Voter ID pilots for local elections

March 21st, 2019 by James Goudie KC

R (Coughlan) v Minister for the Cabinet Office, Braintree District Council Interested Party (2019) EWHC 641 (Admin) concerns a decision to introduce pilot schemes to require voters to present either one form of photo ID or up to two forms of non-photo ID. Whether the decision was lawful turns on the proper interpretation of Section 10 in Part II of the Representation of the People Act 2000 (“the 2000 Act”). This empowers Orders in respect of approved pilot schemes for voting in local government elections. In essence, the central question is whether the voter ID pilots are schemes within the meaning and scope of Section 10(2)(a), that is whether they are schemes for testing “how voting … is to take place”.  Supperstone J rejected the challenge. He was satisfied (paragraph 75) that the Section 10(1) power was intended to allow proposed changes to local government electoral procedures from time to time existing to be tested.  He continued that he agreed with the following points:-

“77.    …   First, Parliament has not specified in express terms the purposes for which the power under s.10(1) can be exercised. S.10(1) is framed in terms that are permissive: (i) the proposals made by the local authority or the Electoral Commission must simply be proposals for a scheme under s.10, rather than for a specific purpose; and (ii) the discretion conferred on the Minister to approve or modify a proposal is similarly specified in the terms of s.10(1). Where Parliament has granted a power only for the purpose of encouraging participation in elections it has done so in express terms: see s.69 of the Electoral Administration Act 2006.

  1. Second, s.10(2)(b) makes clear that the s.10(1) power can be exercised for purposes other than facilitating and encouraging voters to vote at elections. It can be exercised to order a scheme as to how votes cast at the elections are to be counted.
  2. Third, the s.10(1) power allows amendments to be made to local government election rules from time to time existing. The power was intended to operate to take account of developments in the future. That being so, a court should be slow to infer that the power is only intended to address a single specific concern existing at the time of its enactment. The Howarth Report understandably focussed on a matter of particular concern at the time, namely falling turnout. However, it is important to distinguish between the reasons for establishing the power and the purposes to which it can be used. This power permits amendments to be made to rules that were themselves introduced by reason of an earlier pilot. The 2000 Act is one of the Acts that falls within the definition of Representation of People Acts. S.10(2) refers to “Acts” in the plural. The s.10(1) power is in the nature of a power to approve and conduct experiments to obtain information about any reform to electoral procedure that may need to be introduced from time to time.
  3. Fourth, the s.10(1) power must be considered in terms of the enactment as a whole. S.11 provides for the revision of electoral procedures in the light of successful pilot schemes conducted under s.10. S.11(1) provides for the Secretary of State to make an order “only on a recommendation of the Electoral Commission”, and s.11(3) provides that any order made under sub-section (1) shall be made by statutory instrument, and no such order shall be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament. The Secretary of State is given power by s.11(1) to make an order if she considers in the light of any report made under s.10 on a scheme under that section that it would be “desirable” to do so. There is no express limitation on the public interest considerations to which the Secretary of State or the Electoral Commission or Parliament may have regard when considering these matters.
  4. The pilot scheme Orders that the Minister has made are to test with the objective of mitigating risks to the integrity of the electoral process and improving voter confidence by modernising electoral procedures and reducing the perception of and opportunity for fraud (see paras 27-28 above). I am satisfied that the discretion conferred on the Minister by s.10(1) has not been exercised in a way that would frustrate the legislation’s purpose.
  5. … even if the Claimant has correctly identified the purpose of the s.10(1) power as being to facilitate and encourage voting at an election, that purpose must be subject to two qualifications. First, the voting that is to be facilitated and encouraged must be lawful voting by persons entitled to vote. Second, the purpose cannot be limited to pilot schemes that will facilitate or encourage voting at local government elections on the first occasion on which they are tested, rather they must lead to changes in electoral procedure that encourage voting over the longer term. The August 2018 prospectus referred to the wider objectives of the pilot schemes: …”

Supperstone J concluded:-

“85.    I consider that the power in s.10(1) can be used to allow proposed changes to local government electoral procedures to be tested by pilot schemes with a view to modernising those electoral procedures in the public interest. In my judgment the pilot schemes are made lawfully pursuant to that purpose.”

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