Challenge to new voter ID pilot dismissed by Court of Appeal

9 June 2020 by Jake Richards

The Government’s announcement that eleven local authorities across England would be taking part in voter ID pilots for the 2019 local elections was controversial. There is a heated debate as to whether citizens should have to provide photo identification before receiving their ballot at elections. For some, it is a straight-forward measure to avoid the risk of fraud. For others, it is a policy that, by design or inadvertently, leads to the disenfranchisement of certain groups.

This debate was not considered by the courts in the challenge to the legality of the pilot schemes brought by Mr Neil Coughlan, a former district councillor from Witham Essex. But the consequences of the decision of the Court of Appeal in R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 could be profound for our electoral law.

The issue before the court was more technical. Section 10 of the Representation of the People Act 2000 (“the 2000 Act”) enables a local authority to submit proposals to the Secretary of State for a pilot scheme under the section ‘to apply to particular local government elections held in the authority’s area’. If the Secretary of State approves the proposals, he or she:

… shall be order make such provision for and in connection with the implementation of the scheme in relation to those elections as he considers appropriate (which may include provision modifying or disapplying any enactment).

A scheme for the purposes of this provision is defined in s.10(2) of the Act which provides:

A scheme under this section is a scheme which makes, in relation to local government elections in the area of a relevant local authority, provision differing in any respect from that made under or by virtue of the Representation of the People Acts as regards one or more of the following, namely –

(a)        When, where and how voting at the elections is to take place;

(b)        How the votes cast at the elections are to be counted;

(c)        The sending by candidates of election communications free of charge for postage

Essentially, the central issue before the court is whether voter ID pilot schemes are schemes for testing ‘how voting’ is to take place.

The Appellant’s case was that the requirement to produce voter ID does not concern how voting takes place, but whether voting is permitted at all. The Respondent disagreed, stating that the words Parliament used include procedures for demonstrating an entitlement to vote as part of the voting process, including a requirement to prove identity. It was argued that current procedures permit entitlement to vote to be demonstrated through questioning.

There was also a wider contention that the purpose of the Act was to encourage voting, but the evidence suggests the proposed scheme will deter voter turnout. This raised issues of legality and a potential breach of fundamental rights.

Background

There is a long history of reports, authored by the executive or parliamentary committees, considering the careful balance of ensuring voting is as easy as possible, whilst eliminating any voter fraud. Examples included the Howarth Report, reviewing electoral proceedings in 1999. This recommended that:

… the Secretary of State should be authorised to amend electoral legislation to approve pilot schemes … pilot schemes would encourage innovation and diversity and offer a real opportunity to see exactly how different approaches can be effective in re-engaging the electorate. Evaluation of such schemes will allow informed judgments to be made as to the effectiveness and security of each new process before a decision is take to roll it out more widely.

This recommendation was accepted by the Government.

In August 2016, the Pickles report was published, which recommended the use of piloting the use of voter ID. In March 2017, the Cabinet Office states that they would run pilots in local elections in 2018.

In July 2018, the Electoral Commission published reports on the pilots carried out in each area and a summary report. They stated that the schemes ‘worked well’ overall, although there was ‘a small number of people who were unable to vote because they did not have, or did not bring the right type of identification’.

On 3rd November 2018, the Cabinet Office announced in a press release that eleven local authorities had been chosen to participate in the pilot schemes. On 4th March 2019 orders were made in relation to the remainder of the pilot schemes, including the pilot scheme for Braintree.

The Submissions

Before Supperstone J at first instance, the Appellant had argued that the scheme orders were outside the power conferred by s.10 because the provision refers to the ‘manner or means’ of voting, but not if a citizen is able to vote. These arguments were rejected and the Appellant appealed.

The grounds of appeal renewed the argument at first instance about the interpretation of ‘how’ in s.10, but also raised broader points. It was submitted that the implications of the pilot schemes stretch beyond the May 2019 elections and may possibly introduce radical new schemes on a permanent basis by statutory instrument leading to a ‘profound change in the English electoral landscape’.

The argument was developed in the context of the principle of legality – the voter identification scheme was an interference by Ministerial Order (with potential for future extension by statutory instrument) with the fundamental right of the citizen to vote and such a measure should not be done through the general words in s.10.

Judgment

McCombe LJ, giving judgment, quickly dismissed the argument that the requirement to provide ID was not part of how one would vote, stating that if a new voter was to ask ‘how do I vote in this election’, the answer would be:

You go to the polling station, produce your ID to the clerk and answer a couple of formal questions if asked. He or she then gives you a ballot paper. You go into a booth and mark a cross on the ballot paper against the name of the person for whom you wish to vote and then you put your paper into a sealed box at the exit of the polling station. [37]

The Appellant’s argument, therefore, received short shrift. It was common ground, after all, that a scheme under s.10 could permit electronic voting and that there would need to be some form of identification of voters in such circumstances.

More broadly, the Appellant had argued that the court must ascertain and give effect to the true meaning of a statute having regard to ‘the purpose which Parliament intended to achieve when it enacted the statute’ (R (Quintavalle) v Secretary of State for Health [2002] 2 AC 687).

Mr Peto QC, on behalf of the Appellant, argued that the dominant purpose of s.10 is to facilitate and encourage voting at elections and that these schemes frustrate that purpose by putting in place obstacles to voting.

It was accepted by the Court of Appeal that the extraneous material produced ‘suggests that the most immediate prompt for this part of the legislation was a perceived decline in voter participation in these elections and Parliament wishes to address that’. It was implied, therefore, that the pilot schemes at best did not encourage voting and at worst discouraged turnout – which the electoral commission confirmed.

However, the court found that it was clear that the 2000 Act was also concerned with other aspect of voting and elections:

It seems to me that [Parliament] was anxious to promote modernisation of the system and its integrity … neither the purpose nor even the dominant purpose of these provisions, is as limited as Mr Peto contends. The facilitating of voting might have been a prominent reason for the Bill, but that is not to say that a forward-looking Act, using very general and broad words, must be taken to have precluded schemes designed to investigate improvements in the voting system overall. [61]

Finally, the Appellant argued that the use of the power conferred in s.10 in the present case served to undermine the fundamental constitutional right to cast a vote in local elections. The power applied to restrict this right conferred by primary legislation in the form of a ministerial order, it was argued, was contrary to the principle of legality set out by Lord Hoffman in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115:

The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the UK, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

The court did not deem the use of ‘pilot’ schemes as overriding or abrogating the right to vote at all. It was held that the voter remains entitled to vote and must only produce sensible means of demonstrating that entitlement. [68]

It was finally noted that more general schemes to enact voter identification can only be exercisable on a recommendation from the Electoral Commission. [69]

Comment

Despite the evidence suggesting that requiring voter identification depletes the turnout at elections, this judgment will give encouragement to those in Government aiming to introduce the scheme on a wider scale. There remain some room for legal challenge, as it was clear that the court’s decision was based in part on the fact that this was a pilot scheme, rather than a general provision. This may not be the end of the story. It also remains to be seen whether this appeal may go further.

Jake Richards is a barrister at 9 Gough Chambers. He tweets @JakeBenRichards