Martyn McLaughlin: Time to update Victorian electoral laws

Alistair Carmichaels integrity was eviscerated by Scottish judges, but the real culprit in this case was the quagmire of antiquated laws governing our elections. Picture: Greg Macvean

The fallout from the special election court case brought against Alistair Carmichael by four of his constituents in the wake of the leaked memo affair reveals there are no winners left standing. Having seen his integrity eviscerated by judges who deemed his conduct “evasive and self-serving”, Scotland’s only Liberal Democrat MP faces a sizeable expenses bill. The petitioners may claim moral victory, but that is scant consolation for a challenge that ultimately ended in failure.

Whatever your view about the merits of the case, it is clear there is one party wounded above all others – the justice system. A landmark televised case that should have allowed the electorate unprecedented insight into the legal process merely revealed the antiquated and opaque tapestry that passes for  electoral law.

Just four days before Lady Ann Paton ruled that the former Scottish secretary should bear responsibility for his costs, an interesting interim report was issued by the three law commissions across the UK. A 220-page doorstop concerned with legislative revisions, it received little fanfare or attention, but its recommendations are pertinent in the wake of the Carmichael case.

As things stand, electoral legislation is shaped by over 50 pieces of primary legislation and 170 pieces of secondary legislation. Consider for a moment some of the acts that apply. The most prominent may be the Representation of the People Act 1983, known as RIPA, but lurking beneath it are any number of outmoded legal curios which bear scant relevance to today’s elections: the Act of Settlement of 1700; the Sheriffs Act of 1887; the Election Petition Rules 1960.

Then there is the nature of the some of the offences, which could well have been plucked from the fifth volume of The Life and Opinions of Tristram Shandy. Treating, for example, makes it illegal to lay on food and drink for the purpose of “corruptly influencing” a person’s voting intentions.

Until now, this archaism has not dissuaded candidates from providing Asda sausage rolls and lukewarm supermarket wine at meetings, but it has invited unmeritorious accusations that waste time and public money; in 2013, for instance, Essex

Police launched an investigation after a Labour councillor brought cakes along during a visit to a sheltered housing complex.

Factor in the fact that the statutes differ across the UK’s three legal systems and it is no surprise how points of law in the Carmichael case proved inscrutable to so many. For Lady Paton and Lord Matthews, the search for a precedent in the course of their deliberations was an exercise in time travel which saw them pore over minutes from standing committees which last convened in the Victorian era.

It was an instructive demonstration of how this cluster of obscure legislation is a mystery not only to the layman. Those charged with interpreting it are just as lost. If there is a single damning indictment of the existing set-up, it can be found tucked away in the foothills of page 158 of the tripartite report from the Law Commission, the Scottish Law Commission and the Northern Ireland Law Commission.

In a section exploring the framework regulating campaign expenditure, contained in RIPA, the three law commissions offer up an astonishing evaluation. The scheme of the act, they warn, “is not obvious even to lawyers”.

If implemented, the repercussions of the joint report will be far reaching. Instead of having to wait on a third party to report a suspected breach of the law, returning officers would be given the power to bring petitions; irrelevant Victorian offences would be abolished or, at the very least, reformed; and provisions governing the regulation of campaign expenditure would be set out in a single code for all elections.

The most important proposal, however, would signal an end to the electoral court’s bizarre, dislocated status, instead allowing any legal challenge to be heard in ordinary courts. This has been welcomed by the judiciary in England and Wales. They recognise that not only would it cut down on administrative expenses, but it is quite simply “right in principle” .

Were this change to be enacted in Scotland, it would mean that petitions would be heard by the Outer House of the Court of Session, with a single right of appeal for legal challenges at the Inner House.

Unfortunately, the legal brethren in Scotland have been less than receptive. The Senators of the College of Justice – not a proto heavy metal band, but the pompous moniker for those who sit in the Court of Session and the High Court – have disagreed with the commissions.

Their stance is indefensible. Allowing the electoral court to remain as a distinct legal entity is in no-one’s interests, least of all the public’s. In the words of the commissions, it is little more than “a legal technicality which can cause obfuscation and doubt in important legal proceedings”.

The existing patchwork of inconsistent and cryptic legislation is a threat to the electoral process. The only way to protect the tenets of democracy is by streamlining the law, transporting it from the 19th century into a form more accessible and meaningful to the present day.

Many thought the petition against Mr Carmichael would have been thrown out early on. The fact it went to a full hearing will doubtless give rise to similar cases in the future. The public must be able understand the process, not just the outcome.