The Scottish Parliament (Elections etc.) Order 2015

Made: 15th December 2015

Coming into force in accordance with article 1(1)

In accordance with section 115 of, and Schedule 7 to, the Scotland Act 1998[^f00004], a draft of this Order has been laid before, and approved by resolution of, the Scottish Parliament.

PART 1 — GENERAL

Citation, commencement and transitional provision

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• (1) This Order may be cited as the Scottish Parliament (Elections etc.) Order 2015 and comes into force on the day after the day on which it is made.

• (2) This Order has no effect for the purposes of any election for which the date of poll is on or before 4th April 2016.

Interpretation

2

• (1) In this Order, except where the context otherwise requires—

• “the 1983 Act” means the Representation of the People Act 1983[^f00005];

• “the 1998 Act” means the Scotland Act 1998[^f00006];

• “the 2000 Act” means the Representation of the People Act 2000[^f00007];

• “the 2000 Political Parties Act” means the Political Parties, Elections and Referendums Act 2000[^f00008];

• “the 2001 Regulations” means the Representation of the People (Scotland) Regulations 2001[^f00009];

• “the 2006 Act” means the Electoral Administration Act 2006[^f00010];

• “absent voter” means an elector who is entitled to vote by proxy or an elector or proxy who is entitled to vote by post;

• “anonymous entry”, in relation to the register of electors, shall be construed in accordance with section 9B of the 1983 Act[^f00011] (anonymous registration);

• “appropriate returning officer” means—in relation to a candidate for return as a constituency member (or to an election agent or sub-agent for such a candidate), the CRO for that constituency; andin relation to an individual candidate for return as a regional member or to a registered party submitting a regional list for a particular region (or to an election agent or sub-agent for such a candidate or such a registered party), the RRO for that region;

• “ballot paper”, in relation to a general election for membership of the Scottish Parliament, shall be construed as a reference to both the constituency ballot paper and the regional ballot paper;

• ...

• “CRO” means the officer who, in accordance with article 14, is the constituency returning officer for a Scottish parliamentary election in a constituency;

• “disability”, in relation to doing a thing, includes a short term inability to do it;

• “entitlement as an elector to an absent vote” shall be construed in accordance with article 7(8);

• “ERO” means an electoral registration officer within the meaning of the 1983 Act[^f00013];

• “list of proxies” means the list of persons kept in pursuance of article 9(5)(b);

• “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[^f00014];

• “nominating officer” means the person registered under the 2000 Political Parties Act as the officer with responsibility for the matters referred to in section 24(3) of that Act in respect of a registered party;

• “of voting age” means 16 years of age or over;

• “ordinary local government election” means an ordinary election of councillors for local government areas;

• “polling register” means—the document provided by an ERO under paragraph 1(3) of Schedule 1 including any notices issued under sections 13AB(2), or 13B(3B) or (3D) of the 1983 Act[^f00015] (alteration of registers) after that document was produced; orwhere no such document has been provided, the register of electors, including copies of any notices issued under sections 13A(2), 13AB(2), or 13B(3), (3B) or (3D) of the 1983 Act[^f00016] (alteration of registers) in respect of alterations to the register; and, where a notice has been so issued, any reference to an entry, name or number stated in the polling register is to be taken to be a reference to the entry, name or number stated in that notice;

• “postal ballot box” means the ballot box referred to in paragraph 17(1)(b) of Schedule 4;

• “the postal voters list” means the list of persons kept in pursuance of article 9(5)(a), showing persons whose applications to vote by post have been granted;

• “the proxy postal voters list” means the list of persons kept in pursuance of article 11(7);

• “qualifying foreign national” has the same meaning as in section 202(1) of the 1983 Act;

• “record of anonymous entries” means the record prepared in pursuance of regulations made by virtue of paragraph 8A of Schedule 2 to the 1983 Act[^f00017];

• “RRO” means a regional returning officer for the purposes of the 1998 Act[^f00018];

• “register of electors” means the register of local government electors maintained under section 9(1)(b) of the 1983 Act;

• “registered emblem” means an emblem registered by a political party under section 29(2) of the 2000 Political Parties Act[^f00019];

• “registered party” means a party registered under section 28(4) of the 2000 Political Parties Act[^f00020];

• “Scottish parliamentary election” means an election for membership of the Scottish Parliament and “Scottish parliamentary general election” shall be construed accordingly;

• “Scottish Parliamentary Election Rules” means the rules set out in Schedule 2; and

• “service voter” means a person who has made a service declaration in accordance with section 15 of the 1983 Act[^f00021] and is registered or entitled to be registered in pursuance of it;

• “universal postal service provider” means a universal service provider within the meaning of Part 3 of the Postal Services Act 2011[^f00022] (regulation of postal services).

• (2) For the purposes of this Order, a person shall be deemed not to have attained a given age until commencement of the relevant anniversary of the day of his or her birth.

PART 2 — THE FRANCHISE AND ITS EXERCISE

Supply of electoral registers

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Schedule 1 (which makes provision in connection with supply of electoral registers) has effect.

Absent voting appeals

4

• (1) An appeal lies to the sheriff from any decision under this Order of the ERO disallowing a person’s application to vote—

• (a) by proxy or by post as elector; or

• (b) by post as proxy,

in any case where the application is not made for a particular Scottish parliamentary election only.

• (2) An appeal lies on any point of law from any decision of the sheriff under this article to the court of three judges constituted under section 57(2) of the 1983 Act (Registration Appeal Court) (“the registration appeal court”).

• (3) An appeal made by virtue of this article orsection 56 of the 1983 Act (registration appeals) which is pending when notice of an election is given shall not prejudice the operation as respects that election of the decision appealed against, and anything done in pursuance of the decision shall be as good as if no such appeal had been brought and shall not be affected by the decision of the appeal.

• (4) The sheriff clerk (or clerk to the registration appeal court) shall send to the ERO, by recorded delivery, notice of the decision of the sheriff (or of the registration appeal court) on any appeal by virtue of this article, and the ERO must make such alterations in the—

• (a) record kept under article 8(4) (absent voters); or

• (b) record kept under article 11(5) (proxy voters),

as may be required to give effect to the decision.

• (5) Where, as a result of the decision on an appeal under this article or section 56 of the 1983 Act, an alteration in the register of electors is made which takes effect under this article or under section 13(5), 13A(2), 13AB(3) or 13B(3) or (3B) of the 1983 Act on or before the date of the poll for an election, paragraph (3) does not apply to that appeal as respects that election.

Polling districts and places at elections

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• (1) Every constituency shall be divided into polling districts and, subject to the provisions of this article, there shall be a polling place designated for each polling district.

• (2) The polling districts and polling places designated under this article shall be the same as those used or designated for parliamentary elections under sections 18A and 18B of the 1983 Act[^f00023] (polling districts and polling places), except where it appears to the local authority (or local authorities) for the area of that polling district or location of that polling place that special circumstances make it desirable for some other polling district or polling place to be designated for the purpose of a Scottish parliamentary election.

• (3) An election shall not be questioned by reason of—

• (a) any non-compliance with the provisions of this article; or

• (b) any informality relating to polling districts or polling places.

Rules for Scottish parliamentary elections

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• (1) The proceedings at Scottish parliamentary elections (including the return of members) shall be conducted in accordance with the Scottish Parliamentary Election Rules.

• (2) It is the general duty of every CRO and RRO at a Scottish parliamentary election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by those Rules.

• (3) No Scottish parliamentary election shall be declared invalid by reason of any act or omission by a CRO, RRO or any other person in breach of that person’s official duty in connection with the election or otherwise of those Rules if it appears to the tribunal having cognisance of the question that—

• (a) the election was so conducted as to be substantially in accordance with the law as to Scottish parliamentary elections; and

• (b) the act or omission did not affect the result.

• (4) Schedule 2 (Scottish Parliamentary Election Rules) has effect.

• (5) Schedule 8 (access to marked registers and other documents open to public inspection after an election) has effect.

Manner of voting at Scottish parliamentary elections

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• (1) This article applies to determine the manner of voting of a person (“P”) entitled to vote as an elector at a Scottish parliamentary election.

• (2) P may vote in person at the polling station allotted to P under this Order, unless P is entitled as an elector to an absent vote at the election.

• (3) P may vote by post if P is entitled as an elector to vote by post at the election.

• (4) If P is entitled to vote by proxy at the election, P may so vote unless, before a ballot paper has been issued for P to vote by proxy, P applies at the polling station allotted to P under this Order for a ballot paper for the purposes of voting in person, in which case P may vote in person there.

• (5) P may vote in person at any polling station in the constituency if—

• (a) P is not entitled as an elector to an absent vote at the election; but

• (b) P cannot reasonably be expected to go in person to the polling station allotted to P under this Order by reason of the particular circumstances of P’s employment, either as a constable or by a CRO or RRO, on the date of the poll for a purpose connected with the election.

• (6) Nothing in the preceding provisions of this article applies to—

• (a) a person (“Q”) to whom section 7 of the 1983 Act[^f00024] (mental patients who are not detained offenders) applies and who is liable, by virtue of any enactment, to be detained in the mental hospital in question, whether Q is registered by virtue of that provision or not, and Q may vote—

• (i) in person (where Q is granted permission to be absent from the hospital and voting in person does not breach any condition attached to that permission); or

• (ii) by post or by proxy (where Q is entitled as an elector to vote by post or, as the case may be, by proxy at the election); ...

• (b) a person (“R”) to whom section 7A of that Act[^f00025] (persons remanded in custody etc.) applies, whether R is registered by virtue of that provision or not, and R may only vote by post or by proxy (where R is entitled as an elector to vote by post or, as the case may be, by proxy at the election) ; or

• (c) a person to whom section 3(1A) of that Act (exception to disenfranchisement for offenders sentenced to term not exceeding 12 months) applies, and such a person may only vote by post or by proxy (where the person is entitled as an elector to vote by post or, as the case may be, by proxy at the election).

• (7) Paragraph (2) does not prevent a person, at the polling station allotted to that person, marking a tendered ballot paper in pursuance of rule 49(5) of the Scottish Parliamentary Election Rules (entitlement to mark a tendered ballot paper).

• (8) For the purposes of this Order, a person entitled to vote as an elector at a Scottish parliamentary election is entitled as an elector to vote by post or entitled to vote by proxy at the election if that person is shown in the postal voters list or the list of proxies for the election as so entitled; and references in this Order to entitlement as an elector to an absent vote at an election are references to an entitlement as an elector to vote by post or entitlement to vote by proxy at the election.

Absent vote at Scottish parliamentary elections for an indefinite or a particular period

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• (1) Where a person applies to the ERO to vote by post at Scottish parliamentary elections or at local government and Scottish parliamentary elections (in either case, whether for an indefinite period or for a particular period specified in the application) the ERO shall grant the application if—

• (a) the ERO is satisfied that the applicant is or will be registered in the register of electors; and

• (b) the application contains the applicant’s signature and date of birth and meets the requirements set out in Schedule 3 (which makes provision in connection with absent voting at Scottish parliamentary elections).

• (2) Where a person applies to the ERO to vote by proxy at Scottish parliamentary elections or at local government and Scottish parliamentary elections (in either case, whether for an indefinite period or for a particular period specified in the person’s application), the ERO shall grant the application if—

• (a) the ERO is satisfied that the applicant is eligible to vote by proxy at elections to which the application relates;

• (b) the ERO is satisfied that the applicant is or will be registered in the register of electors; and

• (c) the application contains the applicant’s signature and date of birth and meets the requirements set out in Schedule 3.

• (3) For the purposes of this article, a person (“P”) is eligible to vote by proxy at Scottish parliamentary elections if P—

• (a) is or will be registered as a service voter;

• (b) has an anonymous entry in the register of electors;

• (c) cannot reasonably be expected—

• (i) to go in person to the polling station allotted or likely to be allotted to P under this Order; or

• (ii) to vote unaided there,

by reason of blindness or other disability;

• (d) cannot reasonably be expected to go in person to that polling station by reason of the general nature of P’s occupation, service or employment or that of P’s spouse or civil partner or by reason of P’s attendance on a course provided by an educational institution or that of P’s spouse or civil partner; ...

• (e) cannot go in person from P’s qualifying address to that polling station without making a journey by air or sea ; or

• (f) is a person to whom section 3(1A) of the 1983 Act (exception to disenfranchisement for offenders sentenced to term not exceeding 12 months) applies.

• (4) The ERO shall keep a record of those whose applications under this article have been granted showing—

• (a) whether their applications were to vote by post or proxy for an indefinite or a particular period (specifying that period);

• (b) in the case of those who may vote by post, the addresses provided by them in their application as the addresses to which their ballot papers are to be sent; and

• (c) in the case of those who may vote by proxy, the names and addresses of those appointed as their proxies.

• (5) The ERO shall remove a person (“Q”) from the record kept under paragraph (4)—

• (a) if Q applies to the ERO to be removed;

• (b) in the case of a person who is eligible to vote by proxy by virtue of having an anonymous entry, if Q ceases to have an anonymous entry;

• (c) in the case of any registered person, if Q ceases to be registered or registered at the same qualifying address or ceases to be, or becomes, registered in pursuance of—

• (i) a service declaration; or

• (ii) a declaration of local connection;

• (d) in the case of any person shown in the record as voting by proxy, if the ERO gives notice that the ERO has reason to believe there has been a material change of circumstances; or

• (e) in the case of a person who applied to vote by post or proxy for a particular period, once that period has expired.

• (6) Where a person (whether an elector or a proxy) is, under paragraph (5), removed from the record kept under paragraph (4), the ERO must notify that person in accordance with paragraph 10(6) of Schedule 3 (notification where person removed from absent voting record).

• (7) A person shown in the record kept under paragraph (4) as voting by post or voting by proxy (in either case, whether for an indefinite period or for a particular period) may make a further application under paragraph (1) or (2) to change the method of voting or period of time stated in that record.

• (8) The ERO may dispense with the requirement under paragraph (1)(b) or (2)(c) for the applicant to provide a signature if the ERO is satisfied that the applicant is unable—