Why is the Bill needed?
The Scottish General Election (Coronavirus) Bill was introduced on 16 November 2020 in light of the public health emergency created by the coronavirus (COVID-19) pandemic. A full SPICe briefing on the Bill is available.
The Bill seeks to make arrangements so that the general election to the Scottish Parliament can be held on Thursday 6 May 2021 as scheduled, in spite of the coronavirus (COVID-19) public health emergency. The Bill does not seek to make long-term changes to electoral law as noted in the Policy Memorandum.
The provisions in the Bill are a dedicated response to the coronavirus pandemic and do not seek to make any permanent changes to electoral law.Policy Memorandum, paragraph 4
The schedule of ordinary general elections to the Scottish Parliament is provided for by the Scotland Act 1998. Section 2(2) of the Scotland Act 1998 as amended provides that general elections to the Scottish Parliament be held every fifth year.
Scottish Ministers have powers under section 12 of the Scotland Act 1998 to make provision by Order as to the conduct of elections for membership of the Scottish Parliament. These ‘Conduct Orders’ set the rules for the campaign and the poll and by so doing deal with an array of technical and administrative issues from proxy voting to the appointment of election agents.
This combination means that for most ordinary general elections to the Scottish Parliament further primary legislation is not required.
Given the coronavirus (COVID-19) pandemic, however, primary legislation is required to make provision for certain matters deemed necessary by the Scottish Government for the 2021 election, including, for example, disapplying sections of the Scotland Act which provide for dissolution.
Given the uncertainty about what things will be like in May 2021, the Bill contains a number of provisions which may not be required. The Bill therefore makes provisions for a poll to be conducted whilst maintaining a physical distance (i.e. what is commonly referred to as social distancing) and the possibility of a poll being delayed because of virus conditions (for example in the event of a national lock-down).
The key provisions in the Bill provide for the following:
- bringing forward the deadline for postal vote applications
- giving a power to Scottish Ministers so that they may provide, by regulations, for an all-postal election to be held
- changing the dissolution date of the Scottish Parliament to 5 May 2021, or the day immediately before any delayed poll
- allowing Scottish Ministers to make regulations to hold polling over multiple days
- making arrangements for the first meeting of the new Parliament and the election of a new Presiding Officer
- giving a power to the Presiding Officer of the Scottish Parliament to postpone the 2021 election by up to 6 months in certain circumstances and allow for the same measures as set out above to apply if the election is postponed.
The Scottish Government has been clear that it hopes an election can be held on 6 May 2021 as scheduled with both in-person and postal voting as is usual.
The Government’s overall aim is to ensure that the election will be held as planned on 6 May 2021 with ‘in-person’ voting supported by appropriate physical distancing measures and a substantial increase in numbers of people voting by post.Policy Memorandum, paragraph 6
Dissolution of the Scottish parliament
Dissolution is the official term for the end of a parliamentary session. It occurs before elections to the Scottish Parliament take place. The Scotland Act 1998 provides that, in advance of an ordinary general election, the Scottish Parliament will be dissolved. Dissolution usually takes place around six weeks ahead of an election.
The Bill seeks to do one key thing in relation to dissolution – it moves it to the day immediately before polling day. This change to dissolution is in response to the possibility that the Parliament will need to consider legislation to delay the election if virus conditions are such that holding a poll on 6 May 2021 would be unsafe.
The change is needed because at dissolution Members of the Scottish Parliament cease to be MSPs. Section 13 of the Scotland Act 1998 provides that an MSP’s term of office ends with dissolution of the Parliament. The result is that after dissolution the Parliament cannot be re-called. Rather, a new Parliament must be elected.
The Bill anticipates that rather than the Parliament being dissolved on 25 March 2021, it will go into recess until the day prior to the election. This would need to be approved by the Parliament agreeing a motion on the recess and is entirely a matter for the Parliament. If the election does not go ahead as scheduled on 6 May 2021, then it is envisaged that the Parliament will continue to sit, or in the event that it is already in recess, that the recess will end and the Parliament will resume sitting until such time when a poll can be held safely.
The Bill also provides the Presiding Officer with a power to propose to Her Majesty that the date of the poll is postponed if he “considers it necessary or appropriate for any reason to do so”. This is a contingency measure should the poll need to be delayed in circumstances where the Parliament cannot meet. The reason for the delay does not have to be coronavirus. In the event that the delay is proposed due to coronavirus, the Presiding Officer must be satisfied that the Parliament could not safely meet to pass primary legislation to change the date of the poll.
The Presiding Officer’s power extends only to fixing a day for the poll which is after 6 May 2021. If the Presiding Officer exercises this power, the poll must be rescheduled to be held on the earliest practicable day. The power cannot, however, be used to fix a poll for a date after 5 November 2021.
All-postal election and polling on multiple days
The Bill gives Ministers powers to provide for an all-postal election by regulation.
The Scottish Government has indicated that it does not intend to use the power to call an all-postal election on 6 May 2021. Rather, the power would allow Ministers to call an all-postal election later in 2021 if virus conditions prevented the poll from being held in May 2021 and voting in person at a postponed election was deemed not to be possible because of coronavirus (COVID-19). Electoral administrators have indicated that a move to an all-postal vote election would necessitate a delay of at least six months. A delay to the election would still require the Parliament to pass further primary legislation or the Presiding Officer to exercise his power to delay the poll – so Ministers cannot use this power to delay the poll scheduled for 6 May 2021.
There are a number of concerns about all-postal vote elections. Research conducted by the Electoral Commission in August 2020 found that for the majority (54%) of Scottish voters who plan to vote at the next election, the preferred method of voting was at a polling place with appropriate hygiene measures. The same research indicated that 38% would prefer to vote by post and 1% by proxy. Although this research provides a snapshot in time and cannot be used to accurately predict voter behaviour at the election planned for May 2021, it does provide a helpful insight into how Scottish voters feel about the method by which they cast their vote.
There is also the likelihood that a significant number of voters would fail to return postal vote application forms in the event of an all-postal election, essentially disenfranchising themselves. The Policy Memorandum notes that this could risk the disenfranchisement of up to 1.5 million electors.
The Bill provides Ministers with the power to make regulations to allow for polling over multiple days at the 2021 election. The provision recognises that in-person voting may take longer with social distancing requirements.
The first day of the poll must be polling day. Polling day being 6 May 2021 or the date fixed as the date of the 2021 election if the Presiding Officer exercises his power under the Bill. Voting must start on polling day, but could be extended to allow polling over multiple days.
The SPICe briefing on the Scottish General Election (Coronavirus) Bill was published on 17 November 2020.
The Scottish Parliament’s Standards, Procedures and Public Appointments Committee took evidence on the Bill on Thursday 19 November 2020.
In June 2020 SPICe published a guest blog by Dr Alistair Clark, Reader in Politics at Newcastle University. The blog considered the possible impact of coronavirus on the election scheduled for 6 May 2021.
Sarah Atherton, Senior Researcher