The Scottish General Election (Coronavirus) Bill ahead of stage 3

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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. 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. A full SPICe briefing on the Bill is available.

A SPICe blog published on 19 November 2020 considers the Bill as introduced. This blog gives an update on key stage 2 amendments. Stage 3 is scheduled to take place on 23 December 2020.

The key provisions in the Bill include:

  • 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.

Stage 2 amendments

Twenty seven amendments were lodged at stage 2. The Standards, Procedures and Public Appointments Committee considered the Bill at stage 2 at its meeting on 17 December 2020.

Postal voter deadline

The Bill proposes to bring the postal vote application deadline forward to 5pm on 6 April 2021 (21 working days prior to the election) to allow for more time for an anticipated higher than usual number of postal vote applications to be processed. Amendment 18 in the name of Anas Sarwar proposed leaving out section 3. Moving the amendment Mr Sarwar explained that during the stage 1 debate:

“many colleagues said that it felt counterintuitive that we were encouraging or expecting more people to sign up for postal votes at the same time as bringing the deadline forward by two weeks.”

After debate Mr Sarwar withdrew amendment 18 but paved the way to revisit the issue at stage 3.

Information on postal voter applications

Section 4 of the Bill requires Ministers to lay a report before Parliament as soon as practicable after 7 April 2021 on the uptake of voting as at 7 April 2021 (the day after the postal vote application deadline provided for by section 3).

Government amendments 1,2 and 3 proposed relatively minor changes to the data used in the report and set out what information should be provided in the report.

The Committee agreed amendments 1, 2 and 3 without division.

Anas Sarwar (amendment 19) proposed that information also be made available on the “resources that will be available for processing postal votes”. Graeme Dey, Minister for Parliamentary Business, said that whilst the Government had some sympathy with the intention of the amendment it needed further clarity. Mr Sarwar agreed to work with the Minister ahead of stage 3 on the matter and did not move the amendment.

Neil Findlay (amendment 20) proposed that information also be made available on “the number of persons entitled to vote who have not applied for a postal vote”. Speaking against the amendment the Minister for Parliamentary Business explained that he had significant concerns with the amendment. The use of the phrase ‘entitled to vote’, for example, being difficult to determine. The Minister also highlighted that Government amendment 2 required the report to include information on the number of people registered to vote. Speaking to amendment 20, Mr Findlay said:

“The inclusion of the number of voters who have not applied for a postal vote would show the number of potential voters on the day. That would give organisers an idea of the capacity issues that they might face.”

The amendment was not agreed to.

Amendment 21 in the name of Anas Sarwar proposed that the return of postal votes be free of charge. The Government opposed the amendment on the basis that postal votes can be cast without a direct cost to the voter as ballots are sent out with a first-class addressed envelope supplied by the Returning Officer. Patrick Harvie MSP indicated some sympathy for the principle behind amendment 20 but did not feel that the amendment as drafted addressed the issue at hand. Amendment 21 was withdrawn on the basis of further discussions prior to stage 3.

Mr Sarwar also lodged amendment 23 which sought to introduce a new section into the Bill which would require Ministers to publicise arrangements for an all-postal ballot. Mr Sarwar explained that this was a probing amendment (one which the lodging member does not intend to press to a vote) aimed to provoke discussion on the use of radio, television, postal and online communications and to try to agree that the Scottish Government would publish a schedule of planned activity. The Minister agreed to this request.

All-postal votes

Section 5 of the Bill provides Ministers with regulation making powers to call an all-postal election. As introduced, such regulations were laid only (i.e. not subject to any Parliamentary procedure). Scottish Government amendment 4 was agreed meaning that such regulations will be subject to the affirmative procedure.

Government amendment 5 provided that Ministers must lay before the Parliament a statement of reasons for any regulations providing for an all-postal ballot. This statement would include the responses received from those Ministers are required to consult prior to exercising section 5 powers (namely the Presiding Officer, the Electoral Commission, the convener of the Electoral Management Board for Scotland and the Chief Medical Officer). The amendment was agreed.

Amendment 22 in the name of Neil Findlay MSP was also agreed. Amendment 22 provided that Ministers can only exercise their regulation making powers in relation to an all-postal ballot for reasons relating to coronavirus.

Polling on additional days

Section 8 of 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. As introduced, the Bill provided that regulations made using the section 8 power are not subject to Parliamentary procedure known as ‘laid only’

Anas Sarwar (amendment 24) proposed extending polling to also be allowed on 7 May 2021. Speaking to the amendment he explained that it provided an opportunity to discuss the rights and wrongs of multiple days of voting. The Committee discussed the pros and cons of trialling voting over multiple days during an election held in a pandemic. Overall the Committee concluded that this was something which deserved consideration on its own merits for future elections and Mr Sarwar withdrew the amendment.

Government amendments 10 and 11 were concerned with the power provided to Scottish Ministers in the Bill to make regulations for polling on additional days. Amendment 10 proposed a limit on the use of the power preventing Ministers from exercising it without a recommendation by the convener of the Electoral Management Board for Scotland. Amendment 11 proposed adjustments to section 8(2), to clarify which days may be specified as additional polling days.

Amendments 12 and 14 proposed that regulations to provide for polling over multiple days be subject to the affirmative procedure. The Delegated Powers and Law Reform Committee had raised concerns around the laid only proposal for such regulations in its stage 1 report.

Amendment 13 proposed that ministers be under a duty to lay before the Parliament a statement of the reasons in support of any regulations providing for polling over additional days, including information on the responses received from the Presiding Officer, the Electoral Commission, the convener of the EMB and the chief medical officer.

Government amendments 10-14 were agreed to.

Information on the 2021 election

Anas Sarwar’s amendment 25 sought to insert a new section into the Bill on which organisations may provide information to electors ahead of the 2021 election. Patrick Harvie noted his support for the principle of the amendment but noted concerns around the way in which it was drafted

Issues such as the amendment allowing communications from political parties but not candidates were raised as concerns. Graeme Dey MSP as Minister also highlighted that, as drafted, the amendment would bar Returning Officers from communicating with electors (Returning Officers are responsible for delivering elections).

There was clarification given by the Minister that letters to the shielding group would be sent by the Chief Medical Officer. The Chief Medical Officer is an NHS employee and is politically neutral. The Minister stopped short of confirming that no communication about the election would be made by the Government, highlighting the possible need for such action if, for example, the election were to be postponed at a late stage.

Mr Sarwar withdrew amendment 25.

First meeting of a new Parliament

The Bill provides for the Presiding Officer to fix a day for the first meeting of the Session 6 Parliament as reasonably practicable after the election. This provision reflects the fact that extended polling may be required and results may take longer because of social distancing.

The Scotland Act 1998 requires the Parliament to elect a First Minister within 28 days of the poll. As introduced, the Bill did not propose any change to this. The Minister indicated that on reflection he felt contingency provision was required. The effect of amendment 16 which was agreed is that any postponement of the first meeting of the new Parliament for more than 7 days is not counted in the 28 days which the Parliament has to elect a First Minister.

Powers of the Presiding Officer

Under section 2(5) of the Scotland Act 1998 the Presiding Officer of the Scottish Parliament has the power to propose a new date for the poll at a Scottish Parliament election which is not more than one month before or after the first Thursday in May. Section 2 of the Bill disapplies these provisions in the Scotland Act in relation to the 2021 election.

Section 11 of the Bill instead provides the Presiding Officer with a power to propose that the date of the poll is postponed if he “considers it necessary or appropriate for any reason to do so”. The reason for the delay does not have to be coronavirus. If a 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.

Neil Findlay MSP lodged amendments 26 and 27 which sought to limit the exercise of the Presiding Officer’s power to only where an election could not be held because of coronavirus. The Government opposed the amendments arguing that the power needed to be broader “because it could be required for a reason unrelated to the coronavirus, such as a terrorist attack or the demise of the Crown.” The amendments were not agreed.

Stage 3

A number of issues highlighted at stage 2 may return at stage 3. Stage 3 proceedings are anticipated on 23 December 2020.

Sarah Atherton, Senior Researcher, Parliament and Constitution