A lawyer for the former Scotland secretary Alistair Carmichael has told judges in Edinburgh that attempts to throw him out of the Commons have no basis in law and must be rejected.

A rare election court sitting in Scotland’s civil courts was told by his counsel Roddy Dunlop QC that an attempt by some of Carmichael’s constituents in Orkney and Shetland to unseat him are “wrong in law” and “bound to fail”.

The court is sitting for only the third time in 50 years after constituents raised £88,000 through crowd-funding to challenge Carmichael’s re-election in May, after he admitted he lied about giving his consent over a leaked civil service memo.

Carmichael, who was not in court, faces his election being struck down under the Representation of the People Act 1983 if Lady Paton and Lord Matthews agree to send him for trial. If he loses, he would be barred from office and from voting in a Westminster election for three years and the Lib Dems would almost certainly lose their only Scottish MP at the subsequent byelection.

The leaked memo alleged that Nicola Sturgeon, Scotland’s first minister, had secretly admitted to the French ambassador Sylvie Berman in March that she wanted David Cameron to win the general election.

The explosive claim, which would contradict Sturgeon’s repeated call for a post-election pact with Labour, was recorded by a Scotland Office civil servant following a briefing by Pierre Alain Coffinier, then France’s consul general in Edinburgh.

The civil service memo was leaked to the Daily Telegraph five weeks before polling day, as the SNP were surging to record levels in the polls. Its central claim was vehemently denied by Sturgeon and Coffinier denied ever saying it.

After an official leak inquiry was ordered by Sir Jeremy Heywood, the cabinet secretary, Carmichael told Channel 4 News he had no idea where the leak had come from. The Lib Dem MP then later admitted to Sir Jeremy that he had allowed the memo to be leaked – but only after he had been re-elected on a substantially smaller majority of 817 votes.

Carmichael insisted the leak was a political decision taken as Scottish secretary and handed back his redundancy payment from losing the post after the Tories won the election.

Closing the first day of legal argument about the merits of the case, Jonathan Mitchell QC, counsel for the four voters in Orkney who want the local election re-run, said that the “only reasonable inference” from Carmichael’s lie was to ensure he got elected and his opponents did not.

“Our position is that his statement was to affect his own return and by obvious logic not the return of any other candidate in Orkney and Shetland,” Mitchell said. He pointed out that Carmichael’s counter-arguments in this case did not deny that. “It is instructive that nothing put forward on this [by Carmichael’s side] is contradicted,” Mitchell told the court.

But Dunlop insisted Mitchell had wholly misread and misrepresented the Representation of the People Act 1983 and its predecessors. These arguments were irrelevant, he said.

He said that the legislation had been written specifically to stop political opponents from slandering each other during an election by attacking their rival’s personal conduct – such as their marriage, sexual life or business dealings, and not to police political disputes or claims.

If it was meant to cover political rows, every candidate in the country would be subjected to lie detector tests and truth serum. “The 1983 act is a limited derogation of powers from the default position whereby the conduct of MPs is regulated by parliament,” he added.

One of the clauses being used against Carmichael deals with one candidate smearing another, but only if the rival candidate is in the same constituency. It also made no mention of a statement by a candidate about their own personal conduct. Sturgeon was not a candidate in May and was not standing in Orkney and Shetland.

In the Channel 4 News interview being used against him – where Carmichael lied about his involvement in the leaked memo – he did not say “anything about his personal character and conduct”. Nor did he attack an opponent; the issue explicitly covered by the 1983 act. Carmichael was being interviewed as secretary of state for Scotland about a political act by someone in the Scotland Office. “It is as clear as clear can be that what was said related to political conduct,” Dunlop told the court.

He added: “The statutory provisions were introduced, for clear and good reason, to prevent the traducing of private character for political gain,” he said. “They were not introduced to allow disappointed electors to pore over every utterance of an opponent in an attempt to unseat him.”



The hearing at the court of session in Edinburgh continues on Tuesday.