R Neil Coughlan v The Minister for the Cabinet Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 20 March 2019 |
| Neutral Citation | [2019] EWHC 641 (Admin) |
| Docket Number | Case No: CO/150/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 March 2019 |
[2019] EWHC 641 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/150/2019
and
Michael Fordham QC, Sarah Sackman and Natasha Simonsen (instructed by Leigh Day & Co) for the Claimant
Hanif Mussa and Emily MacKenzie (instructed by Government Legal Dept.) for the Defendant
The Interested Parties were not represented
Hearing date: 7 March 2019
Approved Judgment
Introduction
On 3 November 2018 the Cabinet Office announced in a press release that eleven local authorities across England would be “taking part in Voter ID pilots for the 2019 local elections… [to] provide further insight into how best to ensure the security of the voting process and reduce the risk of voter fraud”. They include Braintree District Council (“Braintree”), whose pilot scheme “will require voters to present either one form of photo ID or up to two forms of non-photo ID”.
The Claimant lives in Witham, Essex, which is within Braintree. He served as a district councillor for Braintree East (2003–2007) and as a town councillor for Witham North (2013–2015). In his first witness statement he explains his concerns about the proposed Voter ID scheme. He believes that Voter ID requirements in elections “will serve to further disenfranchise the poor and vulnerable who already struggle to have their voices heard” (para 16).
Voter ID schemes are controversial. It is therefore important to make clear that this court is not concerned with the merits of the decision to introduce the pilot schemes. The only issue for this court is whether the decision to do so is lawful. That turns on the proper interpretation of section 10 of the Representation of the People Act 2000 (“the 2000 Act”), which empowers orders in respect of approved pilot schemes for voting in local government elections.
In essence, the central question is whether the voter ID pilots are schemes within the meaning of s.10(2)(a), that is, whether they are schemes for testing “how voting… is to take place”. The Claimant contends that the requirement to produce voter ID does not concern “how” voting takes place, but whether voting is permitted to take place at all. The Defendant contends that the pilot schemes do fall within the scope of s.10(2)(a). They make provision differing in a relevant respect from that contained in secondary legislation made “under or by virtue of the Representation of the People Acts as regards … how voting at the elections is to take place”. The Defendant contends the words Parliament used include procedures for demonstrating an entitlement to vote as part of the voting process, including a requirement to prove identity. Current procedures permit entitlement to vote to be demonstrated through questioning.
On 28 January 2019 Lang J ordered the application for permission to apply for judicial review to be listed in court as a “rolled-up hearing”.
Factual Background
The factual background to the making of the pilot schemes is set out in the witness statement of Mr Paul Docker, head of the Electoral Administration Team in the Cabinet Office, dated 8 February 2019.
On 10 September 1998 the House of Commons' Home Affairs Committee (“the Committee”) published its Fourth Report titled “ Electoral Law and Administration”. The introduction to the report began by stating, “If democracy is to be properly safeguarded, the laws relating to the running of elections need to be efficient and effective” (para 1). The introduction went on to explain the two main arguments for reform that had been put to the Committee, both of which it accepted. First, the Committee “regard[ed] it as important for the health of the democratic and political system that participation in the electoral process be as high as possible.” The Committee “consider[ed] that there is a need to examine all aspects of the British electoral process, including therefore the election procedures, to establish what practical steps can be taken to increase participation”. Second, the Committee “conclude[ed] that there is a need to bring election administration up-to-date so as to maximise its effectiveness and its relevance to modern needs”.
Section D of the report is titled “ Making it easier to cast a vote”. Paragraph 56 states:
“It is difficult or impossible to make any close estimate of how many people do not vote for any of [the] reasons [referred to in para 55 above]. No-one believes that the problem of low turnout will be completely cured by making the physical process of casting a vote easier any more than it will be cured by improving the accuracy of the register. Nevertheless, changes in technology and in modern society (such as working patterns and mobility) mean that the basic model of voting in a local polling station may not be the most convenient method for many voters who do vote. On the grounds then of both the greater convenience which might be available both to those who currently do vote and of the small increase in turnout it might generate we conclude that the time is right to consider a range of possible reforms to the physical process of casting a vote.” (Emphasis in original)
Paragraph 57 continues:
“We consider some of the possible changes in more detail below. But we must stress immediately one general point. Change must not be allowed to threaten the integrity of the election process. Reforms must therefore be approached cautiously and changes which are based on visions of what new technology can offer must be assessed not simply on the basis that they are ‘modern’ or ‘exciting’ but on whether they are safe and effective. Change must not be introduced to a system which works well simply for changes sake.” (Emphasis in original)
Section E of the report is titled “ Fraud”. The Committee noted that “Witnesses to the inquiry were confident that there was relatively little fraud in elections in England, Scotland and Wales” (para 94). Nevertheless, this situation cannot be taken for granted. There were some points of limited concern which were raised, which the Committee examined. These included abuse of proxy and postal voting; impersonation and vote tracing; and ballot papers. Under the heading “ Impersonation and vote tracing” the Committee stated (at para 99):
“Anecdotal evidence also exists that there is a certain measure of fraud in the form of impersonation… of registered voters at polling stations. In Great Britain, prospective voters are not required to provide proof of identity to establish that they are in reality the person listed on the register they are claiming to be. The presiding officer may, if doubtful about the person's identity or if requested to do so by a candidate's agents, only put two specific questions, set out in the Election Rules, asking the person to confirm that s/he is the person registered and to confirm that s/he has not already voted, … though we understand that no record is kept as to how frequently such questions are in fact asked…”
The Committee continued (at para 102):
“ We broadly agree that there is at present no great problem with impersonation in British elections outside Northern Ireland, and we do not see a need to introduce any additional requirements to prove identity before being given a ballot paper…” (Emphasis in original)
Following the general election in 1997 the then Secretary of State for Home Affairs, the Rt. Hon. Jack Straw MP directed that a review of electoral procedures should be carried out. A Working Party on Electoral Procedures was established at the beginning of 1998 under the chairmanship of Mr George Howarth MP, then Parliamentary Under Secretary at the Home Office. A final report was submitted to the Secretary of State on 8 October 1999 and published on 19 October 1999 (“the Howarth Report”).
The relevant section of the Howarth Report is headed “ Improving voting arrangements and making voting easier”. At paragraph 3.1.2 the working party stated:
“The fact that many of our procedures were first drawn up over one hundred years ago does not of course mean that they are necessarily inadequate or ineffective: throughout our review we have been reminded that voting procedures have been tested and have largely retained the electorate's trust and support over that time. But the evidence of falling turnout at all elections and an apparent disenchantment with the traditional forms of democratic participation through the ballot box suggested to us strongly from early in our review that it is now time to consider a fundamental modernisation of the electoral process.”
The Howarth Report recommended that different voting arrangements be tested in pilot schemes for local government elections (paras 3.1.3–3.1.6). The following suggestions, which break down into three broad categories, were made:
“When to vote
3.1.7 Suggestions include
• changing polling hours to allow variations around the opening and closing of the poll
• moving polling to an alternative weekday or weekend day or allowing voting over more than one day
• opening some polling stations in the days immediately before polling day itself to allow voters to cast their votes early
…
Where to vote
3.1.9 Pilot schemes could address a number of issues about the location of polling, including
• out of area voting, allowing electors to vote in any polling station in the electoral area, or even outside it
• mobile polling, taking the ballot box to identified groups of voters, for example by visiting residential and convalescent homes
…
How to vote
3.1.11 Pilot schemes might propose moving away entirely from the present paper...
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R (on the application of Coughlan) v Minister for the Cabinet Office (Braintree District Council and Others, interested parties)
...“specified document” that a voter would be required to produce in order to obtain a ballot paper. 8 On 20 March 2019, Supperstone J, [2019] EWHC 641 (Admin); [2019] 1 WLR 3851, granted permission for the appellant to apply for judicial review but dismissed the claim on its merits, holding......