One of last week’s less-noticed developments (at least outside Wales) was the resolution of the position of two Liberal Democrat party members, elected as AMs in May but unable to take their seats. At the time of their election, both were members of organisations that disqualified them from membership. This became apparent immediately after the May elections – but took two months to resolve, during which the voters of the two regions involved (South Wales Central and North Wales) were deprived of representatives they elected. The protracted delay has not been entirely because of political indecision; there has been a police inquiry into the possible commission of a criminal offence, and an investigation by the Assembly’s Commissioner for Standards, Gerald Elias QC, the Assembly has voted to disregard the disqualification in relation to one of the pair – Aled Roberts, from North Wales – but not the other, John Dixon from South Wales Central. Eluned Parrott, who was second on the list, has taken the Lib Dem seat instead.
Both Roberts and Dixon were leaders of their local authorities, and stood down from that post after their election. That wasn’t the disqualifying office. In Roberts’s case, that was the Valuation Tribunal for Wales. In Dixon’s, it was the Care Council for Wales. Roberts’s position was bolstered by the fact that this body was added to the list of disqualifying bodies in the 2010 Order (it had not been part of the 2006 Order) late in the day, and officials in the Assembly and the Welsh-language website of the Electoral Commission were both unaware of this. He was therefore misadvised about whether he needed to stand down. While that persuaded a majority of the Assembly to vote to disregard the disqualification, Dixon had no such arguments and didn’t succeed.
It’s deeply regrettable that it has taken so long to resolve, though it’s true that the new Assembly has taken its time to get going (with the government only due to set out its full legislative programme today). But the real problem here is to do with the law. Section 16 of the Government of Wales Act 2006 effectively creates two classes of disqualifying office. One is a number of – perfectly logical – offices set out in the section, which include the disqualifying offices for election to the House of Commons – being a judge, in the armed forces, and so forth. Others relate to working as a member of the Assembly’s staff, a Lord Lieutenant or sheriff if standing in the area affected, or being Auditor General or Public Services Ombudsman for Wales. Beyond that, there’s the list set out in the disqualification order (which is made by the Privy Council, after being approved by a vote in the Assembly). If the person has stood down from the disqualifying office the Assembly may vote to disregard the disqualification, ‘if it appears to the Assembly … that it is proper so to resolve’. There is no disqualification about standing as a candidate while holding that office – that only materialises when a candidate ‘is returned as an Assembly member’, which has to be the moment at which the returning officer declares the result. There’s no opportunity for a successful candidate to stand down from their disqualifying public offices, after they know they have been elected.
There is every reason to ensure that AMs do not also hold offices which cause a conflict of interest for them. But the goal should also be to ensure that members of the National Assembly are of the highest calibre possible. Able people are likely to play a significant role in public life in many ways, which may be directly political but which may also not be. Both Dixon and Roberts served on significant bodies because of their professional standing, not their political activities. They’re exactly the sort of people who should be members of the Assembly, and to expect them to abandon their other engagements in public life before they know if they will be elected or not means asking them to make an even bigger sacrifice in pursuit of elected office than running a campaign already involves. In effect, the law here is dysfunctional and unduly onerous. Exactly the same issue arises for Scotland as well, as there are parallel provisions in the Scotland Act 1998.
This is an area where the problem could be avoided by a small change in the 2006 Act, so that disqualification applies not at the time of being ‘returned’ as a member of the Assembly but at the time a Member takes the oath or affirmation of allegiance. That would provide a window of time to resolve such issues, so that the best use can be made of the talents of those who want to engage in public life through both elected and unelected office.