The Lib Dem two: a game of two halves?

By Betsan Powys
Political editor, Wales

Update

17.29

The motion to overturn John Dixon's disqualification has been withdrawn.

Good news for Eluned Parrott; bad news for Eleanor Burnham?

Update

Here's the Elias report.

Here's the legal advice.

We're waiting for a statement from the Electoral Commission.

14.20

It's arrived. It points out that it's vital candidates and parties are "aware of the correct legal requirements" and that the Welsh Government didn't formally let them know when the updated list came into being.

However "we regret and apologise for this very rare error and have reviewed our internal processes to ensure such an error does not occur in future ...

"We agree that it is important that lessons are now learned - by the Commission and the Welsh Government. As part of that we have already put in place mechanisms to prevent any repeat of our error on the Welsh language guidance and will also consider the wider issues raised in the report".

And yes, their apology is bilingual.

The Lib Dem two ...

Still reading the report but here are some paragraphs that stand out:

In the case of Aled Roberts:

There is confirmation that the information on both the English and Welsh language links provided by the Electoral Commission was wrong.

  • The Electoral Commission then took the following steps:

  • On 11 March 2011 ¡V to correct the link on the website from the 2006 Order to the 2010 Order but ONLY in the English version of the website information ¡V thus the Welsh language version provided an incorrect link until after 17 May 2011.

  • On 24 March 2011 to send out an erratum slip to Returning Officers correcting the hard copy version by substituting the 2010 Order for the 2006 Order. The erratum slip was sent out in English only.

  • National Assembly for Wales Guidance

  • The Assembly website provided guidance for candidates in both English and Welsh. Each page of the guidance indicated that the information was taken from that provided by the Electoral Commission.

  • At all material times the Assembly website provided a link to the 2006 Order and was not corrected, in the Welsh or English versions, until 20 May 2011.

  • At his Party Conference on 4-6 March 2011, he attended a PowerPoint presentation by the Electoral Commission which provided a further reference, in a slide under the Heading ¢wDisqualifications¡ü, to the 2006 Order ¡V an order which he knew did not disqualify him. The Electoral Commission confirms that such a PowerPoint presentation was made with the slide as described (Appendix 1)

  • Aled Roberts consulted the link in its Welsh version which happened to be the first of the two links sent via email ... It is clear that this version would erroneously still have been signposting the 2006 Order at this time. The Electoral Commission is unable to confirm or deny that its website Welsh pages were visited that day

  • Immediately prior to signing his nomination form he satisfied himself, by reference to the guidance provided in the Welsh language which referred him to the then incorrectly linked 2006 Order, that he was not a disqualified person.

Gerard Elias sums up:

  • In the medium of Welsh, the incorrect guidance remained in place until after the election had taken place.

  • Although the guidance in English was altered to provide a link to the 2010 Order on 11 March 2011, I am satisfied that Aled Roberts consulted the Welsh version.

  • Further he was entitled to assume that the Welsh version would mirror the English versions at all times and in every respect.

Still reading.

In the case for John Dixon - he did read the Electoral Commission guidance with regard to the relevant order but:

  • He did not read, or seek advice in relation to, that Order. Had he read either order it would have confirmed that as a member of the Care Council for Wales he was disqualified from membership of the National Assembly.

  • His reasons for not following through to consult the Order were twofold:

  • The specific disqualifications mentioned in the guidance e.g. judge/civil servant/member of police or armed forces led him to falsely assume that it was offices such as those to which the section applied.

  • That having been a candidate in the 2007 Assembly Elections and at a number of council elections, and no issues of his eligibility having arisen then, he believed that he was not a disqualified person. He had undergone his Party¡¦s candidate approval process several times in the past.

  • He was not alerted by his Party to any issue arising with regard to disqualification. This is confirmed by the Party¡¦s Chief Executive.

As I say, still reading but given the concerns of some members - Labour members in particular - about the legal ramifications of overturning the disqualifications, these paragraphs from the legal advice sent to AMs alongside the Elias report are worth noting:

  • The Assembly's decisions on these resolutions will be "quasi-judicial" in nature. That is, they are subject to review by the courts and can be overturned if they are not taken in accordance with the correct legal principles. The purpose of this advice is to set out what those principles are, so as to ensure that whatever decisions the Assembly takes will, if necessary, bear scrutiny in the courts.

  • What, however, would be the position if the Assembly were to resolve to disregard the disqualification of one or both of the individuals, but that decision were to be challenged successfully in the courts? The effect would be that the original disqualification would stand. What effect would that have on the validity of Assembly proceedings? This is specifically covered by section 18(8) of the Act, which provides that the validity of any Assembly provisions is not affected by the disqualification of any person from being an Assembly Member.

  • If, therefore, the Assembly decides that it is proper to disregard the disqualification of one or both of the individuals in question, that decision cannot affect the validity of subsequent Assembly proceedings.

And

  • It is clear, however, that there is no evidence that either of the two individuals was not validly nominated. That is because a valid nomination only requires a candidate to declare that he or she is not disqualified "to the best of my knowledge and belief". The issue of whether either of the candidates knew or believed that he was disqualified has now been investigated, both by the police and by Mr Elias, and in both cases no evidence has been found to suggest that they did.

  • For the purpose of considering the motions under section 17(3) of the Act, the Assembly must therefore proceed on the basis that both individuals were validly nominated.

The reason for yesterday's delays might be a bit clearer too. A few paragraphs are inserted at the end of the legal advice where the Electoral Commission query one claim made by Aled Roberts about that PowerPoint presentation:

  • Mr. Elias commented on this evidence as follows:

"The Electoral Commission confirms that such a PowerPoint presentation was made with the slide as described."

  • On being made aware of the comment in question, the Electoral Commission have challenged its accuracy, and that of the evidence of Aled Roberts to which it relates, since they assert that although a PowerPoint presentation was made by the Electoral Commission at the Conference in question it did not refer to disqualifications.

  • They do however, accept that a PowerPoint presentation, incorporating the slide shown at Appendix 1 of Mr. Elias's report was prepared by them, but say that it was not shown at the Conference but was circulated to returning officers to use with candidates in their localities.

  • In the time available it has not been possible to investigate these discrepancies further. Mr. Elias has told me, however, that if it is the case that Aled Roberts's evidence relating to the Electoral Commission presentation at the Liberal Democrat Conference is incorrect, that would not affect his conclusion that Aled Roberts did everything he could have reasonably been expected to do in ensuring that he was not a disqualified person, as set out in paragraph 16 of his report.

Bottom line? Gerard Elias has found that one of the Lib Dem two, Aled Roberts, is a victim of out of date advice, that he could not reasonably have been expected to do more than he did to check his position.

He does not have the same clear view with regard to the other, John Dixon.

The Electoral Commission will not enjoy the common view of their role amongst Assembly Members form all parties.

Will both motions still be put to a vote tomorrow - or not? The Liberal Democrats insist that they will.

Will this report be enough to win Conservative and Plaid support for Aled Roberts? If so - and it's a big if - it's all eyes on Labour.

For what it's worth some Labour voices were already briefing that the report was "lawyerly" before it was fully circulated.

It is written by a QC and it makes no recommenations - true enough - but it certainly does not hedge its bets.