Analysis

AuthorNicola Hodelet,Hector MacQueen,Heather Lardy,David Cabrelli,Charlie Irvine,Laura Macgregor,Alan Inglis,Malcolm M Combe,Greg Gordon,Rohan Price,Findlay Stark,Jill Stavert,Francis Lyall,Gerry Maher,Clare Connelly
DOI10.3366/E1364980909001061
Pages80-150
Publication Date01 January 2010

A by-election for the UK Parliament was held in Glenrothes on 6 November 2008. The Labour candidate won a surprise victory, upsetting the SNPs predicted success in the seat. The SNP sought subsequently to access election records stored in accordance with the law in Kirkcaldy Sheriff Court and was told after considerable delay that they were missing.1

The SNP requested the records on 19 November and was told on 30 January that they were missing. See “SNP demands inquiry into missing by-election record”, Guardian 3 Feb 2009; “By-election registers go missing”, BBC News Online 3 Feb 2009 (available at http://news.bbc.co.uk/1/hi/scotland/7867022.stm).

Renovation work had been carried out in the Sheriff Court building and the documents, stored in black bin bags in its basement, had been lost. SNP MSP Tricia Marwick called for an independent inquiry by the Electoral Commission or the Sheriff Principal to investigate the loss.2

“SNP demands inquiry into missing Glenrothes by-election records”, Telegraph 3 Feb 2009.

Instead an internal inquiry was instituted by the Scottish Court Service: human error, it found, explained the loss.3

B MacQueen, Investigation into Missing Electoral Records from Kirkcaldy Sheriff Court (2009) (available at http://www.scotcourts.gov.uk/docs/report/Report_Investigation_into_Missing_Electoral_Register2009.pdf).

The inquiry's account of mismanagement and mistakes provides a salutary reminder of the significance of election records. Such documents provide the principal recorded – and only original – source of data concerning the conduct of a poll. They also and more simply evidence the occurrence of an election. As Tricia Marwick observed, without the records “there is no evidence of either a fair or an unfair election and that undermines the confidence of everyone who took part”.4

“SNP calls for probe over missing Glenrothes by-election record”, Scotsman 3 Feb 2009.

Our security in the integrity of the electoral process rests (rather insecurely at times, it seems) on the laws and routines governing the maintenance of the records of elections.5

The loss of the Glenrothes documents followed a similar loss of marked registers in Woking after the 2005 general election: see Woking Borough Council, “New procedures to tighten up election security”, 20 Dec 2005 (available at http://www.woking.gov.uk/news/archive?item=000043A7E311.C0A801C2.00007B2F.000D).

ELECTION RECORDS

Election records comprise sealed packets containing the ballot papers and the completed “corresponding numbers lists”, which note against each elector's number in the register the number of the ballot paper issued to that person.6

“Corresponding number lists” were introduced by s 31(2) of the Electoral Administration Act 2006, and have replaced the system of noting elector numbers on ballot paper counterfoils.

Also included (and similarly sealed) are copies of the electoral register marked to denote who voted in the election (the “marked register”).7

Other retained documents are lists of certain categories of voter (those who required assistance to vote, or whose entry in the register was corrected after its publication). Also included are tendered ballot papers (cast by electors arriving at the poll to discover that a vote has been cast earlier in their name), ballot paper accounts (showing the total number of ballots entrusted to the presiding officer, accounted for as cast, unused, or spoilt papers), and certificates as to employment on duty on the day of poll.

It was the latter documents that were found to be missing from the Sheriff Court in Kirkcaldy. The Political Parties and Elections Act 2009 transfers responsibility for storage of those records from the sheriff clerk to the returning officer, who will retain them after the election.8

Section 25. Election records pertaining to local government and European parliamentary elections are already stored by Scottish local authorities: see Scottish Local Government Elections Order 2007, SSI 2007/42, Sch 1 (the Scottish Local Government Elections Rules) r 45; European Parliamentary Elections Regulations 2004, SI 2004/293, r 59.

This corresponds to the reform by the Electoral Administration Act 2006 of the storage regime in England and Wales, where the documents are now delivered by the presiding officer to the local authority's electoral registration officer.9

Electoral Administration Act 2006 s 41. It is the registration rather than the returning officer who retains records as only the former post is held in English constituencies by a local authority officer (returning officer roles are performed by the High Sheriff in county constituencies and the council chairman in boroughs).

This role was previously performed by the Clerk of the Crown, whose surviving electoral functions include receiving the return of the writ and keeping a book of returned Members of Parliament.10

Representation of the People Act 1983 Sch 1...

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