The starting point, as always, is the legislative regime. It is a well-known saying in relation to elections that the law is your sword and shield. This is because the legal regime sets out what you must do and when you must do it, but it contains less prescriptive detail than you may think.
This time, this framework is even more important. In May 2021, the law is still your sword and shield. It will also justify, and be the basis for, some difficult conversations and decisions.
The starting point for reviewing the legal territory of elections is always the relevant primary legislation, which varies depending on the nature or the type of the election or poll concerned, given the fragmentation of the legal regime. For local elections it will be the Representation of the People Act 1983 (RPA), and for Police, Fire and Crime Commissioner (PFCC) elections it will be the Police Reform and Social Responsibility Act 2011, both as amended. You must then study the relevant conduct rules, namely the details about what the Returning Officer must do, and within what timetable you must take those steps. For local government elections, these are contained in the Local Elections (Principal Areas) (England and Wales) Rules 2006 (as amended). For Police, Fire and Crime Commissioner elections, they can be found in the Police and Crime Commissioner Elections Order 2012 (also as amended). Do note, however, that the Police and Crime Commissioner Elections (Functions of Returning Officers) Regulations 2012 are also very material.
Specific guidance has been produced by the Electoral Commission with input from a range of practitioners, as well as from health advisers and the Government, and it is being continually expanded and amended as experience and expertise develop around how to run elections in 2021 in a coronavirus (COVID-19) environment. As well as exploring key considerations, guidance is anticipated on absent voting, nominations, polling stations, the count, and on attendance by candidates and agents at key events.
Accordingly, this reinforces the normal framework for elections with which you will be familiar – namely that the legal framework is prescriptive; it sets out the steps that you must take, and the timetable by which you must take them. If you follow these, as Returning Officer you will be safe from successful challenge.
This has not changed, and in considering how to run an election under COVID-19 it is important always to revert to that fundamental legal framework. Custom and practice have developed in many areas, but in looking back at them to see how an election can be run in a COVID-19 environment – subject to whatever social distancing or other obligations we are under to make sure that everybody involved in the process is safe – you should always go back to the legal framework. Often, it does not say what you think it might say: assumptions are understandably made because of custom and practice, but usually the legal framework gives you the answer.
The legislation is clear: if the result is challenged because of any alleged act or omission by the Returning Officer, this will only succeed if the election was not conducted substantially in accordance with the rules, and the act or omission concerned affected the result. That can be found in s. 48 of the RPA 1983 Act for local elections, and reg. 15 of the 2012 Order for Police, Fire and Crime Commissioner elections. In these difficult times, there is also something of the concept of ‘herd immunity’ about everyone moving together and acting similarly.
The delivery of the 2021 elections in many cases will be driven or directed by a Returning Officer operating at the regional or sub-regional level because of the nature of that area’s polls. Due to be held in 2021 are Police, Fire and Crime Commissioner elections, county council elections, and combined authority elections, etc. The Returning Officer for those polls, operating at a regional or sub-regional level, will direct and guide their delivery, and will demand consistency of approach.
If a decision is made at a regional sub-regional level to act in a certain way (being entirely lawful, of course), then the collective momentum will be supportive when decisions are made – for example not to count overnight, or to restrict the numbers of scrutineers who can attend counts, etc.
There is a specific section on the Government website dealing with coronavirus legislation. Certain aspects of this specific legislation are applicable to elections. Further statutory amendments should be anticipated to facilitate the running of the elections (masks in polling stations for example). In addition, very significant other permanent changes not related to the pandemic are being made in Wales.
It is also valid to remember, however, that as Returning Officer you have, in essence, four substantive responsibilities, namely:
In addition, returning officers should try to mitigate the risks of COVID-19 to all involved in or participating in the election so far as is practicable and as far as you can, though this is not necessarily a legal requirement for the role.
These responsibilities can be useful in risk-assessing how you decide to deal with particular issues as they arise. Returning officers need to understand their roles and duties, and what has to be done to ensure that there is a systemic and robust approach to delivery. You also must ensure that the system can be resourced, and – something particularly critical for 2021 – that you can make appropriate contingency plans.