Scottish Parliament elections
Section 27 – Power of Presiding Officer to postpone ordinary election
85.The existing power in section 2 of the Scotland Act 1998 (ordinary general elections) (the “
86.This section changes that by amending section 2 of the 1998 Act so that the Presiding Officer may propose a date that is up to 4 weeks earlier, or 8 weeks later from when an ordinary general election would otherwise be scheduled. The Presiding Officer may also, after proposing a new date under the exercise of that power, propose a further (new) date which is 8 weeks later than the date previously fixed (which may result in a delay totalling 16 weeks). This section also provides that, where the date of the poll has been fixed in this way, the Parliament must meet “as soon as reasonably practicable” after the poll, rather than within 7 days, where a date for the poll has been fixed by the Presiding Officer in this way. This section also provides that, before proposing a day for the holding of a poll under the exercise of either power, the Presiding Officer must consult the Electoral Commission and the convener of the Electoral Management Board for Scotland. As soon as reasonably practicable after proposing a day for the holding of the poll, the Presiding Officer must publish a statement setting out the day proposed for the holding of the poll and the reasons for making the proposal.
87.The procedure involving the proclamation by His Majesty is otherwise unchanged and applies in relation to the second use of the power by the Presiding Officer, as it applies to the first, the only difference being that the second proclamation would not have the effect of dissolving Parliament (as it would already have been dissolved). Section 19 of the 1998 Act provides that the Presiding Officer will not cease to hold office merely because of the dissolution of the Parliament before a general election and will continue to hold office until such time as the new Parliament elects a Presiding Officer (and the deputies) under subsection (1) of that section. In other words, the Presiding Officer is able to propose a new date even after Parliament has been dissolved.
Section 28 – Power of Presiding Officer to schedule extraordinary general elections
88.Section 3 of the 1998 Act (extraordinary general elections) provides for the Presiding Officer to propose a date for the holding of a poll for a general election, in two circumstances—
where the Parliament resolves that it should be dissolved. If the resolution is passed on a division, it requires two-thirds of the total membership of the Parliament to vote in favour (i.e. 2/3 of 129 = 86); or
where the Parliament fails to nominate one of its members for appointment as First Minister within the time allowed under section 46.
89.This section creates an exception to that. It amends section 3 to provide that the Presiding Officer may not propose a day for the holding of a poll if either of the events mentioned above occurs within the period of 8 weeks ending with the day on which the poll at the next ordinary general election would be held. In other words, where an ordinary general election is scheduled to take place within 8 weeks, no extraordinary general election may be held.
Section 29 – Election of new Presiding Officer: extension of period
90.Section 19 of the 1998 Act provides that Parliament must, following a general election, elect from its members a Presiding Officer and two deputies before it conducts any other proceedings (except the taking by its members of the oath of allegiance) and in any event, within the period of 14 days beginning immediately after the day of the poll at an election.
91.This section changes that by amending section 19 of the 1998 Act so that, in cases where a general election was held on a day proposed by the Presiding Officer in accordance with a proclamation made by His Majesty under section 2(5) or new section 2(5E), the requirement for Parliament to elect a Presiding Officer and two deputies is to be done as soon as reasonably practicable after the day of the poll at the election.
Section 30 – Choice of new First Minister after changed election date
92.Section 46 of the 1998 Act requires the Parliament, within the period allowed in subsection (3), to nominate a First Minister if one of the events mentioned in subsection (2) of that section occurs.(18) The period allowed for nomination is normally 28 days after the occurrence of the event in question. If the Parliament fails to make a nomination within that period, then the Presiding Officer is required by section 3(1)(b) to propose a day for the holding of an extraordinary general election.
93.This section creates a small exception by amending section 46 so that if Parliament does not meet within the period of 7 days immediately after the day of the poll at a general election which was held on a day proposed by the Presiding Officer in accordance with a proclamation made by His Majesty under section 2(5) or new section 2(5E), any delay beyond the normal 7 day deadline for the first meeting is not counted as part of the 28 day period under section 46.
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.
(a) the holding of a poll at a general election, (b) the First Minister tendering his resignation to Her Majesty, (c) the office of First Minister becoming vacant (otherwise than in consequence of tendering their resignation) or (d) the First Minister ceasing to be a member of the Parliament otherwise than by virtue of a dissolution.
