Commentary on Provisions Local government elections Section 34 – Power of returning officers to postpone or cancel by-election
102.Section 37 of the Local Government (Scotland) Act 1973 Act provides for a by-election to be held within three months of a casual vacancy in the office of councillor occurring (a casual vacancy may occur where a councillor dies, resigns or is disqualified). It also provides however that where a vacancy in the office of councillor occurs within 6 months before the date of the next ordinary local government election, a by-election should not be held but rather the vacancy filled at the next ordinary local government election. The exception to this is where, on the occurrence of the vacancy (or in the case of a number of simultaneous vacancies, the occurrence of the vacancies), the total number of unfilled vacancies in the membership of the council exceeds one third of the whole number of members, in which case the by-election must still be held.
103.This section amends the 1973 Act to give returning officers a power to fix another date for the poll that is within 3 months of the date fixed. The returning officer may also then delay the poll by a further 3 months. However, in both cases, the power is only exercisable if the date fixed does not fall within the period of 6 months before the date of the next ordinary local election. The exception to this is where, on the occurrence of the vacancy (or in the case of a number of simultaneous vacancies, the occurrence of the vacancies), the total number of unfilled vacancies in the membership of the council exceeds one third of the whole number of members, in which case the election may be delayed even if the date of the poll is fixed for a date falling within the 3-6 months period before an ordinary election.
104.This section also amends the 1973 Act so that, where the date fixed falls within the 6 month period before the date of the next ordinary local election, the returning officer is given a power to determine that the by-election is not held and so the casual vacancy is filled at the next ordinary local election. In such cases the date fixed for the holding of the poll remains and the returning officer has no power to cancel the by-election.
105.Before fixing another date or determining an election is not to be held, the returning officer must consult the Electoral Commission and the convener of the EMB.
106.As soon as reasonably practicable after fixing another date or determining that an election is not to be held, the returning officer must publish a statement setting out either the day fixed for the holding of the poll or (as the case may be) that an election is not to be held, and the reasons for making the proposal.