The 'proper' way forward.
If the Liberal Democrats were hoping that a swift show of hands in the Assembly chamber yesterday could save their two disqualified AMs, then that hope soon evaporated and things are going rapidly downhill for them.
A word of warning: it's going downhilll because this is a pretty complex issue, so this is a cup-of-tea-and-sit-down sort of blog entry.
Read on.
The Liberal Democrat business manager, Peter Black, thought he had agreement from Labour on Tuesday night, hours after the controversy broke, to vote in favour of a motion under section 17(3) of the Government of Wales Act which entitles a majority vote in the Assembly to set aside a disqualification. The motion was duly tabled for Wednesday afternoon and a press statement put out by the Liberal Democrats saying the "technicality" would be overturned with "cross party support". John Dixon and Aled Roberts would be back in their offices in Cardiff Bay by nightfall.
But within the Labour group the mutterings had already begun. One Labour AM said later that evening it would take a "hard three line whip" for them to vote in favour of reinstatement.
Things began to unravel properly on Wednesday morning with a meeting of the Labour group ahead of the Assembly plenary session. At the same time, Mr Black, clearly sensing the ground shifting under his feet, went on the AMPM programme, changing tack and calling for a "period of contrition". I gather the Labour group was unanimous (a rarity, one veteran remarked wryly in passing) that no vote should be taken until the full legal implications of the situation had been explored.
The fundamental question for the Labour AMs, which still hasn't been resolved today is this.: were the two Lib Dems nominations valid? And if not, was their election on May 5th therefore invalid?
The former Assembly Counsel General Winston Roddick is unequivocal. They need to face up to the consequences of what is a null and void election. And because they are list members in North Wales and South Wales Central respectively, the second name on those lists should now be returned to the Assembly - a case of step forward Eluned Parrot and step back to the future Eleanor Burnham.
Others are not so sure.
One of the main factors complicating all this is that we're dealing with several different pieces of legislation which all relate to the election of AMs - not just one.
Under the Government of Wales Act 2006, AMs cannot be members of certain organisations and if they are, they are automatically disqualified. For John Dixon, it was the Care Council for Wales, for Aled Roberts, it was the Valuation Tribunal for Wales. Both failed to resign from these bodies before they were elected and therefore at the moment of their election, they were disqualified. It was, of course, some days before the breach came to light.
The rules makes sense in that they're there to preclude AMs from any potential conflict of interest should they be part of bodies that the Assembly and its committees may wish to scrutinise.
The two Liberal Democrats have fallen foul of section 16 (1) (a) of the Act - which refers to the Order in Council listing offices held which disqualify persons from being Assembly members. If this is breached, the Act says "the person's return is void and the person's seat is vacant".
That is why there are currently only 58 Assembly members and that is why Labour, with their 30 members, now have a majority.
However, the Act provides a get out clause. Section 17 (3) says the Assembly may resolve that the disqualification of any person under section 16 is to be disregarded if it appears to the Assembly -
(a) that the ground has been removed, and
(b) that it is proper so to resolve
This is what the Liberal Democrats were trying to rush through yesterday afternoon. However, that word "proper" clearly rankles with many, particularly on the Labour benches. More than one Labour figure has asked me the question in the past 24 hours - "How would we look if one of the the first actions of the Assembly as a full legislative body was to vote to overturn and disregard clear electoral irregularities on the part of two of our members?"
A former AM, one who held his seat very dearly and was hit hard when he lost it, Emailed last night making the same point. Ok, he said, it's not exactly the main topic of conversation down the pub but:
"Is it 'proper' to change the law simply because a couple of aspiring AMs didn't know the law regarding eligibility? ... The new - and greatly empowered - Assembly wouldn't exactly cover itself with glory if one of its first legislative acts was to set aside the disqualification of two of its members. Not the sort of thing a Parliament should be doing".
However, while the Act sets out in what circumstances AMs may be disqualified, it isn't clear on the central issue of the validity of their election in the first place. That is covered by the National Assembly for Wales (Representation of the People) Order 2007.
Under section 34 (4) of that Order
A person is guilty of a corrupt practice if, in the case of a party list candidate at a regional
election, he makes in any document in which he gives his consent to nomination as a candidate -
(a) a statement of his date of birth;
(b) a statement as to his qualification for membership of the Assembly
... which he knows to be false in any particular [* A reader of the blog, who also happens to know orders such as this one like the back of his hand, points out that I'd omitted to include these vital words that appear later in the same paragraph. The point made, clearly, is that Aled Roberts and John Dixon would be guilty of an offence if they knew that what they were claiming was false - and only then. Simply being careless in making a false statement doesn't amount to an offence. You must know it to be false. Thank you to him and his eagle eye].
The claims are that both Mr Dixon and Mr Roberts signed their consents to nomination asserting they were qualified for membership of the Assembly, when their membership of other organisations meant they weren't and are therefore guilty of corrupt practice.
But the order goes on to prescribe the penalty for this in section 120 - Prosecutions for corrupt practices.
(1) A person who is guilty of a corrupt practice shall be liable-
(a) on conviction on indictment-
(i) in the case of a corrupt practice under article 14(11) or 30, to imprisonment for a
term not exceeding two years, or to a fine, or to both;
(ii) in any other case, to imprisonment for a term not exceeding one year, or to a fine, or to both; or
(b) on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine
not exceeding the statutory maximum, or to both.
It is on these grounds that UKIP have referred the two Lib Dems to the police.
But what is missing here is any statement that these "corrupt practices" lead to the invalidation of the individual's election. Fines and even imprisonment, yes but it says nothing about an "illegal election" as UKIP have claimed it is.
The nomination papers as they were signed before the election would have appeared valid and been accepted by the electoral authorities as such - however, the electoral offences, according to this Order, would seem to have been committed the moment the two actually "became" AMs, rather than beforehand, so it could be argued they were elected legitimately, and disqualified subsequently.
As I say, others will disagree.
So it would seem that the fate of the two as Assembly members remains with the Assembly as a whole and whether that motion under 17.(3) is passed.
Speaking to AMs and parties yesterday, the most emollient towards the Lib Dems appeared to be Plaid Cymru. However, in a statement today, they too are now taking a harder line: "the rules that exist are in place for a reason and simply ignoring any breaches of those rules could set a damaging precedent, the impact of these breaches needs to be fully considered."
What happens now? The Clerk will be mpw "undertaking actions on behalf of the Presiding Officer". In other words, she will investigate what is, indeed, the 'proper' way forward.
I'm Betsan Powys, Â鶹Éç Wales' political editor. I'll be blogging the inside track on .
Comment number 1.
At 19th May 2011, DEWMACH wrote:Plaid might had been foregiving yesterday, today it looks differant. At preasant both JD and AR are out, and if there are no legal way to vote them back in, they stay out. And in any case, only Lab with their new temp majority can save them.
The sooner the PO after receiving the best legal advise makes her decision on whether to allow a vote or not, the better. And if some of what is written in previous blogs are true, she cannot allow the vote. If this be it, the sooner the LD accept the situation, appoint replacements, and move on.
May all political parties learn a lesson.
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Comment number 2.
At 19th May 2011, Andrew Lye wrote:I am a Liberal Democrat party member and am becoming increasingly disgusted that politics seems to involve everyone running to the Police these days, crying foul.
I had hoped that the 2010 election would have started to restore the public confidence in our MP's and other elected representatives. However, with events around Chris Huhne and Ken Clarke, in recent days, it seems things are going even deeper in the sewers.
Yes, a wrong has occured and surely common sense is required to rectify this as the 2 AM's were not exactly guilty of fraud, theft or something equally serious.
Is their crime in this instance actually worthy of imprisonment? If so, anyone guilty of any crime should also be locked up.
Common sense please, from someone within the Assembly or is it full of "jobsworths" on the Labour benches?
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Comment number 3.
At 19th May 2011, Daviddwr wrote:For a UKIP MEP to take this action demonstrates that irony is alive and well.
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Comment number 4.
At 19th May 2011, Rhetoric wrote:Well imprisonment is certainly too hard a line.
These two in question are hardly crafty old Assembly members with vested interests up their slieves.
They are newcomers and should be treated with some leniency. I think the rror has come from the Lib Dem candidates manager and the Director of the Lib dems.
Give me another shot.
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Comment number 5.
At 19th May 2011, alfsplace1986 wrote:2. Andrew Lye
I am a Liberal Democrat party member and am becoming increasingly disgusted that politics seems to involve everyone running to the Police these days, crying foul.
You can't blame the the Welsh Assembly AMs for this.
If a law has been broken it is not a case of every one running to the Police.
It is a case of the law being the law.
As a Liberal Democrat would you be saying the same thing if they were two Plaid Cymru Members. I doubt it very much.
As Winston Rodick has said.
"AMs did not have the power to vote to reinstate them".
"It's not for anyone to say forgive and forget. It's not within anyone's competence to do that".
If it was one of us lower mortals had committed some sort of crime we would face the full force of that law and you would be saying rightly so.
I don't hear you standing up for sick and disabled people being victimised by this Government changing laws ‘willy nilly’ to suit themselves and making criminals out them.
Any way it was not any of the Welsh Assembly Members or Westminster MPs who went to the Police it was a Wales UKIP Euro MP.
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Comment number 6.
At 19th May 2011, Observer wrote:Avoidance of conflict of interest is too important a principle to be thrust aside by a fudge like 17(3). They should redraft the whole qualification and disqualification business so that no ambiguity exists and the avoidance of conflict of interest is properly protected.
Applying to be an AM is like applying for any other job - you send in your CV and if you lie about your qualifications you don't deserve the job. The claim that they didn't KNOW about their conflict of interest is hardly a point in their favour. If they can't be bothered to read the relevant rules about their own eligibility then how can we expect them to be able to deal with the complex bills the Assembly members will have to scrutinise in future?
If these two guys are fudged back into the Assembly then Burnham and Parrot would be entitled to sue the Welsh Government for wrongful deprivation of employment.
It's a good lesson for the new Welsh lawmakers to make sure their bills are drafted with care and attention in future.
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Comment number 7.
At 19th May 2011, Glyndo wrote:I agree with DEWMACH @ 1, The Lib Dems should accept that they have messed up, the two people involved should resign the positions and the next people on the list ahould take their places.
That would be the sensible and honourable soloution.
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Comment number 8.
At 19th May 2011, Rhondda54_DJ wrote:2. Andrew Lye
I am a Liberal Democrat party member and am becoming increasingly disgusted that politics seems to involve everyone running to the Police these days, crying foul.
Elwyn Watkins ?
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Comment number 9.
At 19th May 2011, bochgoch wrote:DEWMACH, Glyndo and now me. The Lib Dems messed up. The mess is of their making, it's Kirsty's job to clean up, even if that means swapping two able members for Eleanor Burnham and A N Other.
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Comment number 10.
At 19th May 2011, DEWMACH wrote:Has Vaughan Roderick changed the situation with his latest blog?
AR can be saved, as his post was unpaid, and the Assembly did not make it plain that it was a prohibited post
Conversley JD post was paid and plainly prohibited therefore it is most probably goodby.
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Comment number 11.
At 19th May 2011, sionnyn wrote:Dixon and Roberts, Hune and Laws - all under scrutiny from the constabulary. Not a good week for what is, after all, a small party.
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Comment number 12.
At 19th May 2011, Lyn David Thomas wrote:If we are dealing with a conflict of interest then that conflict has been removed, they have resigned as members of the body that caused that conflict. The relevant legislation that already exists gives the National Assembly the power to permit them to be members. If it exists then it was planned that it should be used. No change in the law, just an implementation of it.
I really can't get worked up over this, there is no conflict of interest so they should be allowed to take their seats, maybe with some sanction for not sorting it out in the first place.
Further I think the law should be revised. There should be no barrier to a person standing for the National Assembly by virtue of membership of any other public body. If there is a conflict of interest then they should resign from the other body after they have been elected. Which is the reason for the bar on joint membership of the National Assembly and certain other public bodies. So lets not lose sight of what the purpose of the ban was.
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Comment number 13.
At 19th May 2011, Decentjohn wrote:2 Andrew Lye
What an unbelievable comment. We well know that Lib/Dems are used to breaking the law and also rules Laws, Cable, Hune et al. To involve the police when the law has been broken is the duty of every citizen including Lib/Dem voters.
I don't often agree Alfsplace but see comment 5 in which Alfsplace has got it 100% right
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Comment number 14.
At 19th May 2011, sionnyn wrote:I agree with Lyn - this is really not something that should be exercising the Assembly, and taking so much time when there is so much to do. Why do they need these exclusions? Surely a register of members interests and clear guidelines on when members should exclude themselves from committees where a conflict might occur would do the trick?
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Comment number 15.
At 19th May 2011, Rhetoric wrote:It certainly is not a police matter.
Electoral bunglings rather than Electoral fraud.
It should be something for the Electoral Commission to investigate and make recommendations to the First Minister.
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Comment number 16.
At 19th May 2011, alfsplace1986 wrote:15.Rhetoric
Has a law been broken in this matter.
IF a law is broken it is certainly a matter for the Police.
If a sick or disabled person on benefits doesn't notify the DWP on any changes.
They are prosecuted under the law for fraud even if it may be a genuine mistake or they may not have realised they were committing an offence. Even Elderly people.
As we have seen on many occasions, with the Media and Politicians jumping up and down in excitement and possibly wetting themselves at the same time, when someone has been caught under benefit fraud.
What do they shout from the rooftops, not quite hang them, but near enough.
Why should Politicians get away with it.
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Comment number 17.
At 19th May 2011, Rhetoric wrote:@ alfsplace1986
Well half of me agrees with your analysis. But it's not really politicians who are
after the 'sick or disabled' but civil servants on a power trip!
The other half of me says give them an opportunity because they are only newcomers. There is always hope with the 'new' ! (especially with Eleanor Burnham waiting in the wings)
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Comment number 18.
At 19th May 2011, alfsplace1986 wrote:17. Rhetoric
Actually it is not the Civil servants I see and hear condeming sick and disabled people and calling them 'Benefit Scroungers' and creating a hate campaign against them.
It is Politicians and the Media.
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Comment number 19.
At 20th May 2011, Arihfach wrote:Alf,
while I am in complete agreement with your analysis of the disgusting way sick and disabled people are being criminalised, and the terrible hate campaigns being launched upon people who genuinely need and deserve hep, I don't agree with your reaction to that.
The fact that one group is treated badly is not a reason to treat another group badly. Sticking to "the law is the law even if it's an ass" in the case of these assembly members won't help disabled or sick people. If anything, it'll make things worse, becasue politicians can point to how they stuck mercilessly to the letter of a bad law even for their own colleagues.
Accepting that this is a bad law, ignoring it in this case before changing it would be much better all round - it would certainly give lobbyists for ill and disabled people some ammunition. It would also not be without precedent... there are many bad or silly laws in the UK which are ignored (for example possession and use of cannabis is mostly not treated as a crime).
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Comment number 20.
At 20th May 2011, alfsplace1986 wrote:19. Arihfach
The fact that one group is treated badly is not a reason to treat another group badly.
Of course I completely agree.
My example was just an example. I agree also that the case of these Assembly Members won't help the sick and disabled.
I was just using the issue regarding the law being equal for all.
Though judging by some of the comments on here if you're a Politician of any persuasion it is alright to circumvent the law on their behalf, because of ignorance. Doesn't work I am afraid, you or anyone else on here try it next time or any time you may come up against 'the law'.
Ignorance of the law is no excuse I think is the reason they say.
How many people know what laws there are. There are so many no one has a clue if they are breaking any or not. Yet it is not regarded as an excuse, that is what is farcical.
These Politicians or any Politician should have known these rules or if not them the parties Organisers whom they represent.
So what we should be looking at is, these two are scapegoats for the LibDem Leaders and Officials.
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Comment number 21.
At 21st May 2011, Bill wrote:There appears to be a silent, and unpleasant aroma arising from Welsh politics and Welsh politicians in the last decade since devolution?
It's deeply disappointing that the Welsh 'administration and it's representatives' are failing the Welsh people? That includes Welsh MPs., Welsh MePs., and Welsh Local Authorities? Most of the above are over-paid in salary/expenses.
Is it not time The Welsh Assembly, as a whole, were taken to account by the Welsh population as failing in their duty to their country?
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Comment number 22.
At 22nd May 2011, Lyn David Thomas wrote:How is this the fault of the National Assembly?
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