The key points of the guidance are:
- If plans are already well advanced for election counts involving starting to count on the Friday, then it may be reasonable for the (Acting) Returning Officer to argue that it is too late for them to change plans.
- However, given the legal obligation to take reasonable steps to start counting on the Thursday night, the guidance reminds (Acting) Returning Officers that they will be liable to prosecution (for breach of official duty) if they do not either count on Thursday or have very good, documented reasons for not doing so.
- (Acting) Returning Officers should be mindful of the need to properly process postal votes, but this hint at therefore delaying until the Friday is balanced out by some suggestions on how to arrange matters so as to allow a Thursday night count.
- The relative costs of running a Thursday night versus a Friday morning count should be considered, but if a Thursday night count would cost more then that is a matter that should be raised with the Ministry for Justice as it is responsible for funding counts (or, in Scotland, the Scotland Office).
In other words, the Electoral Commission has partly put the ball back in the Ministry of Justice’s court. Having been sceptical of the Ministry’s support for this change in the law, the Commission is saying, “if you want it, you’ll have to pay for it”. However, the Electoral Commission has also explicitly reminded (Acting) Returning Officers in the draft guidance that they could be liable under the law if they drag their feet on Thursday counts unreasonably.
Overall, this is guidance that will encourage more rather than fewer to start counting on the Thursday night, particularly if the Ministry of Justice (and Scotland Office) are willing to fund any extra costs involved.
603 of 650 constituencies have now notified the Electoral Commission of their plans. You can view the list HERE.