Court of Appeal upholds finding that Voter ID pilots were lawful

10/06/20

On 5 June 2020, the Court of Appeal dismissed the appeal in Coughlan v Minister for the Cabinet Office [2020] EWCA Civ 723, finding that the piloting of voter identification requirements in ten local authorities in the May 2019 local elections was lawful.

The pilot schemes made temporary changes to the rules governing local government elections, permitting the testing of new identification requirements at the polling station. Whilst normally voters can be asked questions to confirm their identity, the local authorities that participated in the pilot schemes required voters to present identification in order to be given their ballot paper. Different types of identification were 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 could obtain for free a locally-produced document which satisfied the requirements.

The Appellant challenged the Minister’s power to make the Orders that were required for the schemes to go ahead and the claim was heard on an expedited basis at a rolled-up hearing on 7 March 2019.

The Appellant claimed that the pilot schemes were ultra vires s.10 of the Representation of the People Act 2000, which permits the Minister to make schemes, which make “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 Appellant argued that (i) these were not schemes relating to “how” voting at elections is to take place, but rather relating to “whether” voting can take place at all, and (ii) the power under s. 10(1) could 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.

Supperstone J dismissed the claim in his judgment of 20 March 2019 and the pilot schemes went ahead in the May 2019 local elections. The Court of Appeal agreed with Supperstone J that the pilot schemes were lawful, essentially agreeing with his reasoning.

In particular, the Court of Appeal found that presenting ID was part and parcel of the procedure for “how voting… is to take place” and that the broader statutory context did not displace that conclusion. It also found that the purpose of the power was broader than the Appellant suggested and included schemes aiming to promote the modernisation of the system and its integrity.

The judgment contains important remarks on the principles of statutory construction, the identification of the purposes for which a statutory power may lawfully be exercised, the admissibility of extraneous materials to those exercises and the nature of the right to vote at local government elections.

The judgment is here.