Electoral Reform Consultation Analysis

4. Scheduling of elections

This chapter presents the analysis of responses to the consultation questions which explore postponing scheduled Scottish Parliament and Local Government elections and arrangements around dissolution of the Scottish Parliament.

Date of elections to the Scottish Parliament

The Presiding Officer of the Scottish Parliament has a limited power to propose a new date for a Scottish Parliament election which is not more than one month before or after the first Thursday in May. The Scottish Government concluded that this power might not adequately cover some possible scenarios requiring a new election date e.g. if a UK Parliament election is called at short notice on or close to the scheduled date.

Q26: Do you think that the maximum period by which the Presiding Officer can propose the postponement of a Scottish Parliament election should be extended beyond 1 month?

Views on this proposal were mixed. While only one in five individuals (21%) agreed, two thirds of the six organisations who answered the question were in favour.

The Scottish Parliament is dissolved in the run up to a Scottish Parliament election, usually around 6 weeks before the day of the poll. Following dissolution, members of the Scottish Parliament (MSPs) cease to hold office, and the Parliament cannot be re-convened to debate or pass legislation. In 2021 the law was changed so that dissolution did not occur until the day before the 6 May 2021 Scottish Parliament election, allowing Parliament the opportunity to debate and pass an emergency Bill to postpone or alter arrangements for the election if that had been required due to the pandemic.

If these arrangements were made permanent for future elections this would mean that MSPs would retain their position, including pay, for an additional 6 weeks but it would allow for the Parliament to be recalled to deal with any emergency, should one arise.

Q27: Do you think that the date of dissolution of the Scottish Parliament in the run up to a general election should be changed to the day before the election, allowing MSPs to continue to hold office in case of emergency?

All organisations who responded to Q27 agreed the date of dissolution should be changed to the day before the election. Individuals were evenly split, with just under half (47%) in favour and 52% opposed.

While there was no direct follow-up to Q27, some respondents used Q32 to discuss the proposal to change the date of dissolution of the Scottish Parliament in the run up to a general election to the day before the election. A few individuals expressed support for the proposal, noting it would allow Parliament to continue functioning and serving the public for longer, and mean that important decisions can be made in an emergency.

However, a few concerns were raised over this proposal. For example, a few felt that this would restrict campaigning and give the party in power an unfair advantage. The Scottish Parliamentary Corporate Body also highlighted several logistical challenges associated with changing the date of dissolution, including financial, technical and administrative implications.

"On the issue of practicalities, there would be a budgetary impact to changing the date of dissolution. Those Members who would have stood down will continue to receive an additional 6 weeks' salary, pension contributions and National Insurance costs. There would also be an impact on the resettlement grant for those who stand down or are not successful at the election… There are challenges over the time available to deal with issues for Members standing down and with newly elected Members… This was exceptionally challenging at the last election and no amount of pre-planning can mitigate the impact of work that is normally undertaken in a 6-week period having to be completed over a matter of days. For example, this impacts the availability of IT equipment/accounts to new Members and the processing of pay and pensions for new and departing Members" - The Scottish Parliamentary Corporate Body

Postponement of Scottish Parliament by-election

The consultation sought views on whether the Presiding Officer should be given the power to postpone the date of a Scottish Parliament by-election if it is no longer possible to hold the election on the originally selected date. This postponement could be due to a public health emergency such as a pandemic or security issues.

Q28: Do you think that the Presiding Officer should have the power to change the date of a Scottish Parliament by-election, if it is no longer possible to hold the election on the originally selected date?

A small majority of both individuals and organisations were in favour of this proposal. Of those answering, 52% of individuals and 57% of organisations agreed.

Q29: Do you have any other comments on changing the date of a Scottish Parliament by-election?

Q29 sought feedback on the proposal that the Presiding Officer should be given the power to postpone the date of a Scottish Parliament by-election by up to three months, should circumstances mean that the originally selected date is no longer tenable. 96 open-text comments were received. Some commented on the dissolution of parliament under this question; such comments have been included in the analysis of responses to Q32.

Reasons for opposition

The most common theme in responses to Q29 was opposition due to fears the change may lead to undue delays in by-elections. Concerns were raised that the powers may be open to abuse or used inappropriately to influence or manipulate the results of a by-election. Examples included delaying a by-election due to unfavourable polling results or tactically selecting a new date which is advantageous to a particular candidate or party.

"For me, the worry here is the ability of an existing government to amend election dates for no other purpose than for political reasons." – Individual

A few individuals questioned the impartiality of the Presiding Officer, and some felt it is undemocratic for one person alone to hold this power. Some suggested that the Presiding Officer should be required to consult with other stakeholders, such as the Electoral Commission, before being able to reschedule a by-election. One called for a detailed independent Risk Assessment to be undertaken prior to any decisions being made.

Some respondents were opposed to any formal changes being made to the current system, describing existing laws and powers as adequate. A few discussed potential financial and administrative consequences of changing by-election dates; one warned that scheduling changes may confuse voters and lead to a lower turnout.

"Changing dates risks incurring significant additional expense and creating voter confusion, particularly where poll cards and postal ballot packs (both containing non-negotiable dates) are concerned, including any reprints of ballot books as well as postal ballot papers to reflect the changed date… There is also the risk of not being able to use approved polling places due to other bookings." – Individual

Reasons for support

Some expressed support for the proposal under the condition that the powers are only used for legitimate and limited reasons or under extreme and unusual circumstances. Examples of circumstances for consideration included: a national emergency; another pandemic; a natural disaster; extreme weather conditions; the country being at war; if the date clashes with another election; the death of a candidate; and the death of a monarch.

There were calls for the Scottish Government to set out a clear definition of the criteria or circumstances under which the proposed powers could be enacted.

Supportive comments were made by some; the proposal was described as 'logical', 'sensible' and 'pragmatic', and one respondent expressed their belief that the changes will allow for better administration and greater flexibility in the scheduling of by-elections. A few affirmed their support for the proposed postponement period of three months. However, one suggested that this should be reduced to a maximum of 30 days, and another felt six weeks was more appropriate; neither provided reasoning for their suggested time limits.

Postponement of scheduled Local Government elections

Experience during the coronavirus pandemic has demonstrated that there may be a need to postpone or cancel scheduled Local Government elections at shorter notice than currently allowed, for example, due to a public health emergency or security issues. The consultation also sought views on possible options to permit the postponement of a Local Government by-election.

Q30: Do you think that the Convener of the Electoral Management Board should be given the power to postpone national Local Government elections in consultation with the Electoral Commission and the Scottish Government?

Limited support was expressed by individuals, with one third (32%) in favour and two thirds (68%) against. While the nine organisations who answered were more supportive than individuals, opinion was still relatively evenly split with 56% in favour and 44% opposed.

Q31: Should the law allow a Local Government by-election to be postponed, and if yes, who should make the decision to postpone?

Overall, respondents were most likely to indicate that the law should not allow a local government by-election to be postponed; 58% expressed this view. Those who supported the proposal were relatively evenly split between whether the decision should be made by the convenor of the EMB (22%) or the Returning Officer (17%). This equates to 51% and 39% of those who supported a change, respectively.

There was, however, more support among the eight organisations who answered. Most (87%) felt a postponement should be allowed, with a preference for the Returning Officer or someone else making the decision.

Of the 18 respondents who selected 'Yes, other' in response to Q31, eight, including the Association of Electoral Administrators, recommended that the Returning Officer should be able to make the decision to postpone a Local Government by-election after consultation with the EMB and the Electoral Commission.

"In the administration of local elections it is properly the local Returning Officer who is responsible for and accountable to the courts for the conduct of the election. As such they are best placed to make decisions with respect to any postponement. However it would be expected that an RO would wish to consult appropriate professional opinion and advice before making such a decision. The approach adopted in the UK Coronavirus Act 2020 with respect to the postponement of council by-elections in Scotland would provide a good model, in which the decision was taken by the local RO but only following consultation with the Convener of the EMB and the Electoral Commission." – EMB

There was little consensus about who should be able to postpone a Local Government by-election among the other responses to Q31, with the following parties suggested by at least one respondent: The Electoral Commission; Scottish Government, First Minister, Scottish Parliament, the Presiding Officer, UK Government, the local authority in which the by-election is being held, or a judge or magistrate.

A few argued that the decision should be made jointly by multiple different individuals or bodies, and one respondent said that the appointed decision-maker should be dependent on the reason for the postponement.

Q32: Do you have any other comments on rescheduling of elections?

Most of the points raised among the 75 responses to Q32 were similar to those covered under Q29, with many respondents choosing to repeat or affirm previously expressed views, such as:

• Disapproval of elections being rescheduled for any reason.
• Concern that such powers may be open to abuse.
• Advising that elections must only be rescheduled under the most serious and exceptional of circumstances.
• The belief that the current system is adequate, and no changes are required.

Some additional points were made. For example, respondents shared their views on the wider issue of the time of the week or year that elections should take place. A few called for elections to be held on weekends, and one recommended that elections should take place in September so that clashes with UK General Elections can be avoided and campaigning can take place over the summer months.

On the topic of scheduling multiple elections on the same day, some respondents expressed arguments against this, some of which had already been set out in the consultation paper.

"We believe appropriate powers should be available to the relevant authorities to postpone Scottish Parliament and Local Government elections to avoid the potential for a clash in election dates. Clashes of election dates for different levels of government confuses discussion of the relevant issues for the elections of different tiers of government. Ensuring relevant issues for each level of government can be considered over a reasonable period for that specific election brings greater clarity for all those participating in that election, including people with learning disabilities, as well as a focus on the relevant issues appropriate to the responsibilities of the tier of government those elections are for, and provides more time for the production and consideration of election communications for that specific election." - Enable

However, two individuals supported the idea of having multiple elections scheduled on the same day, with one citing potential cost savings as the reason.