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The Supreme Court finds voter ID pilots lawful

The Supreme Court has upheld a finding that Voter ID pilots were lawful. Emily MacKenzie analyses the ruling.

On 27 April 2022, the Supreme Court dismissed the appeal in Coughlan v Minister for the Cabinet Office [2022] UKSC 11, 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 voters can normally be asked only two 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 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, which power is found in s.10 of the Representation of the People Act 2000. Section 10 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”.

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The Appellant claimed that the pilot schemes were ultra vires s.10, because (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.

The Supreme Court has now dismissed the appeal against that finding on all grounds. Lord Stephens, giving the Court’s unanimous judgment, construed s.10 by reference to the language used by Parliament (including a purposive interpretation of that language) and, on a secondary basis, by reference to external materials. He concluded that the word “how” in section 10(2)(a) simply indicates the steps by which electors achieve the casting of a lawful vote [41], which encompasses identification requirements [47]. In particular, he rejected the Appellant’s reliance on the principle of legality on the basis that Parliament has chosen in section 10 to authorise schemes that could have adverse effects on the exercise of the right to vote [53].

Finally, he rejected the Padfield challenge, namely that the pilot schemes were not authorised for a lawful purpose under s.10, consistent with the policy and objects of the Act. He found that the statutory purpose of s.10 was not limited to facilitating or encouraging voting as the Appellant had suggested, but rather is “to enable pilot schemes temporarily modifying the existing arrangements in relation to particular local government elections so as to permit evidence to be gathered as to the effects of such changes at real elections and for that evidence to be assessed” [52]. The pilot schemes had been authorised for that lawful purpose

Emily MacKenzie is a barrister at Brick Court Chambers. She appeared for the Respondent, the Minister for the Cabinet Office. She was instructed by the Government Legal Department.

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