The Local Authorities (Conduct of Referendums)(England) Regulations 2012

PART 6 E+W Counting of Votes

Attendance at counting of votes E+W

37.—(1) Where the counting officer at the referendum is the relevant returning or counting officer, he or she must—

(a) make arrangements for—

(i) discharging the functions under rule 38(1) in the presence of the counting observers appointed for the purposes of the referendum and the election agents and counting agents or observers appointed for the purpose of each relevant election or referendum as soon as practicable after the close of the poll; and

(ii) thereafter counting the votes at the referendum in the presence of the counting observers appointed for the purpose of that referendum; and

(b) give to the counting observers appointed for the purposes of the referendum and the election agents and counting agents or observers appointed for the purpose of each relevant election or referendum notice in writing of the time and place at which he or she will begin to discharge the functions under rule 38(1).

(2) Where the counting officer at the referendum is not the relevant returning or counting officer, he or she must—

(a) make arrangements for counting the votes in the presence of the counting observers as soon as practicable after the delivery of the ballot papers to him or her by the relevant returning or counting officer; and

(b) give to the counting observers notice in writing of the time after which he or she will begin to count the votes if by then he or she has received the ballot papers and of the place at which that count will take place.

(3) No person other than—

(a) the counting officer and his or her clerks;

(b) the counting observers;

(c) the elected mayor, if any, of the council in respect of which the referendum is held;

(d) the petition organisers; and

(e) persons who are entitled to attend by virtue of any of sections 6A to 6D of the Political Parties, Elections and Referendums Act 2000,

may be present at the counting of the votes, unless permitted by the counting officer to attend.

(4) No person other than a person entitled to be present at the counting of the votes at the referendum under paragraphs (4) to (13) of rule 38 or at a relevant election or referendum may be present at the proceedings under rule 38(1) unless permitted by the relevant returning or counting officer to attend.

(5) A person not entitled to attend at—

(a) the proceedings under rule 38(1); or

(b) the counting of the votes,

must not be permitted to do so by, respectively, the relevant returning or counting officer or the counting officer unless he or she is satisfied that the efficient separation of the ballot papers or, as the case may be, the efficient counting of the votes will not be impeded.

(6) The—

(a) relevant returning or counting officer, in respect of proceedings under rule 38(1); and

(b) counting officer, in respect of the counting of votes,

must give the counting observers all such reasonable facilities for overseeing the proceedings, and all such information with respect to them, as he or she can give them consistently with the orderly conduct of the proceedings and the discharge of his or her duties in connection with them.

(7) In particular, where the votes are counted by sorting the ballot papers according to the answer for which the vote is given and then counting the number of ballot papers for each answer, the counting observers shall be entitled to satisfy themselves that the ballot papers are correctly sorted.

The count E+W

38.—(1) Where the counting officer at the referendum is the relevant returning or counting officer, he or she must—

(a) in the presence of the counting observers appointed for the purposes of the poll at the referendum and the election agents and counting agents or observers appointed for the purposes of the poll at each relevant election or referendum, open each ballot box and record separately the number of ballot papers used in each election;

(b) in the presence of the counting observers appointed for the purposes of the poll at the referendum and the election agents and counting agents or observers appointed for the purposes of each relevant election or referendum, verify each ballot paper account;

(c) count such of the postal ballot papers as have been duly returned and record separately the number counted at the referendum and each relevant election or referendum;

(d) separate the ballot papers relating to the referendum from the ballot papers relating to each relevant election or referendum;

(e) make up into packets the ballot papers for each relevant election or referendum and seal them up in separate containers endorsing on each a description of the area to which the ballot papers relate;

(f) deliver or cause to be delivered to the returning or counting officer for the relevant election or referendum to which the ballot papers relate—

(i) those containers, together with a list of them and of the contents of each; and

(ii) the ballot paper accounts together with a copy of the statement as to the result of their verification in respect of that election; and

(g) at the same time deliver or cause to be delivered to that officer packets that so relate containing—

(i) the unused and spoilt ballot papers;

(ii) the tendered ballot papers; and

(iii) the certificates as to employment on duty on the day of the poll.

(2) Where separate ballot boxes are used, no vote for any candidate or answer shall be rendered invalid by the ballot paper being placed in the ballot box intended for use at any relevant election or referendum.

(3) After completion of the proceedings under paragraph (1), the counting officer must mix together all of the ballot papers used at the referendum and count the votes given on them.

(4) Where the counting officer at the referendum is not the relevant returning or counting officer, he or she must—

(a) on receipt of containers from the relevant returning or counting officer, and after the time specified in the notice given under rule 37(2)(b), in the presence of the counting observers open each container;

(b) where the proceedings on the issue and receipt of postal ballot papers are not taken together with such proceedings at a relevant election or referendum under regulation 65 of the Representation of the People (England and Wales) Regulations 2001 F1 , or under that regulation as applied by these Regulations or by regulations made under sections 44 and 105 of the Local Government Act 2000, count such of the postal ballot papers as have been duly returned and record the number counted; and

(c) mix together the postal ballot papers and the ballot papers from all of the containers and count the votes given on them,

and paragraph (11) shall not apply to these proceedings.

(5) A postal ballot paper must not be taken to be duly returned unless—

(a) it is returned in the manner set out in paragraph (6) and reaches the relevant returning or counting officer or any polling station in the appropriate electoral area (as defined in paragraph (7)) before the close of the poll;

(b) the postal voting statement, duly signed, is also returned in the manner set out in paragraph (6) and reaches the counting officer or such a polling station before that time;

(c) the postal voting statement also states the date of birth of the voter or proxy; and

(d) in a case where steps for verifying the date of birth and signature of a voter or proxy have been prescribed by regulations made under the 1983 Act F2 , the relevant returning or counting officer (having taken such steps) verifies that date of birth and that signature.

[F3 (5A) A postal ballot paper or postal voting statement that reaches the relevant returning or counting officer or a polling station on or after the close of the poll is treated for the purposes of paragraph (5) as reaching that officer or polling station before the close of the poll if it is delivered by a person who, at the close of the poll, is in the polling station, or in a queue outside the polling station, for the purpose of returning it.]

(6) The manner in which any postal ballot paper or postal voting statement may be returned—

(a) to the relevant returning or counting officer, is by hand or by post;

(b) to a polling station, is by hand.

(7) The appropriate electoral area in respect of any voter or proxy shall be—

(a) the area which is common to the parliamentary constituency F4 , electoral area, F5 ... local authority area or voting area (as the case may be) in which the polls at the referendum and any relevant election or referendum are being taken together; and

(b) in respect of which polls the voter or proxy has been issued with a postal ballot paper.

(8) In paragraphs (5)(a) and (d) and (6)(a) for “relevant returning or counting officer” substitute “ counting officer ” where proceedings on the issue and receipt of postal ballot papers at the referendum are not taken together with such proceedings at one or more relevant elections or referendums.

(9) The counting officer must not count any tendered ballot papers.

(10) The—

(a) relevant returning or counting officer, in respect of the proceedings under paragraph (1); and

(b) the counting officer, while counting the votes,

must keep the ballot papers with their faces upwards and take all proper precautions for preventing any person from seeing the numbers or other unique identifying marks printed on the back of the papers.

(11) The relevant returning or counting officer must verify each ballot paper account by comparing it with the number of ballot papers recorded by him or her, and the unused and spoilt ballot papers in his or her possession and the tendered votes list (opening and resealing the packets containing the unused and spoilt ballot papers and the tendered votes list) and must draw up a statement as to the result of the verification, which any counting observer may copy.

(12) The—

(a) relevant returning or counting officer, in respect of the proceedings under paragraph (1); and

(b) counting officer, in respect of the counting of the votes,

must so far as practicable proceed continuously, allowing only time for refreshment, except that they may exclude the hours between 7 in the evening and 9 on the following morning.

(13) During the time so excluded the relevant returning or counting officer or counting officer (as the case may be) must—

(a) place the ballot papers and other documents relating to the referendum under his or her own seal and the seals of such of the counting observers as desire to affix their seals; and

(b) otherwise take proper precautions for the security of the papers and documents.

Textual Amendments

F1 S.I. 2001/341.

F2 See Regulations 85 and 85A of the Representation of the People (England and Wales) Regulations 2001 (S.I. 2001/341), which were inserted by S.I. 2006/2910.

F3 Sch. 5 rule 38(5A) inserted (6.4.2014) by The Local Authorities (Conduct of Referendums) (England) (Amendment) Regulations 2014 (S.I. 2014/924), regs. 1(3), 18 (with reg. 1(4))

F4 For the meaning of “parliamentary constituency”, see section 1 of the Parliamentary Constituencies Act 1986 (c.56).

F5 Words in Sch. 5 rule 38(7)(a) revoked (31.12.2020) by The European Parliamentary Elections Etc. (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) Regulations 2018 (S.I. 2018/1310), reg. 1, Sch. 1 Pt. 2 (as amended by S.I. 2019/1389, regs. 1, 2(2))

Re-count E+W

39.—(1) A petition organiser, if present when the counting or any re-count of the votes is completed, may require the counting officer to have the votes re-counted or again re-counted, but the counting officer may refuse to do so if in his or her opinion the request is unreasonable.

(2) No step shall be taken on the completion of the counting or any re-count of votes until such petition organisers as are present at its completion have been given a reasonable opportunity to exercise the right conferred by this rule.

Rejected ballot papers E+W

40.—(1) Any ballot paper—

(a) which does not bear the official mark; or

(b) on which votes are given for more than one answer; or

(c) on which anything is written or marked by which the voter or proxy can be identified except the printed number on the back and other unique identifying mark; or

(d) which is unmarked or void for uncertainty,

shall, subject to paragraph (2), be void and not counted.

(2) A ballot paper on which the vote is marked—

(a) elsewhere than in the proper place; or

(b) otherwise than by means of a cross; or

(c) by more than one mark,

shall not for such reason be deemed to be void if an intention that the vote shall be for one or the other of the answers clearly appears, and the way the paper is marked does not itself identify the voter or proxy and it is not shown that he or she can be identified by it.

(3) The counting officer must endorse the word “rejected” on any ballot paper which under this rule is not to be counted, and must add to the endorsement the words “rejection objected to” if any objection is made by a counting observer to the counting officer's decision.

(4) The counting officer must draw up a statement showing the number of ballot papers rejected under the several heads of—

(a) want of official mark;

(b) voting for more than one answer;

(c) writing or mark by which the voter or proxy could be identified;

(d) unmarked or void for uncertainty.

Decisions on ballot papers E+W

41.  The decision of the counting officer on any question arising in respect of a ballot paper shall be final, but shall be subject to review on a referendum petition.

Equality of votes E+W

42.  Where, after the counting of the votes (including any re-count) is completed, an equality of votes is found to exist between the answers the counting officer must forthwith decide the referendum by lot.