Ken Jack - Corbis/Corbis via Getty Images
Artillery Row

Will Scotland’s election next May go ahead as planned?

The Scottish government is working up Covid contingencies to postpone the poll or make it postal vote only

Whilst the prime minister’s private summation of Scottish devolution as a “disaster” has conquered the challenging summit of uniting the SNP and Scottish Conservative leaderships in Holyrood’s defence, another constitutional development proceeds almost unnoticed. It concerns the Scottish government’s ability to change the rules regarding how May’s Holyrood election is conducted.

MSPs have already enacted one major reform to their terms of office. The 1998 Scotland Act, which established the Scottish parliament, set its term as a duration of four years. In June this year, MSPs voted through the Scottish Elections (Reform) Act. It permanently extends the four year term to five years – taking advantage of the greater devolution of control of the electoral system conferred in the 2016 Scotland Act.

Prolonging the parliamentary term has not been hugely contentious in Scotland, in so far as it has registered at all whilst headlines remain Covid-dominated. Arguments in favour have scarcely needed to go beyond suggesting that if five years is good enough for Westminster, why not for Holyrood?

What is now proposed is a contingency plan, but one that the likely ongoing prevalence of Covid through the winter and into the spring of next year makes a serious prospect. The preference is to keep 6 May 2021 as the Scottish parliamentary election day. But the election rules will need amending given that at least parts of Scotland are likely to still be under some form of Covid-related restrictions at that time.

At the last Holyrood election in 2016, almost 18 percent of votes were cast by postal ballots. Inspired by the experience of the US presidential election, the Scottish government is drawing up the Scottish General Election (Coronavirus) bill. This legislation anticipates (doubtless correctly) that applications to vote by post will soar amongst those keen to avoid the polling stations or, indeed, those shielding or residing in heavily restricted areas.

Consequently, the bill will bring forward the deadline for postal vote applications from the current eleven days before the election to 21 days beforehand so that the greater volume of applications can be processed. The logic of this is clear, but what starts as an expedient can establish the norm and you do not have to be president Trump to believe there are good arguments against making postal voting that norm. Will 2021 be the election that makes it so in Scotland?

Not just the norm, but the law. For the legislation being drafted at Holyrood will give to ministers (it specifically states “ministers” and not “parliament”) the right to abandon in-person voting and to make it a postal-vote-only election. Ministers will also be empowered to decree that instead of a single polling day, voting can be staggered over multiple days. The guidance is clear that “no Parliamentary procedure attaches to regulations under” these powers since “regulations would be subject to the default laying requirement, under section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010.” The idea that voting at polling stations could be ruled illegal without parliamentary sanction is, to put it gently, unfortunate.

Electoral archaeology unearths a time when Westminster elections took place over a four-week period. But to find this precedent we have to go back over one hundred years (it was in 1918 that polling day became exactly that). The existence of this faded precedent from the age of horse and steam does not, of itself, make it a good idea for 2021. But if we are honest, the expansion of postal voting has already ensured that, for nearly one-in-five votes, casting their ballot is done long before polling day. Does this affect voter behaviour and the way campaigns are conducted to accommodate votes being cast over weeks rather than on one day? If this legislation is enacted, next Spring will give political scientists and psephologists much evidence to scrutinise.

The idea that voting at polling stations could be ruled illegal without parliamentary sanction is, to put it gently, unfortunate.

This is assuming there is a Spring election to analyse. Whilst keeping 6 May as polling day remains the preferred option, the legislation will leave the door open to postponing the election if the health situation supposedly requires it.

There are two issues in play here: when parliament should be dissolved and when the election should be held. “Should there be a need to defer the election because of Covid-19 during the pre-election period,” says the Scottish government’s minister for parliamentary business, Graeme Dey, “the measures to delay dissolution will allow MSPs to return to parliament to take a vote on any such proposal through emergency legislation.”

That vote to postpone the election could be taken very late in circumstances that are unlikely to be calm and measured. Remarkably, the draft legislation proposes that in order to allow Holyrood to make last minute decisions to postpone the election (or otherwise enact emergency measures), the usual dissolution of parliament 28 days (last time it was nearly six weeks) before polling day will remain but MSPs will continue to hold their office after the dissolution in case they are summoned back to Holyrood to pass emergency legislation to alter the terms of an election already underway. The legislation will permit them to continue to enjoy MSP status until only one day before polling day.

Imagine a situation in which MSP are recalled to Holyrood after the pseudo-dissolution (since that is what it would be) to debate emergency measures but the result of their deliberations is that the election – perhaps amended in its procedures – goes ahead on 6 May nevertheless. How could such a development influence campaigning and does it cede to sitting MSPs an unfair advantage?

It has always been a principle that dissolution makes all candidates equal in status for the duration of the campaign. In breaching that, these proposals would create two classes of candidates, one of which would remain active legislators in the countdown to polling day (assuming the poll went ahead). Nor is it just a question of status and the ability to look busy making grandstanding speeches in the chamber whilst – due to Covid restrictions – your opponents are scarcely able to be seen within touching distance of the voters. If you are still an MSP in the run-up to polling day, then you have access to parliamentary facilities and resources that are denied to your opponents. That is advantageous.

The presiding officer (Holyrood’s equivalent to The Speaker) who is currently the Labour MSP Ken Macintosh, is to be invested with reserve powers to delay polling day by up to six months if (as yet unspecified) Covid-related circumstances are met and even MSPs cannot gather to make the decision.

That the Scottish government is preparing contingency plans at this stage is a sensible precaution. But when the Scottish General Election (Coronavirus) bill comes before them, MSPs should not cling unthinkingly to their party line. Each clause needs to picked apart, debated thoroughly, and amended if need be without partisanship. These are bold measures in the channelling of democracy – especially the possibility of parliament sitting whilst the election campaign is ongoing and Scottish government ministers alone determining that voting will only be by postal vote. The implications could last well beyond the peculiar circumstances of May 2021.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover