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.
93.Schedule 3 to the Act, introduced by section 10, sets out the conduct rules for the referendum.
94.To make voters aware of the arrangements for the referendum, rule 1 of schedule 3 requires each counting officer to publish notice of the referendum not later than the 25th working day before the date of the referendum. The notice must state the date of the referendum, details of who is entitled to vote, the hours of polling (7am – 10pm under the provisions of rule 2), 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.
95.Under the provisions of rules 3, 4, 5, and 6, each voter will receive one ballot paper with a unique identifying number and a secret official mark. 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.
96.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.
97.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.
98.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 appropriately. It is possible for more than one polling station to be in the same room.
99.Under Rule 10, counting officers must appoint and pay a presiding officer and clerks (as needed) 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.
100.Rule 11 places a duty on counting officers to issue the following to voters as necessary, and to the appropriate address:
A poll card
A postal poll card
A poll card to a proxy
A postal poll card to a proxy.
101.Poll cards include the voter’s name, address and electoral register number (unless they have an anonymous entry on the electoral register) 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.
102.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.
103.The counting officer has a duty 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, under the provisions of rule 13. Counting officers are to provide each polling station with the documentation needed to run the poll, including the polling list of voters for that area, a list of the postal and proxy voters for the area, the relevant part of the corresponding number list and any notices, declarations or other documents needed for the poll.