These challenges will not only vary over time but crucially depend upon the pandemic situation in May 2021. Whether we are in the same situation we are now, such as a local or national (or other) lockdown, the challenges are significant and uncertain. This is one of a series of pieces we will produce as the picture evolves, but at this stage there are a number of key points that are worth bearing in mind. There is also some early days preparatory work that could and should be being undertaken.
Firstly, the basic fabric of electoral law, the roles and responsibilities including the personal liabilities that fall upon the Returning Officer are unchanged.
In essence, every poll is run to a set of "conduct rules" specific to that poll. For example, parliamentary elections have theirs set out in a schedule to the Representation of People Act 1983 ("RPA 1983"). They set out what the Returning Officer must do, and a timetable that they must adhere to in running a poll. There is no discretion to depart from the conduct rules. There may be changes to some points of detail, but the overriding approach will remain unchanged.
Secondly, the Coronavirus Act 2020 and The Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 (which suspended by elections) which combined, provided for the postponement of scheduled polls and by-elections,. These will need to be borne in mind should the situation change and should legislation be required to further adjourn polls.
Thirdly, it is possible that the Government will bring forward legislative change for the polls in 2021 but it seems highly unlikely now that that will be in form of substantial change (primary legislation). It is more likely to be secondary legislation, and may involve tweaks to (for example) the process whereby an emergency proxy can be obtained. This would be relevant if somebody is self-isolating at short notice – enabling an emergency proxy to be obtained without the need for medical certification.
Whilst important and relevant for electors, this means that elections in 2021 are going to look a lot like the elections that have been run in previous years. Registered electors will be able to vote at polling stations or use one of the absent voter processes such as postal voting or proxies. There will be paper ballots to be counted and a counting process for the many polls that are now scheduled for 2021. For some areas this is a considerable number, so counts will take some time. All of this needs to be prepared in the context of running a safe election under COVID-19 restrictions, including running a polling station and running a count.
As we said at the outset, some by-elections are already running and invaluable lessons will be learnt from these. Elections have also been running in a COVID-19 environment across the world, and some incredibly helpful academic studies have analysed those including the effectiveness of the processes and procedures adopted in running those polls. Those studies and others provide some invaluable learning for those planning how to run elections in the UK in 2021.
In relation to the Police and Crime Commissioner elections (PCCs), many of the police area returning officers (PAROs) are already asking their local returning officers (LROs) within their police force areas to book polling stations, polling station staff, count venues and count venue staff as well as preparing plans and risk registers to address the 2021 polls.
We do not know yet whether the COVID-19 situation is going to deter significant numbers of owners of private properties which would otherwise be used as a polling stations from allowing the buildings to be used as a polling stations, or staff from taking part in either work at polling stations or in the count.
In terms of the operation of polling stations, every station needs to be looked at to make sure that it can be operated in a COVID-19 environment. Some are thinking of operating with a door supervisor with only one elector at a time in the polling station. This may produce queues but experience elsewhere has shown that this also produces a truly safe system of voting in person. This can be seen from the academic studies referred to above where most of them operated a similar approach. Returning officers have a right to use public buildings including schools, but, undoubtedly there is going to be an expectation that returning officers minimise the use of schools for obvious reasons.
However, alternative choices may be limited. Therefore it is important that returning officers assess the situation quickly on the basis of the bookings that they are now making and identify any suitable alternatives. If school usage for example is going to increase, then that needs to be understood by all the key players in that area (for example the local education authority, the Electoral Commission and PARO if they are within a PCC election area). At a national level, the Cabinet Office (responsible for election policy) will undoubtedly wish to make the Department for Education and Skills (DfES) (responsible for education) aware of this sooner rather than later.
Where returning officers decide to use an alternative venue for a polling station, this may involve carrying out an interim polling place review. This is a legal process and any interim review should follow the same processes for a compulsory review. The relevant legislation is the RPA 1983, the Electoral Administration Act 2006 and the Electoral Registration and Administration Act 2013. It will be important to manage any necessary reviews as soon as possible as part of the planning for these polls. It is worthwhile checking the decision-making arrangements in place at the Returning Officer's local authority, given that some decisions in the polling station review process lie with the Council, to enable the approval of any changes to polling places to be made in a timely manner. It is also worth reviewing and ensuring that there are suitable arrangements in place to enable any late required changes to be made, such as through delegated decision-making. If this is already in place, this may negate the need for an interim review.
In terms of count venues, some may be able to find a much larger venue and maintain the current staffing numbers albeit considerably spread out. However for the majority, it is more likely that the "normal" count venue will be used but with fewer people, which means counts will take longer. Given that not only the 2020 but 2021 polls are being run and will therefore need to be counted as well as any by-elections, neighbourhood planning referendums etc, this may involve many days of counting. A number of areas have already announced that they will not be attempting any overnight counting, and they will be counting for the four or five days after polling day until they have completed all of their counts. There is certainly a lot of merit in this, time needs to be taken, and the safety, welfare and health of all of those involved, electorate, candidates, agents and staff is key. Having everyone awake and alert to manage the count in an effective and safe way is an absolute priority.
There is much to be done and many challenges. The position is and will remain uncertain almost certainly until polling day. The Returning Officer will need the power to flex and change how they approach things with as much flexibility as possible, as well as appropriate discretion but they need to remember the basic principles under which they act and stay within them.