Consultation on a draft Referendum Bill

2 Mechanics of the Referendum

Chapter Summary

• The proposals for the management and regulation of the referendum align closely with the arrangements used successfully to deliver a fair and transparent referendum in 2014. As in 2014 they closely mirror what happens for local and parliamentary elections in Scotland. They make use
  of Scotland's unique electoral management structure, co-ordinated by the Electoral Management Board for Scotland.
• The proposed split of responsibilities is as follows:
  • the poll and the count will be managed in the same way as for elections, by local returning officers (designated for the referendum
    as "counting officers") directed by a Chief Counting Officer
  • regulation of the referendum campaign, and reporting on the referendum process, will be the responsibility of the Electoral Commission. In this role the Electoral Commission will report to the Scottish Parliament.
• Eligibility to vote will be the same as for Scottish Parliament and local government elections.

Management of the referendum

2.1 The Electoral Commission viewed the 2014 Referendum as well run, and commended those responsible for administering the referendum. ^[1] Voters were also happy with their experience of the electoral process. 94% of people who voted in polling stations, and 98% of those who voted by post, reported that they were satisfied with the electoral process.

2.2 Accordingly, the Scottish Government proposes that the poll and the count would be managed in the same way as in 2014, by the returning officer (designated for the referendum as the "counting officer") for each of Scotland's 32 local government areas under the overall direction of a Chief Counting Officer.

Regulation and oversight

2.3 The Electoral Commission oversees and reports on elections in Scotland, and has reported on the 2016 Scottish Parliament election and 2014 referendum. The draft bill proposes that the Electoral Commission would also be responsible for regulating the referendum, and would be responsible to the Scottish Parliament for the role that it will play.

2.4 The division of responsibilities outlined above mirrors precisely the system established for other elections in Scotland in response to the Gould Report ^[2] , an independent review which made recommendations on improving the administration of elections following the problems experienced in 2007. Under this approach, guidance and regulatory functions are for the Electoral Commission while the operational role is for returning officers, electoral registration officers and their staff.

The conduct of the poll and the count

2.5 The draft bill provides for the appointment of a Chief Counting Officer ( CCO) who would be responsible for ensuring the proper and effective conduct of the referendum, including the conduct of the poll and the counting of the votes. As in 2014, the convener of the Electoral Management Board for Scotland is expected to be the CCO.

2.6 The CCO would have a power of direction over local counting officers. The draft bill confers a range of functions on the CCO and local counting officers, including:

• making arrangements for the issue of poll cards and to allow for absent or proxy voting
• making arrangements for the designation and management of polling stations and appointing presiding officers and clerks
• publishing notice of the referendum
• ensuring the security of the ballot
• counting the votes and declaring the result.

2.7 Votes would be counted in each local authority area and reported to the CCO, who would make a declaration of the national results.

2.8 Votes would be counted by hand in the traditional way. The detailed rules about the conduct of the poll are based on those applying to the conduct of elections. The Scottish Government will discuss the detailed referendum rules further with the Electoral Management Board and others.

Role of the Electoral Commission

2.9 The draft bill confers a range of guidance, regulatory and monitoring functions on the Commission:

• publishing guidance for voters
• publishing guidance for permitted participants
• recording the money spent and donations received by permitted participants and making that information available for public inspection
• observing the conduct of the referendum at polling stations
• observing the conduct of the count
• publishing a report on the conduct and administration of the referendum.

2.10 The Electoral Commission would be expected to take a fair and balanced approach to its activities and to be seen to be operating in this manner. The functions are specified in the bill in a way which would ensure that the Commission is at no risk of Scottish or UK Government influence in its affairs.

Question 1: What are your views on the proposed arrangements for managing the referendum?

Proposed technical changes from the 2014 referendum procedures

Eligibility to vote

2.11 Eligibility to vote in the referendum will be the same as for Scottish local government and Scottish Parliament elections. The franchise for these elections most closely reflects residency in Scotland and has been chosen for that reason. The choice of this franchise reflects the internationally accepted principle that the franchise for constitutional referendums should be determined by residency and the Scottish Government's view that sovereignty lies with the people of Scotland.

The following groups of people will therefore be entitled to vote in the referendum
(if they are not subject to any legal incapacity to vote):

• British citizens resident in Scotland
• Commonwealth citizens resident in Scotland
• citizens of the Republic of Ireland and other EU countries resident in Scotland
• members of the House of Lords resident in Scotland
• Service/Crown personnel serving in the UK or overseas in the Armed Forces or with Her Majesty's Government who are registered to vote in Scotland.

2.12 With the passing of the Scottish Elections (Reduction of Voting Age) Act 2015, it is no longer necessary to make specific provision for 16 and 17 year-old voters as they are now included in the existing register of local government electors. The draft bill therefore disapplies provisions in the 2013 Act that relate solely to 16 and 17 year-old voters and replaces them with references to the relevant provisions in the 2015 Act. The effect of these changes is that 16 and 17 year-olds will, as was the case in 2014, be able to vote in this referendum if they have reached the age of 16 by the day of the poll.

Absent Voting

2.13 The draft bill contains provisions on absent voting (postal and proxy voting) which are in line with accepted practice at other elections. The bill includes a requirement that the person who is to be appointed as a proxy for another voter must themselves be registered to vote. This change reflects practice at other elections and is designed to ensure that a proxy's identity has been confirmed using the individual electoral registration process. (See the modification to paragraph 5 of schedule 2 of the 2013 Act).

2.14 The draft bill restricts the access to emergency proxy votes to electors
who require it on the grounds of a disability, occupation, service or employment, where the grounds have arisen after the cut-off date for a normal proxy application. This reflects current practice at other elections and addresses concerns from stakeholders following the 2014 referendum, that the 7,770% increase in emergency proxy applications (6,690 compared to 85) compared to the European Parliamentary elections held in June 2014 caused excessive administrative burdens. (See the modification to paragraph 7 of schedule 2 of the 2013 Act).

2.15 The draft bill proposes changes to the checking of postal votes statements. These require that the personal identifiers on all postal voting statements are checked. While the statutory requirement at the 2014 referendum was that not less than 20% of personal identifiers were to be checked, in line with normal practice at other elections the counting officers checked all personal identifiers. The bill therefore proposes to change the legislation to require 100% checking and bring the legislation into line with previous practice and accepted practice at other elections. (See the modifications to paragraphs 35 to 39 of schedule 2 of the 2013 Act).

Polling and Count Staff

2.16 In schedule 3 of the 2013 Act, rules 10 and 29, which set out rules relating to the appointment of polling and count staff, are amended by the draft bill so that the counting officer "must not knowingly" appoint or employ anyone who has been involved in campaigning during the referendum. This change reflects recommendation 19 of the Electoral Commission's report on the 2014 referendum.

Verification Statements

2.17 Schedule 3 of the 2013 Act, rule 30, is a changed provision that would require the counting officer to supply a copy of the verification statement (which confirms that the number of ballots counted equals the number recorded) to any counting agent on request. The provision of copies of the verification statement
is normal practice at most other elections and this change reflects current best practice at election counts.

Question 2: What are your views on the proposed technical changes to polling and count arrangements?