Coughlan, R (on the application of) v The Minister for the Cabinet Office & Anor

Section 10(2)(a) of the Representation of the People Act 2000 permits pilot schemes affecting the whole process by which an elector casts a lawful vote. It is not confined to the physical mechanics of marking and depositing a ballot paper. A requirement to produce identification at a polling station may therefore be piloted.

The statutory reporting provisions do not confine pilots to measures designed to increase turnout. They permit assessment of advantages and disadvantages, including electoral integrity. A temporary identification requirement does not abrogate the right to vote where it requires sensible evidence of the voter’s entitlement.

The appellant sought judicial review of the Minister’s decision to make orders for voter-identification pilot schemes at local elections in ten local-authority areas, including Braintree District Council. The schemes required an elector attending a polling station to produce specified identification before receiving a ballot paper.

Supperstone J granted permission but dismissed the claim: [2019] EWHC 641 (Admin). The appellant contended that the schemes fell outside section 10 of the Representation of the People Act 2000, whose pilot power was said to concern only the practical means of casting a vote and to be directed solely at facilitating and encouraging voting. He also invoked the principle of legality.

The appeal concerned whether voter-identification requirements were authorised as provisions concerning how voting was to take place.

1. Appeal dismissed. McCombe LJ, with whom Green LJ agreed, held that the judge had correctly construed section 10. Underhill LJ reached the same conclusion by separate reasoning, and Green LJ agreed with both judgments.

2. The words “how voting … is to take place” in section 10(2)(a) of the Representation of the People Act 2000 were broad. They covered the steps by which an elector casts a lawful vote, not merely the physical act of marking a ballot paper. Producing identification at a polling station was an integral procedural step in voting. It was a means of verifying entitlement to vote, rather than a restriction on voting.

3. Sections 10(2)(b) and (c), concerning counting votes and candidates’ free election communications, dealt with separate matters and did not make the broader reading of paragraph (a) redundant. Section 10(3) was expressly without prejudice to the generality of the preceding provisions.

4. The reporting duties in section 10 did not make increased turnout the exclusive statutory purpose of every pilot. The phrases “in particular” and “success or otherwise” contemplated that a pilot could have advantages and disadvantages, including an adverse effect on the ease of voting. The Electoral Commission could also be required to report on other matters relating to the scheme under section 10(9). The statutory purpose was more broadly to enable testing of improvements to the voting process, including measures directed to integrity and prevention of malpractice.

5. The principle of legality did not alter that construction. The temporary pilot did not override or abrogate the entitlement to vote; it required evidence of entitlement. Any permanent general scheme under section 11 would additionally require an Electoral Commission recommendation and affirmative resolutions of both Houses of Parliament.

• Court of Appeal (Civil Division): appeal dismissed.
• High Court, Queen’s Bench Division, Administrative Court: Supperstone J granted permission for judicial review but dismissed the claim: [2019] EWHC 641 (Admin). The Court of Appeal upheld that decision.