APPENDIX 1
Memorandum by the Home Office
J. After the Poll
Current legislation
9.1 On completion of the count, the returning
officer is required to seal up and dispose of the election documentation
in accordance with the rules. Details of the procedures for disposing
of the documents are at Annex I
Delivery or retention of packets
9.2 At a parliamentary election, the packets
must be forwarded to the Clerk of the Crown in Chancery (rule
55(1) of the parliamentary elections rules). At a European Parliamentary
election, the documents are to be retained by the returning officer
(rule 55(1), as applied with modifications by Schedule 1 to the
European Regulations). At a principal area election, the packets
are to be forwarded to the proper officer of the council for which
the election is held (rule 46 of the Principal Areas elections
rules). At a parish or community council election, they are to
be forwarded to the proper officer of the council of the district
in England or county or county borough in Wales in which the parish
or community is situated (rule 46 of the Parishes and Communities
elections rules, read with section 17 of the 1994 Act).
Custody and destruction of ballot papers
9.3 The Clerk of the Crown must retain for a
year the ballot papers and all documents forwarded to him by the
returning officer at a parliamentary election; and then, unless
otherwise directed by the House of Commons or the High Court,
must cause them to be destroyed (rule 57(1) of the parliamentary
elections rules).
9.4 The proper officer of a council to whom documents
relating to a local government election have been forwarded must
retain them amongst the records of the council for six months
and then must cause them to be destroyed unless otherwise directed
by an order of a county court or an election court (rule 48(1)
of the Principal Areas elections rules and of the Parishes and
Communities elections rules).
9.5 The returning officer at a European Parliamentary
election must retain for one year the documents listed in Annex
I and then cause them to be destroyed unless otherwise directed
by order of the High Court (rule 57(1) of the parliamentary elections
rules, as applied with modifications by Schedule 1 to the European
Regulations).
Inspection of documents other than ballot papers,
counterfoils and certificates
9.6 All the documents listed at Annex I, except
ballot papers, counterfoils and certificates as to employment
on duty on the day of the poll, are open to public inspection
subject to conditions prescribed by the Clerk of the Crown in
the case of a parliamentary election, the council which employs
the proper officer to whom the ballot papers were delivered in
the case of a local government election or the returning officer
in the case of a European Parliamentary election (rule 57(2) of
the parliamentary elections rules, including that rule as applied
by the European Regulations; rule 48(2) of the Principal Areas
elections rules and of the Parishes and Communities elections
rules).
Order needed for inspection of ballot papers
9.7 An order by the proper authority is needed
for the inspection of ballot papers and for the opening of a sealed
packet of counterfoils and certificates as to employment in the
custody of the person referred to in paragraph 23 above (rule
56(B) of the parliamentary elections rules, including that rule
as applied by the European Regulations; rule 47(8) of the Principal
Areas elections rules and of the Parishes and Communities elections
rules).
9.8 Such an order for the opening of a sealed
packet and for the inspection of counted ballot papers may be
made at any election by an election court (rule 56(2) of the parliamentary
elections rules, including that rule as applied by the European
Regulations; rule 47(2) of the Principal Areas elections rules
and of the Parishes and Communities elections rules).
9.9 Any such order may also be made by a county
court at any election or, at parliamentary or European Parliamentary
elections only, by the High Court if satisfied by evidence on
oath that the order is required for the purpose of instituting
or maintaining a prosecution in relation to ballot papers or for
the purpose of an election petition (rule 56(1) of the parliamentary
elections rules, including that rule as applied by the European
Regulations; rule 47(1) of each set of local elections rules).
Where so satisfied, such a court may also make an order for the
inspection or production of any rejected ballot papers.
9.10 At a local government election, the reference
to rejected ballot papers includes those rejected in part. In
the case of a parliamentary election only, any such order may
be made by the House of Commons without any requirement as to
being satisfied about the purpose of the order (rule 56(1)(i)
of the parliamentary elections rules).
9.11 An appeal lies to the High Court from any
order by a county court under the provisions described in this
paragraph (rule 56(4) of the parliamentary elections rules, including
that rule as applied by the European Regulations; rule 47(4) of
each set of local elections rules).
9.12 An order under the powers described in paragraph
28 above may be made subject to such conditions as to persons,
time, place and mode of inspection and production or opening as
the court making the order (or, in the case of a parliamentary
election, the House of Commons) think expedient (rule 56(3) of
the parliamentary elections rules, including that rule as applied
by the European Regulations; rule 47(3) of the Principal Areas
elections rules and of the Parishes and Communities elections
rules).
Issues commonly arising
all election documentation should be retained
and made available for public scrutiny locally
9.13 It is not clear why parliamentary election
documentation is forwarded to and retained by the Clerk of the
Crown. The practice does not apply in Scotland, where documents
are collected at Sheriff's courts and retained until destroyed.
The requirement to forward the marked registers used for the combined
county council and parliamentary general election polls in England
in 1997 in particular created considerable adverse criticism because
of declared difficulties in consulting the marked registers for
the local elections which were retained by the Clerk of the Crown.
papers should be destroyed immediately the
period for making an election petition has passed or as soon as
a petition has been resolved
9.14 The issue has been raised most recently
following the publication in 1997 of a report "Ballot Secrecy"
by the Electoral Reform Society and Liberty. Documents are retained
in case they are required for a criminal investigation, which
may arise after the period for submission of a petition has passed.
the packets containing counterfoils and marked
ballot papers should be stored at different secure locations and
subject to enhanced security arrangements to prevent unauthorised
access
9.15 Concerns were voiced last year that unauthorised
access to election documents has in the past been routinely exercised
by the security services following the publication of a number
of autobiographies and memoirs. We are not aware of any proven
instances of such access. Liberty's view in the publication "Ballot
Security" was that this would in any case be an insufficient
level of security given the potential of existing telecommunications
systems.
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