Supplementary written evidence from the
Electoral Commission
Following the Electoral Commission's evidence
to the Scottish Affairs Committee on 13 November 2007, I am writing
to follow up various points as promised.
First, the Committee asked about the effectiveness
of the VoteScotland public information campaign. I enclose at
Appendix A a note on the evaluation and results of that campaign.
Second, the Committee asked for details of which
of the Commission's comments on the draft order for the Scottish
Parliamentary elections were taken up, and which were not.
I enclose at Appendix B a detailed note which
reproduces the Commission's comments on the draft order, and has
been annotated to indicate whether the comments resulted in changes
to the final Order; and, where possible, any other response we
are aware of from the Scotland Office.
From August 2006 there was ongoing discussion
of the draft order in the sub-group on legislation. The legislation
sub-group saw a draft of the conduct order on 9 September 2006.
On 9 November 2006, the Commission was sent this draft order formally,
for comments (with the exception of Schedule 5—the combination
rules). We responded with our comments (Appendix B) on 19 December
2006. After that, no further draft of the order was shown to the
sub-group on legislation or to the Commission until it was formally
introduced into Parliament. As noted in Appendix B, the Commission
was not shown a draft of Schedule 5 (the combination rules) before
the Order was laid in Parliament.
Third, the Committee asked about the procedures
for adjudicating doubtful ballots. I enclose at Appendix C the
relevant extracts from the Electoral Commission's published guidance
for candidates and agents in relation to the Scottish Parliamentary
and local government elections. The purpose of this part of our
guidance was to inform candidates and agents of the arrangements
that we were informed would be put in place by Returning Officers,
including how processes such as recounts and adjudication would
be dealt with in the context of electronic counting.
Finally, I would like to point out for the record
that in my answer to a question from Mr Hamilton (Q48), I said
that the Electoral Commission's original recommendation was that
political parties should be allowed to register up to six descriptions
for use on ballot papers. In fact, our recommendation was for
up to five such descriptions, in addition to the party name.
Peter Wardle
Chief Executive
The Electoral Commission
7 December 2007
APPENDIX A
VOTESCOTLAND
CAMPAIGN
The success of the VoteScotland campaign was
measured via a number of quantitative and qualitative methods,
including:
— public opinion research;
— statistics of the number of
people who called the campaign helpline for information, and the
numbers who visited the VoteScotland website; and
— feedback from key stakeholders
such as electoral administrators.
The electoral register is managed locally, not
by the Electoral Commission. It is therefore not possible for
the Commission to produce figures showing only the number of people
who completed the registration process as a direct result of the
campaign.
Key results from the campaign include:
— 67% of the population surveyed
claimed to have seen at least one element of the campaign;
— the doordrop leaflet which was
delivered to every household in Scotland ahead of the elections
gained very high recognition for a leaflet of this sort, with
35% spontaneous awareness. Of those who read the leaflet, 91%
rated it as very informative or useful;
— there were over 100,000 visits
to the VoteScotland website and the online voting games were played
almost 10,000 times. There were also over 43,000 visits from Scotland
to the Commission's aboutmyvote.co.uk website during the campaign;
— there were over 9,500 calls
to the campaign helpline during the course of the campaign (3
March—3 May), of which over 6,900 were received prior to
the registration deadline;
— knowledge of voting systems
increased significantly by the end of the campaign, with correct
answers to key questions going from an average of 35% to nearly
80% between the first and third waves of research;
— understanding was significantly
higher among those who were exposed to campaign advertising compared
to those who were not, and higher still among those who voted;
— more than 350 press stories
ran about the campaign; and
— the field marketing and truck
tour activity run as part of the VoteScotland campaign reached
17,500 people explaining to them how to register and vote in the
upcoming elections.
THE NUMBER
OF REGISTRATIONS
IN SCOTLAND
Details of the level of registered electors
in 2005, 2006 and at 18 April 2007 (the registration deadline
prior to the 3 May elections) are in the table below.
It is important to note that registration figures
are not static throughout the year and can fluctuate as a result
of demographic change. Thus the increases shown in the table below
are unlikely to reflect the true number of new people added to
the register as many people will also have been removed from the
registers through the course of the year. There will also have
been people who have moved from one area to another; updating
their registration status.
REGISTERED ELECTORS IN SCOTLAND
| Date | Number
| % increase | numbers increase
|
| 1 December 2005 | 3,861,207
| — | |
| 1 December 2006 | 3,872,901
| 0.30 | 11,694 |
| 18 April 2007 | 3,897,675 |
0.64 | 24,774 |
Source for 2005 and 2006 figures is GROS. Source for 2007
figures is EROs, collated by David Denver.
REGISTRATIONS BETWEEN
THE "OLD"
AND "NEW"
DEADLINES PRIOR
TO THE
ELECTIONS
Information collated from Electoral Registration Officers
in Scotland shows that 37,386 applications to register to vote
were received by EROs between 9 March and 18 April 2007 (the deadline
prior to the 3 May elections). This illustrates the improved position
in terms of registration prior to elections resulting from the
changes in the Electoral Administration Act 2006, which moved
the registration deadline before elections from approximately
six weeks prior to polling day to 11 working days prior.
OPTIONS FOR
THE VOTESCOTLAND
"SLOGAN" (MR
DAVIDSON—Q30)
The different strap lines tested in creative development
research were:
— Whatever matters to you, your vote matters;
— The day you affect everyday;
— The day Scotland decides; and
— The day with a difference.
The first option came out most strongly in focus group research
so that was carried forward.
THE COST
OF THE
VOTESCOTLAND
BRANDING (MR
DAVIDSON—Q33)
The Commission spent £8,370 on a qualitative research
study to develop the campaign, which included gaining feedback
on the VoteScotland branding. The research tested understanding
of key campaign messages, such as the ability of the brand to
engage and motivate the target audiences; how to explain the voting
systems; the strength of the election day message and the power
of the call to action.
APPENDIX B
ELECTORAL COMMISSION
COMMENTS ON
THE DRAFT
SCOTTISH PARLIAMENT
(ELECTIONS ETC)
ORDER 2007
The following document reproduces the full text of the Electoral
Commission's response to the Scotland Office's formal consultation
on the draft Scottish Parliament (Elections etc) Order 2007.
The italicised text records whether the comments resulted
in changes to the final Order, together with a note of points
made by the Scotland Office in response to the Commission's comments.
1. The Commission welcomes the opportunity to comment
on the draft Scottish Parliament (Elections etc) Order 2007.
2. This paper sets out the Commission's formal response
to the Scotland Office consultation on the draft Order, received
on 9 November 2006.
3. The Commission would welcome a formal response from
the Scotland Office to the comments and issues raised in this
paper. In the meantime, Commission staff would be happy to expand
upon or discuss further any of the points outlined below.
Outcome: A formal response was received from the Scotland Office
on 8 February 2007
GENERAL POINTS
4. It is appreciated that the intent of the draft Order
is that it should be consistent, so far as possible, with the
provisions of the Electoral Administration Act 2006 (EAA 2006)
and related secondary legislation. The Commission welcomes that
approach.
5. We have reviewed the Order primarily from the point
of view of seeking consistency with the EAA 2006 in order to ensure
that, where relevant, the Order effectively implements the provisions
of the Act so far as Scottish Parliamentary elections are concerned.
RECOMMENDATION
6. The Commission notes that the Order as drafted does
not explicitly apply to Scottish Parliamentary elections the donation
controls provided by Section 71A and Schedule 2A of the RPA 1983
in respect of UK Parliamentary elections. Without the replication
of these provisions within the Order, it appears that donation
controls do not apply to Scottish Parliamentary elections. The
Commission strongly recommends that the Scotland Office makes
the necessary amendments to ensure that these controls are applicable
to Scottish Parliamentary elections.
Outcome: Order not changed
RECOMMENDATION
7. Schedules 3 and 4 of this draft Order do not appear
to fully recognise the changes proposed by the draft Representation
of the People (Scotland) (Amendment) Regulations 2007 (draft 2007
Regulations), on which the department is also consulting us at
this time. Beyond the comments we have made in respect of these
draft Regulations, we would like to see the effect of these replicated
as necessary throughout this Order. Although we have made some
specific comments on Schedules 3 and 4 below, the Commission would
request that they are more thoroughly reviewed with the draft
2007 Regulations in order to ensure as far as possible consistency
between the different types of election which may take place in
Scotland and indeed across Great Britain.
Outcome: The final Order was changed to reflect some, but not
all, of the effects of the draft 2007 Regulations—see further
comments below
8. Additionally, the draft 2007 Regulations make changes
to the poll cards and postal voting statement for use at UK Parliamentary
elections in Scotland. Before being consulted by the Department
for Constitutional Affairs on the draft Representation of the
People (England and Wales) (Amendment) (No 2) Regulations 2006,
including the form of the new poll cards and the amendments to
the existing poll cards, the Commission agreed to conduct user-testing
on their intelligibility. We commissioned Cragg Ross Dawson to
test three poll cards—the elector's official poll card,
the postal voter's official poll card, and the postal proxy voter's
official poll card.[2]
Before user testing the documents were submitted to the Plain
English Campaign to ensure that all the documents were written
in plain English.
9. The results of the user testing were very positive
and no major changes were recommended to the test cards. The majority
of respondents found the tests clear and easy to understand with
little scope for misunderstanding or ambiguity. The Department
for Constitutional Affairs has now taken on board the Commission's
recommendations and addressed some of the key findings of the
user testing in respect of the forms contained in the Representation
of the People (England and Wales) (Amendment) (No 2) Regulations
2006.
RECOMMENDATION
10. The Commission appreciates that the wording on the
poll cards contained in the draft 2007 Order will necessarily
be different from those tested in order to be appropriate for
use at the Scottish Parliamentary elections. However, the Commission
still believes that regard should be had to the wording and format
of those tested when reviewing the forms contained within the
draft Order. Although we have made some specific comments on the
poll cards and the postal voting statements below, our main concern
is that what is contained within the Order is consistent with
that contained in the draft 2007 Regulations.
Outcome: Order not changed. The Scotland Office explained they
wanted to strike a balance between ensuring consistency with UK
Parliamentary elections and recognising differences in the Scottish
Parliamentary elections. The Scotland Office also believed that
article 89 allowed Returning Officers to amend forms to like effect
as circumstances required
RECOMMENDATION
11. The Commission understands from the Scotland Office
that Schedule 5 still requires some attention and will need to
be revisited once the Scottish Local Government Elections Order
is finalised. The Commission agrees that this schedule will require
wholesale revision following finalisation of the local government
Order, but nevertheless makes some comments below on the general
principles we would like to see considered in the development
of this Schedule.
Outcome: The Commission did not see the final Schedule prior
to it being laid in Parliament
RECOMMENDATION
12. The Commission understands that the Scotland Office
is considering not laying the Schedule 5 provisions relating to
the combination of polls at the same time as the rest of the Order,
with this then made at a later time. The Commission expresses
concern at this approach and the uncertainty that this will cause
to all those involved in the administration of the elections.
For the ease not only of those responsible for administering the
polls but also for the elector, the Commission urges the Scotland
Office to ensure that the necessary provisions setting out the
detail of how the Scottish Parliamentary and local government
elections will be combined are in place as soon as possible.
Outcome: Commission view accepted, Schedule 5 was laid with
the rest of the final Order
13. Where no comment is made as regards changes made
in this Order from the provisions contained in the Scottish Parliament
(Elections etc) Order 2002, it can be understood that the Commission
is content with the relevant provisions as drafted.
14. During our review of the draft Order we have noted
a number of minor errors which we have listed and attached as
Annex A.
15. We would appreciate sight of a final draft of the
Order as to be laid, as soon as that is possible. This will facilitate
the development of the Commission's training and guidance products
for Returning Officers and candidates and agents for the May 2007
elections.
Part I: General
Article 3
RECOMMENDATION
16. In this interpretation article, in the definition
of "relevant citizen of the Union" and indeed throughout
the Order the phrase "Commonwealth citizen" is used
rather than "qualifying Commonwealth citizen". In light
of the introduction of Section 18 of the EAA 2006, it would be
helpful if the definition of Commonwealth citizen could be clarified
in the Order.
Outcome: Order not changed. The Scotland Office believed that
provisions made in other legislation made a sufficient definition
17. A definition of anonymous electors has been included
in this article and indeed provision has been made throughout
the Order to amend procedures as necessary for electors with an
anonymous entry. This has been done despite the fact anonymous
registration will not be in place for the 2007 elections. The
Commission nevertheless welcomes the inclusion of such provisions.
Part II: The franchise and its exercise
Article 8
18. This Article removes the compulsion for certain detained
mental patients to vote solely by post. The Commission believes
that electors have a strong preference for having a choice of
voting methods, and the removal of the restriction on certain
mental health patients voting in person enhances choice and accessibility
for those electors. The Commission thus welcomes this provision.
RECOMMENDATION
19. Unlike in the draft 2007 Regulations, however, there
is no provision contained in Schedule 3 of this Order which would
allow such patients who are unexpectedly unable to vote in person
to appoint an emergency proxy. The Commission would like to see
parallel provision included in this Order to provide for consistency
across different elections.
Outcome: Order changed—point accepted
Article 31
RECOMMENDATION
20. This new Article makes provision in respect of false
statements in nomination papers. The Commission notes that the
content of this Article does not entirely replicate the provision
as contained in Section 23 of the EAA 2006, which amends Section
65A of the 1983 Act, and that this Article is also different from
the equivalent provision in the draft National Assembly for Wales
(Representation of the People) Order 2007 (Article 34). For the
purposes of consistency, the Commission proposes that this Article
be re-considered to ensure that the effect of this Article is
the same as the equivalent provision in the UK Parliamentary election
rules, although clearly taking cognisance of the fact that there
will be both constituency and regional nominations in a Scottish
Parliamentary election.
Outcome: Order changed—point accepted
Part III: The election campaign
Article 38
RECOMMENDATION
21. Equivalent provisions to those contained within Article
38(4) were inserted within the Representation of the People Act
1983 (RPA 1983) by Schedule 18 of the Political Parties, Elections
and Referendums Act 2000 (PPERA), and at the same time the equivalent
to Article 38(5) was removed. For the purposes of consistency,
the Scotland Office may thus wish to remove Article 38(5) from
the draft Order.
Outcome: Order changed—point accepted
RECOMMENDATION
22. There is an error in the drafting of Article 38(4)(d):
reference to Article 57 should instead be to Article 57(5) or
57(5)(ii), as otherwise this could be construed as being applicable
to all election expenditure, which would therefore exempt all
election expenditure from the requirements of Article 38 and not
just expenditure incurred before a person became a candidate.
Outcome: Order changed—point accepted
Article 41
RECOMMENDATION
23. The Scotland Office should consider whether the wording
of Article 41(1)(c) is sufficiently clear. The Commission seeks
clarification that the application of this rule does not extend
beyond constituency candidates and individual candidates standing
for return as a regional member to parties or party lists, which
are already covered by Section 85 of PPERA.
Outcome: Order changed—point accepted
RECOMMENDATION
24. Article 41 does not contain provision applying the
rules for the retention and public inspection of returns to returns
received by virtue of paragraph (4). For the sake of consistency
with other elections, the Commission believes that such provision
should be included.
Outcome: Order changed—point accepted
Article 42
RECOMMENDATION
25. The Commission notes that the expenditure limits
have been increased to mirror those in place at UK Parliamentary
and National Assembly for Wales elections, and welcomes this fact.
However, this article still refers to constituencies coterminous
with a UK Parliamentary constituency which is a county or a burgh
constituency, despite the fact that UK and Scottish Parliamentary
constituencies are no longer coterminous. This Article will need
to be reviewed to reflect this fact. Also, the definition of parliamentary
constituencies inserted in paragraph (9) of this Article makes
reference to the Parliamentary Constituencies (Scotland) Order
1995, which was in fact superseded by the Parliamentary Constituencies
(Scotland) Order 2005. The Commission is not clear why reference
to UK Parliamentary constituencies would need to be made in this
Article but if it is the case, this reference would need to be
updated.
Outcome: Order not changed. The references were made to define
the Scottish Parliamentary constituencies as coterminous with
the UK Parliamentary constituencies in existence from 1995-2005.
The Scotland Office did accept that new legislation will be required
in future
Article 46
RECOMMENDATION
26. As highlighted in our general comments above, we
note that while references are made to donations controls in the
context of the expenses return and in the form of return in the
appendix, there is no explicit application of the donation controls
provided by Section 71A and Schedule 2A of the RPA 1983 to UK
Parliamentary elections. Without replication of these provisions
within the Order, it appears that donation controls do not apply,
and the Commission strongly recommends that provision is made
within the Order to replicate these controls for Scottish Parliamentary
elections.
Outcome: Order not changed. The Scotland Office indicated that
the omission of donation controls was brought to their attention
too late for them to include the relevant changes. A new Schedule
will be drafted when time allows
RECOMMENDATION
27. Section 26 of the EAA 2006 amended provisions of
the RPA 1983 in order that candidates' returns contain statements
on matters relating to their election expenses as may be prescribed
by the Commission, rather than detailing all required statements
and declarations to be included within the return on the face
of the legislation. We note that parallel provisions are not included
within Article 46 and believe that the Scotland Office should
redraft this Article accordingly.
28. The form for return of candidates' election expenses
in the Appendix of Forms does not comply with either the requirements
for return specified within Article 46 of the draft Order, or
with those that would be prescribed by the Commission under those
provisions introduced by the EAA referred to above. The Electoral
Commission is preparing a revised expenses form and has discussed
with the Scotland Office inclusion of this form in the final Order.
The Commission strongly recommends that this form is substituted
for the present draft. Use of the Commission's revised form should
facilitate completion of a legally compliant return by candidates
and agents and facilitate monitoring of returns by the Commission
in pursuance of its statutory duty. By doing so, this will also
help to promote consistency in approach across elections in Great
Britain.
Outcome: Order changed—point accepted. Although the form
sent by the Commission was not in a format that allowed it to
be inserted into the Order, the Scotland Office adapted their
form to mirror the Commission's form and made subsequent amendments
to Article 46
RECOMMENDATION
29. If the Scotland Office is not minded to alter the
provisions of Article 46 to reflect amendments introduced by the
EAA 2006 there are a number of other issues relating to Article
46 and Form C as currently drafted which should be addressed.
These include the following:
— Article 46(3) omits reference to a statement
of expenditure incurred in respect of Article 57(5) (before a
person was a candidate) but the form of return within the appendix
to the order includes provision for such a statement.
— Article 46 refers to the return including
a statement of all payments made by persons in accordance with
Article 39(4) (petty expenses), but the form does not provide
for such a statement.
— The list of expenditure categories within
the form of return does not match the new list of matters constituting
election expenditure as provided for within Article 58.
— Requirements are included both within Article
46 and the form C for return as to expenses for details of donations
to be reported, but, as indicated above, the draft Order does
not apply the PPERA framework for control of donations to Scottish
Parliamentary elections.
Outcome: Order changed—point accepted
Article 50
RECOMMENDATION
30. There is an error in the drafting of this Article:
Nominating Officers do not have responsibilities regarding the
return of candidates' election expenses as defined by Article
46. As such, we are unclear as to why the Article makes reference
to Nominating Officers. This comment is also applicable to Article
52(1), Article 52(3)(c), Article 52(4)(e), Article 52(6)(a) Article
52(6)(b), Article 53(1), and Article 55.
Outcome: Order not changed but point accepted
Article 52
RECOMMENDATION
31. Paragraph (3) of this Article should replicate the
new Section 81(3A) of the RPA 1983 (as inserted by Section 26
of the EAA 2006), rather than the old Section 81(3), which has
now been repealed. This provision refers to the regulation of
statements in expenses returns by the Electoral Commission.
Outcome: Order not changed. The Scotland Office did not reply
to the Commission on this point
Article 56
RECOMMENDATION
32. If Article 46 is amended, the reference to 46(3)(f)
within Article 56(2)will need to be amended in accordance with
those changes.
Outcome: Order changed—point accepted
RECOMMENDATION
33. The Commission notes that there is a different fee
for copying in place here than in the equivalent provision in
the draft National Assembly for Wales conduct Order (Article 62).
Additionally, unlike the NAW Order, there is no fee in place for
inspecting a copy of a return or declaration (including any accompanying
documents). The Commission seeks clarification as to any reasons
for this inconsistency in approach.
Outcome: Order not changed. The fee was the same as in the
2002 Order
Article 60
RECOMMENDATION
34. The provision allowing the sending of freepost communications
does not take account of the size of the mailing, only the weight.
Following the introduction of the new Pricing In Proportion system
by Royal Mail, the Commission seeks clarification as to whether
it is intended that this rule will continue to refer only to the
weight of the communication, and if this is the case, seeks assurances
that the universal service provider will be aware of this provision
and will not enforce any restriction as to size. Such clarification
would be of assistance in order to prevent any potential confusion
for candidates and agents.
Outcome: The Scotland Office clarified that they had a separate
arrangement with Royal Mail on the provision and cost of freepost
communications
Article 73
RECOMMENDATION
35. It remains the case that election publications are
required to have only the printer and publisher details shown
and not the details of the promoter. Section 143 of PPERA, although
not yet commenced, makes provision requiring the details of the
printer, publisher and promoter to be included on all election
publications. Additionally, Section 29 of the Local Electoral
Administration and Registration Services (Scotland) Act 2006 (LEARS
Act) makes similar provision in respect of Scottish local government
elections. Clearly if the LEARS Act provision is to be commenced
before the May 2007 combined elections, for the purposes of consistency
and for the ease of facilitating compliance by political parties,
the Commission recommends that this Article be amended to require
the details of the printer, publisher and promoter to appear on
all election publications.
Outcome: Order not changed
Part V: Miscellaneous and supplemental
Article 89
RECOMMENDATION
36. This provides for the sample copies of the combined
ballot sheet (enlarged and hand-held) to bear the instruction
"MARK YOUR X ONCE IN EACH COLOURED COLUMN". The Commission
notes that this is inconsistent with the words to be included
on the ballot sheet, as set out in the directions as to printing
the ballot papers in the Appendix of Forms, which have not been
varied in any way for an instance where the two ballot papers
are to be printed in the same sheet. As a result, the ballot sheet
will not have one overarching instruction for voters but will
instead simply state one instruction above the regional column
(MARK YOUR X IN A BOX) and one instruction above the constituency
column (VOTE FOR ONE CANDIDATE ONLY). The Commission seeks assurances
that, in the interests of consistency and voter understanding,
whatever instruction is given on the ballot papers will be replicated
on the sample ballot papers to be provided in the polling station.
37. At the request of the Scotland Office, the Commission
engaged Cragg Ross Dawson to take soundings of voters in order
to assess the impact of any possible change in the ballot paper
format. The research found a clear preference for one of variants
of the combined ballot sheets and recommends that the Scotland
Office consider the instructions as shown on that design in the
development of instructions for use where the constituency and
regional ballot paper are printed on the same sheet. Particular
elements of the instructions that people found helpful were the
large line at the top stating "you have two votes",
the arrow directing voters to the voting boxes, and the instruction
to "vote once only" above each column.
38. Further comment is made in relation to the instructions
on the ballot papers and the ballot sheet in respect of Rules
28 and 29 and Forms J and K below.
Outcome: Order changed—point accepted
Article 93
RECOMMENDATION
39. It appears that paragraph (2)(b) means that, on the
grounds of procedural error, votes in the regional element of
the election can be recounted up to the point that the allocation
of seats has been announced. This appears to give the opportunity
for recounts at a regional level to be requested if it can be
argued that there has been procedural error. Clearly, this does
not fit with the rest of the legislation which only allows recounts
of regional votes to take place up to the point that the statement
setting out the number of votes given for each registered party
and each individual candidate is published for transmission to
the Regional Returning Officer. The Commission seeks clarification
of this provision.
Outcome: Order changed—point accepted
RECOMMENDATION
40. The purpose of paragraph (4) of this Article is not
clear. The Commission seeks clarification on what this paragraph
is intended to achieve and indeed whether it is necessary.
Outcome: Order changed—point accepted
Schedule 2
Rule 1
RECOMMENDATION
41. The entry in the timetable on the publication of
the statement of persons nominated does not reflect the changes
made by Section 19 of the EAA 2006. The Commission would like
to see the wording inserted by that section into Rule 1 of the
Parliamentary Election Rules (Schedule 1 to the 1983 Act) replicated
in this Order.
Outcome: Order changed—point accepted
Rule 5
RECOMMENDATION
42. Although the use of registered descriptions are now
provided for in this Order, the rule does not recognise the possible
use of the party name as registered under Section 28 of PPERA.
Candidates should be able to use either a party's name or a registered
description and the provisions should reflect this.
43. We believe that the provisions should be amended
in order to more closely replicate the relevant provisions of
Rule 6A of Schedule 1 of the RPA 83 (as amended by Section 49
of the EAA 2006), which states that an authorised description
may be either the name of a party registered under Section 28
of PPERA or a description registered under Section 28A.
Outcome: Order changed—point accepted
Rule 6
RECOMMENDATION
44. This requires amendment to prevent individual candidates
standing for return as a regional member using a description.
As a result, paragraphs (5) to (7) of this Rule should be removed.
This change will need to be reflected throughout the Order. As
a further consequence of this, in paragraph (3)(c), the words
"consisting of the word `Independent'" should be inserted
after "if desired, description".
Outcome: Order changed—point accepted
Rule 7
RECOMMENDATION
45. It is not clear if this rule is sufficient to cover
the use of commonly used names for persons on a party list. Although
the rule does require the list to contain a statement of the names
by which each candidate on the list is to be known for the purposes
of the election, no specific reference is made to commonly used
names. In contrast, in Article 7 of the draft NAW Conduct Order,
the parallel provision relating to the nomination of candidates
on a regional list, specific provision is made providing for the
use of commonly used names. In the interests of consistency and
clarity, the Commission would prefer to see this rule amended
to this effect.
Outcome: Order changed—point accepted
RECOMMENDATION
46. This Rule makes provision for the submission of a
joint list of candidates, and the subsequent use of a joint description
by that list. The new joint description provisions of Section
28B of PPERA are drafted in the context of a joint description
that can be used by a candidate standing in the name of two or
more parties jointly, but does not make any reference, or apply
to, party lists. As a result, the Commission believes that this
provision should be removed from the draft Order.
Outcome: Order changed—point accepted
RECOMMENDATION
47. The rule is not clear on what the effect on the modified
d'Hondt calculation for the allocation of regional seats would
be if a candidate standing under a joint description in the constituency
wins the seat. The Commission seeks clarification as to whether
the victory of such a candidate would impact on the divisor of
each party also standing on the regional list who authorised that
constituency candidate to use their description on the ballot
paper.
Outcome: The Scotland Office did not reply to the Commission
on this point
Rule 8
RECOMMENDATION
48. It is not clear from this Rule as drafted that for
a joint description to be authorised it must be authorised by
a certificate issued by or on behalf of the registered nominating
officer of each party. The Commission proposes that this Rule
is clarified accordingly.
Outcome: Order changed—point accepted
Rule 19
49. Rule 19 has been changed to reflect the new provisions
in the EAA concerning commonly used surnames and/or forenames.
The Rule gives the Returning Officer the power to refuse to allow
a commonly used name if he thinks that its use will mislead or
confuse electors or if he thinks that the commonly used name is
obscene or offensive. The Commission agrees with the changes made
to Rule 19, but believes that further guidance on this issue may
be necessary, and will work with the department to ensure that
clear guidance can be given to Returning Officers on this point.
RECOMMENDATION
50. In this Rule and in Rule 20, provision has been inserted
which allows for the Returning Officer to correct minor errors
on a nomination paper, including errors as to a person's electoral
number and obvious errors of spelling in relation to the details
of a candidate. The Rule states that a Returning Officer must
have regard to Electoral Commission guidance when acting in accordance
with this provision. The Commission supports this Rule but would
welcome clarification as to why the `must have regard to Commission
guidance' provision is specified in this Rule, and not consistently
across all areas of electoral law on which we provide guidance.
Outcome: Order changed—point accepted. The reference
to Commission guidance was removed in both rules
Rule 20
RECOMMENDATION
51. Throughout this rule, individual candidates standing
for return as a regional member can be shown with a description
beyond the word "Independent". The Commission's comments
on Rule 6 above also apply in respect of this Rule.
Outcome: Order changed—point accepted
RECOMMENDATION
52. The use of commonly used names is permitted for individuals
standing for return as a regional member, but does not extend
to cover the names of the candidates contained on a party list.
The Commission's comments on Rule 7 above also apply in respect
of this Rule.
Outcome: Order changed—point accepted
RECOMMENDATION
53. Reference is made in this rule to Rule 8 (constituency
nomination papers: name of registered party), which is not appropriate
given that this rule is concerned with the regional element of
the election, and so should be removed.
Outcome: Order changed—point accepted
Rule 28
RECOMMENDATION
54. It is not clear from this rule that parties may stand
using a registered party description rather than their registered
party name, and the Commission would prefer that this was made
explicit in this Rule. The approach adopted in Rule 25 of the
draft NAW Conduct Order is clearer and in the interests of consistency
could be adapted for use here.
Outcome: Order changed—point accepted
RECOMMENDATION
55. Individual candidates standing for return as regional
members can be shown on the ballot paper with a description. Again,
the Commission's comments on Rule 6 above also apply in respect
of this Rule.
Outcome: Order changed—point accepted
56. We noted recently the Scotland Office's announcement
regarding the design of the ballot papers for next year's elections.
The priority for any ballot paper is that it is easy to read and
clear in its instructions so that people can cast a valid and
effective vote. As mentioned above, we undertook research with
voters as part of the Scotland Office's consultation, with a view
to seeking voters' views on carrying through the recommendations
of the Arbuthnott Commission report. The report recommended using
the New Zealand design, with the regional vote on the left and
the constituency vote on the right. We found from our research
that voters preferred this option to having two separate ballot
papers.
RECOMMENDATION
57. However, the rule as drafted gives discretion to
Returning Officers to decide whether to print the ballot papers
on the same sheet, rather than making this a requirement. If this
is indeed the policy intention, suitable provision will need to
be made for this throughout the Order. At present, for example,
Rule 46 would need amending to be applicable if the constituency
and regional ballot papers are printed on separate sheets.
58. Given that the Scotland Act 1998 does not allow for
by-elections to be held in any instance to fill a regional vacancy,
the only time that a constituency and regional Scottish Parliamentary
election will take place at the same time will be at a Scottish
Parliamentary general election. As a result, it is not clear in
what circumstances it is intended that the Returning Officer would
choose or indeed should be able to choose to print the ballot
papers on two separate sheets. In order to guard against unnecessary
confusion being caused to the electorate as a result of further
change to the design of the ballot paper, the Commission would
question whether such discretion is necessary or indeed desirable.
Additionally, any discretion as to how the ballot papers can be
printed could cause significant difficulty for the Commission
in conducting an effective national public awareness and education
campaign if there is a possibility that some areas will have two
separate sheets of paper while others will use only one.
Outcome: The Scotland Office clarified that this discretion
was a contingency option for areas where a high number of parties
and individuals contesting a regional list would result in the
length of the ballot paper being incompatible with electronic
counting
RECOMMENDATION
59. The reference in this rule to a combined ballot paper
is incorrect: despite being printed on the same sheet, it remains
the fact in the Order as presently drafted that there are two
ballot papers.
Outcome: Order changed—point accepted
Rule 30
60. In the covering letter to this consultation, the
department specifically invited our comments on the official mark.
The Commission is aware of the discussions that have taken place
in the 2007 Scottish elections legislation sub-group regarding
the role of the official mark, particularly in respect of where
the votes are counted electronically.
RECOMMENDATION
61. While the Commission supports the provision for official
marks that do not, necessarily, perforate the ballot paper, we
would welcome clarification as to what Scotland Office would regard
as an acceptable "official mark", since there appears
to be no reference to the security of the mark, or the ease to
which it could be copied, in either this Rule or the corresponding
Rule in the UK Parliamentary Election Rules.
Outcome: The Scotland Office clarified what would constitute
the official mark
RECOMMENDATION
62. The Commission understands that the scanning machines
to be used at the 2007 elections will not be able to read electronically
an official mark. It is also understood that one possible mark
being considered for use as an official mark at the 2007 elections
is not clearly visible to the naked eye. If this is in fact the
case the Commission is concerned that any deterrent factor against
potential fraud that an official mark may provide will be lost.
Outcome: The Scotland Office confirmed that the official mark
would not be visible to the naked eye but could be revealed if
necessary. The Scotland Office informed the Commission that the
unique identifying barcode would be read electronically to ensure
the ballot paper was unique
63. The Commission accepts that a practical solution
will need to be found, but would still be keen that this does
not compromise issues around security and integrity.
64. Further comment on the want of an official mark as
a ground for rejection is made in respect of Rule 58 below.
Rule 36
RECOMMENDATION
65. This rule still makes reference to the Presiding
Officer's power to order arrest, which has been removed in Rule
45 of the draft Order in consequence of the changes contained
in Schedule 1, Part 7, Paragraph 132 of the EAA 2006.
Outcome: Point not accepted. The rule did make the power of
arrest an exception to the Presiding Officer's powers
Rule 37
66. The Commission welcomes the provisions in the draft
Order to implement our recommendations in Delivering democracy?
The future of postal voting for a pre-polling information card
to be sent to all voters.
67. This rule extends the requirement to send postal
voter's official poll cards and postal proxy voter's official
poll cards in addition to elector's official poll cards and proxy's
official poll cards (which replaces the proxy's official appointment
notice).
RECOMMENDATION
68. Although this rule has been updated, it does not
entirely reflect the EAA 2006 changes. Not only has the description
of what the poll card should set out been removed from the 2002
Order, provision allowing the inclusion of such other information
as the Returning Officer thinks appropriate (as per Schedule 1,
Part 5, Paragraph 70 of the EAA 2006 as it amends Rule 28 of the
UK Parliamentary Election Rules) has not been made. The Commission
requests that this detail be re-inserted and added to this provision
as appropriate.
Outcome: Order changed—point accepted in part. The Rule
was amended to allow the Constituency Returning Officer to make
some alterations that the Scotland Office felt were appropriate
Rule 38
RECOMMENDATION
69. The detail on the tactile voting device will need
to be considered in light of the combined ballot sheet and also
the alternative approach now taken in the draft local government
Order, where it is simply stated that the Returning Officer must
provide "a device for enabling voters who are blind or partially-sighted
to vote without any need for assistance from the presiding officer
or any companion". Although the Commission is keen that there
is provision ensuring that there will be a device available to
assist blind and partially sighted voters, we would not want to
see provisions included which are not practicable. The Commission
seeks assurances that the prescriptive terms as set out in this
rule will allow for a device to be developed and provided which
will be workable with a combined ballot paper.
Outcome: Point accepted. The Scotland Office was working with
the device contractor to bring forward a suitable model
RECOMMENDATION
70. This Rule needs to be read with Article 89: at present
there is a contradiction between the two in respect of provision
of the large print ballot paper. Article 89 follows the changes
made by Section 36 of the EAA 2006, and for the purposes of consistency
should be replicated here. The Commission will nevertheless propose
in its guidance that it remains good practice to display such
large-print ballot papers in the polling station for the assistance
of voters who are partially sighted, in addition to providing
an enlarged hand-held copy of the ballot paper as required under
Article 89.
Outcome: Order changed—point accepted
RECOMMENDATION
71. The guidance for voters notice is not required to
be provided in a graphical format, which does not sit with the
draft local government Order. In the draft local government Order,
the notice for display in the polling booths has been removed
and the guidance for voters notice must now be displayed in the
voting compartments as well as inside and outside the polling
station. The Commission recommends that this Order is amended
to mirror this approach in order to ensure consistency between
the different elections, and not least to try to ensure that voters
can be given information in as easily accessible a format as possible.
Outcome: Order not changed. The Scotland Office believed that
CROs had sufficient flexibility under Article 89 to provide the
guidance to voters in a graphical format
RECOMMENDATION
72. In the view of the Commission, the notice as set
out in sub-paragraph (15) for use where the constituency and regional
ballot paper are printed on the same sheet and which uses the
phrase "ballot sheet", may not be clear for electors.
Although we appreciate that this terminology is legally correct
as it remains the fact that there are two ballot papers on one
sheet, we believe that there is potential for this to cause confusion,
particularly in the case of a combined election where electors
will be issued with a ballot sheet and a ballot paper. The Commission
would welcome an approach which puts the interests of the voter
first and allows the communication of information to be done in
as clear a way as possible, using terminology with which the voter
is familiar. This comment is applicable to all provisions of the
Order which set out the language to be used in respect of communications
with the electorate.
Outcome: Order not changed. The terminology was used to be
consistent with the rest of the Order
Rule 46
RECOMMENDATION
73. Rule 46 provides for the new policy of requiring
people to supply a signature before receiving a ballot paper.
The legal drafting in the EAA 2006 covering these provisions (which
amends Schedule 1 to the 1983 Act) is effectively duplicated in
the draft 2007 Order. In its recent response to the Commission's
comments on the draft Representation of the People (England and
Wales) (Amendment) (No 2) Regulations 2006, the UK Government
stated that it did not believe that the legal drafting gave the
Presiding Officer the power to refuse to issue a ballot paper
to a voter who refuses to sign. This is clearly less than ideal
and, in the interests of clarity for electoral administrators
and voters, we would prefer it if the relevant primary and secondary
legislation was not commenced before the legislation has been
corrected and unequivocally achieves what was intended. The Commission
therefore welcomes the recent announcement by the Scotland Office
of their decision not to introduce the signature provisions for
the May 2007 elections.
Outcome: Order changed—point accepted
RECOMMENDATION
74. This rule still requires the voter to show the back
of their ballot paper to the Presiding Officer. It is questionable
if this is necessary, particularly given the equivalent provision
has been removed from the local government rules. The voter is
no longer required to fold their ballot paper and indeed will
be encouraged not to in order to facilitate the electronic counting
of votes at the May 2007 elections. The Commission has concern
that if the paper is not folded to conceal the vote, that the
requirement to show the back of the paper could enable the elector's
vote to be seen through the paper and thus may have implications
for the secrecy of the ballot.
Outcome: Order not changed. The Scotland Office believed that
it allowed Presiding Officers to be satisfied of the legitimacy
of the ballot paper
Rule 51
RECOMMENDATION
75. Rule 51 inserts a new provision ensuring that the
Presiding Officer has a list of people who have had their registration
status changed due to the new provisions in the EAA 2006 relating
to the alteration of registers. The Commission would welcome further
clarification as to whether this only applies to changes made
on the day of the poll.
Outcome: The Scotland Office confirmed this to be the case.
This was made explicit in the explanatory notes
Rule 54
RECOMMENDATION
76. Paragraph (5) of this rule does not fit with electronic
counting, and indeed the equivalent provision has been removed
from the draft local government election rules. The Commission
is of the view that this paragraph is not appropriate where votes
are to be counted electronically and so should either be removed
or made clear that it is only applicable in the event of the votes
being counted manually.
Outcome: Order not changed. As the votes would be counted electronically
rather than by sorting papers, the paragraph would not apply at
an electronic count
Rule 55
RECOMMENDATION
77. There is no longer provision requiring ballot papers
to be mixed with papers from at least one other ballot box (or
in the case of postal ballot papers with the papers of at least
one ballot box). Although this is necessary in respect of electronic
counting, it may be such that in the event of a manual count this
could have implications for the secrecy of the ballot. Indeed
in the draft Scottish local government election rules, separate
provision is made providing for this in respect of manual counts.
In order to promote consistency in approach, it is suggested that
the department liaise with the Scottish Executive on the equivalent
provisions as contained in the draft local government Order.
Outcome: Order changed—point accepted
RECOMMENDATION
78. This rule still requires ballot papers to be kept
face upwards when counting, which clearly does not fit with e-counting
and again takes a different approach to that adopted in the draft
local government Order. Once again, the Commission supports the
approach taken in the draft local government elections legislation
and in the interests of consistency would like to see this replicated
in this Order.
Outcome: Order changed—point accepted
Rule 58
79. The Scotland Office, since the issue of the consultation
paper have now proposed alternative wording for this rule, inserting
a paragraph which provides that in a manual count, the Returning
Officer is required to check for the official mark, and in an
electronic count he is required to check that every ballot paper
bears the unique identifying mark, but that in neither case does
the Returning Officer have to check that a ballot paper bears
both the official mark and the unique identifying mark. This recognises
the fact that the electronic counting equipment to be used at
the 2007 Scottish elections will not be able to read any official
mark.
RECOMMENDATION
80. It is not clear how this fits with Rule 58(1)(a)
which gives the ground for rejection as being "which does
not bear the official mark and the unique identifying mark".
The Commission believes that this "and" should be replaced
by "or" if the Returning Officer is only ever required
to check for one or the other and not for both. This would still
meet the objective of both marks being required in order for a
paper to be valid.
Outcome: Order not changed. The Scotland Office explained that
the CRO would only be required to check for one of the marks but
could check for the other where he felt there was cause for concern
Rule 63
RECOMMENDATION
81. This rule does not make explicit provision for representatives
of the Electoral Commission to attend the allocation of seats
for regional members, as they will be entitled to do by virtue
of Sections 6A and 6B of PPERA.
Outcome: Order changed—point accepted
Rules 68 and 69
RECOMMENDATION
82. Rule 68 does not entirely recognise the introduction
of e-counting as counted and rejected ballot papers will not be
separate at the conclusion of the count. In the draft local government
election rules the approach that has been suggested would see
two separate rules included, one for manual counting which mirrors
that contained in the draft Order, and one for electronic counting,
setting out that the CRO shall seal up in packets the ballot papers
and a complete electronic copy of the information stored in the
e-counting system held in a device suitable for the purposes of
its storage. In contrast, although the Scottish Parliamentary
electronic counting data needs to be forwarded to the Sheriff
Clerk, there is no provision for it to be sealed up after the
count.
Outcome: Order changed—point accepted
RECOMMENDATION
83. Additionally, there is no provision contained in
this draft Order for the clear down of the electronic counting
system of count data after the count, whereas there has been such
provision made in the draft local government Order, which requires
that as soon as reasonably practicable after the electronic copy
of data has been sealed up into packets, the CRO must procure
that all original electronic data or records relating to the election
is removed from the electronic counting system and that it is
destroyed in a manner which ensures that the confidentiality of
the data or records is preserved. The Commission believes that
similar provision should be made in respect of Scottish Parliamentary
elections, both for consistency of approach and to ensure that
the secrecy of the ballot can be maintained at all times.
Outcome: Order changed—point accepted
Rule 72
RECOMMENDATION
84. This rule does not reflect the changes introduced
by Section 24 of the EAA 2006 regarding the death of a candidate.
The Commission notes that such provisions have, in contrast, been
developed and included in the draft NAW Conduct Order as Rules
70-76. Again, for the purposes of consistency, the Commission
would want to see these provisions replicated as appropriate for
Scottish Parliamentary elections and incorporated into this Order.
Outcome: Order not changed. As the local government Rules were
not being amended to this effect, the Scotland Office would not
amend the Scottish Parliament Rules in order to provide consistency
Schedule 3
Paragraph 2
RECOMMENDATION
85. This paragraph requires electors or proxies with
existing postal or proxy voting arrangements to give a reason
for re-directing postal ballot papers to a different address to
that shown in the absent voting record, which mirrors Regulation
51B of the Representation of the People (Scotland) Regulations
2001 (as amended). Regulation 49 of the draft Representation of
the People (Scotland) (Amendment) Regulations 2007, however, makes
provision which means that all postal and proxy postal voters
will have to give a reason why they are having their postal vote
re-directed. This provision is not replicated in this draft Order
as it would require to be if this is to apply to Scottish Parliamentary
elections, and the Commission requests that this anomaly be rectified.
Outcome: Order changed—point accepted
Paragraph 8
RECOMMENDATION
86. The provision on notification of removal from the
absent voting record does not sit with the amendments made by
the draft 2007 Regulations, which only requires the Electoral
Registration Officer to do so `where practicable'. This should
be replicated in this paragraph in the interests of consistency.
Outcome: Order changed—point accepted
Paragraph 10
RECOMMENDATION
87. The provision on notification of cancellation of
a proxy appointment does not concur with the amendments made by
the draft 2007 Regulations, which only requires the Electoral
Registration Officer to do so "where practicable". This
should be replicated in this paragraph in the interests of consistency.
Outcome: Order changed—point accepted
Schedule 4
Paragraph 13
RECOMMENDATION
88. It is not clear whether the phrase "postal ballot
paper" in respect of the issuing of replacements is sufficiently
wide to cover not only the ballot paper but also the postal voting
statement and return envelopes. The Commission thus requests clarification
that this phrase does cover these documents in respect of both
this paragraph and also paragraph 14 of this Schedule.
Outcome: Order not changed—point accepted. The Scotland
Office clarified that sub-paragraph (5) gave effect to this
RECOMMENDATION
89. The Commission requests clarification as to why sub-paragraph
(4) states `where applicable' as it appears that sub-paragraph
(2) will always apply.
Outcome: Order changed—point accepted
Collection of postal votes from polling stations on polling day
RECOMMENDATION
90. No provision has been included in the Order to mirror
Regulation 79 of the Representation of the People (Scotland) Regulations
2001 (as amended by Regulation 10 of the Representation of the
People (Scotland) (Amendment) Regulations 2006), which allows
Returning Officers to collect postal votes from polling stations
throughout polling day. The Commission requests that this is rectified.
Outcome: Order changed—point accepted
Paragraph 20
RECOMMENDATION
91. Sub-paragraph (1) of this paragraph makes reference
to the postal voting statement being authenticated by a witness,
which will need to be corrected.
Outcome: Order changed—point accepted
Schedule 5
92. At this stage the Commission has not reviewed this
Schedule in detail in recognition that the department is still
to fully revise it on receipt of the finalised local government
election rules. However, there are nevertheless a number of initial
aspects on which the Commission would like to provide some comment
at this time.
RECOMMENDATION
93. Paragraph 5 of Part II of the Schedule currently
makes provision regarding the colour of the ballot papers at a
combined election which provides that the ballot paper to be used
at the local government poll must be of a different colour from
any ballot paper to be used at a Scottish Parliamentary election.
The Commission would welcome clarification as to whether, if this
provision remains as it is currently drafted, this thus precludes
one of the columns on the Scottish Parliamentary ballot sheet
being white if the decision is taken that the local government
ballot paper is to be that colour.
Outcome: The Scotland Office confirmed this to be the case
RECOMMENDATION
94. In respect of the corresponding numbers list, the
Commission would welcome assurances that the voting procedure
rule will be amended to allow for combination of the corresponding
numbers lists and the corresponding requirement to sign that list
to denote that a ballot paper has been received, and subsequently
would expect to see a corresponding numbers list for use at combined
Scottish Parliamentary and local government elections included
in the Order. This would allow the Scottish Parliamentary ballot
sheet number and local government ballot paper number to be recorded
on the same list, thus meaning that the Presiding Officer would
only have one list to maintain and the elector would only be required
to provide one signature in order to receive the ballot sheet
and the ballot paper. The Commission would like some assurance
that there will not be a situation at a combined election whereby
an elector will be required to sign more than once, as this may
have an impact on the throughput of electors in the polling station
on polling day which is a matter of concern to the Commission.
Outcome: Point accepted
RECOMMENDATION
95. The Commission seeks assurances that the attendance
of local government candidates at any rummage will be expressly
provided for in the combination provisions. This follows on from
the recommendation the Commission made in its statutory report
on the 2003 Scottish elections that local government candidates
should be given the right to be informed of and attend the opening
of local government ballot boxes during the rummage process at
a Scottish Parliamentary and local government election count.
Outcome: Point not accepted. The Scotland Office acknowledged
that it was not explicit but it was in practical effect under
paragraphs 18 and 36
RECOMMENDATION
96. The provision concerned with the guidance for voters
notices in the polling station, currently contained in Paragraph
27 of Part III of this Schedule, will clearly need to be reviewed
to take into account the introduction of the single transferable
vote electoral system for local government elections in Scotland,
and the ability for both Scottish Parliamentary ballot papers
to be printed on the same sheet. The Commission would urge the
Scotland Office at this time to also consider, with our comments
made in respect of Rule 38 above, requiring the notice for display
in each polling booth to be printed in conspicuous characters
and in a graphical format.
Outcome: No specific comment was made on this recommendation
RECOMMENDATION
97. The 2002 Order was drafted in such a way as to prevent
the local government election count commencing prior to 10am on
the day following the day of the poll. Due to the fact that the
Scottish Parliamentary and local government elections are to be
counted electronically, the Commission seeks assurances that there
will be no such limitation placed on the Returning Officer's discretion
as to when to commence the local government count on this occasion.
Outcome: Point accepted. The final Schedule did permit the
local government count to begin as soon as practicable after the
Scottish Parliament results were declared
Schedule 6
RECOMMENDATION
98. The Commission believes that the provisions of Section
70 of the EAA 2006, which amend the RPA 1983 to extend the time
limit for the prosecution of offences under that Act should be
replicated in this Order. Explicitly, the omission of these changes
contained in Schedules 5 and 6 to the draft Order should be removed.
Outcome: Order not changed. As Section 70 doesn't extend to
Scotland, the Scotland Office would not be replicating this provision
Appendix of forms
Form C
RECOMMENDATION
99. The candidates' expenses form contained in the current
draft Order is outdated and does not replicate the current form
which has been used by the Commission since 2003. The Commission
has recently reviewed its candidates' expenses form and has revised
the form following the constructive feedback received from political
parties. The exercise was aimed at making the form more user-friendly
whilst also ensuring that it conforms to the relevant legislative
requirements. We have informed the Scotland Office of recent developments
and we understand that the intention is for the Commission's newly
revised candidates' expenses form to be prescribed in the final
Order. Given the various forms that have been used in past elections,
it is hoped such an approach will lead to greater consistency
and clarity. The Commission welcomes the outcome of exchanges
with the Scotland Office on this issue.
Outcome: Order changed—point accepted. As mentioned in
paragraph 28, the Scotland Office reflected as much of the form
provided by the Commission as possible
Form G
RECOMMENDATION
100. A column has been provided for descriptions: in
light of our comments on Rule 6 above, the Commission believes
that this will either need to be removed or revised in such a
way that it is made clear that this can only state "Independent"
if so desired.
Outcome: Order changed—point accepted
Form H
RECOMMENDATION
101. In light of our comments made in respect of Rule
7 above, the Commission believes that this form requires revision
in order to support the use of commonly used names. The equivalent
form as contained in the draft NAW Conduct Order does make such
provision and the Commission would recommend that regard is had
to that approach.
Outcome: Order changed—point accepted
Form I
102. As this form now applies to the use of descriptions
in respect of both constituency and regional nomination papers,
the content of this form needs to be updated to reflect this fact.
RECOMMENDATION
103. Due to the changes made elsewhere in this Order
to mirror the changes introduced by the EAA 2006 regarding the
use of either a registered party name or a registered description,
it may be helpful for this form to include a reminder as to what
is meant by a description. The parallel form in the draft NAW
Order includes such a definition and the Commission believes that
this approach may facilitate the correct completion of the form
by Nominating Officers.
Outcome: Order changed—point accepted
Forms J and K
RECOMMENDATION
104. As highlighted in our comments made in respect of
Article 89 above, the directions for printing of the constituency
ballot paper will need to be considered with the regional ballot
paper given that they may be printed on the same sheet, as there
is presently no consistency between the instructions for voters
given on the two ballot papers. The Commission is keen that consistent
and clear instructions are given to electors setting out how to
complete the ballot papers validly and effectively, and thus recommends
that the department consider revising the printing instructions
to cover the case where the regional and constituency ballot papers
are printed on the same sheet.
Outcome: Order changed—point accepted
RECOMMENDATION
105. Also, in the directions for printing of the regional
ballot paper, unlike those for the printing of the constituency
paper in direction point 3, there is no reference made to printing
instructions to voters, although this is currently shown on the
front of the ballot paper.
Outcome: Order changed—point accepted
Form L
106. This form differs from the equivalent form in the
draft 2007 Regulations, and the Commission should like to reiterate
its view that consistency in approach between elections is paramount.
The Commission would also suggest, for the purposes of promoting
consistency between elections, that the department consider liaising
with the Scottish Executive on the equivalent form as contained
in the draft local government elections Order.
RECOMMENDATION
107. No provision has been made for amending the postal
voting statement for issue to anonymous electors in this form,
which will need to be amended.
Outcome: Order not changed. As anonymous registration would
not be commenced until after the elections, the Scotland Office
indicated that they would consider whether it needed altering
at that point
RECOMMENDATION
108. The Commission again has some concerns about the
clarity of the instructions on this form. In addition to the question
of whether the phrase "ballot sheet" is sufficiently
clear for voters, as raised in respect of Rule 38 above, the Commission
would like the department to consider the instructions to voters
contained in paragraph 1 where the two ballot papers are printed
together: it is our view that asking the voter to "Vote first
for a party or individual candidate in the regional ballot"
and "then vote for a candidate in the constituency ballot"
may be misleading. Also, this approach does not fit with the recommendations
made in the Arbuthnott report regarding the terminology to be
used in respect of elections conducted under this particular electoral
system, where it was stated that the two votes should be of equal
importance and should not be referred to as a first and second
vote. The Commission would subsequently prefer that the instructions
instead ask the elector to "Vote once" in each instance.
Outcome: Order changed—point accepted
RECOMMENDATION
109. There is no information on the statement advising
what the elector should do if they have lost either one or both
of the ballot papers or the return envelope(s), despite replacements
now being available in such an instance. Additionally, the instruction
in the final sentence of paragraph 7 is not entirely accurate:
the Returning Officer can only issue a replacement for spoilt
(or indeed lost) postal ballot papers to those applying in person
after 5pm on the day before polling day and not just on polling
day itself.
Outcome: Order changed—point accepted
Forms M, M1, N, and N1
110. As stated in our introductory comments to this response,
the Commission requests that the department consider the forms
contained within this Order with their equivalents in the draft
2007 Regulations, and those user tested as part of the development
of the Commission's response to the Department for Constitutional
Affairs consultation on the draft Representation of the People
(England and Wales) (Amendment) (No 2) Regulations 2006. Additionally,
in order to promote further consistency in approach, it is suggested
that the department liaise with the Scottish Executive on the
equivalent forms as contained in the draft local government Order.
RECOMMENDATION
111. Once again, the Commission would ask that the information
provided on the rear of the poll cards is considered for clarity
and ease of understanding by the electorate, particularly in respect
of the reference to a "ballot sheet" and whether this
phrase is sufficiently clear for voters.
Outcome: Order not changed. As mentioned in paragraph 72, the
Scotland Office used the terminology for consistency with the
rest of the Order
112. In form M, reference is made to showing the back
of the ballot paper to the Presiding Officer: the Commission requests
that this is considered with our comments made in respect of Rule
46 above.
RECOMMENDATION
113. In form M, reference is also made to putting the
ballot paper in the ballot box of the same colour: clearly it
will need to be considered how this fits with a combined ballot
sheet which will be two-coloured, and alternative wording may
need to be inserted to cover such an instance.
Outcome: Order not changed. The Scotland Office stated that
the mark would have to be two-toned but not the box itself
Form O
RECOMMENDATION
114. This does not fully recognise the ability to use
a combined ballot sheet. Although the first point recognises this,
the following three points do not. Assuming that the policy intention
is to allow discretion as to printing the ballot papers on separate
sheets, this will need to be reflected throughout this notice.
Outcome: Order changed—point accepted. The form was separated
into two forms to cover situations where there is a combined ballot
sheet
115. The comments made in respect of form M in paragraphs
116 and 117 above are also applicable in respect of this form.
Form P
RECOMMENDATION
116. In P2 (Notice where the constituency ballot paper
and the regional ballot paper are printed on the same sheet of
paper), the constituency election is mentioned first but in the
event of a combined ballot sheet being used, the regional election
will appear on the left-hand side of the ballot sheet. The Commission
recommends that the way in which the information for voters is
presented is reviewed to reflect the form of the ballot sheet
and to assist in reducing possible voter confusion.
117. The guidance to voters contained in this form should
be considered with the other instructions and information for
electors, and any comments on them, contained throughout the rest
of this Order in order to ensure, as far as possible, consistency
and clarity.
118. In Form X, the information for voters at a combined
Scottish Parliamentary and local government election, there is
scope to insert the colour of the column where the two ballot
papers are printed on the same sheet. This approach should be
mirrored in form P2 in order to be clearer for the voter. This
also fits more comfortably with the reference in the instructions
to voting in `this' column, which the colour would help to define.
Outcome: Order changed—point accepted
Form U
RECOMMENDATION
119. The comments made in respect of form L above are
all equally applicable to this combined postal voting statement.
Outcome: Order changed—point accepted
RECOMMENDATION
120. In addition, the Commission would also ask that
the instructions relating to how to vote in a local government
election are reviewed for clarity and checked with the instructions
on how to vote under STV as contained in the Scottish Local Government
Elections Order. In particular, the Commission dislikes the use
of the phrase "you vote in a different way" as this
may be interpreted as suggesting that an elector cannot vote for
candidates from the same party at the local government election
as they have at the Scottish Parliamentary elections and thus
could be misleading to voters.
Outcome: Order changed—point accepted
RECOMMENDATION
121. The Commission has written to the Scottish Executive
on the matter of instructions to be contained on the local government
ballot paper. The Commission has proposed that the wording on
the ballot paper should show that the voter marks a "1"
beside their first choice, a "2" beside their second
choice, a "3" beside their third choice, and a "4"
beside their fourth choice and so on, rather than stopping the
explanation at marking a "2" and so on. This more closely
mirrors the language to be used in the joint public awareness
and education campaign being carried out by the Commission and
the Scottish Executive. We think that this achieves the objective
of encouraging voters to fully maximise the use of the electoral
system if they so wish.
Outcome: Order changed—point accepted
Form V
122. The principles highlighted above in respect of the
earlier postal voting statements (forms L and U) should again
be applied in the revision of this form.
RECOMMENDATION
123. Beyond this, in particular, the form does not recognise
anonymous electors and the front of this form does not recognise
that constituency and regional ballot papers could be printed
separately.
Outcome: Order changed—point accepted. The issue of anonymous
electors was addressed in paragraph 107 above
Form W
RECOMMENDATION
124. The Commission seeks clarification as to whether
this form should also include ballot papers returned under paragraph
14(3) of Schedule 4 and ballot papers issued under paragraph 14(1)
of Schedule 4.
Outcome: Order changed—point accepted. The form was amended
to include a number of paragraphs
Form X
RECOMMENDATION
125. The comments made in respect of forms P and U above
are also applicable to this form.
Outcome: Order changed—point accepted
Form Y
RECOMMENDATION
126. Wholesale revision of this form is required as the
instructions do not recognise the move to STV, and the form still
includes a requirement for it to be witnessed.
127. The principles highlighted above in respect of the
earlier postal voting statements (forms L, U and V) should again
be applied in the revision of this form.
Outcome: Order changed—point accepted
Form Z
RECOMMENDATION
128. Part 2 of the corresponding numbers list for use
in polling stations contains a column for signature: the Commission
requests that this is considered with our comments made in respect
of Rule 46 above.
Outcome: Order changed—point accepted
Annex A
MINOR ERRORS
Outcome: Order changed—all points accepted
| Reference | Comment
|
Article 28
| In paragraph (2)(a), the word "a" should be inserted before the words "fictitious person".
|
| Article 40 | There is an error in the drafting of Article 40(1): reference to Article 39 should instead be to Article 38.
|
| Article 44 | There is an error in the drafting of Article 44(4): reference to Article 43(6) to (8) should instead be to Article 43(5) to (8).
|
| Article 46 | There is an error in the drafting of Article 46(2)(c): reference to Article 41(3) should instead be to Article 41(4).
|
| Article 49 | There is an error in the drafting of Article 49: reference to Articles 47 and 48 should be included in addition to the reference to Article 46.
|
| Article 87 | There is an error in the drafting of this Article: reference should be to Rule 3 and not to Rule 2.
|
| Article 90 | In paragraph (2)(b), the reference in brackets should be to Section 59(3B) of the 1983 Act and not to Section 59(3) of the 1983 Act. This change is necessary to recognise the change made to Section 59 of the Representation of the People Act 1983 by Section 13 of the Electoral Administration Act 2006.
|
| Article 93 | The word "electoral" should be inserted before "registration officer" in paragraph (3)(a).
|
| In paragraph (5), the words "in full" should be inserted after "act or omission" in the second line, and the words "under paragraph (1) of Article 29" should be inserted after "shall not be guilty of any offence" in the third line.
|
| Schedule 1; Paragraph 1 | In sub-paragraph (1)(b), notices of alteration issued under Section 13B(3B) or (3D) of the 1983 Act should be referred to in addition to those published under Section 13A(2) or 13B(3) of that Act.
|
| Schedule 1; Paragraph 2 | In sub-paragraph (1)(b), notices of alteration issued under Section 13B(3B) or (3D) of the 1983 Act should be referred to in addition to those published under Section 13A(2) or 13B(3) of that Act.
|
| Schedule 2; Arrangement of sections | In the title of Rule 72, the word "candidate" should replace "certificate".
|
| Schedule 2;
Rule 28
| In paragraph (8)(a), it should state "two separate columns on the front of the ballot sheet" and not "two separate columns on the front of the ballot paper".
|
| Schedule 2;
Rule 38 | The reference in sub-paragraph (3)(c) should be to sub-paragraph (b) and not to sub-paragraph (c).
|
| Schedule 2;
Rule 41 | In sub-paragraph (1), after the words "age of 18" should be inserted after the words "years".
|
| Schedule 2;
Rule 49 | In sub-paragraph (12), the words "if the constituency ballot paper and regional ballot papers are not printed on the same sheet" should be inserted after the words "At a Scottish parliamentary general election".
|
| Schedule 2;
Rule 53 | In the second last line of sub-paragraph (2), it should state "or" not "and".
|
| Schedule 3; Paragraph 1 | In sub-paragraph (2), the phrase "or is treated as having applied to be" should appear before "to be registered".
|
| Schedule 3; Paragraph 3 | Sub-paragraph (7) should refer to paragraph (5) in addition to paragraphs 3 and 4.
|
| Schedule 3; Paragraph 7 | Reference to Article 11(6) should replace the reference to Article 11(7) in sub-paragraph (2)(b).
|
| Schedule 3; Paragraph 8 | Sub-paragraph (5) should refer to paragraph 7(1), (2) or (6) instead of to paragraph 6(1) or (3).
|
| Schedule 3; Paragraph 9 | Sub-paragraph (1) should refer to paragraph 8(4) and not to paragraph 7(4).
|
| Schedule 3; Paragraph 11 | In sub-paragraph (1), the reference should be to Article 9(3)(d) or (e) and not to Article 9(3)(c) or (d).
|
| Schedule 4; Paragraph 7 | Sub-paragraph (1) should refer to paragraph 7(7) of Schedule 3 and not to paragraph 7(4) of Schedule 3.
|
| Schedule 4; Paragraph 10 | In sub-paragraph (3), insert the word "to" before "be taken together".
|
| Schedule 4; Paragraph 14 | In sub-paragraph (10)(a) the word "postal" should be inserted before "ballot paper".
|
| Schedule 4; Paragraph 22 | The title of the equivalent provision in the draft Representation of the People (Scotland) (Amendment) Regulations 2007 is "Retrieval of cancelled postal ballot papers", which should be replicated as the title of this paragraph.
|
| Schedule 4; Paragraph 24 | In sub-paragraph (3), the reference should be to Rule 53 and not to Rule 54.
|
| Schedule 4; Paragraph 25 | The word "provisionally" should be inserted before "rejected votes" in sub-paragraph (1)(b).
|
| Appendix of forms; Arrangement of forms |
Forms M1 (Official Poll Cards: Postal Voters) and N1 (Official Poll Cards: Proxy Postal Voters) are not shown in the arrangement of forms.
|
| Appendix of forms; Form F | The phrase "and date" should be inserted after "Day" in the header of this form.
|
| Appendix of forms; Form G | The phrase "and date" should be inserted after "Day" in the header of this form.
|
| Appendix of forms; Form H | The phrase "and date" should be inserted after "Day" in the header of this form.
|
| The wording "on the regional ballot paper" should be removed to reflect the amendments made elsewhere in the Order.
|
| Appendix of forms; Form J | In the directions for printing paragraph 2(b), it should read "vote for one candidate only" and not "vote for the candidate only".
|
| Appendix of forms; Form K | The order of the parties on the front of the ballot paper is incorrect: the parties should instead be listed alphabetically as is required by virtue of Schedule 2, Rule 28.
|
| There is a drafting error in the directions for printing paragraph 3: the word "political" should replace "vertical".
|
| Appendix of forms; Form L | In paragraph 4, in each instance in which it occurs, after "ballot paper" should be inserted "(or papers, as appropriate)".
|
| Appendix of forms; Form M1 | The back of the card states that postal votes can be returned to any polling station in the local authority area but should instead state that postal votes can be returned to any polling station in the constituency area.
|
| Appendix of forms; Form N | On the back of this form, grandparent and grandchild have been omitted from the categories of persons for whom it is not an offence to vote as proxy for more than two of.
|
| To reflect changes made elsewhere in the Order, "husband, wife" should be replaced with "spouse".
|
| The front of the form does not fully recognise anonymous electors, and the text "*Returning officer to omit where poll card sent to the proxy of an anonymous elector." should be inserted.
|
| Appendix of forms; Form N1 | On the back of this form, grandparent and grandchild have been omitted from the categories of persons for whom it is not an offence to vote as proxy for more than two of.
|
| To reflect changes made elsewhere in the Order, "husband, wife" should be replaced with "spouse".
|
| The front of the form does not fully recognise anonymous electors, and the text "*Returning officer to omit where poll card sent to the proxy of an anonymous elector." should be inserted.
|
| Appendix of forms; Form Q | "[Day and date of the election]" should be inserted between "The Scottish Parliament" and "Elections in the" in the title of this form.
|
| "Day and" should be inserted before "date of poll" in the brackets in the third line of the main body of text on this form.
|
| Appendix of forms; Form R | "Date" should be inserted after "Election Day".
|
| Appendix of forms; Form U | The front of the form needs to state "other identifying marks" in the plural to fit with "ballot paper numbers" being displayed in the plural.
|
| In the paragraph 3 shown in italics, the word "white" should be replace with "[insert colour]".
|
| Appendix of forms; Form X | In X1, under the Local Government heading in the brackets, the words "local government" should be inserted before "ballot paper".
|
| In X2, under the Local Government heading, it should state "This ballot paper is coloured [insert colour]", rather than "This ballot paper is coloured white".
|
APPENDIX C
OVERVIEW OF
THE SCOTTISH
PARLIAMENTARY COUNT
6.30 The following provides a brief overview of how the
electronic counts for the 2007 Scottish Parliamentary elections
will operate. Candidates and agents are additionally advised to
make early contact with the Returning Officer in order that they
can be kept informed of how the count will be organised and managed
in their area. Further details relating to the conduct of the
local government count are provided in the Electoral Commission's
Guidance for candidates and agents: Local government elections
in Scotland, 3 May 2007.[3]
6.31 Each count will consist of a number of stages. Candidates
and agents should note that, once the count is under way, many
of these stages will be conducted in parallel. Each batch of ballot
papers must complete each stage of the count before it can move
on to the next; however, ballot papers from different polling
stations will all pass through the count at different speeds and
at different times. Candidates and agents will need to be alert
to information on the count's progress provided by the Returning
Officer.
6.32 The Electoral Commission is encouraging Returning
Officers to provide information in the count centre about how
the count will operate and to clearly identify information staff.
Measures may include the use of information officers, the display
of explanatory materials and effective use of public announcements.
Arrival of ballot boxes
6.33 Ballot boxes received from each polling station
will be opened together in front of candidates and agents. Ballot
papers will be removed from each ballot box and placed in separate
cardboard trays for ease of carrying. A rummage of local government
ballot papers will be conducted at this stage if separate counts
are being held. For more information on the rummage, please refer
to paragraph 6.35.
6.34 A batch control sheet, labelled with the polling
station name and number and the contest, will be associated with
each set of ballot papers. The batch control sheet enables the
ballot papers to be identified on the electronic counting system
and also contains information copied from the ballot paper accounts
that is used to verify the batch contains the correct number of
papers (see paragraph 6.43).
The rummage
6.35 At manual counts, the rummage must be undertaken
to ensure that all valid papers are included in the correct count.
The rummage is a legal requirement and ensures that no votes are
excluded from the relevant count.
6.36 Where the Returning Officer decides to hold a combined
count, there is no requirement for a manual rummage because the
electronic counting software automatically allocates information
from the ballot papers into the correct contest. This removes
the risk that human error could lead to ballot papers being accidentally
excluded from a count.
6.37 A manual rummage must be conducted where separate
counts are held. Once ballot papers have been removed from
the ballot boxes, the Returning Officer's staff will carefully
sort through each batch of local government papers looking for
Parliamentary ballots that have been mis-posted by the voter.
Any local government papers in the Scottish Parliament batch will
be identified when the Parliamentary papers are scanned and returned
to the appropriate local government batch.
Transfer of ballot papers between Returning Officers
6.38 In some areas, local government and Scottish Parliamentary
boundaries overlap, with the consequence that local government
and Scottish Parliamentary ballot papers from certain polling
stations are counted by different Returning Officers. In such
instances, the Returning Officers concerned will establish local
procedures to ensure that ballot papers are exchanged effectively.
You should approach the Returning Officer for your area for details
of how any such transfer issues will be handled.
6.39 In such instances, both ballot boxes will initially
be sent to the Constituency Returning Officer. The Scottish Parliamentary
ballot box will be checked to ensure that it contains no local
government ballot papers—any that are found will be transferred
to the correct box. The local government ballot box will then
be checked for Parliamentary papers. Any that are found will be
returned to the correct batch and the local government ballot
box will be sent on to the Local Government Returning Officer
for counting.
Registration and scanning
6.40 Once ballot boxes from a particular polling station
have been opened, each batch will be registered on the system.
At this point, the system will be told how many ballot papers
were issued at each polling station for each contest and therefore
how many papers to expect.
— Where a combined count is held, the Parliamentary
and the local government ballot papers from each polling station
will be taken together to a scanner when one becomes available.
— Where separate counts are held, the Scottish
Parliamentary batch will be scanned on the night of Thursday
3 May 2007 and the local government batch will be sent to
secure storage.
6.41 The scanning machines read both sides of the ballot
paper regardless of which way they are fed in. On a practical
level, it will be difficult for counting agents to tally count
ballot papers as they are scanned.
6.42 The scanners are open-sided and the passage of ballot
papers through a machine is clearly visible. Any ballot papers
that the system cannot read will be fed back through the scanner
several times. Each individual ballot paper can only be counted
once—only information from the last scan of the ballot paper
will be used. Any papers that cannot be read will be placed in
a red plastic wallet and considered by the Returning Officer later
in the count. These ballot papers remain with the rest of the
batch, in a red plastic wallet, at all times, and will be accounted
for at verification.
Verification
6.43 When all the ballot papers in a batch have been
scanned, the Returning Officer's staff will verify that the number
of ballot papers counted (including any unscannable papers) tallies
with the number issued at the polling station. This process is
done separately for each batch and in full view of candidates
and agents.
6.44 If a ballot paper is torn, folded or badly crumpled
it may not be capable of being scanned. At verification, staff
count the number of unscannable papers in a batch and enter this
information on to the system. These damaged ballot papers will
be entered manually on to the system during adjudication, provided
that they still retain the unique identifying mark.
ADJUDICATION OF
DOUBTFUL BALLOT
PAPERS
6.45 In a minority of cases, voters' marks will not be
sufficiently clear for the counting system to be entirely confident
in recording their intention. These ballot papers will require
decisions to be made about them by the Returning Officer or their
staff. There are two stages of decision making that may affect
Scottish Parliamentary ballot papers: standard adjudication and
Returning Officer adjudication.
Standard adjudication
6.46 At standard adjudication, an image of the ballot
paper is displayed on screen and the actions of staff are recorded
clearly on the same screen. Ballot papers will be considered one
at a time.
6.47 Staff will only be able to make simple decisions
as to the voter's intention, such as counting clerks would instinctively
make at a manual count. For example, if a voter's mark is clearly
made in the voting box for one candidate but crosses into a neighbouring
voting box, staff will clarify to the computer system where the
vote should be recorded.
6.48 Where any interpretation needs to be made about
a voter's intention, or if a candidate or agent objects to a workstation
operator's decision, the ballot paper will be passed to the Returning
Officer, or their authorised Depute(s), for decision.
Returning Officer adjudication
6.49 The Returning Officer or an appointed Depute will review
ballot papers requiring a decision to be made about the voter's
intention. The decision of the Returning Officer on any question
arising in respect of a ballot paper is final but is subject to
review via an election petition. Examples of the types of ballot
papers requiring decision are where:
— a mark crosses substantially into the voting
box of another candidate;
— the ballot paper is spoiled or blank;
— the voter has marked crosses against more
than one candidate;
— the voter has made a mark by which they could
be identified; and
— a candidate or agent has required the paper
to be passed to the Returning Officer.
6.50 The Electoral Commission is producing guidance on
adjudication of doubtful ballot papers for Returning Officers,
which will be available to candidates and agents.
6.51 Returning Officer adjudication will in many cases
be conducted on a large projector screen to assist candidates
and agents witnessing decisions and recording objections where
appropriate.
RECOUNTS
6.52 Electronic counting provides a greater range of
opportunities for candidates and agents to monitor and engage
with the count. Verification of ballot paper accounts and adjudication
are conducted in sight of candidates and agents to a greater degree
than is possible at manual counts and will help candidates and
agents to follow and understand the count. Candidates' and election
agents' legal right to request recounts remains unchanged.
Constituency elections
6.53 A constituency candidate or their election agent
may, if present when the counting of votes is completed, ask the
Returning Officer to re-count the votes. The Returning Officer
may refuse to do so if in their opinion the request is unreasonable.[4]
There is no legal limit to the number of recounts that may be
conducted, but the appropriate Returning Officer can refuse to
conduct a recount if they believe the request is unreasonable.
Regional elections
6.54 Individual candidates and the election agent for
a political party contesting a regional election (or any person
authorised in writing by them) may, if present when the counting
of the votes is completed in a constituency, ask the Constituency
Returning Officer to re-count the votes. The Returning Officer
may refuse to do so if in their opinion the request is unreasonable.[5]
6.55 Recounts of regional votes cannot be requested of
the Regional Returning Officer or across the region as a whole.
Requests must be made of individual Constituency Returning Officers,
who will consider each request on its merits. At the conclusion
of the count, the regional result for the constituency concerned
is announced and conveyed to the Regional Returning Officer, who
allocates seats in accordance with the method set out in law.
Once the Constituency Returning Officer has informed the Regional
Returning Officer of the regional result, it is not possible to
request a further regional recount in that constituency area.
6.56 No action should be taken by the Returning Officer
following the count or any recount until all candidates or election
agents have been given the opportunity to exercise their right
to request a recount.
6.57 There are a number of options open to Returning
Officers when considering requests for recounts. These include:
— Rescanning of individual batches. Candidates
or agents may request an individual batch to be rescanned at any
time during the count. If the Returning Officer believes this
request to be reasonable, they may require a batch to be immediately
rescanned. Rescanning a batch should satisfy candidates and agents
about the process used and therefore that:
— all readable ballot papers have been counted,
and
— all papers that cannot be read by machine have
been separated for later consideration.
— Reconsideration of detailed preliminary
results and verification totals.Together with candidates'
and agents' observations and experience at the count, this should
provide reassurance as to the accuracy of the process.
— Reconsideration of standard adjudications.
Returning Officers may instruct ballot papers considered at standard
adjudication to be reconsidered if they believe it is necessary
to satisfy themselves, or candidates and agents, that human error
has not been a factor in the initial consideration of these papers.
Ballot papers that the Returning Officer or a Depute has previously
adjudicated will not be reconsidered.
— Rescanning all ballot papers. The
Returning Officer may agree to a request to rescan all ballot
papers if they accept serious and substantial concerns about the
conduct of the count presented by candidates and agents. It is
unlikely that a full rescan could be achieved without suspending
the count for a period of rest. A full rescan will require standard
adjudications to be revisited and this process should again involve
appropriate scrutiny by candidates and agents. Ballot papers that
were considered by the Returning Officer at the initial scan will
not require to be adjudicated again.
EQUALITY OF
VOTES
6.58 It is possible that two or more candidates at a
constituency election will have the same number of votes following
the count and any subsequent recounts. In these circumstances
the Returning Officer will decide between those candidates by
lot, and proceed as if the candidate on whom the lot falls had
received an additional vote.
6.59 If two or more individual candidates or parties
at a regional election have an equality of votes at any stage
of the allocation, and if allocating a seat to each party would
cause more than the correct number of seats for the region to
be allocated, then the Regional Returning Officer will decide
between those candidates and/or parties by lot.[6]
6.60 There is no prescribed form of drawing lots, but
a lot is defined as an object, for example a slip of paper or
a straw, drawn or thrown out from among a number in order to reach
a decision by chance. The most common method is to place and mix
ballot papers, marked with a vote for each of the candidates,
into a container, and draw the winning ballot from the container.
However, the Returning Officer may choose to use another method
of drawing lots.
ALLOCATION OF
REGIONAL SEATS
6.61 Seats are allocated to regional MSPs by the Regional
Returning Officer using a form of proportional representation
know as the d'Hondt calculation. This method is modified for the
purposes of the Scottish Parliamentary elections to allow any
constituency seats won by a party in the region in question to
be included in the calculation.
6.62 The Constituency Returning Officer is required to
draw up a statement showing the number of votes given for each
registered party and each individual candidate in accordance with
any directions given by the Regional Returning Officer and inform
the Regional Returning Officer of the contents of that statement.
The Constituency Returning Officer must then give public notice
of the statement as soon as practicable after they have informed
the Regional Returning Officer.
6.63 The regional results can only be calculated once
all the constituency results have been declared in a particular
region and all regional votes have been counted and declared in
each constituency within the region.
6.64 Each Constituency Returning Officer will inform
the Regional Returning Officer of the number of ballots cast for
each of the registered political parties and individual candidates
in the regional vote, as well as details of the number of constituency
seats gained by each registered political party. The Regional
Returning Officer totals the constituency results for each registered
political party and individual candidate in the regional ballot
as well as the number of constituency seats won in the region
by each registered party.
6.65 The Regional Returning Officer will declare the
allocation of seats within the region following the calculation
using the d'Hondt formula. The Regional Returning Officer should
show each individual candidate or party standing for regional
seats the basis on which they intend to allocate seats and offer
them the opportunity to challenge the calculation before the allocation
is finalised.
6.66 The number of votes cast in the regional ballot
for each registered party or individual candidate is divided by
the number of constituency seats gained plus one as this allows
parties or individual candidates which have not won any constituencies
to be included in the rest of the calculation.
6.67 After that initial calculation is complete, the
party with the highest resulting figure gains the first additional
seat. To allocate the second to seventh additional seats, the
calculation is recalculated, but each time any additional seats
gained are added in. By the end of the calculation, the ratio
of votes to seats for each party or individual candidate has been
made more even.
6.68 Table 6 gives an example of the d'Hondt method of
calculation. The system is called the Additional Member System
(AMS).
6.69 Seats won by each political party are allocated
to candidates in the order in which their names appear on the
list submitted at nomination. Candidates who have already been
elected to a constituency are disregarded for the purposes of
allocation.
DECLARATION OF
RESULT
6.70 The Constituency Returning Officer must give public
notice of:[7]
— the name and, if applicable, party of the
candidate elected;
— the number of votes for each candidate; and
— details of the number and type of rejected
ballot papers.
Table 6
THE D'HONDT METHOD
| Party 1 | Party 2
| Party 3 | Party 4
| Result |
| Constituency seats | 4 | 0
| 2 | 2 | |
| Regional vote | 116,151 |
63,769 | 61,777 | 56,479
| |
| 1st Additional Member | divided by 5 = 23,230
| divided by 1 = 63,769 | divided by 3 = 20,592
| divided by 3 = 18,826 | Party 2 win
|
| 2nd Additional Member | divided by 5 = 23,230
| divided by 2 = 31,884 | divided by 3 =20,592
| divided by 3 = 18,826 | Party 2 win
|
| 3rd Additional Member | divided by 5 = 23,230
| divided by 3 = 21,256 | divided by 3 = 20,592
| divided by 3 = 18,826 | Party 1 win
|
| 4th Additional Member | divided by 6 = 19,358
| divided by 3 = 21,256 | divided by 3 = 20,592
| divided by 3 = 18,286 | Party 2 win
|
| Total Additional Members | 1
| 3 | 0 | 0 |
|
| Total representation | 5 |
3 | 2 | 2 |
|
6.71 The Regional Returning Officer must give public
notice of:[8]
— the name of any individual candidate elected;
— the name of any candidate elected who was
included on a registered party's regional list (and the name of
the registered party on whose list they were included);
— the total number of votes given for each
individual candidate or registered party;
— details of the number and type of rejected
ballot papers; and
— whether, in the case of a party list, there
are candidates remaining on that list who have not been declared
to be elected.
APPENDIX D
SCOTTISH LOCAL GOVERNMENT COUNT
OVERVIEW OF
THE SCOTTISH
LOCAL GOVERNMENT
COUNT
6.30 The following provides a brief overview of how the
electronic counts for the 2007 Scottish local government elections
will operate. Candidates and agents are additionally advised to
make early contact with the Returning Officer in order that they
can be kept informed of how the count will be organised and managed
in their area. Further details relating to the conduct of the
Scottish Parliamentary count are provided in the Electoral Commission's
Guidance for Scottish Parliamentary candidates.[9]
6.31 Each count will consist of a number of stages. Candidates
and agents should note that, once the count is underway, many
of these stages will be conducted in parallel. Each batch of ballot
papers must complete each stage of the count before it can move
on to the next; however, ballot papers from different polling
stations will all pass through the count at different speeds and
at different times. Candidates and agents will need to be alert
to information on the count's progress provided by the Returning
Officer.
6.32 The Electoral Commission is encouraging Returning
Officers to provide information in the count centre about how
the count will operate and to clearly identify information staff.
Measures may include the use of information officers, the display
of explanatory materials and effective use of public announcements.
Arrival of ballot boxes
6.33 Ballot boxes received from each polling station
will be opened together in front of candidates and agents. Ballot
papers will be removed from each ballot box and placed in separate
cardboard trays for ease of carrying. A rummage of local government
ballot papers will be conducted at this stage if separate counts
are being held. For more information on the rummage, please refer
to paragraph 6.35.
6.34 A batch control sheet, labelled with the polling
station name and number and the contest, will be associated with
each set of ballot papers. The batch control sheet enables the
ballot papers to be identified on the electronic counting system
and also contains information copied from the ballot paper accounts
that is used to verify that the batch contains the correct number
of papers (see paragraph 6.43 below).
The rummage
6.35 At manual counts the rummage must be undertaken
to ensure that all valid papers are included in the correct count.
The rummage is a legal requirement and ensures that no votes are
excluded from the count.
6.36 Where the Returning Officer decides to hold a combined
count, there is no requirement for a manual rummage because the
electronic counting software automatically allocates information
from the ballot papers into the correct contest. This removes
the risk that human error could lead to ballot papers being accidentally
excluded from a count.
6.37 A manual rummage must be conducted where separate
counts are held. Once ballot papers have been removed from the
ballot boxes, the Returning Officer's staff will carefully sort
through each batch of local government papers looking for Parliamentary
ballots that have been mis-posted by the voter. Any local government
papers in the Scottish Parliament batch will be identified when
the Parliamentary papers are scanned and returned to the appropriate
local government batch.
Transfer of ballot papers between Returning Officers
6.38 In some areas, local government and Scottish Parliamentary
boundaries overlap with the consequence that local government
and Scottish Parliamentary ballot papers from certain polling
stations are counted by different Returning Officers. In such
instances, the Returning Officers concerned will establish local
procedures to ensure that ballot papers are exchanged effectively.
You should approach the Returning Officer for your area for details
of how any such transfer issues will be handled.
6.39 In such instances, both ballot boxes will initially
be sent to the Constituency Returning Officer. The Scottish Parliamentary
ballot box will be checked to ensure that it contains no local
government ballot papers—any that are found will be transferred
to the correct box. The local government ballot box will then
be checked for Parliamentary papers. Any that are found will be
returned to the correct batch and the local government ballot
box will be sent on to the Local Government Returning Officer
for counting.
Registration and scanning
6.40 Once ballot boxes from a particular polling station
have been opened, each batch will be registered on the system.
At this point, the system will be told how many ballot papers
were issued at each polling station for each contest and therefore
how many papers to expect.
— Where a combined count is held, the Parliamentary
and the local government ballot papers from each polling station
will be taken together to a scanner when one becomes available.
— Where separate counts are held, the Scottish
Parliamentary batch will be scanned on the night of Thursday
3 May 2007 and the local government batch will be sent to
secure storage.
6.41 The scanning machines read both sides of the ballot
paper regardless of which way they are fed in. On a practical
level, it will be difficult for counting agents to tally count
ballot papers as they are scanned.
6.42 The scanners are open-sided and the passage of ballot
papers through a machine is clearly visible. Any ballot papers
that the system cannot read will be fed back through the scanner
several times. Each individual ballot paper can only be counted
once—only information from the last scan of the ballot paper
will be used. Any papers that cannot be read will be placed in
a red plastic wallet and considered by the Returning Officer later
in the count. These ballot papers remain with the rest of the
batch, in a red plastic wallet, at all times, and will be accounted
for at verification.
Verification
6.43 When all the ballot papers in a batch have been
scanned, the Returning Officer's staff will verify that the number
of ballot papers counted (including any unscannable papers) tallies
with the number issued at the polling station. This process is
done separately for each batch and in full view of candidates
and agents.
6.44 If a ballot paper is torn, folded or badly crumpled
it may not be capable of being scanned. At verification, staff
count the number of unscannable papers in a batch and enter this
information on to the system. These damaged ballot papers will
be entered manually on to the system during adjudication, provided
that they still retain the unique identifying mark.
KEY CORRECTION
AND ADJUDICATION
OF DOUBTFUL
BALLOT PAPERS
6.45 In a minority of cases, voters' marks will not be
sufficiently clear for the counting system to be entirely confident
in recording their intention. These ballot papers will require
decisions to be made about them by the Returning Officer or their
staff. There are three stages of decision making that may affect
Scottish local government ballot papers: key correction, standard
adjudication and Returning Officer adjudication.
Key correction
6.46 The key correction stage is unique to the local
government elections. Where the electronic counting system is
not entirely satisfied that it can read an individual character
(a voter's preference), an image of the voting box in which the
character is contained is sent to key correction where Returning
Officer's staff will confirm or adjust the system's character.
This process will be done by staff working in pairs at one of
a series of computer workstations. Each workstation will be equipped
with two display screens, one of which will face candidates and
agents, allowing them to witness, and object to, decisions.
6.47 It is important to note that only individual characters
will be considered at this stage—there will be no further
information about for whom a preference has been cast or other
preferences on the ballot paper.
6.48 If a preference is unclear or a candidate or agent
objects to a decision, then the entire ballot paper will be considered
at standard adjudication.
Standard adjudication
6.49 At standard adjudication, an image of the ballot
paper is displayed on a screen and the actions of staff are recorded
clearly on the same screen. Ballot papers will be considered one
at a time.
6.50 Staff will only be able to make simple decisions
as to the voter's intention,such as counting clerks would instinctively
make at a manual count. For example, if a voter's mark is clearly
made in the voting box for one candidate but crosses into a neighbouring
voting box, staff will clarify to the computer system where the
preference should be recorded.
6.51 Where any interpretation needs to be made about
a voter's intention, or if a candidate or agent objects to a workstation
operator's decision, the ballot paper will be passed to the Returning
Officer, or their authorised Depute(s), for decision.
Returning Officer adjudication
6.52 The Returning Officer or an appointed Depute will
review ballot papers requiring a decision to be made about the
voter's intention. The decision of the Returning Officer on any
question arising in respect of a ballot paper is final but is
subject to review via an election petition. Examples of the types
of ballot papers requiring decision are where:
— a mark crosses substantially into the voting
box of another candidate;
— the ballot paper is spoiled or blank;
— the voter has made a mark by which they could
be identified; or
— a candidate or agent has required the paper
to be passed to the Returning Officer.
6.53 The Electoral Commission is producing guidance on
adjudication for Returning Officers, which will be available to
candidates and agents.
6.54 The Returning Officer's adjudication will in many
cases be conducted on a large projector screen to facilitate candidates
and agents witnessing decisions and recording objections where
appropriate.
RECOUNTS
6.55 Electronic counting provides a greater range of
opportunities for candidates and agents to monitor and engage
with the count. Verification of ballot paper accounts and adjudication
are conducted in sight of candidates and agents to a greater degree
than is possible at manual counts and will help candidates and
agents to follow and understand the count. Candidates' and agents'
legal right to request recounts remains unchanged.
6.56 A candidate or their election agent may, if present
when the counting of votes is completed, ask the Returning Officer
to re-count the votes. The Returning Officer may refuse to do
so if in their opinion the request is unreasonable.[10]
No actions hould be taken by the Returning Officer following the
count or any recount until all candidates or election agents have
been given the opportunity to exercise their right to request
a recount.
6.57 There are a number of options open to Returning
Officers when considering requests for recounts at an electronic
count. These include:
— Rescanning of individual batches.
Candidates or agents may request an individual batch to be rescanned
at any time during the count. If the Returning Officer believes
this request to be reasonable, they may require a batch to be
immediately rescanned. Rescanning a batch should satisfy candidates
and agents about the process used and therefore that:
— all readable ballot papers have been counted,
and
— all papers that cannot be read by machine have
been separated for later consideration.
— Reconsideration of detailed preliminary
results and verification totals. Together with candidates'
and agents' observations and experience at the count, this should
provide reassurance as to the accuracy of the process.
— Reconsideration of standard adjudications.
Returning Officers may instruct ballot papers considered at standard
adjudication to be reconsidered if they believe it is necessary
to satisfy themselves, or candidates and agents, that human error
has not been a factor in the initial consideration of these papers.
Ballot papers that the Returning Officer or a Depute has previously
adjudicated will not be reconsidered.
— Rescanning all ballot papers. The
Returning Officer may agree to a request to rescan all ballot
papers if they accept serious and substantial concerns about the
conduct of the count presented by candidates and agents. It is
unlikely that a full rescan could be achieved without suspending
the count for a period of rest. A full rescan will require standard
adjudications to be revisited and this process should again involve
appropriate scrutiny by candidates and agents. Ballot papers that
were considered by the Returning Officer at the initial scan will
not require to be adjudicated again.
EQUALITY OF
VOTES
6.58 It is possible that, at certain stages of the count,
two or more candidates will have the same number of votes. In
these circumstances a decision may need to be made by lot to determine
how the count will proceed.
6.59 Where it is necessary to exclude a candidate in
order to proceed with the count, but two or more candidates each
have the same, lowest, number of votes then:
— the Returning Officer shall consider the
total number of votes credited to each of those candidates at
the end of the most recently preceding stage of the count at which
they had an unequal number of votes, and the candidate with the
lowest number of votes at that stage shall be excluded; and
— where the number of votes credited to those
candidates was equal at all stages,the Returning Officer shall
decide, by lot, which of those candidates is to be excluded.[11]
6.60 Where it is necessary to transfer a surplus from
an elected candidate in order to proceed with the count, but two
or more candidates exceed the quota in the same round and have
same number of surplus votes, then:
— the transfersable papers of the candidate
who had the highest number of votes at the end of the most recent
preceding stage at which they had unequal numbers of votes shall
be transferred first; and
— if the numbers of votes credited to two or
more candidates were equal at all stages of the count, the Returning
Officer shall decide by lot which candidate's transferable papers
are to be transferred first.
6.61 There is no prescribed form of drawing lots, but
a lot is defined as an object, for example a slip of paper or
a straw, drawn or thrown out from among a numberin order to reach
a decision by chance. The most common method is to place and mix
ballot papers, each marked with a vote for each one of the candidates
into a container, and draw the winning ballot from the container.
However, the Returning Officer may choose to use another method
of drawing lots.
DECLARATION OF
RESULT
6.62 The Returning Officer must give public notice of:[12]
— the name of the candidates elected;
— the number of first preference votes for
each candidate;
— the numbers of ballot papers transferred
and their transfer values at each stage of the count;
— the number of votes allocated to each candidate
at each stage of the count;
— the number of non-transferable ballot papers
at each stage of the count; and
— details of the number and type of rejected
ballot papers.
2
Due to time constraints we were unable to mock up the official
poll card for proxy voters who wish to vote in a polling station.
However, because the information on the official poll card was
similar, any principles on design and text can be applied to the
official proxy poll card. Back
3
Available from www.votescotland.com Back
4
Schedule 2, Rule 56(1), Scottish Parliament Order. Back
5
Schedule 2, Rule 57(1), Scottish Parliament Order. Back
6
Section 8, the Scotland Act 1998, as amended. Back
7
Schedule 2, Rule 62(1), Scottish Parliament Order. Back
8
Schedule 2, Rule 66(1), Scottish Parliament Order. Back
9
Available from www.votescotland.com Back
10
Schedule 1, Rule 51, Local Government Rules. Back
11
Schedule 1, Rule 55, Local Government Rules. Back
12
Schedule 1, Rule 53, Local Government Rules. Back
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