Lawyering Up

And so, after the commotion, come the lawyers. Today's coverage of the unfolding saga regarding John Dixon and Aled Roberts and their present disqualification from the Assembly has latched onto the first legal opinion offered, by former counsel general Winston Roddick, and (with some exceptions) taken it as gospel.

Unsurprisingly, as your favourite (read: only) Lib Dem blogger-cum-law student, I've taken a look at the matter. So as that fine constitutional scholar, Toby Ziegler, might have had it, let us turn our attention to the Government of Wales Act 2006, for it is the owner's manual and we should read what it has to say.

Section 16 of GOWA outlines the grounds for which a person may be disqualified from being an Assembly member, and in Section 16(1)(b) includes as a disqualification the holding of any office, "for the time being designated by Order in Council as offices disqualifying persons from being Assembly members". It is this section that gives effect to the National Assembly For Wales (Disqualification) Order 2010, which lists the offices for which John and Aled are currently disqualified.

The effect of being disqualified is laid out in Section 18 of GOWA, and in this case Section 18(1) applies when it states that, "if a person who is disqualified from being an Assembly member is returned as an Assembly member, the person's return is void and the person's seat is vacant". It is this section that the former counsel general is presumably referring to when he says the law is clear that the election is invalid.

But, und zis is a big but, Section 18(1) must be read together with Section 18(4), which says that Sections 18(1)-(3), "have effect subject to any resolution of the Assembly under Section 17(3)".

And what does Section 17(3) say? "The Assembly may resolve that the disqualification of any person who was, or is alleged to have been, disqualified from being an Assembly 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."

On the question of whether the Assembly has the power to reinstate, therefore, the Government of Wales Act is indeed clear; it does.

Inevitably there will be much politicking over the next few days as to whether it is proper to resolve, as that is a judgement left to the Assembly and not defined in law. But just by having Section 17(3) in place, the intent of the legislation must be obvious, that it seeks only to disqualify those who continue to be disqualified, and not to invalidate elections altogether or to keep disqualified those who aren't.

One of the few comforting features of British politics is that, once the sides have extracted their pound of flesh, calmer heads normally prevail. Armed with a clear power to do so, we can but hope that they do.