Brian Wilson: Court case is a dangerous precedent

SNP is not averse to being economical with the actualité, but has yet to face the judicial process, writes Brian Wilson

Alistair Carmichael displayed Inspector Clouseau-like incompetence rather than evil intent. Picture: Greg Macvean
Alistair Carmichael displayed Inspector Clouseau-like incompetence rather than evil intent. Picture: Greg Macvean
Alistair Carmichael displayed Inspector Clouseau-like incompetence rather than evil intent. Picture: Greg Macvean

One of life’s great imbalances lies in how some cases, and people, end up in court and others do not. The wretched miscreant of modest means will be pilloried in the dock while reckless captains of finance who bring down banks walk free and unscathed.

To the litany of disproportionate responses, we can now add the hitherto obscure role of the Election Court.

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Indeed, it contributes an additional element of capriciousness because cases can be raised by popular demand – in other words, by the politically malicious under the guise of “petitioners”.

To the lay observer, by any standard of relativity, the case against Alistair Carmichael is meagre indeed. On the Richter scale of political mendacity, the offence to which he confessed registers at about 0.3. But relativity does not determine who ends up in court. For that to happen, there must be prosecutors – or, in this case, petitioners – and then… who knows?

Ironically, the Clouseau-like incompetence surrounding the leak of a note on the meeting between Nicola Sturgeon and the French Ambassador confirms that this was the work of people unaccustomed to doing that sort of thing. Otherwise, there would have been smooth deniability, no fingerprints and no Election Court. That is how the professionals work, and there are a few of them in Edinburgh – though clearly not in the Scotland Office.

Nobody has suggested that Carmichael had anything to do with the content of the note. The report by the cabinet secretary confirmed it was taken by a civil servant with “no history of inaccurate reporting, impropriety or security lapses”. There was “no doubt he recorded what he thought he had heard”.

So to this day, for all the spin and fury, we do not know what was said or not said, because we weren’t there. To those on whose desks the note landed, the content must have appeared as high-level validation of what many dogs in the political streets already believed.

The temptation to share it with a wider audience is obvious, even if it should have been resisted. But once that happened, it is somewhat unworldly – even by Liberal Democrat standards – to expect Carmichael to have gone on telly to declare: “It was I what done it.”

A craftier operator would have avoided outright denial and there would have been no Election Court – as simple as that.

As counsel for the petitioners helpfully summarised: “We do not complain about the leak. What we complain about is the cover-up.”

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If everyone who denies something which turns out to be true during the heat of a campaign is to be dragged before it, the Election Court will become a busy place and STV could start a series.

More likely, the imperative will become even stronger to make sure that truth does not emerge within 30 days of an election, at which point cases become time-barred. For efficient political operators who have told even the biggest whoppers, this will not be a great challenge.

Presumably that is why the law was written to cover “personal” untruths about the character of another candidate, likely to be to their detriment in an election, rather than political assertion which is not of a “personal” nature. We now must wait to learn if the Election Court believes that distinction to apply, in this particular case.

While waiting, we could play the game of deciding what was the biggest lie in modern Scottish politics that the Election Court was never asked to contemplate. There are obvious candidates like Alex Salmond’s claim to have had legal advice on EU membership when it never existed.

Unlike the Carmichael botched job, that was a sustained exercise on a matter of critical importance. When Salmond was forced to concede an inquiry, he appointed his own house-trained Sir Humphry who found him to have been merely “muddled” and “evasive”. So that doesn’t count.

Then there was the independence White Paper and its audacious attempt to make the sums add up by postulating an oil price which is more than double the current reality. However, I would have to disqualify this one as you cannot tell lies about something that hasn’t happened yet. It comes into the separate category of “barefaced dishonesty” which does not feature in the Representation of the People Act.

For me, there is only one winner in the “biggest lie” contest and it earns the prize not only because it was so brazen, specific and calculated but also due to its effect – it was immensely successful which elevates it to the level of “classic lie”. I refer to the absolute, unambiguous commitment made by the SNP in its 2007 manifesto, and by Nicola Sturgeon in person on numerous occasions, to abolish Scottish student debt.

Civil servants who, in answer to questions from the SNP’s then education spokeswoman, told them that this would cost almost £2 billion in a single year were sneered at by Salmond as “lickspittles”. Sturgeon, when faced with irrefutable evidence of what the promise would cost, dismissed the truth as “risible” and repeated: “The SNP is committed to serving the debt repayments of Scottish-domiciled graduates”.

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It was, understandably, an immensely attractive promise since many thousands of voters, who shared this £2bn of debt among them, were categorically assured that it would be lifted from their shouIders. The SNP became the biggest party in 2007 by a hairsbreadth and I have no doubt that this was the lie that changed history – an 8 on the Richter Scale. It took a lot more than 30 days for the truth, which had been freely available before the election, to be confirmed. The Election Court was irrelevant, even if anyone had thought of abusing it.

As a general rule, public life does not benefit from people hurling the word “liar” back and forward. It is a term which long-term residents of glass houses should be careful about encouraging.

It also fails to recognise the vast grey area which covers a wide range of human behaviour and political duplicity – much of it far more morally wrong than the clumsy denial by a decent man of something which was pretty obviously true, and also irrelevant to the substance of what the note contained.