Supreme Court rejects appeal over introduction of voter ID pilot schemes in May 2019 local government elections

The Supreme Court has dismissed an appeal over the lawfulness of pilot schemes that introduced a requirement for voter identification in the May 2019 local elections for ten council areas.

In Coughlan, R (on the application of) v Minister for the Cabinet Office [2022] UKSC 11 the claimant sought to challenge orders made by the minister in respect of Braintree and nine other local authorities.

Mr Coughlan, a former member of Braintree District Council, believes that voter ID requirements in elections “will serve to disenfranchise the poor and vulnerable who already struggle to have their voices heard”.

The pilot orders authorised schemes to temporarily change the rules set out in secondary legislation governing local elections. These schemes each introduced a new requirement for some form of voter identification for those local elections.

Mr Coughlan’s challenge was dismissed on the merits in the High Court. The Court of Appeal granted permission to appeal that decision in view of the “important constitutional function served by local government elections.” Mr Coughlan’s appeal was dismissed on the merits by the Court of Appeal. Mr Coughlan appealed to the Supreme Court.

The primary issue in the appeal was whether the pilot orders were made ultra vires, that is outside the legal powers of the Minister for the Cabinet Office, because the pilot schemes they sought to establish were not schemes within the meaning of section 10(2)(a) of the Representation of the People Act 2000.

The second issue in the appeal was whether the pilot schemes were authorised for a lawful purpose under section 10(1) of the Representation of the People Act 2000, consistent with the policy and objects of that Act.

The appeal did not concern the merits or otherwise of the decision to introduce the pilot schemes, nor the merits of voter identification schemes in general, but only whether the decision to introduce the pilot schemes was lawful.

The Runnymede Trust, Operation Black Vote, Voice4Change England, LGBT Foundation and Stonewall were given permission to intervene by written submissions.

Lord Stephens gave the Supreme Court’s judgment, with which Lord Reed, Lord Sales, Lord Hamblen and Dame Siobhan Keegan agreed.

In respect of the primary issue, the Supreme Court found that the Pilot Orders were not made ultra vires.

Section 10 of the Representation of the People Act 2000 is entitled “Pilot schemes for local elections in England and Wales”. Section 10(1) enables the Minister for the Cabinet Office by subordinate legislation “to make such provision for and in connection with the implementation of a scheme…. as he considers appropriate”.

However, that power to make secondary legislation is limited to a scheme within the meaning of section 10(2). Section 10(2)(a) provides for schemes as regards “… how voting at the elections is to take place” [9].

Lord Stephens set out the relevant principles of statutory interpretation, the legislative framework for local government elections, and the content of the pilot schemes in question.

The judge concluded that, based on an analysis of language used by Parliament, he considered that the phrase “how voting at the elections is to take place” includes procedures for demonstrating an entitlement to vote.

“Accordingly, a scheme with a voter identification requirement is a scheme within section 10(2)(a) so that the respondent has the power under section 10(1) to make an order for or in connection with the implementation of such a scheme.”

In respect of the second issue, Lord Stephens found that the pilot schemes were authorised for a lawful purpose under section 10(1) of the Representation of the People 2000 Act, consistent with the policy and objects of the Act.

The Supreme Court judge said: “The respondent [the Minister] accepts, based on the principle expounded in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, that the discretion in section 10(1) of the RPA 2000 to make subordinate legislation cannot be lawfully exercised so ‘as to thwart or run counter to the policy and objects’ of the RPA 2000.

“The appellant contends that the policy and objects of the RPA 2000 were to ‘facilitate and encourage voting’. As I have explained I do not consider that the policy and objects are confined in that way..... Rather, the purpose of section 10 is to facilitate pilot schemes to enable the gathering of information to assist in the modernisation of electoral procedures in the public interest. The ten Pilot Orders were made to promote that object and accordingly were authorised for a lawful purpose.”