Petition Of Timothy Morrison And Others Against Alistair Carmichael Mp And Another
| Jurisdiction | Scotland |
| Judge | Lord Matthews,Lady Paton |
| Neutral Citation | [2015] ECIH 71 |
| Date | 29 September 2015 |
| Docket Number | P558/15 |
| Court | Court of Session |
| Published date | 29 September 2015 |
ELECTION COURT
[2015] ECIH 71
P558/15
Lady Paton
Lord Matthews
OPINION OF THE COURT
delivered by LADY PATON
in the petition of
TIMOTHY DENIS MORRISON AND OTHERS
Petitioners;
against
ALISTAIR CARMICHAEL MP
First Respondent;
and
ALISTAIR BUCHAN
Second Respondent:
Petitioners: J J Mitchell QC, Irvine; Balfour + Manson LLP
First Respondent: R Dunlop QC, R Anderson; Morisons LLP and Gilson Gray LLP
Second Respondent: No appearance by counsel but attendance in court by Harper Macleod LLP
29 September 2015
[1] At this stage of proceedings, we give an opinion (rather than a report to the House of Commons in terms of sections 144 and 158 of the Representation of the People Act 1983) as, for the reasons set out below, we require to hear evidence.
Background
[2] On 7 May 2015 a general election took place in the United Kingdom. In the constituency of Orkney and Shetland, 9,407 constituents voted for the Liberal Democrat candidate (the first respondent). 8,590 constituents voted for the Scottish National Party candidate. Thus the Liberal Democrat majority was 817, whereas in 2010 their majority had been 9,928.
[3] The petitioners are constituents of Orkney and Shetland. In this petition to the election court, they aver that the first respondent was guilty of an illegal practice in terms of section 106(1) of the Representation of the People Act 1983, and accordingly that he “was not duly elected or returned, and that the election was void”.
[4] Statements 4 to 9 of the petition (with statement 5 as adjusted on behalf of the first respondent) are in the following terms:
“4. That on 3 April 2015, a leaked Scotland Office memorandum (the ‘Memorandum’) formed the basis of a story in the Daily Telegraph with the headline: “Nicola Sturgeon secretly backs David Cameron”. The article reported that, according to an official account (a reference to the Memorandum), Ms Sturgeon had told the French Ambassador in February that she would prefer that ‘David Cameron remain’ in Downing Street. The article stated in terms that the disclosure undermined public claims made by Ms Sturgeon that week that she wanted to build a “progressive” alliance to keep the Conservatives out of office; and appeared to confirm growing speculation in Scotland that the SNP would privately favour another Conservative-led Westminster government ‘which it could campaign against in a bid to stoke up anti-English sentiment’ and make an “out” (of the UK) vote more likely in another independence referendum. No source for the leak of the Memorandum was given.
5. That on 5 April 2015, the Cabinet Secretary, Sir Jeremy Heywood, ordered a Cabinet Office-led inquiry into the circumstances of how the Memorandum came to be written and how it got into the public domain. The same day, the First Respondent was interviewed by Channel 4 news. The following exchange was broadcast:
‘Reporter for Channel 4 News: surely it’s a fair question to ask what you were, what you were aware of?
Alistair Carmichael MP: Yes. And listen that is why I am telling you, I will cooperate fully with Sir Jeremy Heywood's inquiry, but it has to be Sir Jeremy Heywood's inquiry and that's why I will answer the questions to him. I’ve told you, the first I became aware of this, and this is already on public record, was when 1 received a phone call on Friday afternoon from a journalist making me aware of it.
Reporter: Do you accept the buck stops with you when it comes to the Scotland Office?
Carmichael: Well eh of course as Secretary of State for Scotland I am responsible for the Scotland Office but you know you seem to be making eh some fairly eh substantial presumptions about eh the role of the Scotland Office in this. That's why we are having a proper inquiry conducted by the Cabinet Office.
Reporter: Do you think it's embarrassing for you and the Scotland Office?
Carmichael: No, I mean this is the middle of an election campaign - these things happen. Um eh I understand that the memo in question did actually come from the Scotland Office but these things are circulated within government.
Reporter: If it comes - if it turns out that a civil servant embellished and leaked a, a memo to the press what do you think should happen to that person?
Carmichael: That is why we have the inquiry being conducted by Sir Jeremy Heywood. You're now asking me to pass sentence on people for whom we don't have proper charges and we've not heard any evidence. That's why it's important that we allow the Cabinet Secretary to get on and to do his job.
Reporter: People are calling it a smear, do you think it feels like a smear?
Carmichael: No. Look, I mean these things happen from time to time, this is not the first occasion that there has been eh a leak of a government document, that's why we have a well-worn system which sets up the inquiry of the sort that Sir Jeremy Heywood is doing and that's what it's doing and that what it’s eh now got to be allowed to get on and do.’
6. That on or about 8 April 2015, a spokesman for the Liberal Democratic Party, speaking on behalf of that party and the First Respondent, stated to the press that "The leak was not from a Liberal Democrat and that is the end of the matter". The leader of that party subsequently told the press, in stating the First Respondent's position, that ‘Alistair Carmichael's been absolutely clear — of course he didn't leak them’.
7 That on 22 May 2015, the Cabinet Office issued a press release headed “Scotland Office memorandum leak: Cabinet Office inquiry statement”. The press release states as follows under the heading ‘The leak’:
"In investigating the source of the leak, the investigation team searched all relevant official phone records, emails and print logs. Those who had access to the memo were asked to complete a questionnaire on what they did with the memo when they received it. They were then interviewed.
The investigation established the following facts:
-
an official mobile phone was used to make telephone calls to one of the authors of the Daily Telegraph story.This phone was held by Euan Roddin, previously Special Adviser to the then Secretary of State for Scotland, Alistair Carmichael [the First Respondent].
-
Mr Roddin confirmed that he provided a copy of the Scotland Office memo to a Daily Telegraph journalist on 1 April 2015, and discussed the memo with the journalist on a number of occasions.He told the investigation team that he acted in what he saw as the public interest and that in his view the public needed to be aware of the position attributed to the First Minister [Nicola Sturgeon]
-
Alistair Carmichael [the First Respondent] confirmed that he had been asked by Mr Roddin for his view of the possibility of sharing the memo with the press.Mr Carmichael agreed that this should occur.He recognises that, as a Secretary of State, he was responsible for his own conduct and that of his Special Adviser.He could and should have stopped the sharing of the memo and accordingly accepts responsibility for what occurred.
- ·no-one else had any involvement in the leaking of the memo.
The investigation team has therefore concluded that Mr Roddin, with the assent of Mr Carmichael [the First Respondent] in the circumstances described above, was the direct source of the Daily Telegraph story. The Cabinet Secretary has accepted their findings in full. Mr Carmichael [the First Respondent] and Mr Roddin have also accepted the conclusions.
Neither Mr Carmichael [the First Respondent] nor Mr Roddin will take their severance pay."
8. That section 106(1) of the Representation of the People Act 1983 provides as follows:
‘A person who, or any director of any body or association corporate which —
(a) before or during an election,
(b) for the purpose of affecting the return of any candidate at the election,
makes or publishes any false statement of fact in relation to the candidate's personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true.’
9. That the First Respondent's statement as to when he first became aware of the leak of the Memorandum took place before the election which is the subject of this petition. It was untruthful, as he was well aware. It was a deliberate attempt to conceal the truth, namely that he was not only aware that the leak of the Memorandum had come from the [Scotland] Office but that he had been directly involved in its release. The First Respondent has accepted responsibility for what was found by the Cabinet Secretary to have occurred. He has forgone his severance pay on having vacated the office of Secretary of State. The fact that the First Respondent saw fit to tell untruths in this regard, and to deliberately conceal his role in the leak of the Memorandum, relates directly to his personal character. It calls into question his integrity as an individual. It thus calls into question his suitability to represent the Constituency at Westminster. Notwithstanding that the First Respondent now seeks to suggest he did not have sight of the terms of the Memorandum before its release, it may reasonably be inferred from the transcript of the interview and the findings of the Cabinet Office inquiry that the First Respondent did not tell the truth when he was interviewed by Channel 4 News on 5 April 2015. That interview was broadcast to an immediate audience of around 650,000 people, including voters in the First Respondent's Constituency such as the Petitioners. Against a background of polling which indicated the SNP would gain the majority of votes in each of the 59 constituencies in Scotland, with the result that no Liberal Democrat or any other political party would obtain a Scottish seat at Westminster, it is believed and averred that the statement by the First Respondent referred to was for the purpose of affecting the return of the candidates...
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