Commentary on Sections Other arrangements for 2021 election Section 8: Power to provide for polling on additional days
28.This section gives the Scottish Ministers the power to specify in regulations one or more additional days over which the poll for the 2021 election is to take place. The purpose of this provision is to allow for the possibility that in-person voting will take longer than normal due to the imposition of physical distancing and other measures to prevent the transmission of coronavirus. The power may be exercised whether or not the day of the poll for the 2021 election is postponed by the Presiding Officer under section 11.
29.It is important to note that the Scottish Ministers may make the regulations only if to do so gives effect to a recommendation of the convener of the Electoral Management Board for Scotland. The Board, established under section 1 of the Local Electoral Administration (Scotland) Act 2011, has the general function of co-ordinating the administration of Scottish parliamentary elections and local government elections in Scotland. In addition, the Scottish Ministers must consider that making regulations to give effect to the Board’s recommendation is necessary for a reason relating to coronavirus.
30.Subsection (2) limits what may be recommended by the convener of the Board. Unless there is a reason to recommend otherwise, there is not to be a break in the polling days specified – so, for example, a three day poll commencing on a Thursday would continue to the Saturday. In addition, no polling can occur later than on the eighth day following the day fixed for the poll, as defined in subsection (3).
31.Subsection (4) provides that the regulations may specify particular days or times when certain descriptions or categories of persons eligible to vote in person may do so. This would, for example, allow provision to be made requiring voters of a particular age, or in a particular area, who do intend to exercise their right to vote, to do so only on specified days or at specified times.
32.The effect of subsection (5) is that regulations may be made only if a draft of the regulations has been laid before, and then approved by a resolution of, the Parliament. At the same time as laying draft regulations, the Scottish Ministers must – under subsection (6) – lay a statement of the reasons for the regulations.
33.Before making regulations under subsection (1), subsection (7) provides that the Scottish Ministers must consult the Presiding Officer of the Parliament, the Electoral Commission, the convener of the Electoral Management Board for Scotland and the Chief Medical Officer of the Scottish Administration. Information on what the consultees say must be included in the statement of reasons mentioned above.
34.Subsection (8) has the effect that regulations under subsection (1) do not prevent the exercise of the power to postpone the election conferred on the Presiding Officer of the Parliament by section 11. If that power were exercised, the convener of the Electoral Management Board would need to consider whether to make a fresh recommendation of additional days in respect of the election occurring on the new date fixed by the Presiding Officer.
35.Subsection (9) allows the Scottish Ministers to make regulations modifying the meaning of references to the day or date of the poll in any enactment or document (e.g. the 2015 Order) as regards the 2021 election, if regulations under subsection (1) are in force. But otherwise such references are unaffected and are still to be read as references to 6 May 2021 (or the date fixed by the Presiding Officer under section 11 of the Act in the event that the 6 May poll date is postponed).
36.This confirms, for example, that despite the poll taking place over a number of days, 6 May (or the day fixed by the Presiding Officer under section 11) is the relevant date for determining eligibility to vote on the basis of a person’s age. By virtue of section 2 of the Representation of the People Act 1983 and section 11 of the Scotland Act 1998, a person must be at least 16 years of age on the day of the poll to be eligible to vote at an election for membership of the Parliament.