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High Court dismisses challenge to lawfulness of Voter ID pilots

20/03/19

Mr Justice Supperstone today rejected a challenge to the piloting of voter identification requirements in ten local authorities in the upcoming May local elections: Coughlan v the Minister for the Cabinet Office [2019] EWHC 641.

The pilot schemes make temporary changes to the rules governing local government elections, permitting the testing of new identification requirements at the polling station. Whilst currently voters can be asked questions to confirm their identity, those local authorities participating in the pilot schemes will require voters to present identification in order to be given their ballot paper. Different types of identification are to be trialled, including presenting the polling card, photographic ID and a combination of photographic and non-photographic ID. In all cases, voters lacking the required identification documents can obtain for free a locally-produced document which will satisfy the requirements.

Following the running of similar schemes in the 2018 local elections, the Minister invited local authorities to take part in further pilots. Various local authorities decided to take part, including Braintree where the Claimant is resident. He brought a claim challenging the Minister’s power to make the Orders that are necessary for the schemes to go ahead.

That power is found in section 10(1) of the Representation of the People Act 2000, which permits the Minister, upon consultation with the Electoral Commission, to make by order “provision for and in connection with the implementation of” a “scheme” submitted to her by a local authority. Section 10(2)(a) defines a “scheme” as one which makes “provision differing in any respect from that made under or by virtue of the Representation of the People Acts as regards [inter alia]…when, where and how voting at the elections is to take place”.

The Claimant argued that schemes piloting voter ID requirements are ultra vires section 10 because (a) they are not schemes relating to “how” voting at elections is to take place within the meaning of s. 10(2)(a), but rather relate to “whether” voting can take place at all, and (b) the power under s. 10(1) can only be exercised for the purpose of facilitating and encouraging voting at elections, whereas the dominant purpose of these pilot schemes was to combat electoral fraud.

Mr Justice Supperstone rejected both of these arguments. In relation to the construction argument, he found that the natural and ordinary meaning of the words “how voting at elections is to take place” is broad enough to encompass procedures for demonstrating an entitlement to vote, including by proving identity, as part of a voting process. This, coupled with various other indicators of meaning, including that the words were accepted to permit pilots of electronic voting which must encompass the imposition of identification requirements, meant that the pilot schemes could not fall outside the language of the section.

In rejecting the purposes argument, the Judge considered that the background material did not support the Claimant’s contention that the only (or dominant) public interest to which the power under s. 10(1) can be directed is to facilitate and encourage voting at elections. Rather, the Judge held that the s. 10(1) power was intended to allow proposed changes to local government electoral procedures from time to time existing to be tested. He was satisfied that the Minister’s objective in exercising of the discretion (which was to mitigate risks to the integrity of the electoral process and improve voter confidence by modernising electoral procedures and reducing the perception of and opportunity for fraud) did not frustrate the legislation’s purpose.

The Judgment is available here.

Emily MacKenzie appeared for the Defendant, the Minister for the Cabinet Office. She was instructed by the Government Legal Department.