The New Northern Ireland Assembly (Elections) Order 1998

• Citation: S.I. 1998/1287
• Sections: 22

Section 1 Citation and commencement

(1) This Order may be cited as the New Northern Ireland Assembly (Elections) Order 1998.

(2) This Order shall come into force—

(a) on the day on which the provisions of the Northern Ireland (Elections) Act1998, other than sections 2(5) and (6), 3, 6 and 8, come into force by order under section 8(2) of that Act, or

(b) on the day after the day on which this Order is made,

whichever is the later.

Section 2 Interpretation

Unless the context otherwise requires, in this Order and any provision applied by this Order—

“1962 Act” means the Electoral Law Act (Northern Ireland) 1962 ;

“1983 Act” means the Representation of the People Act 1983 ;

“1985 Act” means the Representation of the People Act 1985 ;

“1998 Act” means the Northern Ireland (Elections) Act 1998;

“1985 Order” means the Local Elections (Northern Ireland) Order 1985 ;

“1986 Regulations” means the Representation of the People (Northern Ireland) Regulations 1986 ;

“Assembly” means the New Northern Ireland Assembly and “Assembly election” means an election to that Assembly;

“date of the poll” refers to the date set by section 2(1) of the 1998 Act or, in the caseofa by-election, the date set by the Chief Electoral Officer under article 7(2) below; and

“elections rules” means the rules in Schedule 1 to the 1983 Act, as applied by Schedule1 to this Order.

Section 3 Application of certain provisions for Assembly elections

(1) The provisions of the 1983 Act, the Elections (Northern Ireland) Act 1985 and the 1985 Act which are specified in the left-hand column of Schedule1 to this Order shall, subject to—

(a) any modifications and exceptions specified in relation to those provisions in the right-hand column of that Schedule, and

(b) the provisions of paragraph (3) below,

apply for the purposes of an Assembly election.

(2) The provisions of the 1986 Regulations, the Election Petition Rules 1964 and the Planning (Control of Advertisements) Regulations (Northern Ireland) 1992 which are specified in the left-hand column of Schedule2 to this Order shall, subject to—

(a) any modifications and exceptions specified in relation to those provisions in the right-hand column of that Schedule, and

(b) the provisions of paragraph (3) below,

apply for the purposes of an Assembly election.

(3) Unless the context otherwise requires, in the provisions applied by Schedules 1 and 2 to this Order—

(a) any reference to a parliamentary election (except the references specified in paragraph (5) below) shall be construed as a reference to an Assembly election and a reference to a parliamentary general election shall be construed as a reference to the initial elections to the Assembly to be held under section 2 of the 1998 Act;

(b) any reference to the parliamentary elections rules shall be construed as a reference to those rules as applied for the purposes of Assembly elections;

(c) any reference to a parliamentary elector shall be construed as a reference to an elector entitled to vote at an Assembly election and references to the register of electors shall be construed accordingly;

(d) any reference to a parliamentary election petition shall be construed as a reference to an Assembly election petition;

(e) any reference to an overseas elector shall be disregarded;

(f) any provision having effect only in Great Britain or any part of it, including a provision relating to a local government election or local government electors, shall be disregarded;

(g) any reference to a return in the context of a return to the writ of election and return to Parliament shall be construed as a reference to the declaration of result made by the returning officer under rule 50 of the elections rules;

(h) in the heading of forms G, H, J, K and L in Schedule2 to the 1986 Regulations, for the words “REPRESENTATION OF THE PEOPLE ACTS” there shall be substituted “NEW NORTHERN IRELAND ASSEMBLY ELECTION”; and

(i) any reference to an enactment or instrument made under an enactment shall be construed as a reference to that enactment or instrument as applied by this Order.

(4) Section 72 of the Post Office Act 1969 and section 35(2)(h) of the Judicature (Northern Ireland) Act 1978 shall apply in relation to an Assembly election and an Assembly election petition, respectively, as they apply in relation to a parliamentary election and a parliamentary election petition and as though—

(a) the references in those sections to the 1983 Act were references to that Act as applied by Schedule 1 to this Order; and

(b) the reference in section 72 to a sum charged on, and issued out of, the Consolidated Fund was a reference to a sum paid by the Secretary of State.

(5) The references to “parliamentary election” to which paragraph (3)(a) above does not apply are those in section 160(4) of the 1983 Act and the first reference in section 160(5) of that Act.

Section 4 Returning officer and registration officer

(1) The Chief Electoral Officer for Northern Ireland shall be the returning officer for each constituency.

(2) That Officer shall be the electoral registration officer for the purposes of the provisions applied by this Order (as he is for parliamentary and local elections).

(3) Section 14(5) and 14A(2) and (3) of the 1962 Act (appointment of temporary deputy and delegation to assistants) shall have effect in relation to the Chief Electoral Officer in his capacity as returning officer and electoral registration officer under this Order.

Section 5 Alterations to registers

(1) An alteration made to the register of electors after 3rd June 1998 shall be disregarded for the purposes of the poll on 25th June 1998.

(2) Section 11(3) of the 1983 Act (alterations to the register of elections) shall apply in relation to an Assembly by-election as it applies in relation to a parliamentary election.

Section 6 Substitutes

(1) The Chief Electoral Officer (“the Officer”) shall act in accordance with this article where, after the election of the initial members of the Assembly—

(a) he has been notified by—

(i) an election court or the High Court under section 144 or 146 of the 1983 Act, as applied by article 3 of, and Schedule 1 to, this Order, or

(ii) the presiding officer of the Assembly under paragraph 7 of the Schedule to the 1998 Act,

that a vacancy exists in the seat of a member of the Assembly, and

(b) that member had given a notice under rule 8A of the elections rules (“the relevant notice”).

(2) The Officer shall take such steps as appear to him to be reasonable to contact the person whose name and address appear as the first choice in the relevant notice to ask that person whether he will state in writing that he is willing and able to be returned as a member of the Assembly.

(3) Where—

(a) within such period as the Officer considers reasonable—

(i) he decides that the steps he has taken to contact that person have been unsuccessful, or

(ii) he has not received from that person a statement in writing that he is willing and able to be returned as a member of the Assembly, or

(b) that person has stated in writing that he is not willing or able to be so returned,

the Officer shall repeat the procedure required by paragraph (2) above in respect of the person (if any) whose name and address appear as the second choice in the relevant notice or, where sub-paragraph (a) or (b) above applies in respect of that person, in respect of the person (if any) whose name and address appear as the third choice in that notice; and the Officer shall continue to repeat the procedure until the seat is filled or the names in the list exhausted.

(4) Where a person whose name and address appear in the relevant notice states in writing in response to the question from the Officer under paragraph (2) above (including that paragraph as applied by paragraph (3) above) that he is willing and able to be returned as a member of the Assembly, the Officer shall (subject to paragraph (5) below) declare that person to be so returned.

(5) Where under paragraph (3) above the Officer has asked the person whose name appears as the second or, as the case may be, other subsequent choice in the relevant notice the question set out in paragraph (2) above prior to the receipt of a statement from a person whose name appears as an earlier choice in that notice that he is willing and able to be returned as a member of the Assembly, that statement shall not have effect for the purposes of paragraph (4) above unless—

(a) the first-mentioned person has stated in writing that he is not willing and able to be so returned, or

(b) no statement in writing that he is willing and able to be so returned has been received from him by the Officer in response to the Officer’s question within such period as the Officer considers reasonable.

(6) The Officer shall give public notice of a declaration under paragraph (4) above and send it to the presiding officer of the Assembly.

Section 7 By-elections

(1) This article applies where the Chief Electoral Officer has been notified by—

(a) an election court or the High Court under section 144 or 146 of the 1983 Act, as applied by article 3 of, and Schedule 1 to, this Order, or

(b) the presiding officer of the Assembly under paragraph 7 of the Schedule to the 1998 Act,

that a vacancy exists in the seat of a member of the Assembly and either article 6(1) above does not apply or no person has been declared a member to fill the vacancy under article 6(4) above.

(2) Where this article applies, the Chief Electoral Officer shall set a date as the date of the poll for a by-election to fill the vacancy.

(3) Subsections (2) (the franchise), (3) and (4) (method of election) of section 2 of the 1998 Act and the provisions of this Order (except article 6) shall apply to any by-election as they apply to the election of the initial members of the Assembly.

Section 8A Substitutes

(1) During the time for the delivery of nomination papers, a candidate may give to the returning officer a notice in accordance with paragraph (2) below.

(2) Such a notice shall—

(a) be signed by the candidate,

(b) set out the names and addresses of not more than six persons to act as a substitute for him and indicating, where more than one person is so named, his order of preference.

(3) A substitute is a person who, in the event of the candidate being returned at the election but the seat of that candidate falling vacant, is returned in place of that candidate as a member of the Assembly.

(4) Where a candidate submits more than one notice under this rule without cancelling any other notice, each notice shall be void.

(5) This rule does not apply at a by-election.

Section 44A Interpretation of rules 44B to 44M

In rules 44B to 44M below—

“continuing candidate” means any candidate not deemed to be elected and not excluded;

“count” means all the operations involved in the counting of the first preferences recorded for candidates, the transfer of the surpluses of elected candidates, and the transfer of the votes of excluded candidates;

“deemed to be elected” means deemed to be elected for the purposes of the counting of votes but without prejudice to the declaration of the result of the poll;

“mark” means a figure, a word written in the English language or a mark such as “X”;

“non-transferable vote” means a ballot paper—

on which no second or subsequent preference is recorded for a continuing candidate, or

which is excluded by the returning officer under rule 44G(4) below;

“preference” as used in the following contexts has the meaning assigned below—

“first preference” means the figure “1” or any mark or word which clearly indicates a first (or only) preference;

“next available preference” means a preference which is the second or, as the case may be, subsequent preference recorded in consecutive order for a continuing candidate (any candidate who is deemed to be elected or is excluded thereby being ignored), and

in this context, a “second preference” is shown by the figure “2” or any mark or word which clearly indicates a second preference, a third preference by the figure “3” or any mark or word which clearly indicates a third preference, and so on;

“quota” means the number calculated in accordance with rule 44E below;

“surplus” means the number of votes by which the total number of votes for any candidate (whether first preference or transferred votes, or a combination of both) exceeds the quota; but, references in these rules to the transfer of the surplus means the transfer (at a transfer value) of all transferable papers from the candidate who has the surplus;

“stage of the count” means—

the determination of the first preference vote for each candidate; or

the transfer of a surplus of a candidate deemed to be elected; or

the exclusion of one or more candidates at any given time;

“transferable paper” means a ballot paper on which, following a first preference, a second or subsequent preference is recorded in consecutive numerical order for a continuing candidate;

“transferred vote” means a vote derived from a ballot paper on which a second or subsequent preference is recorded for the candidate to whom that paper has been transferred;

“transfer value” means the value of a transferred vote calculated in accordance with paragraph (4) or (7) of rule 44F below.

Section 44B Preliminary proceedings and conduct of the count

(1) The returning officer shall—

(a) in the presence of the counting agents open each ballot box and count and record the number of ballot papers in it;

(b) in the presence of the election agents verify each ballot paper account; and

(c) count such of the postal ballot papers as have been duly returned and record the number counted.

(2) The returning officer shall not count the votes given on any ballot papers until—

(a) in the case of the postal ballot papers, they have been mixed with the ballot papers from at least one ballot box; and

(b) in the case of ballot papers from a ballot box, they have been mixed with the ballot papers from at least one other ballot box.

(3) A postal ballot paper shall not be deemed to be duly returned unless it is returned in the proper envelope so as to reach the returning officer before the close of the poll and is accompanied by the declaration of identity duly signed and authenticated.

(4) The returning officer shall not count any tendered ballot paper.

(5) The returning officer, while counting and recording the number of ballot papers and counting the votes, shall keep the ballot papers with their faces upwards and take all proper precautions for preventing any person from seeing the numbers printed on the back of the papers.

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

(7) The returning officer shall so far as practicable proceed continuously with counting the votes, allowing only time for refreshment, except that he may, in so far as he and the agents agree, exclude the hours between 7 in the evening and 9 on the following morning.

For the purposes of this exception the agreement of a candidate or his election agent shall be as effective as the agreement of his counting agents.

(8) During the time so excluded the returning officer shall—

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

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

Section 44C Rejected ballot papers

(1) Any ballot paper—

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

(b) on which the figure “1” standing alone is not placed so as to indicate a first preference for any candidate; or

(c) on which the figure “1” standing alone indicating a first preference is set opposite the name of more than one candidate; or

(d) on which anything (other than the printed number on the back) is written or marked by which the voter can be identified; or

(e) which is unmarked or void for uncertainty,

shall be void and not counted, but the ballot paper shall not be void by reason only of carrying the words “one”, “two”, “three”, (and so on) or any other mark instead of a figure if, in the opinion of the returning officer, the word or mark clearly indicates a preference or preferences.

(2) The returning officer shall endorse “Rejected” on any ballot paper which under this rule is not to be counted and if an election agent objects to his decision shall add to the endorsement the words “rejection objected to”.

(3) The returning officer shall prepare a statement showing the number of ballot papers rejected by him under each of sub-paragraphs (a), (b), (c), (d) and (e) of paragraph (1) above and shall, on request, allow any candidate or agent to copy that statement.

(4) The decision of the returning officer on any question arising in respect of a ballot paper shall be final but shall be subject to review on an election petition.

Section 44D First stage

(1) The returning officer shall sort the ballot papers into parcels according to the candidates for whom first preference votes are given.

(2) The returning officer shall then count the number of first preference votes given on ballot papers for each candidate and shall record those numbers.

(3) The returning officer shall also ascertain and record the number of valid ballot papers.

Section 44E The quota

(1) The returning officer shall divide the number of valid ballot papers by a number exceeding by one the number of members to be elected.

(2) The result, increased by one, of the division under paragraph (1) above (any fraction being disregarded) shall be the number of votes sufficient to secure the election of a candidate (in these rules referred to as “the quota”).

(3) At any stage of the count a candidate whose total votes equals or exceeds the quota shall be deemed to be elected, except that at any election where there is only one vacancy a candidate shall not be deemed to be elected until the procedure set out in paragraphs (1) to (3) of rule 44H below has been complied.

Section 44F Transfer of votes

(1) Where the number of first preference votes for any candidate exceeds the quota, the returning officer shall sort all the ballot papers on which first preference votes are given for that candidate into sub-parcels so that they are grouped—

(a) according to the next available preference given on those papers for any continuing candidate, or

(b) where no such preference is given, as the sub-parcel of non-transferable votes.

(2) The returning officer shall count the number of ballot papers in each parcel referred to in paragraph (1) above.

(3) The returning officer shall, in accordance with this rule and rule 44G below, transfer each sub-parcel of ballot papers referred to in paragraph (1)(a) above to the candidate for whom the next available preference is given on those papers.

(4) The vote on each ballot paper transferred under paragraph (3) above shall be at a value (“the transfer value”) which—

(a) reduces the value of each vote transferred so that the total value of all such votes does not exceed the surplus; and

(b) is calculated by dividing the surplus of the candidate from whom the votes are being transferred by the total number of the ballot papers on which those votes are given, the calculation being made to two decimal places (ignoring the remainder if any).

(5) Where at the end of any stage of the count involving the transfer of ballot papers, the number of votes for any candidate exceeds the quota, the returning officer shall sort the ballot papers in the sub-parcel of transferred votes which was last received by that candidate into separate sub-parcels so that they are grouped—

(a) according to the next available preference given on those papers for any continuing candidate, or

(b) where no such preference is given, as the sub-parcel of non-transferable votes.

(6) The returning officer shall, in accordance with this rule and rule 44G below, transfer each sub-parcel of ballot papers referred to in paragraph (5)(a) above to the candidate for whom the next available preference is given on those papers.

(7) The vote on each ballot paper transferred under paragraph (6) shall be at—

(a) a transfer value calculated as set out in paragraph (4)(b) above, or

(b) at the value at which that vote was received by the candidate from whom it is now being transferred,

whichever is the less.

(8) Each transfer of a surplus constitutes a stage in the count.

(9) Subject to paragraph (10) below, the returning officer shall proceed to transfer transferable papers until no candidate who is deemed to be elected has a surplus or all the vacancies have been filled.

(10) Transferable papers shall not be liable to be transferred where any surplus or surpluses which, at a particular stage of the count, have not already been transferred, are—

(a) less than the difference between the total vote then credited to the continuing candidate with the lowest recorded vote and the vote of the candidate with the next lowest recorded vote, or

(b) less than the difference between the total votes of the two or more continuing candidates, credited at that stage of the count with the lowest recorded total numbers of votes and the candidate next above such candidates.

(11) This rule shall not apply at an election where there is only one vacancy.

Section 44G Supplementary provisions on transfer

(1) If, at any stage of the count, two or more candidates have surpluses, the transferable papers of the candidate with the highest surplus shall be transferred first, and if—

(a) the surpluses determined in respect of two or more candidates are equal, the transferable papers of the candidate who had the highest recorded vote at the earliest preceding stage at which they had unequal votes, shall be transferred first, and

(b) the votes credited to two or more candidates were equal at all stages of the count, the returning officer shall decide between those candidates by lot and the transferable papers of the candidate on whom the lot falls shall be transferred first.

(2) The returning officer shall, on each transfer of transferable papers under rule 44F above—

(a) record the total value of the votes transferred to each candidate;

(b) add that value to the previous total of votes recorded for each candidate and record the new total;

(c) record as non-transferable votes the difference between the surplus and the total transfer value of the transferred votes and add that difference to the previously recorded total of non-transferable votes, and

(d) compare—

(i) the total number of votes then recorded for all of the candidates, together with the total number of non-transferable votes, with

(ii) the recorded total of valid first preference votes.

(3) All ballot papers transferred under rule 44F above or 44H below shall be clearly marked, either individually or as a sub-parcel, so as to indicate the transfer value recorded at that time to each vote on that paper or, as the case may be, all the papers in that sub-parcel.

(4) Where a ballot paper is so marked that it is unclear to the returning officer at any stage of the count under rule 44F or 44H for which candidate the next preference is recorded, the returning officer shall treat any vote on that ballot paper as a non-transferable vote; and votes on a ballot paper shall be so treated where, for example, the names of two or more candidates (whether continuing candidates or not) are so marked that, in the opinion of the returning officer, the same order of preference is indicated or the numerical sequence is broken.

Section 44H Exclusion of candidates

(1) If—

(a) all transferable papers which under the provisions of rule 44F above (including that rule as applied by paragraph (11) below) and this rule are required to be transferred, have been transferred, and

(b) subject to rule 44J below, one or more vacancies remain to be filled,

the returning officer shall exclude from the election at that stage the candidate with the then lowest vote (or, where paragraph (12) below applies, the candidates with the then lowest votes).

(2) The returning officer shall sort all the ballot papers on which first preference votes are given for the candidate or candidates excluded under paragraph (1) above into two sub-parcels so that they are grouped as—

(a) ballot papers on which a next available preference is given, and

(b) ballot papers on which no such preference is given (thereby including ballot papers on which preferences are given only for candidates who are deemed to be elected or are excluded).

(3) The returning officer shall, in accordance with this rule and rule 44G above, transfer each sub-parcel of ballot papers referred to in paragraph (2)(a) above to the candidate for whom the next available preference is given on those papers.

(4) The exclusion of a candidate, or of two or more candidates together, constitutes a further stage of the count.

(5) If, subject to rule 44J below, one or more vacancies still remain to be filled, the returning officer shall then sort the transferable papers, if any, which had been transferred to any candidate excluded under paragraph (1) above into sub-parcels according to their transfer value.

(6) The returning officer shall transfer those papers in the sub-parcel of transferable papers with the highest transfer value to the continuing candidates in accordance with the next available preferences given on those papers (thereby passing over candidates who are deemed to be elected or are excluded).

(7) The vote on each transferable paper transferred under paragraph (6) above shall be at the value at which that vote was received by the candidate excluded under paragraph (1) above.

(8) Any papers on which no next available preferences have been expressed shall be set aside as non-transferable votes.

(9) After the returning officer has completed the transfer of the ballot papers in the sub-parcel of ballot papers with the highest transfer value he shall proceed to transfer in the same way the sub-parcel of ballot papers with the next highest value and so on until he has dealt with each sub-parcel of a candidate excluded under paragraph (1) above.

(10) The returning officer shall after each stage of the count completed under this rule—

(a) record—

(i) the total value of votes, or

(ii) the total transfer value of votes

transferred to each candidate;

(b) add that total to the previous total of votes recorded for each candidate and record the new total;

(c) record the value of non-transferable votes and add that value to the previous non-transferable votes total; and

(d) compare—

(i) the total number of votes then recorded for each candidate together with the total number of non-transferable votes, with

(ii) the recorded total of valid first preference votes.

(11) If after a transfer of votes under any provision of this rule, a candidate has a surplus, that surplus shall be dealt with in accordance with paragraphs (5) to (10) of rule 44F and rule 44G.

(12) Where the total of the votes of the two or more lowest candidates, together with any surpluses not transferred, is less than the number of votes credited to the next lowest candidate, the returning officer shall in one operation exclude such two or more candidates.

(13) If when a candidate has to be excluded under this rule, two or more candidates each have the same number of votes and are lowest—

(a) regard shall be had to the total number of votes credited to those candidates at the earliest stage of the count at which they had an unequal number of votes and the candidate with the lowest number of votes at that stage shall be excluded; and

(b) where the number of votes credited to those candidates was equal at all stages, the returning officer shall decide between the candidates by lot and the candidate on whom the lot falls shall be excluded.

Section 44J Filling of last vacancies

(1) Where the number of continuing candidates is equal to the number of vacancies remaining unfilled the continuing candidates shall thereupon be deemed to be elected.

(2) Where only one vacancy remains unfilled and the votes of any one continuing candidate are equal to or greater than the total of votes credited to other continuing candidates together with any surplus not transferred, the candidate shall thereupon be deemed to be elected.

(3) Where the last vacancies can be filled under this rule, no further transfer of votes shall be made.

Section 44K Re-count

(1) The returning officer on completion of each stage of the count shall, before proceeding with the next stage, inform all the candidates and their election agents then present of his intention, subject to a request for a re-count, to proceed to the next stage.

(2) The returning officer shall comply with a request from a candidate or his election agent for a re-count of the last completed stage made before the returning officer proceeds to the next stage, but nothing in this rule shall require the returning officer to re-count the same parcel or sub-parcel more than once.

(3) The returning officer may, if he thinks fit, re-count ballot papers either once or more often.

(4) Where as a result of a re-count an error is discovered, the returning officer shall, where necessary, amend any results previously announced by him.

Section 44L Order of election of candidates

(1) The order in which candidates whose votes equal or exceed the quota are deemed to be elected shall be the order in which their respective surpluses were transferred, or would have been transferred but for rule 44F(10) above.

(2) A candidate credited with a number of votes equal to, and not greater than, the quota shall, for the purposes of this rule, be regarded as having had the smallest surplus at the stage of the count at which he obtained the quota.

(3) Where the surpluses of two or more candidates are equal and are not required to be transferred, regard shall be had to the total number of votes credited to such candidates at the earliest stage of the count at which they had an unequal number of votes and the surplus of the candidate who had the greatest number of votes at that stage shall be deemed to be the largest.

(4) Where the number of votes credited to two or more candidates were equal at all stages of the count, the returning officer shall decide between them by lot and the candidate on whom the lot falls shall be deemed to have been elected first.

Section 44M Decisions of returning officer

The decision of the returning officer, whether expressed or implied, on any question which arises in relation to the exclusion of any candidate under rule 44H or to any ballot paper or transfer of votes shall be final, but may be reviewed on an election petition.

Section 1

Mark your vote by putting “1” against the candidate of your first choice, “2” against the candidate of your second choice and so on. Do this secretly; if you cannot vote without assistance, the person assisting you must not disclose how you have voted.

Section 2

You may show your preference for as many or as few candidates as you wish but you should not show the same preference against more than one candidate. Put no other mark on the ballot paper, or your vote may not be counted.