Constitutional Law Citation, commencement and extent 1 1 This Order may be cited as the National Assembly for Wales Referendum (Assembly Act Provisions) (Referendum Question, Date of Referendum Etc.) Order 2010. 2 This Order comes into force on the day after the day on which it is made. 3 The modifications made by this Order have the same extent as the enactments modified. Interpretation etc. 2 1 In this Order, except where the context requires otherwise— “the 1983 Act ” means the Representation of the People Act 1983 ; “the 2000 Act ” means the Political Parties, Elections and Referendums Act 2000; “the 2006 Act ” means the Government of Wales Act 2006; “the 2001 Regulations ” means the Representation of the People (England and Wales) Regulations 2001 ; “the 2007 Order ” means the National Assembly for Wales (Representation of the People) Order 2007 ; “absent voter” means an elector who is entitled to vote by proxy in the referendum or an elector or proxy who is entitled to vote by post in the referendum; and absent vote is to be construed accordingly; “anonymous entry” in relation to a register is to be construed in accordance with section 9B of the 1983 Act and “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 ; “available for inspection” means available for inspection during ordinary office hours; “Chief Counting Officer” means the Chief Counting Officer for the referendum ; “ the Commission ” means the Electoral Commission established by section 1 of the 2000 Act; “counting agent” means a person appointed under rule 17(1)(b) of the Referendum Rules ; “counting officer”, in relation to a voting area, means the officer appointed for that area under section 128(3) of the 2000 Act; “designated counting agent” means a counting agent designated under rule 17(2) of the Referendum Rules; “disability”, in relation to doing a thing, includes the short term inability to do it; “elector” means any person entitled to vote on that person’s own behalf in the referendum ; “electoral number” means a person’s number in the register to be used in the referendum ; “legal incapacity” includes any disqualification imposed by this Order or by any other enactment; “list of proxies” means the list kept under paragraph 4(3) of Schedule 1; “permitted participant” has the same meaning as in section 105(1) of the 2000 Act; “polling agent” means a person appointed under rule 17(1)(a) of the Referendum Rules; “postal ballot paper” means a ballot paper issued to a postal voter; “postal proxy” means a person entitled to vote by post as proxy in the referendum; “postal voter” means an elector or proxy who is entitled to vote by post in the referendum; “postal voters list” means the list kept under paragraph 4(2) of Schedule 1; “postal voting statement” is the form B set out in Schedule 6 that is to be sent with the postal ballot paper to a postal voter in accordance with rule 12 of the Referendum Rules; “presiding officer” is to be read in accordance with rule 14 of the Referendum Rules; “proxy postal voters list” means the list kept under paragraph 6(8) of Schedule 1; “qualifying address” has the same meaning as in section 9(8)(b) of the 1983 Act; “qualifying Commonwealth citizen” means a Commonwealth citizen who is either— not a person who requires leave under the Immigration Act 1971 to enter or remain in the United Kingdom, or is such a person but for the time being has (or is, by virtue of any enactment, to be treated as having) indefinite leave to remain within the meaning of that Act, but a person is not a qualifying Commonwealth citizen if he does not require leave to enter or remain in the United Kingdom by virtue only of section 8 of the Immigration Act 1971 (exceptions to requirement for leave in special cases); “the referendum” means the referendum under article 3; “referendum agent” means a person appointed under article 18; “the referendum period” means the period specified in article 5; “Referendum Rules” means the rules for the conduct of the referendum set out in Schedule 3; “register” means the register of local government electors; “registration officer” has the meaning given by section 8 of the 1983 Act; “relevant citizen of the Union” means a citizen of the Union who is not a qualifying Commonwealth citizen nor a citizen of the Republic of Ireland and “citizen of the Union” is to be construed in accordance with Article 20 of the Treaty on the Functioning of the European Union; “relevant registration officer” is to be construed in accordance with rule 42(3) of the Referendum Rules; “relevant time” means 5p.m. on the eleventh day before the day of the poll in the referendum; “responsible person” has the same meaning as in section 105(2) of the 2000 Act; “service voter” means a person who has made a service declaration in accordance with section 15 of the 1983 Act and is registered or entitled to be registered in pursuance of it; “universal service provider” has the same meaning as in the Postal Services Act 2000 ; “valid postal voting statement” means a postal voting statement, which, in accordance with paragraph 19 or 20 of Schedule 2, the counting officer is satisfied has been duly completed; “voter” means a person voting in the referendum and includes a person voting as proxy and, except in the Referendum Rules, a person voting by proxy, and “vote” (whether noun or verb) is to be construed accordingly, except that in those Rules any reference to an elector voting or an elector’s vote includes a reference to an elector voting by proxy or elector’s vote given by proxy; and “voting area” means a county or county borough in Wales. 2 For the purposes of this Order a person is to be deemed not to have attained a given age until the commencement of the relevant anniversary of the day of that person’s birth. 3 A power conferred by this Order to give a direction includes power to vary or revoke the direction. Referendum and date of poll 3 1 A referendum is to be held throughout Wales about whether the Assembly Act provisions should come into force . 2 The poll at the referendum must be held on 3rd March 2011. Referendum question and statement 4 1 The question, in English and Welsh, that is to appear on the ballot papers in the referendum is — Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?” “A ydych yn dymuno i’r Cynulliad allu llunio deddfau ar bob mater yn yr 20 maes pwnc y mae ganddo bwerau ynddynt? 2 The statement, in English and Welsh, that is to precede the question on the ballot papers is— Referendum period 5 For the purposes of Part 7 of the 2000 Act, the referendum period for the referendum begins with the date on which this Order comes into force and ends with the date of the poll at the referendum. Polling districts and polling places 6 1 Every voting area must be divided into the same polling districts, each with the same polling place, as would have effect for the purposes of local government elections if held for that area on the day of the poll at the referendum. 2 Paragraph (1) has effect subject to any direction of a counting officer changing polling districts or polling places where the counting officer considers it necessary to do so by reason of special circumstances. 3 The referendum is not to be questioned by reason of — a any non-compliance with the provisions of this article, or b any irregularity relating to polling districts or polling places. Other voting provisions 7 1 Schedule 1 makes further provision about voting in the referendum, including — a provision about the manner of voting (including provision for absent voting); and b provision about the register. 2 Schedule 2 makes provision about the issue and receipt of postal ballot papers. 3 A person is not subject to any incapacity to vote in the referendum by reason of being the Chief Counting Officer, a Deputy Chief Counting Officer or a counting officer. Rules for the conduct of the referendum 8 Schedule 3 makes provision about the rules for the conduct of proceedings in the referendum. The Chief Counting Officer and Deputy Chief Counting Officers 9 1 The Chief Counting Officer must do all such acts and things as may be necessary for effectually conducting the referendum in the manner provided by this Order. 2 The Chief Counting Officer may appoint one or more Deputy Chief Counting Officers. 3 The appointment of a person to be a Deputy Chief Counting Officer— a must be made in writing, and b may be made on such terms as the person making the appointment thinks fit. 4 The Chief Counting Officer may authorise a Deputy Chief Counting Officer to exercise any function of the Chief Counting Officer. 5 When authorised to exercise functions of the Chief Counting Officer, the Deputy Chief Counting Officer must exercise those functions with a view to ensuring the referendum is conducted effectually in the manner provided by this Order. Counting officers 10 1 If a counting officer for a voting area dies, resigns or is removed from office, the Chief Counting Officer must appoint another person to be the counting officer for that area. 2 The counting officer for each voting area must, as regards that area, do all such acts and things as may be necessary for effectually conducting the referendum in the manner provided by this Order. 3 A counting officer for each voting area is responsible, as regards that area, for— a the conduct of the poll; b the issue and receipt of postal ballot papers for absent voters in the referendum; c the verification of the ballot paper accounts at the poll; and d the counting of the votes cast in the poll. 4 A counting officer may, in writing, authorise any person appointed by the counting officer to exercise any of the counting officer’s functions. Supplementary 11 1 The Chief Counting Officer may give general or specific directions to relevant counting officers — a relating to the discharge of their functions in the referendum; b requiring them to take specified steps in preparation for the referendum; or c requiring them to provide to the Chief Counting Officer any information which the relevant counting officer has or is entitled to have. 2 It is the duty of a relevant counting officer to whom directions are given under paragraph (1) to discharge the officer’s functions in the referendum in accordance with the directions. 3 The referendum is not liable to be questioned by reason of a defect in the appointment of the Chief Counting Officer, or a relevant counting officer, if that person was then in actual possession of, or acting in, that office. 4 Articles 9(4) and 10(4) do not allow the Chief Counting Officer or a counting officer to transfer to another person the duty imposed on each of the under respectively sections 128(5) or (6) of the 2000 Act (Chief Counting Officer and counting officer for referendums). 5 In this article “relevant counting officer” means— a a Deputy Chief Counting Officer; and b a counting officer. 6 In paragraph (1)(a) “functions” does not include the counting officer’s function under sections 128(5) of the 2000 Act. Correction of procedural errors 12 1 A counting officer may take such steps as the officer thinks appropriate to remedy any act or omission on the officer’s part, or on the part of a relevant person, which — a arises in connection with any function the counting officer or relevant person has in relation to the referendum, and b is not in accordance with the Referendum Rules or any other requirements applicable to the referendum. 2 A counting officer may not under paragraph (1) re-count the votes given in the referendum once a direction has been given by the Chief Counting Officer under rule 39 of the Referendum Rules. 3 For the purposes of paragraph (1), each of the following is a relevant person — a a registration officer; b a presiding officer; c a person providing goods or services to the counting officer; d a deputy of any person mentioned in sub-paragraphs (a) to (c); and e a person (“A”) appointed to assist or, in the course of A’s employment, assisting any person (“P”) mentioned in sub-paragraphs (a) to (c) in connection with any function that P has in relation to the referendum. 4 In this article, references to a counting officer include the Chief Counting Officer and a Deputy Chief Counting Officer. Payments to counting officers 13 1 A counting officer is entitled to recover that counting officer’s charges in respect of services rendered, or expenses incurred, for, or in connection with, the referendum if — a the services were necessarily rendered, or the expenses were necessarily incurred, for the efficient and effective conduct of the referendum, and b the total of the charges does not (subject to paragraph (3)) exceed the amount (referred to in this article as the “overall maximum recoverable amount”) specified in, or determined in accordance with, an Order made by the Welsh Ministers. 2 An Order under paragraph (1) may specify, or make provision for determining in accordance with the order, a maximum recoverable amount for services or expenses of any specified description and, subject to paragraph (3), the counting officer may not recover more than that amount in respect of any such services or expenses. 3 The Welsh Ministers may, in a particular case, authorise the payment of — a more than the overall maximum recoverable amount, or b more than the specified maximum recoverable amount for any specified services or expenses, if the Welsh Ministers are satisfied that the conditions in paragraph (4) are met. 4 The conditions referred to in paragraph (3) are — a that it was reasonable for the counting officer concerned to render the services or incur the expenses; and b that the charges in question are reasonable. 5 The power to make orders under paragraph (1) is exercisable by statutory instrument and for the purpose of section 1 of the Statutory Instruments Act 1946 this provision is to have effect as if contained in an Act of Parliament. 6 Any Order under paragraph (1) may make different provision for different purposes and may contain such incidental, supplemental, saving or transitional provision as the Welsh Ministers think fit. 7 The Welsh Ministers must pay the amount of any charges recoverable in accordance with this article on an account being submitted to them but the Welsh Ministers may, if they think fit, before payment, apply for the account to be taxed under the provisions of article 14. 8 Where the superannuation contributions required to be paid by a local authority within the meaning of the Local Government Act 1972 in respect of any person are increased by any fee paid in accordance with this article as part of a counting officer’s charges in the referendum then on an account being submitted to the Welsh Ministers, a sum equal to the increase must be paid by the Welsh Ministers to the authority. 9 On a counting officer’s request for an advance on account of that counting officer’s charges, the Welsh Ministers may, on such terms as they think fit, make such an advance. 10 The Welsh Ministers may by regulations make provision as to the time when and the manner and form in which accounts are to be rendered to them for the purpose of the payment of a counting officer’s charges and such regulations may make different provision for different purposes. 11 Any sums payable by the Welsh Ministers in accordance with this article are to be charged on the Welsh Consolidated Fund. Taxation of counting officers’ accounts 14 1 An application for a counting officer’s account to be taxed is to be made to the county court and in paragraphs (2) to (5) “the court” means the county court. 2 On any such application the court has jurisdiction to tax the account in such manner and at such time and place as the court thinks fit, and finally to determine the amounts payable to the counting officer. 3 On any such application the counting officer may apply to the court to examine any claim made by any person (“the claimant”) against the counting officer in respect of matters charged in the account. 4 In a case to which paragraph (3) applies, after notice given to the claimant and after giving the claimant an opportunity to be heard and to tender any evidence, the court may allow or disallow or reduce the claim objected to with or without costs. 5 The determination of the court in accordance with this article is final for all purposes and against all persons. Accounts of the Welsh Ministers 15 1 If directed to do so by the Treasury, the Welsh Ministers must prepare accounts in respect of their expenditure in relation to the referendum. 2 Accounts under this article must be prepared in accordance with directions given to the Welsh Ministers by the Treasury. 3 Directions under paragraph (2) may include, in particular, directions as to— a the information to be included in the accounts and the manner in which it is to be presented; b the methods and principles in accordance with which the accounts are to be prepared; and c the additional information (if any) that is to accompany the accounts. 4 The Welsh Ministers must send the accounts under this paragraph to the Auditor General for Wales as soon as may be practicable after the giving of the direction under paragraph (1). 5 The Auditor General for Wales must — a examine, certify and report on accounts sent under paragraph (4), and b lay a copy of the accounts together with the Auditor General’s report on them before the National Assembly for Wales. Explanatory material 16 The Commission must take such steps, as they think appropriate, to promote public awareness in Wales about the referendum, the subject matter of the referendum and how to vote in the referendum. Supply of full register to the Commission 17 Regulation 100 (supply of free copy of full register etc. to Commission and restrictions on use) of the 2001 Regulations applies in relation to the referendum as if— a in paragraph (3)(c), at the end, there were inserted “or Schedule 6 to the Government of Wales Act 2006”, and b references to the 2000 Act were references to that Act as modified by this Order. Referendum agents 18 1 A permitted participant may, for any voting area, appoint an individual (who may be the responsible person) to act as the permitted participant’s agent (“referendum agent”). 2 If a permitted participant appoints a referendum agent for a voting area, the responsible person must give the counting officer for the area notification of the name and home or business address of— a the permitted participant; and b the referendum agent. 3 The notification must be given before noon on the 16th day before the date of the poll, and rule 2 of the Referendum Rules applies for the purposes of calculating that period of time. 4 The notification must be in writing and signed by the responsible person. 5 The duties imposed on a responsible person by this paragraph may be discharged by any person authorised in writing by the responsible person. 6 If a counting officer is notified under paragraph (2) that a permitted participant has appointed a referendum agent, the counting officer must as soon as practicable give public notice of— a the name and address of the referendum agent; and b the name of the permitted participant. 7 If— a a permitted participant revokes the appointment of a referendum agent or a referendum agent dies; and b the referendum agent has notified the counting officer of the appointment of a polling or counting agent under rule 17 of the Referendum Rules, the permitted participant must as soon as possible appoint another referendum agent under this article. 8 That notification must be made as soon as possible after the appointment of the new referendum agent (rather than in accordance with paragraph (3)). Translations etc. of certain documents 19 1 Paragraphs (2) and (3) apply to any document which under or by virtue of this Order is required or authorised to be given to voters or displayed in any place for the purposes of the referendum. 2 The person who is required or authorised to give or display the document must give or display or otherwise make available in such form as that person thinks appropriate — a the document in Braille; b the document in languages other than English and Welsh; c graphical representations of the information contained in the document; and d other means of making the information accessible to persons who might not otherwise have reasonable access to the information. 3 The person required or authorised to give or display the document must also make available the information contained in the document in such audible form as that person thinks appropriate. 4 Paragraphs (2) and (3) do not apply to the ballot paper. Public notices and declarations 20 1 A public notice required by or under this Order to be given by a counting officer must be given by posting the notice in some conspicuous place or places in the counting officer’s area. 2 The notice may also be given in such other manner as the counting officer thinks desirable for publicising it. 3 Any person before whom a declaration is authorised to be made under this Order may take the declaration. Sending of applications and notices: electronic signatures and related certificates 21 1 The requirement in this Order that any application or notice should be in writing is satisfied where (apart from the usual meaning of that expression) the text of it — a is transmitted by electronic means; b is received in legible form; and c is capable of being used for future reference. 2 The requirement in this Order for an application or notice to be signed is satisfied (as an alternative to a signature given by hand) where there is— a an electronic signature incorporated into or logically associated with a particular electronic communication, and b the certification by any person of such a signature. 3 For the purposes of this Order an electronic signature is so much of anything in electronic form as — a is incorporated into or otherwise logically associated with any electronic communication or both; and b purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication, the integrity of the communication or both. 4 For the purposes of this Order an electronic signature incorporated into or associated with a particular electronic communication is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that— a the signature, b a means of producing, communicating or verifying the signature, or c a procedure applied to the signature, is (either alone or in combination with other factors) a valid means of establishing the authenticity of the communication, the integrity of the communication or both. Publication and copies of documents 22 1 Any failure to publish a document in accordance with this Order does not invalidate the document, but this provision does not relieve any person from any penalty for such a failure. 2 Where a document is made available for inspection, any person may make a copy (whether in handwriting or by other means) of the whole or any part of such a document. 3 Paragraph (2) does not apply to copies of information covered by paragraph 21(1) of Schedule 1 nor to any of the documents open to public inspection by virtue of rule 44 of the Referendum Rules. Advertisements 23 The Town and Country Planning (Control of Advertisements) Regulations 1992 apply in relation to the display on any site in Wales of an advertisement relating specifically to the referendum as they apply in relation to the display of an advertisement relating specifically to a pending election to which those Regulations apply. Non-domestic rating: premises used for referendum purposes 24 Section 65(6) of the Local Government Finance Act 1988 (occupation for election meetings and polls) has effect as if — a the reference to public meetings in furtherance of a person’s candidature at an election included a reference to public meetings to promote or procure a particular answer in relation to the question asked in the referendum, and b the reference to use by a returning officer for the purpose of taking the poll in an election included a reference to use by a counting officer for the purpose of taking the poll at the referendum. Loan of equipment for referendum 25 1 Any ballot boxes, fittings and compartments provided for parliamentary elections out of money provided by Parliament may, on request, be lent to a counting officer for the referendum on such terms and conditions as the Secretary of State may determine. 2 Any ballot boxes, fittings and compartments provided by or belonging to a local authority within the meaning of the Local Government Act 1972 must, on request (if not required for immediate use by that authority), be lent to a counting officer for the referendum on such terms and conditions as may be agreed. Offences 26 Schedule 4 makes provision about offences. Modifications of enactments 27 Schedule 5 makes provision about the application to the referendum, with modifications, of Acts and statutory instruments. Forms: general 28 1 Subject to paragraph (2), the forms set out in Schedule 6 may be used with such variations as the circumstances may require, including adapting the forms in order to use any electronic template provided by the Commission to counting officers and registration officers to assist them in providing such forms. 2 Paragraph (1) does not apply to the form of the ballot paper. 3 Without prejudice to the power conferred by paragraph (1), where any form to which that paragraph applies is set out in English and in Welsh in this Order so that it is set out in English first and then in Welsh, that form may be varied so that — a the English and Welsh parts are combined, or b it is set out in Welsh first and then in English. 4 Where any form is required to be completed by any person, and it is a form set out in this Order referred to in paragraph (3), such form may be validly completed by completion of either the English or the Welsh part. Judith Simpson Clerk to the Privy Council