The former chief legal adviser to the Welsh Assembly, Winston Roddick QC, has said that two Assembly Members who have been disqualified cannot be simply reinstated.
When elected, John Dixon and Aled Roberts were members of public bodies to which AMs cannot belong. They have now resigned, respectively, from the Care Council for Wales and the Valuation Tribunal for Wales and it had been hoped that their reinstatement would be a technicality. However, the Lib Dem motion to reinstate the two was withdrawn last night when Labour refused to support it.
The BBC reports:
Mr Roddick, who was the first counsel general to the assembly, told BBC Radio Wales the participation of either men in any assembly vote could render it invalid or leave it open to legal challenge.
He said: “The law is quite plain. It simply states the election by which they became AMs was void and it’s as if the election had not taken place and they had not been elected.
“What you have are two vacancies. The question is who now should be occupying these seats?
“Is it the person who came second in the election or should there be another election?
“My provisional view is that rather than hold another election, which I don’t think they have the power to do, the person who should occupy the seat is the person who came second in the poll.”
John Dixon and Aled Roberts have had to step down as AMs
Mr Roddick said the assembly had no authority to pay Mr Dixon and Mr Roberts or to cover their expenses.He added: “I have no doubt that this was an oversight… a law which traps the innocent or unwary is unfortunate.”
But he 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.”
Read the full article at the BBC website.
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12 Comments
If the law is quite plain that the election was void, then how could that void election be the basis for the second-placed candidates being made AMs?
If no one has the competence to reinstate the winner of a void election, how can anyone have the competence to instate the person who came second?
I think that s17(3) of the Government of Wales Act 2006 does give a sort of power to nullify a disqualification.
What it doesn’t do is give the Assembly the power to declare elected someone who (arguably) wasn’t elected in the first place as their nomination wasn’t valid.
Part of this will come down to what the purpose of s17 was – I suspect it was more likely to have been intended to deal with situations where a body was added to the list of disqualifying bodies mid-way through the Parliament.
What does this say about internal candidate scrutiny and preparation, really?
The party must get more professional and stop scoring own goals. For whatever reason this occurred, and even if it’s obscure/unfair/within a nook of electoral law to sort out, it doesn’t seem to have caught out any of the other parties’ elected members in Wales?
@JOhn – I’ve been told the guidance from the Welsh Electoral Commission wasn’t completely accurate and contradicted the actual order. Candidates would certainly be entitled to rely on advice from the Electoral Commission (although they have got stuff wrong before now) and may well have a remedy against the Electoral Commission.
That said the relevant order is online and contains a pretty clear list of the relevant bodies. When the rules have changed it would have been prudent to have ensured it was all checked up on centrally.
The latest developments – http://www.bbc.co.uk/news/uk-wales-politics-13477395
John Dixon’s membership of the Care council may have been terminated (by them) automatically. Aled Roberts allegedly sort advice on the list of prescribed organisations from the Returning, Officer, the Assembly and the Electoral Commission, all of which referred to the 2006 list, which the Valuation land tribunal was not on.
So we may (I stress the word may) have an AM who shouldn’t have been disqualified and another who did the right thing but got the wrong advice. Whatever happens we can’t go on like this for much longer.
@Gareth – I’m not sure that story amounts to anything meaningful in a legal sense.
The letter says that his membership was terminated on his election. The problem is that if the rules are the same as local/Parliamentary elections (and how there were in about 2003) then you need to be qualified and not disqualified on the day of nomination and of poll. If he wasn’t validly nominated then you obviously can’t be elected.
There is also mention of making reasonable efforts to obtain the correct information. Undoubtedly the case but there’s no concept of reasonable efforts to comply as regards this area of law (though arguably it may come into play as regards s17.
The idea of anybody relying upon any branch of the Electoral Commission for anything is indeed a novel concept in hilarity. I do, however fear that the responsibility does fall on the individual candidates to check whether they needed to get off certain bodies before they were formally-nominated.
1. Both Aled and John swore the oath to confirm their membership/election to the Assembly.
2. The Electoral Commission’s candidate’s pack listed the 2006 organisations that debarred candidature. This list was revised in 2010. The Valuation panel was not included in the 2006 list Aled received.
3.John received written confirmation that he was no longer a member of any organisation that was forbidden.
4.To clarify the situation both confirmed their resignations immediately there was any question of their place as AMs.
5 The Assembly could by a simple majority resolve that the disqalification “is to be disregarded” 17 (3)(a) and(b)
The Labour group with 30 AMs could do this immediately.
We wait early developments.
@Cyfaill
It isn’t that straightforward. If you are disqualified at the close of nominations then you aren’t validly nominated (and hence not elected). The Assembly has no power to undo that state of affairs. It can’t disregard the disqualification as it had not been removed at that (relevant) time.
Must let the lawyers (!) handle this !!!
Hywel, there is also Section 18 of GOWA, which is the part that says that the election is void if the person is disqualified. It also says that that voidness is subject to any resolution made under 17(3), so the Assembly can undo it.
http://auberius.blogspot.com/2011/05/lawyering-up.html
The problem people seem to be missing can be summed up as the following:-
a) you cannot be a candidate if you are legally disqualified from doing so (hence why candidates sign a form to say they not disqualified)
b) you cannot be elected if legally disqualified from doing so
c) resigning after the fact, doesn’t change what happened on the day you became a candidate
d) moaning at the Electoral Commission for not updating it’s list isn’t a valid excuse.
However, the above does point to the fact that the Welsh Lib Dems should’ve asked these questions before they ended up as candidates, especially high up enough on the list to be elected.
As to what happens next, as there is no support from Labour AMs in the Welsh Assembly, it’s in the hands of the lawyers really….