R(Coughlan) v Minister for the Cabinet Office

The Appellant sought judicial review of an announcement made in November 2018 of the intention of the Respondent to authorise proposed pilot schemes. The schemes would pilot changes to rules set out in secondary legislation governing local government elections in respect of elections due to take place in May 2019 (“the Pilot Schemes”). The changes were to be made by way of orders in the exercise of power under ss.10(1) and 10(2)(a) of the Representation of the People Act 2000. The Pilot Schemes were to have effect in ten local authority areas so as to permit the testing of new identification requirements at the polling station. In some areas the new requirement involved the voter presenting his polling card at the polling station. In other areas forms of non-photographic and photographic identification were to be used. A person who did not comply with identification requirements would not be given a ballot paper.

The claim for judicial review was heard on an expedited basis at a rolled-up hearing on 7 March 2019. The Appellant contended that the proposed Pilot Schemes were ultra vires s.10 of the 2000 Act on essentially two grounds: (1) the Pilot Schemes were not schemes within the meaning of s.10(2)(a) because they did not make “provision differing…from that made under or by virtue of the Representation of the People Acts as regards…how voting at the elections is to take place”; and (2) the Pilot Schemes were not authorised for the purpose of facilitating and encouraging voting at elections, which was the main purpose for which the power under s.10(1) could be exercised. By a judgment handed down on 20 March 2019, Supperstone J dismissed the claim. The Pilot Schemes therefore took effect in the local government elections held in May 2019.

On appeal to the Court of Appeal, the Appellant renewed his argument that the Pilot Schemes were ultra vires s.10 of the 2000 Act. The Court of Appeal dismissed the appeal, concluding that the Pilot Schemes were schemes within the meaning of s.10(2)(a) and that they were made for a lawful purpose. The judgment contains important observations on the nature of the right to vote at local government elections and the extent to which identification requirements interfere with that right. It also addresses a range of general principles of statutory construction and the approach to identifying the purposes for which a statutory power may be exercised.

Anthony Peto QC and Natasha Simonsen acted for the Appellant, Mr Coughlan.

Hanif Mussa acted for the Respondent, the Minister for the Cabinet Office.

The full judgment can be found here.