Introduction Schedule 3: Further provision about the referendum
105. Paragraph 1 provides that a reference to a function in Schedule 3 includes functions under Gibraltar law (as well as functions under the law of the United Kingdom). This recognises that Gibraltar law may confer functions on officers in relation to the referendum.
106. Paragraph 2 sets out that section 128 of the 2000 Act applies for the purpose of the referendum with certain modifications. The effect is that the Chair of the Electoral Commission is designated as the Chief Counting Officer for the referendum. The Chief Counting Officer will be responsible for certifying the total number of ballot papers counted and the total number of votes cast in favour of each answer to a question asked in the referendum for the whole referendum area. Paragraphs 4 and 6 contain additional modifications of section 128 for the purpose of the referendum.
107. Paragraph 3 designates returning officers as counting officers for voting areas for the purposes of the referendum. In practice this means that in England, Scotland and Wales counting officers will be the same individuals who are returning officers for the local government elections. The counting officer for the Northern Ireland voting area is the Chief Electoral Officer for Northern Ireland. The paragraph also makes special provision for the City of London and Isles of Scilly. The counting officer for the Gibraltar voting area is the person who is the Clerk to the Gibraltar Parliament who by virtue of holding this post is the European electoral registration officer and local returning officer at European Parliamentary elections for Gibraltar.
108. Paragraph 4 contains some modifications to section 128 of the 2000 Act relating to counting officers and sets out that the referendum area means the United Kingdom and Gibraltar.
109. Paragraph 5 creates the role of Regional Counting Officers specifically for the referendum. Sub-paragraph (1) provides that the Chief Counting Officer may appoint a Regional Counting Officer for the regions listed in that sub-paragraph. The regions are the same as those used for European Parliamentary elections. For the purposes of the referendum, the South West region is renamed as the South West and Gibraltar region.
110. Paragraph 6(1)(a) imposes a duty on a local authority within a voting area (as defined in section 11(2)) to place the services of their officers at the disposal of the counting officer. As regards Regional Counting Officers, paragraph 6(1)(b) imposes an equivalent duty on a local authority responsible for a voting area which falls within a region in respect of which a Regional Counting Officer is appointed. Sub-paragraph (2) defines what a local authority is in this context. Paragraph 6(3) imposes a duty on the Government of Gibraltar to place the services of its public officers at the disposal of the counting officer for Gibraltar and the Regional Counting Officer for the South West and Gibraltar region, if appointed.
111. Paragraph 7 relates to the role, duties and powers of the Chief Counting Officer, Regional Counting Officers and counting officers, and applies in addition to the provisions relating to the Chief Counting Officer and counting officers in section 128 of the 2000 Act. Sub-paragraph (1) requires the Chief Counting Officer, Regional Counting Officers and counting officers to do whatever things are necessary for conducting the referendum in the manner set out in the legislation (including, for the officers with functions in relation to Gibraltar, Gibraltar conduct law).
112. Paragraph 7(2) sets out the responsibilities of a counting officer with respect to the voting area for which he or she is appointed.
113. Paragraph 7(3) provides that responsibility for printing the ballot papers for a voting area may be taken by the Chief Counting Officer or, in the case of a voting area in a region for which a Regional Counting Officer is appointed, the Regional Counting Officer. Responsibility for printing the ballot papers will otherwise rest with counting officers (paragraph 7(2)(b)).
114. Paragraph 7(4) provides that each Regional Counting Officer is responsible for certifying the total number of ballot papers counted and total votes cast in favour of each answer to the referendum question in respect of the region for which the Regional Counting Officer is appointed. This corresponds to the duties imposed on the Chief Counting Officer and counting officers under section 128(5) and (6) of the 2000 Act.
115. Paragraph 7(5) provides that the Chief Counting Officer may issue directions to Regional Counting Officers or counting officers relating to the discharge of their functions in preparation for, or during, the referendum poll, including directions requiring the provision of information. Provision is also made for Regional Counting Officers to issue directions to counting officers for voting areas within their region (paragraph 7(6)), but only where this is authorised or required by the Chief Counting Officer (paragraph 7(7)). Under paragraph 7(8), a Regional Counting Officer or counting officer to whom a direction is given is required to comply with it.
116. Paragraph 8 provides that the Chief Counting Officer, a Regional Counting Officer or counting officer may, in writing, appoint deputies to discharge all or any of the officer's functions (sub-paragraphs (1) and (2)). Sub-paragraph (3) also enables a Regional Counting Officer to appoint such clerks as may be necessary to assist him or her in his or her functions in relation to the referendum.
117. Paragraph 9 allows Regional Counting Officers and counting officers to correct errors or omissions that arise during the preparation for and conduct of the referendum. This will apply to errors and omissions that are made by the Regional Counting Officer or counting officer themselves and also errors and omissions made by other persons who have functions in connection with the referendum (including registration officers, presiding officers, clerks and staff). By way of example, documents, such as official poll cards, printed with incorrect details would be capable of correction under this provision.
118. Paragraph 10 relates to public notices that are required to be given by the Chief Counting Officer, a Regional Counting Officer or a counting officer. It provides that the officer must post the notice in a conspicuous place in the area or region for which the officer acts or must publicise it in such other manner as the officer thinks desirable.
119. Paragraph 11 relates to the role of the Electoral Commission. Sub-paragraph (1) provides that the Electoral Commission has a duty to promote public awareness of the referendum and how to vote in it. Sub-paragraph (2) imposes a duty on the Electoral Commission to publish the most accurate estimate reasonably possible of the turnout in each of England, Wales, Scotland, Northern Ireland and Gibraltar, and specifies that this information must be included in any report on the referendum submitted by the Commission under section 6(1)(b) of the 2000 Act. Sub-paragraph (3) defines "turnout" as the percentage of those entitled to vote in the referendum who did so.
120. Paragraph 12 requires the Chief Counting Officer, Regional Counting Officers, counting officers and registration officers (including the registration officer for Gibraltar) to take whatever steps they consider appropriate to encourage participation in the referendum. This is modelled on section 69 of the Electoral Administration Act 2006, which imposes a duty on returning officers and registration officers to encourage participation in elections. In addition, where such steps are taken, the Chief Counting Officer is required to take whatever steps the officer thinks appropriate to facilitate co-operation between those officers.
121. Paragraphs 13, 14 and 15 amend existing legislation in England and Wales, Scotland and Northern Ireland, to enable permitted participants to use information in electoral registers for the purposes of complying with all of the relevant campaigning controls imposed by the 2000 Act (as modified by the Act) and the Act. Permitted participants are already entitled to access the registers; this provision allows them to use the information in the registers to comply with the new duties imposed on them. Existing legislation provides that it is a criminal offence to use information in the registers for a purpose other than one permitted by legislation.
122. Paragraph 16 makes provision for the funding of the referendum. Under sub-paragraph (1) Regional Counting Officers and counting officers are entitled to recover their charges in respect of the referendum provided they relate to services necessarily rendered, or expenses necessarily incurred, for the efficient and effective conduct of the referendum and they do not exceed the overall maximum recoverable amount specified in regulations made by the Minister. These regulations may also specify, or make provision for determining, the maximum amount which Regional Counting Officers or counting officers may recover for services or expenses of a specified description (sub-paragraph (4)). The Minister is required to obtain the consent of Treasury to the making of these regulations.
123. Under paragraphs 16(2) and (3), the Electoral Commission has the power to reduce the fee element of charges that are paid to Regional Counting Officers and counting officers for the performance of their duties in the conduct of the referendum. The power to reduce a fee will apply where the service rendered by a Regional Counting Officer or counting officer was, in the opinion of the Electoral Commission, inadequately performed. The level of reduction (which may reduce the fees to nil) is to be determined by what the Commission (or, in certain cases, a court or auditor) thinks is reasonable in all the circumstances. The power does not extend to allow the reduction of any sum payable for expenses.
124. The Electoral Commission is required to pay to Regional Counting Officers and counting officers the charges that they are entitled to recover (paragraph 16(8)). However, the Electoral Commission can apply for the account to be taxed under paragraph 17 before payment.
125. There is provision in paragraph 16(5) for the Electoral Commission, with the consent of Treasury, to authorise payment of more than the maximum recoverable amounts specified in the regulations if the conditions in paragraph 16(6) are satisfied.
126. The Electoral Commission is also empowered in paragraph 16(9) to pay advances to the Chief Counting Officer, Regional Counting Officers and counting officers upon request.
127. Under paragraph 16(7) there is provision for the Chief Counting Officer, who is the Chair of the Electoral Commission, to recover expenses for the effective conduct of the referendum in certain limited circumstances.
128. Under paragraph 16(10) the Electoral Commission may make regulations regarding the time when and the manner and form in which accounts are to be rendered to the Commission for the purpose of payment of the Chief Counting Officer's or the Regional Counting Officers' or the counting officers' charges.
129. Paragraph 16(12) provides that any sums required by the Electoral Commission for making payments under paragraph 16 are to be charged on and paid out of the Consolidated Fund.
130. Paragraph 17 makes provision in respect of applications for a Regional Counting Officer's or counting officer's account to be taxed before payment and is based on section 30 of the 1983 Act which provides for the taxation of returning officers' accounts in the context of parliamentary elections. Sub-paragraph (2) provides that the court may tax the account as it thinks fit and finally determine the amount payable to the Regional Counting Officer or counting officer.
131. Where an application for taxation of a Regional Counting Officer's or counting officer's account has been made, paragraph 17(3) allows the Regional Counting Officer or counting officer to apply to the court to examine any claim made by a person ("the claimant") against the officer in respect of any charges included in the account. In this situation, the court may allow, disallow or reduce the claim against the Regional Counting Officer or counting officer but must first give the claimant the opportunity to be heard and to tender evidence (paragraph 17(4)).
132. Paragraph 18(1) provides that, if directed to do so by the Treasury, the Electoral Commission must prepare accounts in respect of their expenditure in relation to the referendum. The accounts must be prepared in accordance with any directions given by the Treasury (paragraph 18(2)); those directions might include the matters set out in paragraph 18(3). The Electoral Commission is required to submit the accounts to the Comptroller and Auditor General and the Speaker's Committee as soon as practicable after it receives a direction under paragraph 18(1) (paragraph 18(4)). The Speaker's Committee is established under section 2 of the 2000 Act and has general oversight of the exercise of the Electoral Commission's functions. Under paragraph 18 of Schedule 1 to the 2000 Act, the Electoral Commission's accounts for any financial year must be submitted to the Speaker's Committee as well as to the Comptroller and Auditor General.
133. Paragraph 19 relates to how the result of the referendum may be challenged in legal proceedings. It provides that any challenge in respect of the number of ballot papers counted or votes cast as certified by the Chief Counting Officer, a Regional Counting Officer or a counting officer must be brought by way of judicial review (sub-paragraph (1)(a)). In addition, the challenge must be commenced within six weeks of the date of the relevant certificate (sub-paragraphs (1)(b) and (2)). The six-week period is intended to ensure that sufficient time is allowed for challenges to be brought while avoiding prolonged delay in the final result of the referendum being known.