Coronavirus law anticipates unusual 2021 Scottish elections

The Scottish General Election (Coronavirus) Bill (8-page / 433KB PDF), introduced before the Scottish parliament earlier this week, anticipates a potential need to make temporary change to the traditional vote arrangements if public health measures imposed to combat the spread of coronavirus continue to be necessary in the lead up to the vote, scheduled to take place on 6 May next year.

"The Bill’s purpose is to make arrangements for the Scottish parliament election scheduled for 6 May 2021 considered necessary, or that may subsequently become necessary, to mitigate the public health effects of the coronavirus pandemic," according to a policy memorandum (16-page / 177KB PDF) issued alongside the draft legislation. "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."

The Bill's provisions are subject to change as it makes it through the various legislative stages in the Scottish parliament. However, as currently drafted, Scottish ministers would have the power to provide for up to eight additional days of polling or mandate that the 2021 election be held solely by means of postal voting. The ministers would need to consult with a number of stakeholders, including Scotland's chief medical officer, the parliament's providing officer, and the Electoral Commission prior to making regulations to either effect.

The presiding officer would also have qualified power to postpone the vote to a new date that is as soon as reasonably practicable within six months of 6 May 2021 if they consider it "necessary or appropriate for any reason to do so". If the reason for postponement is related to the coronavirus pandemic, the presiding officer "must be satisfied that the Scottish Parliament could not safely meet for the purpose of passing a Bill for an Act to change the day for the holding of the poll" before they fix an alternative date.

Public policy expert Scott Wright of Pinsent Masons, the law firm behind Out-Law, said: "Like all governments in the UK, the Scottish government's attention is focused on tackling Covid-19 and the introduction of this Bill seeks to provide early clarity about what would happen if the election is impacted by the pandemic".

"For organisations engaged in, and affected by, public policy in Scotland, the run up to an election often involves a prolonged period of political engagement. However, this Bill indicates that a more fluid approach to engagement may be required, and policy certainty that businesses seek may not be forthcoming," he said.