Voter Identification

April 27th, 2022

The appeal in R (Coughlan) v Minister for the Cabinet Office (2022) UKSC 11 concerned a challenge brought by Mr Coughlan to orders made by the Minister for the Cabinet Office in respect of Braintree District Council and nine other local authorities (“the Pilot Orders”). These Pilot Orders authorised schemes to temporarily change the rules set out in secondary legislation governing local elections. These schemes, which were implemented in ten local authority areas in respect of the local government elections in May 2019, each introduced a new requirement for some form of voter identification for those local elections.

The primary issue in the appeal was whether the Pilot Orders were made ultra vires, 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, consistent with the policy and objects of that Act.

In respect of the primary issue, the Supreme Court finds that the Pilot Orders were not made ultra vires.  Section 10 of the Representation of the People Act 2000 is titled “Pilot schemes for local elections in England and Wales”.  Section 10(1) enables the Minister for the Cabinet Office by secondary 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”.  Having regard to the relevant principles of statutory interpretation, the legislative framework for local government elections, and the content of the pilot schemes in question, the Supreme Court finds that the pilot schemes were schemes within the meaning of Section 10(2)(a) of the Act, and in particular, that they were schemes as regards “… how voting at the elections is to take place”.

In respect of the second issue, the Court finds that the pilot schemes were authorised for a lawful purpose under Section 10(1) of the Representation of the People Act 2000. The Court finds that 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 Pilot Orders were made to promote that object, and accordingly, were authorised for a lawful purpose.

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