More on Dixon and Roberts

I thought it might be a good idea to say a little more on this subject in addition to what I wrote yesterday. In my last post I considered the matter from the perspective of what the Assembly could do to resolve the issue; but the other, overlapping, issue is whether the pair have committed an offence by reason of making a false declaration on their nomination papers.

As with many tricky problems, the solution often involves drawing a precise line between two issues and treating them separately.

 
What the Assembly can do

As things stand, John Dixon and Aled Roberts are disqualified from being AMs. However the GoWA 2006 makes provision for this disqualification to be disregarded:

The Assembly may resolve that the disqualification of any person who was, or is alleged to have been, disqualified from being a member on a ground within section 16 (1) or (4) 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

Section 17, GoWA 2006

 
What the Police and CPS can do

Every list candidate in the Assembly election was required to sign this declaration:

I ... of ... hereby consent to my nomination as a candidate at the above-mentioned Election. I am aware of the provisions of sections 16-19 of the 2006 Act (disqualification) and of any Order in Council under section 12(1)(b) of the 1998 Act or 16(1)(b) of the 2006 Act and that to the best of my knowledge and belief I am not disqualified for membership of the Assembly. I am not an individual candidate or a candidate on any other party list in the election for this or any other region; nor a candidate at a constituency election, the poll for which is to be held on Thursday 5 May 2011.

NAW Consent to Nomination

It is now clear that both Dixon and Roberts made false declarations, and it is therefore proper for the police to investigate this and for the pair to face prosecution because of it. I am fairly sure that this was an oversight or carelessness on their part, and they will of course be free to say that in their defence. Nevertheless I think it is almost inevitable that they will be found guilty, although my guess is that the appropriate punishment will be no more than a substantial fine.

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It is therefore possible for the Assembly to disregard their disqualification, allowing them to become AMs, but for them also to be punished by the Courts for making a false declaration. The two are not directly linked.

Of course there will be a tendency for politicians to sit back and wait for the police and Crown Prosecution Service to come to a decision ... and, if they decide to proceed with a prosecution, for the trial to take place. Yet that would take several weeks, if not months. The Assembly really needs to make a decision within the next week or so for the sake of the people that these two were elected to represent. This must always be the primary consideration.

Although it might at first sight seem that the Assembly is "preempting" a decision to prosecute, the key is to keep the issue of the disqualification separate from the false declaration. It is not for the Assembly to decide their punishment for false declaration, it can only decide whether to disregard the disqualification and allow them to become AMs. If the Assembly does not allow them to become AMs, then the Assembly has no power to disipline them. The Assembly should not play a game of cat and mouse by letting the matter drag on for weeks.

If—as I think it should—the Assembly allows them to become AMs, then any prosecution can still proceed in the usual way and the appropriate punishment for any offence of false declaration will then be decided by the Courts rather than by the Assembly. Although I think it very unlikely, the Courts might decide they should not be AMs; but that will be, and will be seen to be, an impartial legal decision. Any decision taken by the Assembly will be, and will be seen to be, a decision based on politics rather than impartiality.

 
What should happen in the longer term

It strikes me that this is a particularly badly conceived section of legislation, and that it should be amended to allow people to resign their membership of the prohibited organizations after they are elected, but before they are sworn in as AMs.

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9 comments:

Anonymous said...

I thought that to be guilty of an offence, the rules say that the individuals must have knowingly made a false statement. i.e. mere carelssness is not enough, so I'm not sure that it's the foregone conclusion that you suggest. In fact, I suspect otherwise.

MH said...

I'm not quite sure that the rules say that, Anon. But in any case they signed a declaration stating they were aware of the provisions, and the places where the lists of prohibited organizations are to be found are in that declaration. It was not an obscure provision tucked away where only an expert might be expected to look for it. It was staring them in the face. That gives them no excuse, and I don't think they would offer one.

They cannot claim they haven't made a false declaration. They can only hope that any punishment they receive is limited to a fine rather than to disqualification from public office. But—as the form warns in big, bold letters—making a false declaration carries a maximum penalty of one year imprisonment.

Being careful not to fall into the Ken Clarke trap: it is an offence, but it is not as serious as it would be if there had been a deliberate attempt at deception. The punishment they receive will therefore be milder, but they should not expect to escape punishment altogether.

Anonymous said...

Good to see Plaid's organic intellectuals, in particular, taking a lead on this (see also a truly excellent post on Cynon's Future.) It's good that someone has a sense of perspective.

Labour's behaviour, in particular, over this has been little short of disgraceful (though the Tories have also succumbed to some opportunistic nonsense in their wake.) It's not only the cant and hypocrisy that I can't abide, but it's also the disgraceful bullying in which they are indulging. Was there any intent on the part of the two to mislead? No. Was there any gain involved in their behaviour? No. Was at least one of the two misinformed by an Electoral Officer as to the regulations? Almost certainly yes. Was the National Assembly's own website displaying the wrong information? Yes, and even after the story broke. Yet despite this, the two of them are being treated as the political equivalent as lepers. Our lazy media playing their part by merely repeating the crap that is being flung about in completely uncritical fashion. The interviews with Winston Roddick being prime cases in point...

I'm not in anyway sympathetic to LibDems, but this whole circus is shameful. Sure they should pay some kind of penalty for their mistake, but as it currently stands two democratically elected members are being hounded from office without any regard to natural justice. And the whole political process is being dragged through the mud in the process.

In a state in which Elliot Morley is jailed and David Laws is also exposed as a large scale fraudster, the Welsh electorate is being led to believe that devolved politics is 'just the same' when it quite obviously isn't.

If this really the kind of thing that Carwyn Jones and his party want to see in Wales over the next five years then they should just carry on. After all, every single Labour candidate complied with the same rules. Didn't they? And no Labour Assembly Members have been linked with illegality. Have they? Is this really a road they want to go down...?

Duw a'n gwaredo...

Plaid Gwersyllt said...

Making a false declaration per se and making one WITH INTENT to deceive are very different and intent is always difficult to prove especially beyond reasonable doubt. What was Aled Roberts' motive? He was a member of a Valuation Tribunal without remuneration, why would he not want to resign from it, if he knew about it? Ignorance of the law does matter especially if you need to prove intent. I rest my case. For CPS to prosecute two high profile individuals it will need 70% likelihood of a conviction and its not there. CPS will hide behind their guidelines and argue the public interest test. If by some miracle CPS prosecute will they get a fair trial? We've already had trial by media. Will we find 12 jurors who haven't read or heard about the case? Just a few reasons why a Police investigation will be yet another costly exercise for no return

Cibwr said...

I suspect the only reason that the relevant motion to disregard the disqualification was not passed on Wednesday was to satisfy the desire of a group of Labour backbenchers to give the Liberal Democrats a black eye. From what I can see the Labour leadership agreed to it, but when put to a group meeting there was a back bench revolt and true to form Labour then closed ranks to give a "unanimous" thumbs down. Party politics in action.

MH said...

There are further developments in the story today.

If it is true that Aled Roberts specifically raised the matter with the Electoral Commission, and they sent him an out of date list which did not include the Valuation Tribunal for Wales, then it becomes very difficult to see that he did anything wrong. This can presumably be verified by the police being shown copies of the relevant emails.

With John Dixon, things aren't so clear. In the first place the Care Council for Wales was not recently added. But secondly, the letter they sent him saying that due to his election his membership was terminated actually appears to cause him more problems. Fairly obviously the Care Council realized that being an AM disqualified him from being a member, and it would therefore be strange for them not to have at least mentioned this to him beforehand. It is quite understandable that they might not have realized that he needed to stand down before nomination rather than in the event of him being elected; but he was responsible for signing his nomination paper, so that if he had been told of the incompatibility he should surely have sought clarification about what he was doing in the same way as his colleague did. So he is not in the clear.

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Taking up PG's point, I do realize that I am second guessing what the police and CPS might decide to do. As in every other decision about whether to prosecute, we need to leave it to the authorities concerned because they are in a position to act impartially. My point has always been that the Assembly should vote to disregard the disqualification, because the cause of the disqualification has been removed and the GoWA 2006 allows them to do so. They should do that now, rather than wait for the outcome of the investigative or judicial process, which could potentially take weeks or months.

If the Assembly fail to do this, they will in effect be making a blatantly political decision to keep them out, when what they should be doing is letting the investigating and judicial authorities make an impartial legal decision about whether to do so or not. We cannot allow the distinction between the two to be blurred. I agree with Cibwr that Labour (for they are the ones with a majority) are playing political games over an issue that should not be decided on political grounds. They are bringing the Assembly into disrepute because of it.

Having dealt with the matter of disqualification (and thereby allowing them to sit as AMs and vote) this would then leave the separate matter of making a false declaration to be dealt with through the police, CPS and courts. PG and I might disagree about whether a case would be brought, but I think we might agree that it is inconceivable that any punishment would be more than a fine.

Anonymous said...

I really have to disagree with this theory of decoupling the disqualification from the Police investigation.

I just can't see why the Senedd should reinstate these two members whilst a Police investigation is on-going. Everything that actually occurs in the senedd during the period of this investigation runs the risk of being tainted because of the fact that two of the elected members contravened electoral law. Why on earth should we take this risk as we are about to embark on our own Welsh legislative programme? Let the Police finish their investigation and decide on the appropriate punishment. The two members concerned should be suspended indefinitely until this judgement is forthcoming. The Senedd's decision either to allow them to take their posts or to ask them to step aside, has to be informed by due legal processes. This decision simply cannot be seen to be divorced from these legal processes. In the meantime, the Lib Dems will have to cope with 3 members because of their sheer ineptitude and everybody else will have to cope with Labour having a two seat majority for a while.

MH said...

The key to understanding the distinction is to ask yourself what the police are investigating, Anon. They are not investigating whether or not the two are disqualified; they are currently disqualified. The police are investigating whether they have a case to answer for making a false declaration.

Even if the police and CPS were to decide that they had no case to answer (or if the matter came to trial and they were aquitted) that fact in itself would not oblige the Assembly to disregard the disqualification. AMs would still be perfectly within their rights to refuse to disregard it. Alternatively, if they were prosecuted and found guilty of an offence relating to the false declaration, the Assembly would be quite within its rights to vote to disregard the disqualification anyway.

This shows that the two issues are not directly linked, and should make it clear to everyone that what the Assembly chooses to will be a political rather than a judicial decision. That's why I said in my previous post that the Assembly should both show mercy and take into account how it looks for the largest political party to take out an opposition party's biggest hitters just because it has enough AMs to get its way.

Anonymous said...

Well said MH.

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