So Alistair Carmichael remains the MP for Orkney and Shetland. The former Secretary of State for Scotland was deemed yesterday not to have broken Section 106 of the Representation of the People Act.
The Orkney 4 lost their case. What cost to these people personally remains to be seen. The appeal which funded the court case against Carmichael reached its target, but costs are expected to rise and, as a result, their appeal remains live.
Carmichael’s victory is as pyrrhic as it is possible to get. He won the case but his reputation is now in tatters. An admitted liar, the judges ruled that his testimony in part lacked credibility and he was unreliable.
The ruling by the judges was almost as bad as a guilty verdict. Carmichael misled his constituents as he attempted to retain his seat. He was described as self-serving, evasive and disingenuous.
So how is it that he remains an MP?
Well the judges’ ruling centred on a key interpretation of a Channel 4 interview given by the Lib Dem MP after he had sanctioned the release of a memo we now know contained false claims relating to Nicola Sturgeon. In the interview Carmichael denied knowing anything about the leaked memo, claiming only to have become aware of it when a journalist contacted him.
The case against the former Secretary of State rested on whether Carmichael’s denial related to his personal character. The judges ruled that there was sufficient reasonable doubt that Carmichael wasn’t making a claim about himself when he lied about the memo.
Below is the key section from their ruling:
If a candidate, in the course of an election campaign, made a false statement to the effect that he had “never been convicted of forgery/bribery/extortion” (when in fact he had been so convicted), it is likely that we would be persuaded that the words amounted to a false statement “in relation to [his] personal character or conduct”. Again, if a candidate made a false statement that he “would never be involved in any type of fraudulent or dishonest financial dealing” (when in fact he had), it is likely that we would be similarly persuaded.
Bringing matters closer to the present case, if a candidate made a false statement that he “would never leak an internal confidential memo, no matter how helpful that might be to his party, as he regarded the practice of leaking confidential information as dishonest and morally reprehensible (all the more so if the information was inaccurate), and he personally would not stoop to such tactics”, when in fact that candidate had leaked an internal confidential memo containing material which was inaccurate and highly damaging to an opponent, we would be likely to conclude that the candidate had given a false statement “in relation to [his] personal character or conduct”, because he would be falsely holding himself out as being of such a standard of honesty, honour, trustworthiness and integrity that, in contrast with what others in Westminster might do, he would never be involved in such a leaking exercise.
In the present case, when speaking to the Channel 4 interviewer, the first respondent did not make such an express statement about his personal character or conduct. He did not, for example, describe himself as a trustworthy, straightforward, and honourable individual who would not be involved in any leak, far less an inaccurate leak.
What they are effectively saying is that Carmichael didn’t lie quite enough. Sure, he falsely claimed not to have known about the memo until contacted by a journalist. But, say the judges, that can’t be construed as a personal statement on his own character.
What Carmichael would have had to have said for the judgement to go against him, was [to paraphrase] that he would not have leaked the false memo had the situation presented itself to him, because it was morally wrong. He would [by definition, given that he did sanction the leak) have been making a false statement about his own personal character or conduct.
Had the Channel 4 interviewer asked Carmichael whether he would have leaked the memo it could have spelt curtains for Scotland’s only Lib Dem MP. As it is he has lost merely his reputation.
In days gone by Carmichael would have been drummed out of the Lib Dem party and pressured into resigning his seat. Remember also that he sanctioned the leaking of the memo when still the Secretary of State for Scotland. He may yet find himself sanctioned by the parliamentary authorities if found guilty of misconduct in public office.
But as I wrote in a previous article for Newsnet, everything is being seen through the eyes of the constitutional debate. Carmichael, liar or not, is a Unionist MP. The Unionist wagons have circled. Neither Labour nor the Tories will demand any sanction of their former Better Together colleague. It was a defiant Carmichael who appeared in front of cameras after the ruling and, instead of showing contrition, launched an attack on the Orkney 4 by insinuating they were SNP stooges.
And this is where we have got to. Unionism is now so fragile that political parties can’t call for sanction against those who bring it into disrepute. A by-election in Orkney and Shetland would risk another scalp to the loathed nationalists.
The Orkney 4 deserve our thanks. For without them taking an enormous financial risk, Carmichael’s reputation would never have been held up to scrutiny. His conduct would never have been exposed to the extent it has.
A liar has been revealed. The Scottish Lib Dem coffin has welcomed another nail and the Unionist grip on Scotland is weakened just a little bit more.
A recent appeal which aims to produce a documentary based on my book ‘London Calling: How the BBC stole the Referendum’ reached almost three quarters of its £20,000 total. Filming is currently underway, but funding is tight. Anyone wishing to donate can still do so by clicking here.