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Elections and the Coronavirus Outbreak

on Tuesday, 24 March 2020.

On 19th March, the Coronavirus Bill was introduced in the House of Commons (Bill 122). But How does it impact elections?

You can read the Bill here.

The Bill sets out new emergency powers to tackle the spread of coronavirus with wide ranging powers. Under the proposed legislation, airports could be shut and people held on public health grounds, while immigration officials could place people in isolation. The powers would be time limited to two years under the proposals.

The measures are expected to be fast-tracked through Parliament with the first debate on Monday, with MPs set to 'nod them' through, rather than proceeding through the normal voting lobbies.

On Friday 13 March, the Prime Minister announced that the elections scheduled for 7 May 2020 would be postponed until 6 May 2021.

Polls scheduled for 7 May 2020:

  • 40 Police and Crime Commissioner (PCC) elections in England and Wales
  • 118 English council elections
  • 3 local authority mayors (Bristol, Liverpool and Salford)
  • 4 combined authority mayors (Greater Manchester, Liverpool, Tees Valley and West Midlands)
  • London Mayor and Greater London Assembly
  • Parish elections

Other polls scheduled on that day needing to be postponed:

  • certain other local referendums that are planned for 7 May 2020
  • local authority by-elections for seats that would not ordinarily be completed on that day but become vacant by, for example, resignation.

Most of these polls were due to take place in England only, with the exception of PCC elections which were planned in both England and Wales.

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The notes to the Bill explain the rationale:

"The decision to postpone was taken following advice from the Government’s medical experts in relation to the response to the covid-19 virus and the advice of those delivering elections (for example, a call by the Electoral Commission that the 7 May elections be postponed until the Autumn).

The need for the postponement arises from concerns that running a poll will be, at best, inadvisable and, at worst, impossible if candidates, campaigners, electors, electoral administrators and those providing supply and support to them are affected by either covid-19 or the measures around it. Concerns have already been raised by electoral administrators that there would be insufficient staff available to them or their suppliers. Additional risks include polling station safety, the possible demands on local authority electoral staff to support other key services, and the impracticality or potential impossibility of campaigning activity. Attempting to run a poll in those circumstances could lead to questions as to legitimacy of the outcome and sets a context for legal challenge to the results and the more general question of why it went forward in the circumstances."

The Bill contains clauses that will enable the postponement of the polls scheduled for 7 May 2020. It also provides the power to postpone recall petitions and the National Assembly for Wales and Sottish Parliament elections for constituency vacancies. Additionally, it addresses the timing of canvass and Assembly by-elections in Northern Ireland and in Wales.

The legislation will also cover the handling of other elections and referendums (such as by-elections and local referendums) that might arise during the Covid-19 outbreak. These may need to be similarly postponed for public health reasons. The Bill gives the Government the power to postpone other polls, but it is understood that whilst scheduled polls will be postponed till May 2021, whilst the power will be used to postpone such other polls, there will be no assumption that such polls will necessarily not be held until May 2021. They may be held later in the year (subject to scientific advice), and then only when further regulations have been made by the Government. No decision has been made as of yet as to whether such arrangements might mean all other polls are then held on the same day nationally, or in waves by area or type. These matters of detail will be addressed later.

Given the timeframe for the Bill, considerable thought was given to the by-elections scheduled over the next two weeks or so. The law is quite clear as to the Returning Officer's duties, and Section 63 of the Representation of the People Act 1983 makes it an offence when a Returning Officer breaches their statutory duties. This could include not holding a poll that the Returning Officer is by law required to hold. Additionally, issues such as insurance being voided by such action were a concern. However, Government officials and others strove to find a solution. In the end, the Cabinet Office issued this on 18th March:

"The Government will give its full support to Returning Officers who make the decision to suspend their polls. The Crown Prosecution Service (CPS) have provided assurance that criminal prosecution in these circumstances is highly unlikely.

We will shortly be bringing forward measures within the Covid-19 Bill to postpone the scheduled local and mayoral elections due to take place in England and the scheduled Police and Crime Commissioner elections due to take place in England and Wales on 7 May this year until the next ordinary day of election on 6 May 2021.

However, we recognise that there will be a small number of polls between now and the date of Royal Assent which will not be covered by these provisions.

The delivery of polls rightly sits with Returning Officers who are statutorily independent and responsible to the Courts.

Running a poll in present times is likely to come with significant concerns about the wellbeing of those involved, which may be thought to be unfair to both staff and the public.

It would be both reasonable and consistent with the national position for a Returning Officer to suspend any poll scheduled within this period, including those due to take place tomorrow, Thursday 19th March.

The hard work of Returning Officers is appreciated during these difficult and challenging circumstances."

For further advice the impact of Coronavirus on elections, please contact Allison Cook, Head of Public Sector on 0117 3145 466, or complete the form below.

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