The persistent question we are being asked again and again is why we are not challenging other politicians who have told lies.
There are many obvious examples to choose from – ’no top down changes of the NHS’ Cameron springs to mind and of course, ‘I am so sorry’ Clegg. Much of this has been said in this blog before, and in other places, but it seems to need to be said again as Lord Foulkes campaigns against one of the judges in something that seems to be an attempt by a member of the legislature to intervene in what is an unusual judicial process but still a judicial process.
I need to stress in this post that this is me squeaking as the Vole. I am not speaking on behalf of the other petitioners who are more than capable of speaking up for themselves and, not being a lawyer, I am no Andrew Tickell. He has been by far the most accurate and astute commentator on the case so far, not because he is on our side but, because he has been shown to be right again and again.
The case is under legislation passed by the UK Parliament of which I am a member and have a share in responsibility https://t.co/0b4r2lzqVO
— George Foulkes (@GeorgeFoulkes) November 21, 2015
The most important reason for bringing this case against Mr. Carmichael alone is a matter of law. In the UK the only people who are allowed to challenge an election are constituents within 21 days of the result. The grounds on which this can be done are very specific and date from legislation that has roots older than universal suffrage. The four of us, the named petitioners, are able to do this because we are voters in the constituency who could raise the £5,000 necessary to start the process. We are not allowed to do this against anyone else. The only people who could have challenged Mr. Salmond were members of his constituency.
This is not double standards but the law.
Political lies are exempt and IndyRef2 is not relevant in law. Nor is it about the truth of the memo.
This case is not about anything that Nicola Sturgeon said or has done. The content of the memo is not at issue – what is important here is the leak and the subsequent lie.
No politician can say what is going to happen in the future, not even Ms. Sturgeon because she is not a prophet. She may not be in office next year or the year after, nor is it reasonable to expect her to have predicted how this last election would have run from the standpoint of 18 months ago. No incoming chancellor knows the full details of the economy before coming into office and so ‘no new taxes’ is one frequent promise that is nearly always broken – it is not so much a promise as an expectation.
We have already crossed the first big hurdle. The judgement of September 29th set the precedent that false self-laudatory language by candidates is not allowed. They must describe themselves clearly and honestly – think of this as rather like the legislation in place to regulate how estate agents talk about houses. In itself, this should help make elections cleaner.
Many legal experts thought that this first stage would have finished us but then some of those people said Mr. Carmichael would never have to appear in Court.
Personal or political?
There is no question that Mr. Carmichael lied. The questions that remain are about the context and purpose of the ‘mis-truth.’
The best defence that Mr. Carmichael can use is that he told a political lie to influence the outcome of a national election. That is perfectly legal. The case we are making is that he made false statements about himself to influence the outcome of a local election and this we have to establish to a criminal standard of proof.
The judges decide
The Court, in its own time, will send a certificate to the Speaker of Commons that will declare whether the election is to be upheld or not.
The decision is not for the House of Commons to make or for the Speaker.
Lord Foulkes is simply wrong when he thinks that the Speaker has any existing power to challenge the decision of the Court or to intervene in any way. There is no mechanism for this in the legislation nor is there any appeal from the Court. The Woolas case established that a decision can be judicially reviewed if something has gone wrong with the procedure. I think that the only way that the process can be stopped by the House of Commons is by immediate and retrospective legislation – an unusual process that would smack of maladministration and seems impossible politically.
We need a new system
Clearly this system is not perfect. It is cumbersome, antiquated and expensive. The length of time it takes and the very narrow grounds on which it can be implemented are huge causes for concern. The cost of the process is astonishing both to bring and defend. Consultation is currently taking place about how the situation can be brought up to date and in line with international standards. No doubt our experience, and I mean of both sides, will become part of this.
No other mechanism exists in the United Kingdom to challenge a sitting MP. Legislation was passed by the last Parliament to enable their recall but is not yet in force. That dishonest, corrupt or abusive behaviour by our elected representatives cannot be challenged by voters is dreadful- we need mechanisms in all our elected bodies to make sure this process of accountability can happen in a fair and efficient way.
Has the process been fair?
There is a great deal of Twitter anxiety about the impartiality of the process due to the background of one of the judges. From my experience, as one of the petitioners, the Court has been scrupulous and taken great care to ensure that both sides agreed the process that took place. This has been necessary because of the novel situation we find ourselves in and the sheer lack of precedent. The Liberal Democrats made it very clear to Tom Gordon of the Herald that they accept the impartiality so far. I agree. I believe that we have had as fair a hearing as possible. The results will come soon – we all have to wait – and there is nothing anyone, including members of the House of Lords, should try and do to influence the judges now.
This has nothing to do with the SNP.
When Tavish Scott MSP on TV called this process a show-trial, he was disrespectful and wronged the victims of the real show trials where verdict was pre-ordained and the purpose was to demonstrate guilt.
We have no idea what the outcome will be and, now, nor does anyone else. Mr Scott did not stay to hear the rest of the evidence, but then, he seems to think this is a plot to unseat him.
Our motivation is not at issue and we are carrying out this case within our legal rights. If it had no merit at all, it would have already been dismissed.
I know that none of our opponents believe us but this has nothing to do with the SNP. We have had no guidance from the Party or any cash. Many of its members support us but then so do many Liberal Democrats. It is clear from comments in LibDem Voice that some of them wish that Mr. Carmichael had just gone away. This is also born out by the failure of his attempt to crowd fund his defence, notable only for its lack of contributions from many political heavy weights or anyone much outside the party.
Please confirm that you are an SNP member https://t.co/GNQqKciQ0s
— George Foulkes (@GeorgeFoulkes) November 21, 2015
Immediately after initially posting this Lord Foulkes got in touch and asked me to confirm that I am a member of the SNP. I am. I pay my subs each month but I am not an office holder and have never been to a meeting. Indeed, I have attended more Liberal Democrat meetings in my life (but long ago and to support a flatmate). Oh, and I have never met Ms. Sturgeon let alone taken an instruction from her.
If we win…
I am not trying to predict the case – that is for the judges – but there is no doubt that we are closer than we were. Closer is not winning by any stretch of the imagination.
The outcome, if successful, is a by-election. If that happens, if, if, if, both the SNP and the LibDems will put a lot of resources in to win the seat. That is not our concern at the moment – it is only since the Referendum that this seat could be considered marginal in any way.
As one of his constituents, I want a new vote now that we know how our MP has behaved. He will not be a candidate in any by-election because, if Mr. Carmichael loses, he could be debarred from public life for a number of years. In that case, the Liberal Democrats will be able to put forward a new person and we can all make a fresh start. They may even win and then, perhaps, even, keep their seats in the Scottish Parliament.
This is what the case is about and nothing else.