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

The power to authorise pilot schemes under section 10 of the Representation of the People Act 2000 extends to testing procedures for establishing a voter's entitlement to vote, including identity requirements. The phrase “how voting at the elections is to take place” is broad enough to include such procedures.

The statutory power is not confined to schemes whose purpose is to facilitate or encourage participation. It may be used to test proposed changes to local-government electoral procedures in the public interest, including measures intended to protect electoral integrity, reduce fraud and increase voter confidence. A scheme is lawful where there is a rational connection between the challenged measure and that statutory purpose.

The claimant, a resident and former councillor in Braintree, sought judicial review of the Minister's decision to authorise voter-identification pilot schemes for the May 2019 local elections. The Braintree scheme required voters to produce specified photographic or non-photographic identification, or an electoral identity document, before receiving a ballot paper.

The claimant argued that the scheme fell outside section 10(2)(a) of the Representation of the People Act 2000, because identity requirements concerned whether, rather than how, voting could take place. He also argued that the scheme frustrated the statutory purpose of facilitating and encouraging voting. The central issues were the proper construction of section 10(2)(a), the purposes for which the section 10(1) power could be exercised, and delay.

1. Permission and outcome. The grounds were arguable, so permission was granted. The claim was nevertheless dismissed because none of the grounds was made out.
2. Scope of section 10(2)(a). The words “how voting at the elections is to take place” naturally encompass procedures for demonstrating entitlement to vote, including proving identity. The existing rules already permitted identity and eligibility to be tested through questions before a ballot paper was issued. The pilot schemes modified those procedures and therefore differed from provision made under or by virtue of the Representation of the People Acts.
3. Statutory purpose. The section 10(1) power was intended to allow proposed changes to local-government electoral procedures to be tested. Facilitating and encouraging voting was an important objective, but not the only permissible public-interest objective. The statutory scheme, including the provisions for reporting, future revision and parliamentary approval, supported a wider power to modernise electoral procedures and protect electoral integrity.
4. The applicable test was whether there was a rational connection between the challenged requirement and the legislation's purpose. Testing identification requirements to mitigate electoral-fraud risks, improve voter confidence and modernise electoral procedures satisfied that test.
5. Even if the power were characterised as directed to facilitating and encouraging voting, that objective would concern lawful voting by entitled persons and could operate over the longer term. The constitutional-right-to-vote argument did not alter the result. The court did not accept that the invoked principle applied to these statutory local-election pilots, and left open whether a constitutional right to vote in national elections or referendums extended to local elections.
6. There was no undue delay. The claim was issued shortly after the decision specifically affecting Braintree became known and after the pre-action correspondence. The claim was dismissed.