Now that we have had time to reflect on the Election Court’s decision in Timothy Denis Morrison & Others v Carmichael & Another EC 90, what can we say about its wider implications? Well, quite a lot actually according to Rosie Walker, who acted for Alistair Carmichael.

The law post Morrison v Carmichael?

The law was recognised by all parties to the action as outdated and in need of overhaul. This is perhaps not surprising since it has existed, in similar form, since 1895. The Law Commissions of England and Wales, Scotland and Northern Ireland are currently consulting on reforming electoral law however any changes will not come in before the 2016 Scottish Elections and possibly not before the 2020 Westminster ones either. Since these will likely be conducted under the current law as it presently stands, what do candidates and constituents alike need to be aware of?

Firstly and perhaps most importantly, s 106 of the Representation of the People Act 1983, which deals with certain “false statements” made before or during an election, will now be applied by the courts to statements made by a candidate about themselves. This was a point which had never been argued before but general understanding among practitioners was that such “self talking” statements were not covered by the Act, which appeared designed to deal with statements made about another candidate. We also now have confirmation that the Act can apply to false, laudatory statements as well as to derogatory ones.

Secondly, the Election Court in Morrison v Carmichael reaffirmed earlier English rulings that a court must draw a line between false statements as to a candidate’s personal conduct and character (which are caught by the Act) and false statements as to his or her political conduct or character (which are not). Drawing this distinction may often be difficult but the court rejected the suggestion that any false statement can be treated as personal because every falsity can, on one view, be regarded as going to the root of personal conduct or character. Therefore the court must place every false statement complained of into one category or the other, however unpalatable that may be to members of the public who are less inclined to distinguish between types of false statements.

Where a false statement arises from a political act or is made for clear political purposes, it is unlikely to fall foul of the Act. However the court left open the possibility that an apparently political statement could be converted into a false statement as to personal conduct if the speaker expressly relates it to his own personal values or conduct. So if a candidate falsely denies carrying out a political act and goes on to declare that he would never commit such an act because he regards it as reprehensible, that might amount to a breach of the statute.

Finally the false statement must have been made for the purpose of affecting the return of a candidate at the election. This means the particular constituency election and not the general election. However the election court considered the possibility that a false statement made seemingly for wider party political purposes, for example to hurt another party nationally, might meet this test if, within that wider purpose, a more restrictive purpose of affecting a constituency return could be discerned.

The implications?

Arguably the political implications are as significant as the legal ones. The most obvious change brought about by this case is the increased public awareness of this area of fairly obscure electoral law. Mainstream and social media covered the proceedings extensively although the reporting and commentary was often strikingly inaccurate. Will this lead to increased scrutiny of candidates and a greater prospect of future challenges to election results? Possibly.

Morrison v Carmichael has already increased the scope for challenges by including “self talking” statements, assuming they meet the other tests. What may prove more significant, however, is the encouragement given to disappointed candidates or electors to find new ways of applying the 1983 Act. In other words, we may see an increased willingness to use the current Act and to test its boundaries.

One could easily imagine a challenge brought where a candidate professes him or herself to be a family man or woman and extols the sanctity of marriage only to be exposed as unfaithful. That would be a statement as to personal conduct and character, is laudatory and is about oneself. It could certainly be argued that adopting the role of a family man, falsely, was something done for the purpose of increasing one’s vote.

More controversially, especially in the current climate, what of a candidate who falsely describes himself as “anti war” (or “anti Trident”) and explains this is because he is personally a committed pacifist who views all armed conflict as morally reprehensible? Suppose he or she is then found to have, many years ago, spoken out in favour of one side or another in a civil war or to have more recently given support to the armed forces. The stand alone statement that he is “anti war” was probably political and so not actionable however the explanation given may bring the statement into the realm of the personal. An election court hearing such a challenge would likely have to examine in detail both statements, subjecting the words used to a scrutiny they were never expected to encounter.

Will we see a flood of election challenges?

Possibly but significant barriers still exist. The Morrison case may encourage some to test the boundaries but its ultimate failure will be a warning to others.

There are, of course, strict time limits governing these challenges. They must be brought within 21 days of the election return. Thus challenges to the election of an MSP on 5 May 2016 will generally require to be brought by 26 May 2016. This a fairly tight timescale in which to instruct a legal team, put together a petition and secure funding.

Another barrier is cost. Mr Morrison and his fellow petitioners have increased their own estimate of legal costs several times from an initial £60,000 to their current funding target of £208,000. Before social media, that sum would have deterred most people, whether candidates or constituents. However that brings us to another novel aspect of this case – crowd funding. The petitioners have crowd funded their legal costs – essentially setting up a page on a website inviting anybody, regardless of whether they live within the constituency, to contribute to their legal fees. The crowd fund appeal received significant social media coverage. This is a game changer for would be petitioners’ ability to fund a challenge. In Mr Morrison’s case, the petitioners’ supporters retweeted the crowd funding appeals to increase their reach while the web page at one stage offered merchandising badges and posters to donors.

Thus for little or no cost, constituents who are willing to set up websites and get onto social media, can in the future potentially bring petitions without exposing themselves to the financial risk which previous challenges would have required.

Whether this level of crowd funding can be replicated in future challenges is yet to be seen. Public appetite to fund them may wane as their novelty disappears. One imagines that a future petition’s attractiveness – and so its ability to generate sufficient crowd funding – may depend on the profile of the candidate and the level of national support for the parties involved. It may also depend on the public’s level of political engagement going forward. Certainly in Scotland this has increased significantly since the referendum. Will Nicola Sturgeon, Jeremy Corbyn and others be able to keep such engagement going through to May 2016? The public interest expressed in the recent allegations surrounding Michelle Thomson and Natalie McGarry suggests a public desire to “clean up” politics, in which case the stage could well be set for a rash of challenges. Election lawyers in Scotland will probably be readying themselves for a busy summer!