R (on the application of Coughlan) v Minister for the Cabinet Office

The statutory power to pilot changes concerning how voting takes place at local government elections extends beyond the physical mechanics of casting a vote. It includes procedures by which electors demonstrate their entitlement to vote, including voter identification requirements.

The purpose of the piloting power is to permit temporary, geographically limited changes so that evidence about possible electoral reforms can be gathered and assessed. Parliament necessarily contemplated that some pilots might impede particular voters. Such an effect does not itself place a scheme outside the statutory power. A pilot is lawful where it serves the statutory object of informing the modernisation of electoral procedures rather than thwarting the policy and objects of the legislation.

The Minister made orders under section 10(1) of the Representation of the People Act 2000 introducing voter identification pilots for local government elections in ten local authority areas. The appellant, a resident of one participating area, sought judicial review on the grounds that the schemes exceeded the statutory power and were made for an unlawful purpose.

Supperstone J dismissed the claim in [2019] EWHC 641 (Admin); [2019] 1 WLR 3851. The Court of Appeal dismissed the appeal in [2020] EWCA Civ 723; [2020] 1 WLR 3300.

The Supreme Court had to decide whether identification requirements concerned “how voting at the elections is to take place” within section 10(2)(a), and whether the schemes furthered a lawful statutory purpose.

1. Appeal dismissed unanimously. Lord Stephens gave the judgment, with which Lord Reed, Lord Sales, Lord Hamblen and Dame Siobhan Keegan agreed. The voter identification pilots fell within section 10 of the Representation of the People Act 2000 and were authorised for a lawful purpose.
2. The phrase “how voting at the elections is to take place” in section 10(2)(a) includes the steps by which electors achieve the casting of a lawful vote. It therefore encompasses procedures for demonstrating entitlement to vote, including proof of identity. The breadth of “differing in any respect”, the contrast with the narrower phrase “votes cast”, and the preservation of the section's generality supported that construction. Identification requirements necessarily associated with internet voting also demonstrated that identity verification could form part of how voting takes place.
3. The statutory purpose is to permit temporary and geographically limited modifications at real elections, followed by assessment of their practical effects, particularly by the Electoral Commission. The evidence can identify measures to avoid, investigate further or adopt permanently under section 11. The power is forward-looking and is not confined to encouraging or facilitating voting, or to reforms contemplated when the Act was enacted.
4. The principle of legality did not require a narrower construction. Parliament necessarily authorised pilots which might adversely affect some electors, since testing such effects is part of the statutory scheme. The test of validity is not whether a pilot might discourage or impede any person from voting. Parliament had squarely confronted the possibility of adverse effects and had authorised voter identification pilots by necessary implication.
5. Although section 10(1), read with section 17(2), contains powers capable of modifying primary and subordinate legislation, the orders in issue modified subordinate legislation. The scope of the relevant power was clear, so no restrictive approach associated with a Henry VIII power was required.
6. Under the principle in Padfield, the discretion could not be exercised to thwart or run counter to the policy and objects of the Act. The orders promoted the statutory object of gathering information to assist the modernisation of electoral procedures in the public interest. They were therefore made for a lawful purpose.

• United Kingdom Supreme Court: The appeal was dismissed unanimously. The voter identification pilots were within the statutory power and served a lawful purpose: [2022] UKSC 11.
• Court of Appeal: The appellant's appeal was dismissed: [2020] EWCA Civ 723; [2020] 1 WLR 3300.
• High Court, Administrative Court: Supperstone J granted permission to apply for judicial review but dismissed the claim on its merits: [2019] EWHC 641 (Admin); [2019] 1 WLR 3851.