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.
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.