How can you decide or predict the date of a by-election

This guidance sets out the general requirements of the Representation of the People Act (RPA) in regard to local election timetables in England, Scotland, and Wales.
Timetables for May elections are usually published by ALDC in their election briefings.
Warning:    Returning Officers are always right, even when they are wrong.  Always check your calculations of time with them before it is too late!
When an election is in your control, can you decide which day the election will be called for?

There are three basic types of by-election that occur in principal councils1
A.  Death of an existing councillor
B   Resignation of the existing councillor
C   Disqualification of the existing councillor
The terminology used by Returning Officers and the legislation is quite confusing here and you need to be careful. 
A & B. For Deaths and Resignation

The timetable for a by election is based on

  1. When the seat is declared vacant; this is when the council is informed of the death or when a councillor submits their resignation letter to the council2
  2. Then when the election is “called”3  when the Returning Officer chooses within a strict guidelines the date of the election. In doing so he publishes the Notice of Election, this would normally be done on the day he receives.

This Notice of Election does not require the RO to inform all potentially interested parties, though it is common to inform the parties currently represented on  council. A simple poster in an obscure council office would be legally sufficient. This is why it is important to develop a good relationship with you local Returning Officer.
1. may be under your control when, for instance, one of our own councillors is retiring but the final date is still at the discretion the Returning Officer. Once the election is “called” by two electors of the borough he has a maximum of 35 and a minimum of 26 by which time the election must be held4 . If they conform to the convention5  of Thursday elections that will give them the option of at least two Thursdays and occasionally three.
You can try to second guess the intentions of a Returning Officer (RO), even suggesting a preferred date if you like but most RO’s will set the election day at their own convenience or the perceived convenience of the public.  In the new Electoral commission guidelines6  for Returning Officers they are partly assessed on encouraging higher turnouts, it is therefore useful to quote this and argue you why your preferred election date would maximise turnout e.g. avoid a big sporting fixture or cultural festival, or positively coincide with.Conventions
In many areas, particularly when the sitting councillor had died, there is are two traditions that are often abided by

  • waiting for the funeral before “calling” the election to avoid  seeming disrespectful.
  • Allowing the party of the deceased councillor to call the election as and when they choose,

Neither are laws  but the first is common sense. Not to do so at the very least would damage our campaign. However the second is silly, and if it suits us to call the election quickly after the election we should do so.C Disqualification of the sitting councillor

This can occur for a number of reasons

  • Non attendance at council meetings for 6 months7
  • Becoming disqualified by order of the High Court or council following unlawful expenditure, surcharge, a conviction or breach of the provisions about corrupt or illegal practices8. 
  • Ceasing to be qualified; The only situation in which a councillor ceases to be qualified is when his only qualification was inclusion on the electoral register. 
  • Failure to accept office; A person elected to the office of councillor must positively accept office by making a declaration of acceptance of that office in a form prescribed by an order made by the Secretary of State, and in a manner prescribed. The declaration is not made within two months from the day of election and delivered to the proper officer of the council the seat becomes vacant. 
  • Upheld  Election Petition  declaring the election void or “not held”. It is deemed to have occurred on the date of the report or certificate of the election court.
  • Standards Board Decision. The adjudication panel for England (not you local standards committee) can disqualify you.

In each of these cased there is no need for 2 electors to “call” the election and the election timetables outlined below proceeds immediately9 . Deadlines
Once polling day has been set all other days are set by working backwards from polling day.
’Days’ are calculated in two different ways:    
Before the election “days” are calculated as: Monday to Friday inclusive, but excluding statutory Bank Holidays and any days set aside for Public Mourning. 
After the election “days” are calculated as:
Every day of the week, but if the final day falls on a weekend or a Bank Holiday, or one of the excluded days above, then the deadline moves to the first working day after it.
Note that ‘Casual By-elections’ do NOT have to be held on a Thursday, although they nearly always are. See table below:Legal Timetable for Casual Vacancies

Event

Deadline/ Date/Time

Date election is called by 2 electors

Polling Day –  35 to -26

Last day to publish notice of election  and first date from which nominations can be submitted

Polling Day –  25

Last day to submit nomination papers

Polling Day –  19

Publish statement of persons/parties nominated

Polling Day –  17

Last day for withdrawal of candidates

Polling Day –  16

Last day for the appointment of election agents

Polling Day –  16

Last day to make a new postal vote application or amend / cancel an existing arrangement

Polling Day –  11

Deadline for final registration applications  to vote in June

Polling Day –  11

Last day to apply for a proxy vote  – except for medical emergencies

Polling Day –  6

Last day to amend / cancel an existing proxy

Polling Day –  6

Last day to publish Notice of Poll

Polling Day –  6

Last day for the appointment of polling, counting and sub agents

Polling Day –  5

First day to replace lost postal vote documents

Polling Day –  4

Polling Day

Polling Day

Last day to replace lost or spoilt postal vote

Polling Day

Last day to apply for an emergency proxy vote  (medical emergency)

Polling Day

Last day to correct a clerical error

Polling Day

Last day to submit local expense returns (declaration before/ after midnight)

Declaration day +35

Useful filesUseful publications
ALDC’s Winning local by-electionsUseful external links

Electoral Commissionwww.electoralcommission.org.ukCan you help?If you have any suggestions on how this post could be improved, want to send us any relevant examples or artwork or if you find any errors, please email ALDC by clicking here.Updates and comment
John Bridges August 2009Notes

  1. Counties, London & Met Boroughs, Unitaries, and Districts
  2. The council is usually interpreted as the Chief Executive or whoever may be covering that role if he/she is unavailable.
  3. This where two electors from the council. Ares (not necessarily the ward concerned) request that an election be called. There is no standard form for this and a simple letter  requesting, as electors of the council area, that they would like the election  to commence will suffice.
  4. Unless there are less than 6 calendar months to the next ordinary date of re-election for that councillor  (the 6 month rule!)
  5. Thursday elections are not a legal requirement just a common convention. Every year a few elections are held on other days.
  6. See separate guidance on “Returning Officers Performance Standards”
  7. This can be avoided by the council passing a resolution within the 6 month period.
  8. Where the disqualification arises from a conviction, the disqualification  does not start until the period allowed for an appeal has elapsed. If an appeal or application is made, on the date when the appeal is complete or fails. Appeal periods vary so consult ALDC.
  9. The exact date on which the seat is declared vacant while vary in the detail in many of these cases, so its worth consulting ALDC on  the detail in these circumstances.

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