R (on the application of Coughlan) v Minister for the Cabinet Office (Braintree District Council and Others, interested parties)
| Jurisdiction | England & Wales |
| Judge | Lord Stephens,Lord Reed,Lord Sales,Lord Hamblen,Dame Siobhan Keegan |
| Judgment Date | 27 April 2022 |
| Neutral Citation | [2022] UKSC 11 |
| Court | Supreme Court |
[2022] UKSC 11
Lord Reed, President
Lord Sales
Lord Hamblen
Lord Stephens
Dame Siobhan Keegan
Appellant
Anthony Peto QC
Sarah Sackman
Natasha Simonsen
(Instructed by Leigh Day (London))
Respondent
Lisa Giovannetti QC
Hanif Mussa
Emily MacKenzie
(Instructed by The Government Legal Department)
1st–3rd Interveners (Written submissions only)
Matthew Ryder QC
Ayesha Christie
Gayatri Sarathy
Michael Etienne
(Instructed by Deighton Pierce Glynn (Bristol))
4th–5th Interveners (Written submissions only)
Timothy Otty QC
George Molyneaux
(Instructed by Linklaters LLP (London))
Interveners
(1) Operation Black Vote
(2) Runnymede Trust
(3) Voice4Change England
(4) LGBT Foundation
(5) Stonewall
Heard on 15 February 2022
( with whom Lord Reed, Lord Sales, Lord Hamblen and Dame Siobhan Keegan agree)
In January 2019, the appellant sought judicial review of an announcement made in November 2018 that the Minister for the Cabinet Office (“the respondent”) intended to authorise proposed schemes that would pilot temporary changes to rules set out in secondary legislation governing local elections. These changes were to take place in respect of the local government elections in May 2019. In February and March 2019, orders were made by the respondent to implement pilot schemes in respect of Braintree District Council (“Braintree”) and nine other local authorities (“the Pilot Orders”). All of these pilot schemes introduced a new requirement for some form of voter identification.
The appellant believes that voter identification requirements in elections “will serve to disenfranchise the poor and vulnerable who already struggle to have their voices heard.” The first to third interveners, Runnymede Trust, Operation Black Vote and Voice4Change England, express similar concerns stating that voter identification requirements “present a significant barrier to democratic participation” for ethnic minority communities by deterring or preventing those who are entitled to vote from voting. The fourth and fifth interveners, LGBT Foundation and Stonewall, express comparable concerns on behalf of individuals who are lesbian, gay, bisexual and/or transgender.
The primary issue in this appeal is whether these Pilot Orders were ultra vires, that is outside the respondent's legal powers, because the pilot schemes they sought to establish were not schemes within the meaning of section 10(2)(a) of the Representation of the People Act 2000 (“RPA 2000”).
The second issue in this appeal is whether the pilot schemes were authorised for a lawful purpose under section 10(1) of the RPA 2000, consistent with the policy and objects of the Act.
As noted in the courts below by Supperstone J at para 3 of his judgment, and the Court of Appeal at para 3 of McCombe LJ's judgment, the court is not concerned with the merits or otherwise of the decision to introduce these pilot schemes, or with the merits of voter identification schemes in general, but only with whether the decision to introduce the pilots was lawful. This remains the case.
Mr Neil Coughlan (“the appellant”), who lives within Braintree's area, commenced these judicial review proceedings prior to the making of the Pilot Orders. Thus, Mr Coughlan's original challenge was to the respondent's decision to make the Pilot Orders rather than to the Pilot Orders themselves. In the period between the commencement of the judicial review proceedings and the initial hearing on 7 March 2019 before Supperstone J, the respondent made the Pilot Orders pursuant to section 10(1) of the RPA 2000 which established the pilot schemes in Braintree and in the nine other local authority areas.
It is accepted that in relation to voters attending at polling stations, each of the ten Pilot Orders specified that a ballot paper must not be delivered to a voter unless that voter had produced one of several specified identification documents to the presiding officer or a clerk. The ten Pilot Orders contained substantially similar provisions, with some variations including regarding the “specified document” that a voter would be required to produce in order to obtain a ballot paper.
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 (a) at paras 58–60 that voter identification pilot schemes were schemes within section 10(2)(a) of the RPA 2000 and so were not outside the power to make the orders under section 10(1); and (b) at para 81 that the discretion conferred on the respondent by section 10(1) had not been exercised in a way that would frustrate the legislation's purpose. On 25 October 2019, Simon LJ granted the appellant permission to appeal to the Court of Appeal in view of the “important constitutional function served by local government elections”. The appellant's appeal was dismissed by the Court of Appeal (Underhill LJ, Vice President of the Court of Appeal, Civil Division, and McCombe and Green LJJ), [2020] EWCA Civ 723; [2020] 1 WLR 3300. On 26 February 2021 permission to appeal was granted by a panel of the Supreme Court (Lord Briggs, Lord Hamblen and Lord Burrows).
Section 10 of the RPA 2000 is entitled “Pilot schemes for local elections in England and Wales”. Section 10(1) enables the Secretary of State by subordinate legislation to “make such provision for and in connection with the implementation of the scheme … as he considers appropriate”. However, the Secretary of State's power to make subordinate legislation is limited to a scheme within the meaning of section 10(2). For present purposes the relevant provision is section 10(2)(a) which provides for schemes as regards “… how voting at the elections is to take place”. So if the schemes in this appeal were not schemes as to “how voting at the elections is to take place” then they were outside the Secretary of State's legal power to make the subordinate legislation under section 10(1).
In essence the appellant contends that the requirement to produce voter identification does not concern “how voting at the elections is to take place” within section 10(2)(a) so that the pilot schemes were outside the respondent's legal power to make the subordinate legislation under section 10(1). The appellant asserts that the phrase “how voting at the elections is to take place” refers to the manner or means by which electors cast their vote at elections, confined to the “technical modalities of voting, such as whether votes are to be cast in person, by post, over the telephone or online”. Moreover, the appellant contends the phrase does not relate to a person's eligibility or entitlement to vote. However, the respondent contends that the phrase is sufficient to include procedures for voting at a polling station, including procedures for demonstrating an entitlement to vote before casting a vote.
The outcome of this appeal in relation to the primary issue principally turns on the true interpretation of section 10 and in particular of section 10(2)(a) of the RPA 2000. Accordingly, it is appropriate at this stage to set out the principles as to interpretation relevant to this appeal.
The RPA 2000 received Royal Assent on 9 March 2000. Shortly thereafter amendments were made to it by the Political Parties, Elections and Referendums Act 2000 which received Royal Assent on 30 November 2000. The respondent's power under section 10(1) of the RPA 2000 to make subordinate legislation at any time after the amendments came into force depends on the provisions of the RPA 2000 as amended. Furthermore, the purpose of section 10 of the RPA 2000, in so far as it can be discerned from an analysis of the language used by Parliament, is to be discerned from the legislation as amended.
In R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3; [2022] 2 WLR 343, Lord Hodge in his leading judgment, with which all in the majority concurred, reiterated, at para 29, that the primary source by which meaning is ascertained is by way of conducting an analysis of the language used by Parliament. Lord Hodge stated, at para 31, that “Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered.” Lord Hodge also stated, at para 30, that external aids to interpretation therefore must play a secondary role. He continued, at para 30, by stating:
“Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.”
The appellant sought to support his contention as to the correct...
To continue reading
Request your trial
-
Alexander Darwall Diana Darwall v Dartmoor National Park Authority
...2 WLR 343 [ Project] at [29] to [31] as summarised by Lord Stephens JSC at [13] of R (Coughlan) v. Minister for the Cabinet Office [2022] UKSC 11; [2022] 1 WLR 2389 [ Coughlan]: “In [ Project], Lord Hodge DPSC in his leading judgment, with which all in the majority concurred, reiterated, ......
-
Alexander Darwall v Dartmoor National Park Authority
...UKSC 3; [2022] 2 WLR 343 at [29] to [31] as summarised by Lord Stephens JSC at [13] of R (Coughlan) v Minister for the Cabinet Office [2022] UKSC 11; [2022] 1 WLR 2389: “In R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [202......
-
Kellogg Marketing and Sales Company (UK) Ltd v Secretary of State for Health and Social Care
...courts to cut down that scope by some artificial reading of the power.” 76 Finally, in R (Coughlan) v Minister for the Cabinet Office [2022] UKSC 11; [2022] 1 WLR 2389 the approach to the interpretation of Henry VIII clauses was summarised by Lord Stephens JSC, in the light of the authori......
-
The King on the application of Garry Ball v Hinckley & Bosworth Borough Council
...for the Home Department [2023] AC 255, paras 29–31 as summarised by Lord Stephens JSC in R (Coughlan) v Minister for the Cabinet Office [2022] 1 WLR 2389, para 13: ‘In R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] 2 WLR......