Electoral reform consultation

Chapter 3 - Scheduling of elections

Postponement of Scottish Parliament and Local Government elections

Date of elections to the Scottish Parliament

The Scotland Act 1998 sets out the procedures for the holding of Scottish Parliament elections. Section 2 requires a Scottish Parliament election to be held on the first Thursday in May in the fifth calendar year following the previous Scottish Parliament election.

There are a number of possible situations in which it might prove necessary for the date of a scheduled Scottish Parliament election to change. One possibility is that a UK Parliament General election is called on the date in question. Under the Scotland Act, this would automatically require a new date to be arranged for the Scottish Parliament election. The Dissolution and Calling of Parliament Act 2022 means that a UK Parliamentary election can be announced at short notice on the decision of the Prime Minister (25 working days following the proclamation dissolving the existing Parliament).

Other possible examples that might require a change in date include a public health emergency or major security incident.

The Presiding Officer of the Scottish Parliament has a limited power to propose a new date for the poll for a Scottish Parliament election which is not more than one month before or after the first Thursday in May. In making any decision the Presiding Officer is obliged to consult the Electoral Commission. Experience in preparing for the 2021 Scottish Parliament election during the coronavirus pandemic has led the Scottish Government to conclude that this power may not adequately cover all possible scenarios requiring a new election date.

Dissolution of the Scottish Parliament

The Scottish Parliament is dissolved in the run up to a Scottish Parliament election. Following dissolution, members of the Scottish Parliament (MSPs) cease to hold office, and the Parliament cannot be re-convened to debate or pass legislation. Government Ministers remain in office. The date of dissolution is normally around 6 weeks before the day of the poll.

However, in the run up to the last Scottish Parliament election, in May 2021, concerns were expressed about what would happen if, once the Parliament had dissolved, an event connected with the coronavirus pandemic (such as a spike or surge of coronavirus infections) potentially endangered the election being safely held on 6 May 2021.

Therefore, just in case such an event occurred, the Scottish General Election (Coronavirus) Act 2021 provided that dissolution should take place on 5 May, instead of 25 March, as would normally have occurred. The maximum delay of a month at the recommendation of the Presiding Officer was not considered to provide sufficient scope to move polling day in response to a significant deterioration in virus conditions. The change to dissolution meant that MSPs stayed in office until the day before the election, and Parliament would have been able to debate and pass an emergency Bill to postpone or alter arrangements for the election if that had been required.

The Parliament went into recess on 25 March 2021 to allow MSPs to participate freely in the election campaign, but this would not have prevented the Parliament from being recalled to sit if required. Parliament was in fact briefly recalled to mark the passing of the Duke of Edinburgh.

While there was no need to postpone the May 2021 Scottish Parliament election, the experience of the potential risk to disruption of the poll has highlighted that the existing arrangements for postponing a Scottish Parliament election are not as robust as they could be.

There is also a concern that with the passing of the Dissolution and Calling of Parliament Act 2022, there is a risk that a UK Parliament election could be called at short notice for a date on, or close to, a scheduled Scottish Parliament election. Prior to the passing of this Act, UK Parliament elections were held on the first Thursday of May every fifth year so in theory at least the dates of scheduled elections were known well in advance. In the event only one scheduled election (2015) took place under the five year terms set by the Fixed Term Parliament Act 2011.

The Scottish Government is opposed to holding different types of election on the same day. In 2007 Scotland-wide Local Government and Scottish Parliament elections were held on the same day. A report by Ron Gould stated that confusion over the use of different voting systems for each election was considered to have been partly responsible for an increase in the number of spoiled ballot papers. Since then, there has been general agreement that it is undesirable for different types of election to be held on the same day. Changes made by the UK Elections Act 2022 are expected to further increase the desirability of holding different elections on different polling days, as voters in UK Parliament elections will be required at future elections to provide proof of identity when voting, while this will not be required in devolved Scottish elections (see Chapter 2 of this consultation on the changes resulting from the Elections Act 2022).

The Scottish Government is of the view that if a UK Parliament election was called on, or close to, the date of a Scottish Parliament election, then it would be preferable for the Scottish Parliament to be able to meet to discuss the options around any possible postponement of the Scottish Parliament election. This would allow the Parliament to consider the effect of the clash on the Scottish election. A postponement of a month or less under the existing power of the Presiding Officer would mean that the campaign periods for both elections would overlap, potentially confusing voters and risking one election overshadowing the other.

Options

One possible change would be to extend the period by which the Presiding Officer of the Scottish Parliament can seek to move the date of a scheduled Scottish Parliament election. Increasing the period, for example, to two months, would afford greater leeway to avoid an overlap with a UK general election or most unexpected events that might require a change of date. However, July and August are not considered to be ideal months for an election because of the impact of summer holidays. Two months also might not be sufficient in the event of a major event.

Another issue with extending the period by which the Presiding Officer can postpone an election is that it will in most cases increase the amount of time during which the Parliament is dissolved and there is no representation for the public. For example, if Parliament were dissolved in March and an election scheduled for May was postponed to September, it would mean there would be no MSPs or meetings of the Parliament for a period of almost 6 months. This would clearly be entirely unsatisfactory and undemocratic.

The change to dissolution arrangements adopted for the 2021 election meant that the Scottish Parliament was not formally dissolved and MSPs could be recalled up until the day before election. The Parliamentary Bureau also decided when Parliament would go into a pre-election recess prior to the election based on discussions with political parties.

If the temporary arrangements which were put in place for the May 2021 Scottish Parliament election were made permanent this would mean that the Parliament would only be dissolved on the day before the poll at a Scottish Parliament election.

The effect of a change to dissolution would be 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. An emergency may be related to the election, or it could be something else which requires the attention of the Parliament. This could provide greater flexibility for discussion and agreement on any change of date for a scheduled election and allow a longer delay to occur whilst also allowing Parliament to resume normal business.

However, it is clear that making a change to dissolution in this way would have a significant impact on arrangements for MSPs and Scottish Parliament staff. Pursuing this possibility would require extensive engagement with the parliamentary authorities on the implications of a change to dissolution arrangements. It could also involve an additional cost, in 2021, the MSP and staff salary costs including estimated pensions and national insurance costs of changing the dissolution period to begin on the day before the poll were estimated at £608,263.

It could also be argued that allowing MSPs to retain that status during the election campaign could provide an unfair advantage. In 2021, Scottish Parliament guidance made clear that Members should not use their MSP status or refer to another Member's status, in any election-related activity. In practice this did not appear to cause difficulties.

The Scottish Government wishes to ensure that there is consensus on any changes to the process for postponing Scottish parliament elections.

There remains the option not to make any change and to rely on legislation to be brought forward to change the date of dissolution as occurred in 2021. However, once dissolution has taken place there is no way to recall MSPs to consider and pass legislation, which is why the Scottish Government wishes to consider possible changes.

Question 26: 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?

Question 27: 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?

Postponement of Scottish Parliament by-elections.

Why is a change being proposed?

If a constituency seat in the Scottish Parliament becomes vacant, for any reason, an election must be held to fill that vacancy, normally referred to as a by-election. The date of the poll at the by-election is set by the Presiding Officer of the Scottish Parliament and the poll must be held within 3 months of the Presiding Officer being informed of the vacancy.

As mentioned at paragraph 1.4 above, the Presiding Officer of the Scottish Parliament has the power to move the date of a scheduled Scottish Parliament general election by up to one month either side of a scheduled date of poll. However, no such power exists to change the date of a by-election, once it has been set by the Presiding Officer.

Experience of the coronavirus pandemic has led to the suggestion that there would be merit in permitting a late change to the date on which a by-election is to be held. Under the existing rules, this would require an Act of the Scottish Parliament to cancel the original date, once set. The Scottish Government is of the view that there would be merit in allowing the Presiding Officer to change the date set for a Scottish Parliament by-election, should circumstances in the constituency make the running of the by-election on the planned date becomes untenable due to public health concerns or security issues.

The proposal

The proposal is that the Presiding Officer should be given the power to postpone the date of a by-election by up to 3 months, should circumstances mean that the originally selected date is no longer tenable. This power would be similar to the power that the Presiding Officer already has to change the date of a Scottish Parliament general election and could include a statutory obligation to consult the Electoral Commission, and the Convener of the Electoral Management Board and the Returning Officer.

Question 28: 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?

Question 29: Do you have any other comments on changing the date of a Scottish Parliament by-election?

Postponement of scheduled Local Government elections.

Why is a change being proposed?

Under the provisions set out in sections 5 and 6 of the Local Government etc. (Scotland) Act 1994, Local Government elections must be held on the first Thursday in May every fifth year. The most recent Local Government elections were held on 5 May 2022 and the next scheduled date is 6 May 2027. Under this legislation, the date of a Local Government elections can only be changed in the following situations:

• if an order is made by statutory instrument not later than 1^st February in the year preceding the year in which the election is to be held, in other words, a minimum of 15 months before the date of poll; or
• if a Scottish Parliament general election is to be held between the 11^{th of} March and the scheduled date of the Local Government elections, then the poll at the Local Government elections can be held on the same day.

Outwith the above situations, the only way to change the date of the Local Government elections is by an Act of the Scottish Parliament.

Experience during the coronavirus pandemic has demonstrated that there may be a need to postpone or cancel Local Government elections at shorter notice than currently allowed for under the existing legislation. This postponement could be due to a public health such as a pandemic or security issues. For example, Local Government elections in England were postponed in 2001 due to travel restrictions connected to an outbreak of foot and mouth disease. Since each Local Government election is a separate contest, it would also be possible to postpone some polls in some areas but not others if local issues arose.

What is being proposed?

The Scottish Government is seeking views on whether a procedure should be introduced which would allow for all Local Government elections to be postponed or elections in an individual local authority area or an individual by-election to be postponed at short notice. Allowing postponement at a local level would allow more flexibility to deal with local issues which may arise without the requirement for an Act of the Scottish Parliament to postpone the election.

The Scottish Government considers that there should be a maximum limit on the length of any postponement. A one-month limit would be in line with the existing provision for Scottish Parliament elections, although as outlined above there is an argument for a longer period such as two months. However, the Scottish Parliament would still be sitting at the time of a national Local Government election and would be able to legislate for a change in response to special circumstances requiring a lengthy postponement.

The proposal

The Scottish Government is of the view that a similar procedure to that described above for the Scottish Parliament elections should be introduced for Local Government elections.

The dates for scheduled Local Government general elections are set out in statute. For Local Government by-elections, the dates are set by the Returning Officer for the relevant local authority area. The Returning Officer is appointed by the relevant local authority and is normally the Chief Executive of the Council.

The Scottish Government invites views on whether the Convener of the Electoral Management Board for Scotland (EMB) should be given the power to change the date of scheduled Local Government elections, either Scotland-wide or in an individual local authority area. In relation to postponement of by-elections, the Government invites views as to whether a change should be a decision for the Convener of the EMB or for the individual Returning Officer in the relevant local authority area.

In order to allow for independent input into the use of these new powers, the Convener of the EMB could be required to consult with the Electoral Commission and the Scottish Government before making a decision to change the date of a Local Government general election. Similarly, a decision to postpone a by-election could also be subject to a consultation requirement.

Question 30: 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?

Question 31: Should the law allow a Local Government by-election to be postponed, and if yes, who should make the decision to postpone?

• No
• Yes, Returning Officer
• Yes, EMB Convener
• Yes, other

Question 32: Do you have any other comments on rescheduling of elections?