Electoral Commission May Prosecute Returning Officers Who Fail To Conduct Night Time Counts

A week ago, Eric Pickles MP, Chairman of the Conservative Party, called for the Electoral Commission to give Returning Officers an 'unambiguous steer' that General Election counts must take place on the Thursday night.

Yesterday, the Electoral Commission published a draft of its guidance, which will not be definitive until the Constitutional Reform and Governance Bill becomes law, however currently it is by all accounts quite encouraging.

The guidance instructs Returning Officers who were thinking of counting on the Friday morning that they

"will now need actively to re-consider what steps it is reasonable to take in order to be able to commence counting the votes before 2am"

and reminds them that

"if they do not take reasonable steps, a court may find them to be in breach of their official duty under Section 63 of the Representation of the People Act 1983 (as amended)."

The draft guidance goes through some of the factors which Returning Officers will need to bear in mind when making their decision - venue availability, staffing, geography - and reminds them that anyone who does decide on a Friday count will by law have to be able to 'provide an audit trail demonstrating their decision making process'.

You can read the draft guidance in its entirety here.

Mr. Pickles responded to the publication of the draft guidance by reiterating his call for Returning Officers to do as Parliament has bid and prepare for a General Election Night count:

"Parliament has made a clear change to the law, creating a presumption in favour of overnight counts in the forthcoming general election. With the exception of the most geographically remote parts of the United Kingdom, town hall Returning Officers should now be actively planning to count their Parliamentary election on election night. Those who announced Friday counts should be making the necessary arrangements to revert back to Thursday evening counts. If unelected Returning Officers intend to defy the will of Parliament, they should come clean and say so now. There is still time for the Bill to be amended to make it more robust so that Parliament’s democratically expressed wishes can be duly implemented."

Acknowledgement: ConservativeHome | CentreRight | 17/03/2010

Is General Election Night Saved?

A month ago, Jack Straw, Secretary of State for Justice, accepted a new clause, tabled by the Conservatives, to the Constitution and Governance Bill which woould enshrine in to law that returning officers were duty bound to count the votes at general elections within four hours of the close of poll. Meaning that the counts would take place on Thursday nights.

It seemed that General Election Night had been saved from the returning officers seeking to delay counting until the Friday.

Mr. Straw said at the time - and Eleanor Laing for the Conservatives accepted - that the wording of the clause would probably have to be amended.

So it was during proceedings on report stage of the bill last week, in a way that - as Iain Dale has already noted yesterday - appears to give a vast amount of flexibility to retuning officers who want to count the following day.

The original version of the new clause stated that guidance on the exceptional circumstances for which a Friday count would be permissible would be drawn up by the Justice Secretary in consultation with the Electoral Commission - and subject to approval by the Common and Lords as secondary legislation.

However, it is understoood that since these measures in the bill are only due to be passed in the so-called 'wash-up' period immediately prior to Parliament's dissolution before the general election, there would be no parliamentary window to approve that secondary legislation.

As such, the Government's new clause 37 in the bill still states that:

"The returning officer shall take reasonable steps to begin counting the votes given on the ballot papers as soon as practicable within the period of four hours starting with the close of the poll."

The guidance will be issued by the Electoral Commission rather than the Justice Secretary and not subject to parliamentary approval. Furthermore, if the votes are not counted on the night, the returning officer will have thirty days to publish a statement explaining why this was not the case.

The will of Parliament is absolutely clear on this in favour of Thursday night counts. The immediate onus is therefore now on the Electoral Commission to ensure that its guidance reflects that and is robust in outlining that counting must take place on the night unless there are very exceptional and/or unforeseen circumstances.

However, the Commission's record on this issue thus far is less than robust and it is fear that some of the returning officers who want to delay counting until Friday will make no effort to plan for a Thursday night count and plan to use the get-out of the written statement explaining their decision from the outset. That would be an outrageous and arrogant course of action to take.

Pressure must therefore continue to be exerted on returning officers to count on the Thursday night. And if they seek to disobey the will of Parliament at this general election, they should be in no doubt that they can expect the issue to be revisited after the general election.

As Justice minister Michael Wills told the Commons on Tuesday:

"I should make it clear that if that independence is exercised at the forthcoming general election in a way that is seen with hindsight to have flouted the clearly expressed wish of this House that there should be a presumption in favour of an overnight count-with the exceptions that I have mentioned-I have no doubt whatever that the new House elected in the next two or three months will return to the issue."

Eleanor Laing for the Conservatives was equally vocal:

"May I make it clear that we entirely support the Minister in saying that the will of this House and of Parliament is absolutely clear? There is no dissent. We trust that those who have the duty to put into action the will of Parliament will do so forthwith."

This is all far from ideal in that we now have to rely on both the Electoral Commission and returning officers to do the right thing and carry out the will of Parliament rather than having a law in black and white which gives them virtually no room for manoeuvre.

Acknowledgement: ConservativeHome | ToryDiary | 07/03/2010

Cambridge Councillor Saves General Election Night In City

Regular readers of this blog will know that Giles McNeill has been supporting the campaign to Save General Election Night (facebook group here) since early September 2009.

In October, Cllr. Chris Howell, Conservative (Coleridge Ward), on Cambridge Council, proposed the following motion at a council meeting:

"This Council believes that the interests of democracy and the country are best served if the result of a general election is confirmed as soon as possible after the close of polls. It therefore strongly supports general election counts being conducted on election night immediately following the close of polls, and requests that the returning officer takes note of this opinion."

It was passed by the council and Cllr. Howell now reports on his blog that the council's chief executive and returning officer for Cambridge at the General

Election, Ms Antoinette Jackson, has sent him the following letter:

"As Returning Officer I have now had a chance to review the arrangements for election counts with the Democratic Services Manager and electoral services staff and have undertaken a risk assessment of the risks inherent in a Thursday night count, particularly for a combined election.

"I can confirm that we will go ahead with a parliamentary count on the Thursday night as in previous years."

Congratulations to Cllr. Howell and indeed the councillors from all parties in the city for making their views known and ensuring that General Election Night has been saved in Cambridge.

Government Chief Whip, Nick Brown MP, (Labour) Newcastle and Wallsend, has today supported the campaign to Save General Election Night, Jonathan Isaby has the story on ConservativeHome (here).

Acknowledgement: ConservativeHome | Local Government | 12/01/10

Save General Election Night EDM

In October, the Labour MP Tom Harris tabled an early day motion - which was seconded by Eric Pickles - backing the campaign to Save General Election Night.

Despite it being tabled in the last few weeks of the 2008-2009 parliamentary session, 220 MPs signed the motion, making it one of the most supported EDMs of the session - an important sign of the broad cross-party consensus on the issue.

But since EDMs fall at the end of each session, it has been retabled and appears in this new session as EDM 334, but the text is the same:

"SAVE GENERAL ELECTION NIGHT CAMPAIGN

"That this House is concerned at reports that growing numbers of Returning
Officers are considering postponing the counting of votes cast on the day of the
General Election until the day after polling; believes that in the 21st century
it would be a regressive move not to announce constituency results as early as
possible; further believes that public confidence in the results could be
undermined by delays in the counting of ballot papers and that fewer voters
would be able to watch the results being announced if this were done on a Friday
afternoon; and calls on local authorities throughout the United Kingdom to
ensure that all ballot papers are counted immediately after the close of polls
on General Election night, as has been the practice in previous General
Elections."

83 MPs from across the Commons have already shown their support for it again, but as before, please lobby your MP to add their signature to the motion if they haven't already done so.
The Guardian reported earlier this week that the BBC was having to prepare an election "night" marathon running through until Friday afternoon because of the refusal of some Returning Officers to count on the night itself.

According to the Electoral Commission's survey of Returning Officers, as of last week 273 counts are confirmed to take place on Election Night with 53 constituencies currently planning on counting on the Friday. Crucially, 154 Returning Officers are saying they are undecided, which means they are hopefully still open to persuasion on a local level.

Giles McNeill supports the Save The General Election Night campaign and the campaign's Facebook group is still live and has nearly 6,000 members, so do join and show your support.

Giles McNeill supports Campaign to Save General Election Night

Jonathan Isaby of ConservativeHome is spearheading a campaign that is calling on local government to save general election night.

The Sunday Times reported yesterday, an increasing number of 'killjoy' councils are planning to postpone their local counts until the Friday after polling, thereby killing any sense of excitement that traditionally surrounds the most important night in the political calendar.

Jonathan has provided first-rate reasons for opposing this move in the Facebook group he has set up (and I would urge you to join).

My reasons believing that election counts should happen immediately after the polls close are:

• No candidate wants to be forced to wait extra (and for the individuals concerned an excruciating) number of hours before finding out their fate. Imagine if Paula Radcliffe having run the London Marathon and set a new world record had been told "We will post your result out to you tomorrow, second class"!

• We want to know who won as soon as possible, once the polling stations have closed. On a constituency level, but more significantly on a national level: if the general election is going to be close, then it is possible that if lots of seats are not counting until Friday (especially marginals) then we will not know who is going to be Prime Minister, form the Government and so forth until Friday lunchtime or afternoon.

• Whilst we may not know how many people have been engaged with politics by the drama and tension of Thursday night election coverage on television I suspect finding out the results the following afternoon when at work (or a couple of days later in the case of the recent European elections) really would kill any fizz.

• In the digital '24-hour media age' when we are used to getting news quicker than ever before, it would be a backward step to delay election counts. If anything, we should be seeking to persuade the few constituencies which historically count on a Friday to bring their counts forward to Thursday night.

• Sitting around the television into the early hours is an election night ritual for people across the land, many of whom do not perhaps follow politics closely on a daily basis. But if there are fewer results to announce - and the potential of not getting a national result to boot - they are less likely to bother tuning in and when the remaining constituencies declare and the national result becomes apparent on the Friday, anyone at work is not going to be able to witness the climax of the electoral process.

• The outside broadcasts at counts up and down the country have provided many a memorable moment over the years, bringing the results to life. However, the reason why broadcasters are able to provide such a variety is that there is no other call on the satellite trucks and outside broadcast units during the night. If there were an increasing number of counts on Friday during the day, fewer of them would have cameras present, thereby reducing the ability of the broadcasters to give full coverage of the results.

• The traditional British way of doing elections is to have people come out to vote and then count the ballot papers immediately afterwards. It's how we do it and what we're used to - I personall spoke to a number of electors during the most recent local and european elections who could not understand why we would have results for local elections on Thursday night for the County Council and Sunday for the European election (granted their is a good reason, but most electors want our traditions upheld).

• Security is a less important concern, but worth a mention all the same. There is somethng very worring about increasingly, millions of ballot papers being left overnight before being counted.

General elections only happen every four or five years. Is it really too much to ask of local authority staff that counts actually take place in the same way they have been carried out for generations?

UPDATE

I have spoke to Leader of City of Lincoln Council, Cllr. Darren Grice who has confirmed to me that it is the council's intention to hold evening counts as has been custom and practice in recent elections.