LEGAL action surrounding the “Frenchgate” memo that was leaked by Liberal Democrat MP Alistair Carmichael could end up costing more than £250,000 if it runs its full legal course.

The People Vs Carmichael – a group of voters in the former Scottish Secretary’s Orkney and Shetland constituency – launched the case to have his election result overturned in a petition they lodged at the Court of Session in May. Carmichael responded by lodging his defences with the court on June 9.

The case has been brought under the Representation of the People Act, 1983, and is the first of its type in Scotland since 2010.

It was anticipated that the next stage would be a hearing before two election court judges.

However, that may well become an arena for legal arguments about the relevance of the petition and a precursor to a lengthier and more expensive “trial”.

Legal sources have now suggested that the final tally could be in excess of a quarter of a million pounds.

A crowdfunding campaign by the People Vs Carmichael has raised more than £61,000 so far to fund their case.

The Liberal Democrats have consistently refused to comment on whether the party would meet Carmichael’s legal expenses, although it is thought likely that he will have to foot the bill himself.

There is no doubt that Carmichael sanctioned the leak of the memo which was damaging to First Minister Nicola Sturgeon and then lied about his part in it. The memo wrongly claimed that Sturgeon had told the French ambassador that she wanted David Cameron to be returned as Prime Minister.

Cabinet Secretary Sir Jeremy Heywood ordered an inquiry and Carmichael apologised after it concluded that he ‘’could and should have stopped the sharing of the memo’’.

He accepted “full responsibility” and said he had made an “error of judgement on a political matter”, adding that he would have resigned from government had he still been a minister.

Kathryn Hudson, the parliamentary commissioner for standards, is carrying out a separate investigation into whether Carmichael – the LibDems’ sole MP in Scotland – breached the Commons Code of Conduct.


The ‘Frenchgate’ legal arguments a judge will have to untangle

By David McKie

Partner in Levy and McRae solicitors and Head of Media Law at the University of Glasgow

THE legal challenge to Alistair Carmichael’s success at the recent Westminster parliamentary election is both unusual and uncertain.

Unusual, because we rarely see such legal challenges brought. The last one, in 2010, related to Phil Woolas, who was removed from his Oldham and Saddleworth seat for comments about a rival candidate, was recent but the previous similar removal via statute was more than a century before.

The statute is the Representation of the People Act 1983, which states: “A person who, before or during an election, 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, that statement to be true.’’

This is a fairly wordy section and, although it is relatively brief, there are a number of important legal principles which I anticipate will be argued in this case.

It will be for those seeking to overthrow Mr Carmichael to establish that a statement was made by him about “any candidate”. I would expect that Mr Carmichael will argue that “any candidate” would require to be “another” candidate rather than himself. That was the issue with Mr Woolas, whose comments were about a rival Liberal Democrat candidate. The counter to that argument is the wording of the Act does not stipulate it has to be “another” candidate and any false statement of fact could apply to himself and to his own character and conduct as it could to any other candidate.

That opens up the second issue from this case as his comments related to Nicola Sturgeon, who was neither a candidate in Orkney and Shetland nor even a candidate in the Westminster election. On one view, that is the beginning and end of the argument for those seeking his removal, but there may well be an argument that his comments, by extension, applied to the SNP candidate – and indeed SNP candidates across Scotland – because they would be infected by the comments attributed to the party leader.

The next hurdle which the petitioners have to cross is proving the intention of what Mr Carmichael said. Intention is critical to this because the statement has to be “for the purpose of affecting the return of any candidate at the election”. The court, therefore, has to be satisfied the reason the statement was made was to influence how people voted.

Finally, the petitioners have to be able to satisfy the court the outcome was affected by the statement or statements. That is a very difficult matter to be able to prove and one of the very interesting features of this case will be how the court interpret Mr Carmichael’s narrow majority and whether they hold that the Sturgeon incident helped return him to parliament.