A month ago, Jack Straw accepted a new clause tabled by the Conservatives to the Constitution and Governance Bill which enshrined in law that returning officers were duty bound to count the votes at general elections within four hours of the close of poll, i.e. on the Thursday night. 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.
And so it was during proceedings on report stage of the bill last week, in a way that – as Iain Dale has already noted this morning – appears to give a vast amount of leeway 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, my understanding is 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."
but 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 30 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 I 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. I await the Electoral Commission guidance with interest…