seat but barred from from being elected to the House of Commons or holding any other elective office for three years. That's pretty tough justice.

1 September 2015

Lights, camera, court! The People versus Alistair Carmichael...

When the election court convenes in Edinburgh next Monday, Alistair Carmichael's legal argument is fairly simple. "Sure, I lied. Absolutely, I "misstated my awareness" of the memo and how it was leaked on Channel 4. But that fib wasn't about my personal character or conduct. It was only an ickle political lie. And for that reason, m'lud, my election should be upheld." 

Thanks to STV News, that politically unattractive legal argument will now enjoy a much larger audience than it might have. The broadcaster has secured permission from Lord Carloway - the Lord Justice Clerk - for the whole two days of argument to be broadcast live from court one in Parliament House

Election courts are ordinarily held in the constituency they concern. STV's intervention will afford the people of Orkney and Shetland much-needed access to the debate about their election. The hearings next week are about the law. Nobody is expected to give evidence. The former Secretary of State for Scotland must be hoping and praying the case against him can be kicked without entering the witness box.

"You say you "misstated your awareness" of the leak. What did you mean by that Mr Carmichael?" "In ordinary language, that's lying, isn't it?" "Why did you lie, Mr Carmichael?" "Are you seriously suggesting that, in dishonestly covering up your role in his leak, you gave no thought to the voters of Orkney and Shetland?" "Are you telling this court that your lies were quite disconnected from your own reputation with your electorate in the northern isles?" 

It is always difficult to tell, but I am not convinced that Scotland's only Liberal Democrat MP would cut an unflustered figure on the stand, his career, income and future hanging in the balance. He does not want his cross-examination broadcast on national telly. 

So what are the legal arguments likely to be? I canvassed these to some extent back in May and June, when I suggested that raising an election petition might be possible. But there is no harm in refreshing the issues, now that the issue has bounced back up the legal and political agenda. An election petition is a special procedure for challenging elections under the Representation of the People Act 1983.

The grounds on which elections can be challeged are convoluted and technical -- to such an extent that the Law Commissions across the UK are proposing that the whole area of law be brushed up, simplified and modernised. But this case will be heard under the old legislation. The recent Lutfur Rahman case, where the mayor of Tower Hamlets was turfed out of office by Richard Mawrey QC, gives a flavour of the complexity of this area of law.

The case against Carmichael, however, is much simpler. It focusses on section 106 of the 1983 Act, which empowers the election court to void an election where there have been "false statements as to candidates." There are four main elements to this which the election court will have to consider. First, the basic tests: 
  1. Where a person, before or during an election
  2. for the purpose of affecting the return of any candidate in the election 
  3. makes or publishes any false statement of fact in relationship to a candidate's personal character or conduct they shall be guilty of an illegal practice 
  4. unless they can show that they had "reasonable grounds for believing, and did believe, that statement to be true." 
If an illegal practice can be pinned on Mr Carmichael, his election will be void. Under the Act, a candidate is liable for the lies of their campaigners only to a limited extent.  But if the candidate is the person who has spread "false statements of fact" about a candidate's "personal character or conduct", they are personally liable. It doesn't matter whether or not they were "materially assisted" in their election by their lies. It doesn't matter whether or not the lies made a decisive difference to the result. 

There remains a good deal of confusion out there about what the petitioners are arguing in the Carmichael case. "But Nicola Sturgeon wasn't a candidate in the general election?" "Could you argue that Sturgeon's implied slagging of Ed Miliband knocked the Doncaster MP's chances?" Both of these questions approach the case from the wrong angle. Both Sturgeon and Miliband are irrelevant. The veracity of the leaked memo is also, arguably, irrelevant. The petitioners are arguing that Carmichael lied about his own personal character and conduct in the "Frenchgate" affaire. By dishonestly representing himself a man of honest nature and behaviour, and lying in public about his involvement in the leak affair during the campaign, they contend, he sought to influence his election in Orkney and Shetland.  

On the admitted facts, it is clear (a) Carmichael did lie about his knowledge and involvement in the leaking of the memo (b) he did so during the election campaign and (c) he could not have believed that the statement which he gave to Channel 4, denying any knowledge of how the leak occurred, was true. As a result, the case seems likely to focus on three questions:
  1. Can section 106 be applied to false statements about a candidate's own personal character or conduct? 
  2. Did Carmichael lie "for the purpose of affecting" his own return as MP for Orkney and Shetland? 
  3. And, were the lies he told of a "personal" character? Or did he lie only about his political character and conduct?
To unpack those questions a little further. 

1.  The idea of applying section 106 to lies a candidate may have told about their own character and conduct is novel and debateable. To my knowledge, the Act has never been used in this way before. However, as the judge noted in his Lutfur Rahman decision, the statutory wording:
"... is deliberately wide: 'for the purpose of affecting the return of any candidate at the election.' Although s 106 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." [para 104]

Although section 106 has mainly been used to toss out candidates who have slandered their opponents to get elected (for example, Oldham East MP Phil Woolas), as Richard Mawrey QC observes, there is nothing in the language of the statute which excludes the idea of voiding the election of a candidate for fibbing about themselves. But there is at least an argument to be made here. Mawrey's remarks are obiter dicta. If Carmichael's legal team convinces Lady Paton and Lord Matthews that Mawrey was mistaken, the election petition will fall and the petitioners will likely have a hefty legal bill to pay

2.  The election court is also interested in intention. It is important why the lies were told. If Carmichael can convince the two judges that his falsehoods had-hee haw to do with his race in Orkney and Shetland, he's home and dry. His skeleton legal argument, published in June, argued the lies he told Channel 4 were not for the purpose of securing his majority in the northern isles. He didn't elaborate on what they were for. If not for that purpose, then what purpose? 

Carmichael's worry, perhaps, is that intention isn't just a matter of law - but of evidence - and might see the bungling parliamentarian called to testify. And that wouldn't be pretty. But judges might be convinced that Carmichael's misrepresentations of his conduct were of such a general nature, to such a general audience, that they couldn't be tied to the race in the northern isles. This is critical. This is a challenge to the result of the election in Orkney and Shetland only. Not the whole 2015 general election campaign.

3. Under section 106, the court is concerned only with lies about "personal character and conduct." A quotation from a past election petition case in North Louth puts the central point clearly:
"A politician for his public conduct may be criticised, held up to obloquy; for that the statute gives no redress; but when the man beneath the politician has his honour, veracity and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations."

Carmichael's argument - which thanks to STV, will be broadcast nationally - is that his lies "relate solely to his public or official character or conduct." Glibly, he was lying as Secretary of State for Scotland, in his official capacity, rather than lying as plain old candidate Carmichael, humbly beseeching the good folk of Kirkwall and Lerwick for their support. It was, in the time honoured phrase, nothing personal

Is this credible? Heather Green has argued not. Politically, you might struggle to convince many punters that this is an important distinction. But it is quite a thing for a court to void a parliamentary election. None of us should be over-keen to see the judiciary, tossing out political candidates which the people, in their wisdom, decided to support. 

General bribery, intimidation and corruption is one thing. Whatever you think of Mr Carmichael - and in my case, it isn't a great deal - his sin here is arguably of a more modest character. By his actions, he has deprived the people of Orkney and Shetland of an open, honest election campaign. He has deprived them of the opportunity to pass judgment upon him with a clear understanding of his personal nature and behaviour. 

That is certainly enough, more than enough, to justify the anger and disappointment of his electorate. But ought it to be sufficient for a court to expel him from Westminster? You would expect Lady Paton and Lord Matthews to proceed in this case with a degree of circumspection. But parliament made these tough election rules. It gave courts responsibility for adjudicating disputes. MPs invested judges with fearsome powers to cut short their political careers. We shall see.