Lesley Riddoch: Orkney Four have legitimate case

Alistair Carmichael faces a no-win situation even if his opponents lose, his standing is diminished. Picture: Lisa Ferguson

IS THE Alistair Carmichael hearing a case of mob justice? Au contraire.

The four Orcadians behind today’s drama at the Court of Session are very ordinary people who stand to lose everything if the judges rule there is no legal case for the Orkney and Shetland MP to answer despite his admission of lying in the run up to the general election in May.

As everyone in the UK must know by now, Carmichael leaked a memo suggesting Nicola Sturgeon secretly declared she didn’t want Ed Miliband to become prime minister – but denied several times that he authorised the leak. The vote in his constituency was far closer than anyone expected and there was a strong feeling that an earlier admission might have prompted a different result.

Carmichael and the Lib Dems, however, viewed the matter as closed because the MP “took responsibility” and “gave up the £17,000 he was entitled to receive as retiring Scottish secretary”.

Sadly, that foregone cash didn’t cover the costs of the parliamentary inquiry which finally forced him to come clean. Nor has the gesture given his constituents the kind of MP they thought they had voted for.

The legal avenue being explored today for the first time in 50 years north of the Border is section 106 of the Representation of the People Act 1983. It allows an election to be declared void if a participant makes false statements about a candidate. The law was primarily designed to stop candidates blackening the names of others but as legal academic and Yes blogger Andrew Tickell observes, a judge recently noted “the wording is wide enough to encompass a false statement made in favour of a candidate”. The challenge for the complainants’ lawyers is to argue it can also extend to a candidate lying about himself. They must then convince the judges Carmichael’s statement concerned his personal not political conduct and that he lied for the express purpose of winning his seat in the Northern Isles.

Quite a tall order.

The UK parliament passed a recall mechanism earlier this year, to make it easier for dissatisfied constituents to tackle errant MPs – proposed ironically enough, by former Lib Dem leader Nick Clegg. But the Recall of MPs Act wasn’t formally “commenced” at the time of Carmichael’s leaked memo and therefore couldn’t be used by his constituents. Yet the Commons clearly intends to make it easier for voters to tackle MPs. In this context the hearing that starts today is hardly an example of mob rule. It’s more like a brave civic gesture ahead of a long overdue change in the law.

Why the TV cameras? All parties agreed it would save costs for the initial legal hearing to be held in Edinburgh not Orkney. Presumably court officials agreed to allow cameras in the court-room so justice can be seen to be done by voters back in Carmichael’s constituency. A smart move.

Are the complainants all raving, angry SNP supporters? Certainly all four voted Yes in the independence referendum but they come from a variety of party and no party backgrounds.

According to writer Tim Morrison: “Dishonesty matters so much here. I do not have a door key. I trust we are all looking out for each other. Breaking trust undermines something we know is very fragile. Carmichael is imposing a lack of values on us and that I resent. This is about decency.”

Cary Welling says: “I’m a retired lecturer in photography, living in Stromness. Member of the Labour Party for years, now a £3 supporter, voted Yes in the referendum and have just voted for Corbyn to lead the Labour Party. A socialist in other words. I’m one of the petitioners because I was outraged about our MP. We need our representatives to stand up for honesty and actively promote decency in private and public life. If your MP cannot be trusted, who can?”

Euphemia (Phaemie) Matheson says: “I am a law student, I have no property and my career is on the line. The kind of justice we are seeking with the petition is financially prohibitive – but the important thing is that members of this community are taking action, holding their MP to account. If we don’t do this then where does the buck stop?”

Fiona Grahame says: “I’m a former teacher, now working part time as a carer and guide, also with my own knitting business. I stood locally as a Green candidate. I’ve a grown up family. My eldest sister is Christine Grahame – an SNP MSP. We have differing views on many issues (we also sort of agree on some).”

The Orkney Four are simply the folk who got their legal documentation ready before the Court of Session deadline for petitions. If they lose they may be liable for their own costs, the courts costs and the costs of the other side. Sobering stuff.

Of the three who have houses this could ultimately mean losing them. For the law student who owns no property, bankruptcy could stop her practising as a solicitor in future.

But of course there has been phenomenal public support. £87,000 has been raised by more than 5,000 funders via a crowdfund site so today’s legal hearing could take place.

Of course, if Carmichael’s side has spent the same, the final bill for the losers could top £180,000.

Fiona Grahame and Phaemie Matheson will be at today’s legal hearing -- Alastair Carmichael may not. It could be a dry, legalistic listen – even if the TV cameras encourage some swagger from the lawyers.

One thing it’s not, is a witch-hunt. The shame is that four brave folk have had to risk their livelihoods to raise a perfectly valid question about the conduct of their MP and his fitness to hold office.

If he loses, Carmichael will be debarred from standing for election for three years. But even if he wins, the MP has already lost the trust of half his constituents.

He will be remembered as the man who triggered one of the biggest legal fighting funds every established against an MP and let his constituents face bankruptcy for daring to question his bona fides.

There is still one honourable option that gives voters a second chance. But I doubt Alistair Carmichael is considering it.