Commentary on Provisions Scottish Parliament elections Section 31 – Rescheduling of by-elections
94.Section 9 of the 1998 Act provides for a by-election to be held within three months of a constituency seat becoming vacant. It also provides however that the by-election should not be held if the last day on which it could be held is within 3 months of the due date of the poll in the next ordinary general election. Subsection (2) of that section states that the date of the poll in that by-election is to be fixed by the Presiding Officer.
95.This section amends section 9 of the 1998 Act to give the Presiding Officer a power to fix another date for the poll for the by-election which is within 3 months of the date originally fixed. However that power is only exercisable if the date fixed does not fall within the period 6 months before the date of the next ordinary general election. This section also amends section 9 of the 1998 Act to provide that, in such cases (i.e. where the date fixed falls within the 3-6 month period before the date of the next ordinary general election, since it is not possible to fix a date within 3 months of the poll), the Presiding Officer is given a power to determine that the by-election is not held.
96.Before fixing another date or determining an election is not to be held, the Presiding Officer must consult the Electoral Commission, the convener of the Electoral Management Board for Scotland and the returning officer for the constituency.
97.As soon as reasonably practicable after fixing another date or determining an election is not to be held, the Presiding Officer must publish a statement setting out either the day proposed 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.