Commentary Schedule 2: Conduct rules
109.Schedule 2 of this Act, introduced by section 12, sets out the conduct rules for a referendum.
110.To make voters aware of the arrangements for a referendum, rule 1 of schedule 2 requires each counting officer to publish notice of the referendum not later than the twenty fifth working day before the date of the referendum. The notice must state the date of the referendum, the hours of polling (7am – 10pm under the provisions of rule 2), details of who is entitled to vote, the location of polling stations and the dates by which applications to register to vote and to vote by post and proxy (and other applications and notices about postal or proxy voting) must reach the registration officer. The counting officer must provide a copy of this notice to the referendum agents appointed for their area.
111.Under the provisions of rules 3, 4, 5, and 6, each voter will receive one ballot paper with a unique identifying number and an official mark which must be kept secret. Counting officers must keep a ‘corresponding number list’ which records the unique identifying number of every ballot paper. The printing of the ballot papers should be arranged locally by counting officers unless the CCO takes over the printing arrangements.
112.Rule 7 gives counting officers a right to use rooms for the poll or for counting the votes, free of charge, in schools maintained by education authorities and other public meeting rooms maintained at a cost to the Scottish Ministers or most public authorities in Scotland. The counting officer must cover any associated expenses such as the lighting, heating or cleaning of the room.
113.Rule 8 places a duty on counting officers to issue postal voters with ballot papers and other associated documentation, including information about how to obtain directions or guidance for voters translated into other languages and Braille or in picture, audible or other formats.
114.Rule 9 places a duty on counting officers to provide enough polling stations and polling booths for the referendum and to allocate voters to polling stations. It is possible for more than one polling station to be in the same room.
115.Under Rule 10, counting officers must appoint and pay a presiding officer and sufficient clerks for each polling station. People who have been involved in campaigning for an outcome in the referendum are excluded from undertaking these roles. A counting officer may act as a presiding officer at a polling station and the rules applying to presiding officers also then apply to a counting officer who does that. The presiding officer can authorise a clerk to do anything the presiding officer can do under these rules, except remove and exclude persons from the polling station.
116.Rule 11 places a duty on counting officers to issue, as soon as practicable after the notice of the referendum is published under rule 1, an appropriate poll card to voters at their required address.
117.Poll cards must be in a prescribed form and include the voter’s name, address and electoral register number and inform the voter of the date of the poll, the hours of polling and the polling station at which they should vote (where applicable). Where the voter has appointed a proxy, the poll card should confirm this.
118.Rule 12 places a duty on local authorities to lend ballot boxes and other relevant equipment to counting officers on terms and conditions which they agree.
119.Rule 13 puts a duty on the counting officer to provide presiding officers at polling stations with enough ballot boxes (designed to ensure that no ballot papers can be removed from the box without opening it) and ballot papers as necessary for the referendum, and materials for voters to mark their ballot papers. Counting officers also have to provide each polling station with the documentation needed to run the poll, including the register of voters for that area, a list of the postal and proxy voters for the area, any notices, declarations or other documents needed for the poll and the relevant part of the corresponding number list.
120.Rule 13 further provides that information to help voters with the voting process is to be displayed inside and outside the polling station and in every polling booth. To help voters who have a visual impairment, an enlarged sample copy of the ballot paper(s) is to be made available, along with a device for enabling voters who are blind or partially sighted to vote without any assistance. The counting officer also has a power to display an enlarged copy of the ballot paper, marked as a specimen copy, translated into other languages as they deem appropriate for that area.
121.Rule 14 allows referendum agents to appoint polling agents or counting agents to attend the poll or the count. Referendum agents must give the counting officer notice of the appointments by the fifth working day before the referendum. The number of counting agents allowed to attend the count may be limited by the counting officer, provided that each referendum agent is permitted an equal number, and that number is not less than the number of clerks employed divided by the number of referendum agents (e.g. if 50 clerks are employed and there are 3 referendum agents, then the counting officer can limit each referendum agent to appointing 17 counting agents). A referendum agent may also undertake the duties of a counting or polling agent appointed by them (rule 14(10)). If an agent appointed under rule 14(1) fails to attend to witness the proceedings, this does not invalidate the referendum process so long as it is otherwise conducted properly.
122.Rule 15 lists the people who are allowed to be admitted to a polling station. The presiding officer has overall control on how many voters and any accompanying children under the age of 16 may be admitted to the polling station at any one time. Each permitted participant in the referendum (as defined in schedule 3 paragraph 2) cannot have more than one polling agent representing them in the polling station at any time.
123.Rule 15 also allows the counting officer’s staff and police constables on duty at a polling station to vote at a polling station other than the one they were allotted, provided they have a certificate to do so.
124.Under the provisions of rule 16, counting officers must ensure that everyone at a polling station, other than voters and those accompanying them, and police constables, has been given a copy of the requirement of secrecy set out in paragraphs 7(1), (3), (5), (8), (9) and (10) of schedule 6 of this Act. Schedule 6 paragraph 7(3)(b) sets out that before the poll closes, they are not to discuss or reveal the name or electoral registration number of anyone who has or has not requested a ballot paper. The official mark on every ballot paper (under the provisions of schedule 2, rule 6) must not be discussed (paragraph 7(3)(c) of schedule 6). Nor should they (under sub-paragraph (5)):
	make any attempt to interfere with a voter when recording their vote.
	make any attempt in the polling station to find out how the voter intends to vote or has voted.
	discuss with anyone how a voter intends to vote or has voted.
	discuss the ballot paper number on the back of a voter’s ballot paper.
	cause a voter to display a marked ballot paper which might reveal how they have voted or intend to vote in the referendum.
125.If a companion has helped a voter with disabilities to vote in the referendum, they should not reveal to anyone how the person has voted or intends to vote, or the unique identifying number on the back of the ballot paper.
126.Counting officers must provide copies of paragraphs 7(9) and (10) of schedule 6, which provides that failure to comply with paragraph 7 is an offence, the penalty for which is a maximum of 12 months imprisonment or a fine up to level 5 on the standard scale or both.
127.Similar provision is made in relation to those attending the counting of votes. The counting officer must give them notice of paragraph 7(4) of schedule 6, which requires them to maintain secrecy and, in particular, not to attempt to find out the unique identifying number or to communicate any information obtained at the count about how any voter has voted.
128.Rule 17 imposes a duty on the presiding officer to keep order at the polling station and includes a power to order a person to be removed immediately if they are doing anything to stop the polling station from operating effectively. Such a person can be removed either by the presiding officer or a police constable and may not enter the polling station again that day, other with the presiding officer’s permission. If charged with an offence, the person may be dealt with as a person taken into custody without a warrant. The presiding officer cannot remove someone if it would prevent a voter from voting.
129.Rule 18 sets out the procedures for dealing with the ballot boxes during the poll. Before the poll opens, the presiding officer must demonstrate to anyone present that the ballot boxes are empty and then they must place a seal on the box in such a way that if the box is opened, the seal would be broken. Any referendum or polling agents who are present may also attach their own seals to the ballot boxes. This verifies to everyone that the box has remained closed and not been tampered with by anyone during the poll. The box must be visible to the presiding officer during the poll for the same reason and it must remain sealed until after the poll closes and it is delivered to the counting officer for the count of the votes.
130.Rule 19 sets out the questions that can be put to voters by the presiding officer when they arrive at the polling station to vote, if a referendum agent or polling agent requires it or the presiding officer considers it appropriate to do so. There are different questions for voters wanting to vote in person and those wanting to vote as proxy. Only the questions set out in this rule may be asked about a voter’s eligibility to vote. The person’s answers to the questions help the presiding officer to determine whether the person is eligible to vote and whether the person should be given a ballot paper to vote in the referendum. If the person cannot answer the question satisfactorily, they must not be given a ballot paper.
131.Rule 20 makes provision for circumstances where someone declares that the voter is not who they claim to be or the voter is arrested on suspicion of committing or being about to commit an offence of personation. These situations are not to be treated as reasons to prevent the voter from voting, however it does not affect the voter’s liability to any penalty for voting.
132.Under the provisions of rule 21, unless an eligible voter has failed the questions put to them under rule 19 satisfactorily, the voter must be given a ballot paper. Before handing a ballot paper to a voter, the staff at the polling station should call out the voter’s name and number as it appears in the register and then write the voter’s number against the number of the ballot paper contained in the corresponding number list. This ensures that there is a record of that ballot paper being given to that voter. In the copy of the register, the voter’s name should be marked to show that they have received a ballot paper and if the voter is voting as proxy, a mark should be put against their name in the list of proxies. If the voter has an anonymous entry in the electoral register, only their number should be called out.
133.Having received a ballot paper, the voter is required to go immediately to a polling booth to vote, cast their vote, show the ballot paper number on their ballot paper to the presiding officer and then put their ballot paper in the ballot box provided. They must then leave the polling station without delay. Where a voter arrives at the polling station before 10pm, but is still waiting to vote at 10pm, the presiding officer must allow them to vote after the normal 10pm deadline. The polling station must be closed immediately after the last such voter has voted.
134.If a voter asks for help to cast their vote because of an inability to read or because of a disability, such as blindness, rule 22 places a duty on the presiding officer, in the presence of any polling agents, to ensure that their vote is cast as they wish to vote and their ballot paper is placed in the ballot box. The voter’s name and number from the register is to be marked in a ‘marked votes list’ along with the reason for the entry in that list.
135.Rule 23 covers other circumstances under which a voter who is unable to read, is blind or has a physical disability may vote. If the voter asks the presiding officer to vote with the help of a companion, the presiding officer must ask them to explain the reason for needing assistance. The companion must complete a form, prescribed by the CCO, stating that they are either eligible to vote in the referendum, or a close family member of the voter and aged 16 or over. The presiding officer cannot charge a fee for the declaration and must sign and retain it.
136.If the presiding officer is satisfied that the voter needs assistance and that the companion is eligible to fulfil the role, the request must be granted. If an application has been granted, the voter’s name and number from the register and the companion’s name and address must be marked in an ‘assisted voters list’. If someone is voting by proxy in this way, the number to be entered is the voter’s number. If the voter being assisted by the companion has an anonymous entry in the electoral register, only the voter’s number is to be entered in the assisted voters list.
137.Rule 24 sets out four situations which may occur where there is doubt that the person is eligible to vote in the referendum. These situations, set out in paragraphs (2) to (5) are where:
	someone claiming to be a voter (but not named on the postal voter or proxy voter lists) or claiming to be a proxy voter (but not a postal proxy voter) asks for a ballot paper after someone has already voted as that person either in person or as a proxy voter.
	someone asking for a ballot paper claims to be a voter on the register, is named in the postal voters list and claims that either they have not applied to vote by post in the referendum or that they are not an existing postal voter (under schedule 1, paragraph 2(2)).
	someone asking for a ballot paper claims to be a proxy voter in the list of proxies, is named in the proxy postal voters list and claims that either they have not applied to vote by post as a proxy in the referendum or that they are not an existing postal proxy voter in local government or Scottish Parliament elections (under schedule 1, paragraph 6(4)).
	someone claims after the last time for replacement postal ballot papers, but before the close of the poll, that they have lost or never received a postal ballot paper and they claim that they are named on the register and the postal voters list or that they are a proxy voter in the list of proxies and named in the postal proxy voters list.
138.In all four of the situations described above the person would be allowed to complete what is known as a tendered ballot paper, provided they answered the questions set out in rule 19 to the satisfaction of the presiding officer.
139.In these circumstances, the person will receive a ballot paper of a colour prescribed by the CCO that is different to the colour of the normal ballot paper used in the referendum. Once they have marked their vote, the ‘tendered ballot paper’ is given to the presiding officer who will write the voter’s name and voter number on the ballot paper. The ballot paper is not placed in the ballot box, but is instead placed in a separate packet and kept to one side. Such votes are not counted towards the declared result of the referendum, but could subsequently be examined in any court proceedings. The voter’s name and voter number are then entered on a list known as the ‘tendered votes list’ (paragraph (8)). If someone is voting as proxy for a voter in these circumstances, the voter’s number is entered on the tendered votes list (paragraph (9)). Where someone has an anonymous entry in the electoral register, the same procedure is to be followed, except that only the voter’s number would be entered in the tendered votes list (paragraph (10)).
140.Rule 25 deals with ballot papers that have been inadvertently spoiled. If the voter makes an error or the ballot paper cannot be used for some other reason, the original ballot paper must be returned to the presiding officer of the polling station, who will immediately cancel it and issue a new ballot paper.
141.Under rule 26, the presiding officer must keep a list, known as the ‘polling day alterations list’, of people who receive ballot papers because they have had their entry in the electoral register altered on the day of the poll itself (done by issuing a late notice of alteration under the Representation of the People Act 1983 section 13B(3B) or (3D)), and who are then eligible to vote at the referendum.
142.Rule 27 provides a procedure which the presiding officer is to follow if proceedings at the polling station are interrupted by riot or open violence. The presiding officer will close the polling station until the next day and let the counting officer know immediately what has happened. The poll will be adjourned and the polling station will observe the same opening hours the following day.
143.Under the provisions of rule 28, as soon as possible after the poll closes, the presiding officer must seal each ballot box using the presiding officer’s own seal, so that no more votes can be cast. Any referendum or polling agents who are present may also attach their own seals to the ballot boxes. Separate packets are to be sealed containing:
	unused and spoilt ballot papers.
	tendered ballot papers.
	marked copies of the register, marked copy notices and the list of proxies (all in one packet).
	certificates from police constables or the counting officer’s staff who voted at a polling station instead of the one they were allotted.
	the completed corresponding number list. This is to be in a different packet from the one containing the marked copies of the register (as is the list of certificates from police constables and counting officer staff).
	the tendered votes list and other specified lists.
	any postal ballot papers or postal voting statements returned to the polling station.
144.The presiding officer must include a statement with the packets, known as the ‘ballot paper account’ which provides a breakdown of the ballot papers the presiding officer was given, the number issued, unused ballot papers, spoilt ballot papers and the tendered ballot papers. At the count, this statement will be checked against the number of ballot papers in the ballot box to ensure that all the ballot papers issued to the presiding officer are accounted for.
145.The sealed ballot boxes and the packets are then to be delivered to the counting officer. If the presiding officer does not deliver the ballot papers in person, the counting officer must approve any alternative delivery arrangements.
146.Rule 29 places a duty on counting officers to make arrangements for the count of votes in accordance with any direction issued by the CCO, and to give notice in writing to the CCO, each referendum agent appointed for the area, and any counting agents appointed to attend the count stating where and when the count will take place. The counting officer can start the count the next day, subject to any direction given by the CCO about when the count should start. The CCO may make directions to alter the time of the count. At the count, the counting officer must not knowingly appoint or employ anyone who has been involved in campaigning for an outcome in the referendum. There is also a duty on the counting officer to ensure that the ballot boxes and packets are kept secure from the time they assume responsibility for them until the count gets underway.
147.Paragraph (8) sets out the categories of people who are allowed to attend the count. As with polling and counting agents, counting officers may limit the number of permitted participants’ agents (‘counting agents’) at the polling stations or the count of votes, but they cannot favour one permitted participant over another – they have to ensure that each permitted participant can have the same number of counting agents present.
148.Before the count of votes for each referendum outcome can start, the counting officer must check the number of votes to be counted from each ballot box against the number of ballot papers issued, as recorded on the ballot paper account by the presiding officer of each polling station. Rule 30 sets out the procedure for this. Each ballot box must be opened with any counting agents present, and the ballot papers it contains counted and recorded (paragraph (1)). The number of ballot papers is to be checked against the ballot paper account supplied by the presiding officer for that box. The ballot paper account is then verified, again with counting agents present, by comparing its totals with the number of ballot papers recorded, the unused and spoilt ballot papers and the tendered votes list. The packets containing the unused and spoilt ballot papers and the tendered votes list are then resealed. The counting officer must then prepare a statement, known as the ‘verification statement’ that records the totals of these counts against the ballot paper accounts provided by presiding officers of the polling stations (paragraph (2)).
149.The number of postal ballot papers is also counted and recorded. Postal ballot papers cannot be included in the count unless they have been delivered by hand to a polling station in the right local authority area or posted to the counting officer before the close of the poll. A postal voting statement that is signed (unless no signature is needed due to a disability or inability to read or write) and includes the voter or proxy’s date of birth must be included with the postal ballot paper (paragraph (4) of rule 30).
150.Under paragraph (5), before the count of votes can start, postal ballot papers must be mixed with the ballot papers from at least one ballot box. Ballot papers in a ballot box must be mixed with the ballot papers of at least one other box (this prevents anyone from being able to tell from observing the count how voters in a particular locality have voted in the referendum). Only then can the count of votes for each outcome in the referendum get under way.
151.No tendered ballot paper is to be counted. No postal vote can be included in the count if the counting officer, having verified the personal identifiers (the voter or proxy’s signature and date of birth), is not satisfied that the postal voting statement has been completed correctly (paragraph (7)).
152.The counting officer must take all proper precautions to ensure that no one can identify the voter who cast a particular vote in the referendum (paragraph (8)).
153.Once started, the count should normally proceed to a conclusion, but rule 30(9) does allow the counting officer to exclude counting between 7pm on any day after the day of the poll and 9am the following morning, e.g. if the poll is on a Thursday, then the counting officer can suspend the count at 7pm on the Friday evening until 9am on the Saturday morning. This rule does not preclude an overnight count following the close of poll.
154.Rule 31 deals with ballot papers that are rejected from the count for any of the reasons set out in paragraph (2). The counting officer must mark these papers rejected (and, if any counting agent objects to the counting officer’s decision, mark them ‘rejection objected to’), and prepare a statement that records the numbers of ballot papers rejected for these reasons.
155.Paragraph (3) gives the counting officer the power to decide whether a vote can be counted if the ballot paper has been marked incorrectly, being marked elsewhere than in the proper place, otherwise than by a cross or marked more than permitted. As long as the voter’s intention is clear, the counting officer can decide to include the ballot paper in the count of votes. However, the vote cannot be counted if it is possible to identify the voter from the ballot paper.
156.Rule 32 provides that the counting officer must count the votes for each answer to the referendum question.
157.Rule 33 provides that any decision of the counting officer on a question that arises in respect of a ballot paper is final, subject to any judicial review in accordance with section 39.
158.Rule 34 gives both the counting officer and the CCO the power to have votes re-counted and re-counted again if they consider it appropriate to do so.
159.Once the count of votes in their area has been concluded to the counting officer’s satisfaction, under rule 35, the counting officer has a duty to immediately provide the CCO with the total number of votes counted, the number of votes for each answer to the referendum question, the details of the verification statements that relate to the ballot paper account and the details of the rejected ballot papers statement. Once authorised by the CCO, the counting officer must then announce the local result.
160.Once the CCO has received the local information for every area and is satisfied that no re-counts are required, they must declare the result of the referendum for the whole of Scotland which includes the number of votes counted, the number of votes both for and against the referendum question and the number of rejected ballot papers.
161.Once the CCO has confirmed that no re-count is required, each counting officer is required as soon as possible under rule 36 to seal separate packets containing counted ballot papers and rejected ballot papers. Counting officers are not to open the packets containing tendered ballot papers, the corresponding number lists, the certificates presented by police constables and those working at polling stations and the marked copies of the registers and any marked copies of the notices of late alterations to the register of electors. This ensures that it is not possible to link a ballot paper to an individual voter.
162.Once the papers have been sealed, rule 37 requires the counting officer to add a label to each packet that describes their contents and includes the date of the referendum, and to send them to the proper officer of the local authority for which the ballot papers were counted. The proper officer has responsibility for custody of these kinds of documents under existing local government electoral legislation. The package of papers to be sent is listed under rule 37(2).
163.The proper officer of the local authority is then required under rule 38 to keep all of the papers for one year after which they must be destroyed, unless required to keep them for longer by order of the Court of Session or a sheriff principal.
164.With the exception of the ballot papers, the corresponding number lists and the certificates submitted by police constables and those working at polling stations, all the papers must be made available for public inspection as the officer of the local authority sees fit. Anyone who wishes to inspect the papers is allowed to take handwritten notes but they must not copy them by any other means; to do so would be an offence under paragraph (4) of rule 38.
165.Under rule 39, the CCO must keep any certifications made by the CCO or by counting officers under section 9 regarding the results of a referendum. These are to be made available for public inspection as determined by the CCO.
166.If someone is being prosecuted for an offence relating to any ballot papers, or there is a petition for judicial review of the referendum result under section 39, then under rule 40, the Court of Session or a sheriff principal may order inspection of any rejected ballot papers, corresponding number list, employment certificate or ballot paper that has been counted. The Court of Session or sheriff principal can place conditions on who, when, where and how the inspection of these papers may take place. The way in which a voter voted should not be revealed until it is proved that the vote was given and a court has declared the vote to be invalid. Any appeal against a sheriff principal’s order would be heard in the Court of Session.
167.When the officer of the local authority produces a document in relation to the case, it is to be taken as conclusive evidence that the document relates to the referendum. Anything written on the packet in which the document is kept is to be taken as evidence that the ballot papers in that packet are what is written on the packet (unless there is evidence to the contrary). When the officer of the local authority produces a ballot paper or corresponding number list in relation to a case, these documents are to be taken as evidence that the voter who voted using the ballot paper was the same person whose voter number appears in the corresponding number list against the number of that ballot paper (again unless there is evidence to the contrary).
168.Other than as provided by this rule, no one is allowed to inspect any counted or rejected ballot papers or open any sealed packet containing the corresponding number list or the employment certificates provided by police constable or people working at polling stations on the day of a referendum.
169.Rule 41 provides that prescribed forms referred to in this schedule are to be prescribed by the CCO.