Commentary Conduct
88.Section 5 of the Act provides for the appointment of the Chief Counting Officer (CCO). The CCO will be the person who, at the time the Act comes into force, is convener of the Electoral Management Board unless there is no-one in post at the time or the person in post is unwilling or unable to act as the CCO. This section also provides for appointment of a replacement CCO if he or she dies, resigns or is removed from the post by the Scottish Ministers who have a limited power to remove the CCO on health grounds, or if he or she is convicted of any criminal offence. The CCO has the power to appoint a deputy. Any appointees under this section (including the CCO) must be, or have been, a returning officer.
89.Under the provisions of section 6, the CCO must appoint a counting officer for each local government area and notify the Scottish Ministers. This section also provides for the appointment of replacement counting officers if one should die, resign or be removed from post by the CCO (who has power to remove a counting officer who cannot perform his or her functions, or who does not follow the CCO’s directions). Counting officers also have the power to appoint deputies.
90.Section 7 deals with the functions of the CCO and counting officers. The CCO is responsible for the proper and effective conduct of the referendum, including the conduct of the poll and the count of the votes. Each counting officer is responsible for conducting the poll and the count of votes in their local government area. The CCO must certify the total number of ballot papers in the referendum and the total number of votes cast in favour of each answer to the referendum question (section 7(4)), while the counting officers do the same for each local government area (section 7(2)) under the direction of the Chief Counting Officer. The CCO can give directions to counting officers with which they must comply. Local authorities are responsible for providing the CCO and counting officers with the property, staff and services they need to conduct the referendum (section 7(8) and (9)).
91.Section 8 gives the counting officers, including the CCO, a power to remedy, or correct, any act or omission which would constitute a procedural error by a relevant person (the persons listed in subsection (3)) and which is not in accordance with the requirements of the legislation. This power does not extend to a re-count of the votes after a declaration of the result has taken place.
92.Section 9 deals with the expenses incurred by counting officers and the CCO. Counting officers, including the CCO, can recover their costs from the Scottish Ministers, up to a maximum amount to be set out in an Order made by the Scottish Ministers. The Scottish Ministers may provide monies in advance to the CCO and counting officers if they consider it appropriate to do so.