Electoral Law, Lib Dem 'criminals' and Common Sense

I have followed with initial amusement and increasing surprise the twists and turns of the row surrounding the Liberal Democrat AMs John Dixon and Aled Roberts who stand disqualified from the National Assembly and accused of breaking electoral law. Though I have to confess a soft spot for Eleanor Bunrham, I do think the time for the kind of amused chit chat in the pub about the return of one of the last Assembly's genuine characters is over.

I say that as someone who has spent most of the past decade dealing with various aspects of electoral law. The key point to note about electoral law is that when applied it very rarely deals in absolute terms with offences. Electoral courts, electoral lawyers and the Senior Compliance officers within political parties understand that there are a whole range of technical offences that would never make it to the courts - the most obvious and regular one being leaflets without the precise and correct form of imprint.

Two factors emerge as important in such legal matters - intent and impact. What marked the Phil Woolas case out was the fact the he deliberately and knowingly made a false statement about his opponent AND such statements given the closeness of the result were likely to have had an impact on the result.

Lets consider these two points. What is the electoral impact of holding these offices - one could reasonably conclude that Aled Roberts' membership of the Valuation Tribunal for Wales has no impact on the Liberal Democrat party vote in the North Wales region. And even if Roberts is disqualified the impact would be for another Liberal Democrat to assume the seat. Secondly no one has suggested that Roberts and Dixon intended to hide their positions, not even their political enemies - so neither can we conclude that there is any intent to deceive here.

All of which leaves us with an offence, a technical one, a fairly minor one, but an offence none the less. So what is to be done. The Government of Wales Act does specify in Section 17 a remedy where AMs can lift a disqualification. Others have argued that it is not within the powers of the Assembly so to do - but given the explicit mechanism placed within the Act to lift a disqualification I must believe that the framers of the legislation intended the Assembly to be able to use this provision.

The Assembly must satisfy itself of two criteria.
i) that the grounds for disqualification have been removed
ii) that it is 'proper' to lift the disqualification.

The first is straightforward. The second seems less so - i.e. what is 'proper' but my view here is that electoral law provides a guide - in impact and intent. On both these grounds it seems to me that the Assembly should indeed seat these duly elected members and bring this unedifying spectacle to an end (and leave the proper authority, in my view the Assembly standards committee - to appropriately punish the new AMs).

One last point is that some have argued channelling some Perry Mason-esque desire to star in the court room that it would be a poor start to a legislative Assembly to allow these AMs to take up their seats. Good legislators in my view require wisdom, common sense and the ability to understand the application of the law. Lets see how our Assembly reacts to this first challenge and lets hope that while some may have genuine sympathy for Eleanor Burnham following her recent demotion at the hands of her own party, and others may see this through the prism of brutal electoral battles with the Lib Dems on a local level; the time has now come for some wisdom and common sense.