Andrews, R (On the Application Of) v Minister for the Cabinet Office

The statutory power to prescribe a device for blind or partially-sighted voters to vote without assistance requires more than enabling them to locate where to mark the ballot paper. The device must enable them to identify and mark the ballot paper for the candidate of their choice. A tactile device containing only numbered flaps is therefore insufficient where it does not identify candidates or their parties. The court may grant declaratory relief without quashing the regulations where the existing device provides some assistance and immediate quashing would serve no discernible public interest.

The claimant, who is registered blind, challenged regulation 12 of the Representation of the People (England and Wales) Regulations 2001. The regulation prescribed the tactile voting device supplied at polling stations under Rule 29(3A)(b) of Schedule 1 to the Representation of the People Act 1983.

The claimant argued that the device did not enable her to vote without assistance because it identified only the position of each candidate’s voting space, not the candidate or political party. The central issues were the meaning of voting without assistance under Rule 29(3A)(b), and whether regulation 12 was a lawful exercise of that power.

1. Meaning of voting without assistance. Voting under the parliamentary election rules is not merely the physical act of marking a ballot paper. It involves marking the paper so as to indicate an intention to vote for one of the candidates. The statutory context, including Rules 18, 37, 38 and 47 of Schedule 1 to the Representation of the People Act 1983, connects the mark with the voter’s choice.
2. A device which merely identifies the place where a cross may be made, without enabling a blind voter to distinguish one candidate from another, does not enable that voter to vote without assistance. The device must allow the voter to mark the ballot paper against the name of the candidate of choice. A device including candidate or party names in Braille or raised lettering could achieve that purpose.
3. The court declined to follow the conclusion reached on the permission application in R(Kolendowicz) v Proper Officer of the Greater London Authority (CO/1672/2016), that voting meant no more than marking a ballot paper independently. The court was not bound by that decision and reached a different conclusion after considering the arguments.
4. The pre-legislative reports did not materially alter the construction of Rule 29(3A). Hansard was approached with significant caution. Applying the limitations identified in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 2 AC 349, the ministerial comments were not categorical assurances about the form or content of the device.
5. Regulation 12 was outside the scope of the Rule 29(3A) power because the tactile voting device was only a navigational tool and did not enable voting without assistance. A declaration was granted. The court declined to quash regulation 12 because the device provided some assistance and quashing it pending further consideration would have served no discernible public interest. The parties were permitted to make submissions on the form of relief and consequential matters.

First-instance judicial review proceedings. No prior appellate history was stated.