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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Coughlan, R (On the Application Of) v The Minister for the Cabinet Office [2019] EWHC 641 (Admin) (20 March 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/641.html Cite as: [2019] EWHC 641 (Admin), [2019] WLR 3851, [2019] WLR(D) 173, [2019] 1 WLR 3851 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of NEIL COUGHLAN |
Claimant |
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- and - |
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THE MINISTER FOR THE CABINET OFFICE |
Defendant |
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- and - |
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BRAINTREE DISTRICT COUNCIL AND OTHERS |
Interested Parties |
____________________
(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
____________________
Crown Copyright ©
Mr Justice Supperstone :
Introduction
Factual Background
"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)
"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)
"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)
"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."
"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 ballot and polling station arrangements to a more remote voting system. Suggested possibilities include
- all postal ballots, allowing an election to be held on the basis of postal voting only
- automated voting or vote counting, replacing manual voting and vote counting with electronic polling machines or ballot paper scanners
- telephone voting, using domestic telephones linked to automatic voice recognition and recording equipment at one or more central locations
- electronic voting, on-line from publicly sited terminals and other access points such as digital television using the Internet"
"We recognise the consensus which is developing for new approaches to voting which will more clearly reflect modern patterns of behaviour and which can assist in reinvigorating the public's interest and participation in the democratic process. Local authorities and electoral administrators in particular are very keen to test out the effectiveness of allowing electors to vote in more flexible ways.
We think that the time is now right to test alternatives to the present voting arrangements in pilot schemes at local elections.
Examples of innovative approaches which might be included in pilots includes
- Polling hours: variations in polling hours to allow earlier starts or finishes
- Polling days: moving polling to an alternative weekday or a day at the weekend or allowing voting over more than one day
- Early voting: opening a limited number of polling stations in the period before polling day at accessible locations to allow any eligible elector to vote
- Mobile polling: providing a mobile polling station which could take the ballot box to groups of voters, for example, by visiting residential and convalescent homes
- Out of area voting: allowing electors to vote at any polling station in the electoral area, or even outside it
- All postal ballots: allowing an election to be held on the basis of postal voting only
- Electronic voting: supplementing polling booths and polling stations with automated voting equipment, telephone or on-line remote voting via the internet.
We recommend that the Secretary of State should be authorised to amend electoral legislation to approve pilot schemes involving one or more of the above proposals. Pilot schemes would encourage innovation and diversity and offer a real opportunity to see exactly how different approaches can be effective in re-engaging the electorate. Evaluation of such schemes will allow informed judgements to be made as to the effectiveness and security of each new process before a decision is taken to roll it out more widely."
"(21) We conclude that the time is right to consider a range of possible reforms to the physical process of casting a vote (Paragraph 56)
We have accepted the Working Party's recommendation that legislation should allow the Home Secretary to authorise and evaluate pilot schemes of alternative voting arrangements.
…
(41) 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 (paragraph 102).
We agree."
"Objective 1: That proposed 'ID at polling stations' policy measures are proportional to the policy objective of reducing the opportunity for electoral fraud.
Objective 2: That the proposed 'ID at polling stations' policy measures enhance public confidence in the security of the electoral system."
Five local authorities were ultimately selected to take part in trials of identification requirements at polling stations. Pilot orders were made in respect of each area. The pilots took place and were evaluated by both the Electoral Commission and the Cabinet Office.
"We want councils to get involved and work with us to pilot in their area to help us promote greater confidence in our democratic process." (para 2)
"We are seeking to encourage voting by improving the integrity of the voting system and voter confidence. We owe it to voters to ensure they know their voices are being heard and their right to vote is being protected. The impact of electoral fraud on voters can be significant and takes away their right to vote as they want – whether through intimidation, bribery or by impersonating someone and casting their vote. These are not victimless crimes. No level of electoral crime should be accepted when we have the ability to tackle it." (p.5)
"2.1 Wider Objectives
…
2. … The Government wishes to see in place systems that can mitigate risks to the integrity of our electoral process and address the perception of voter fraud, if voters have confidence in the integrity of the electoral system then they are more likely to participate in that process.
…
2.2 Pilot Objectives for 2019
1. Voter ID pilots at next year's local elections would enable the three models trialled this year to be refined, and implemented in different areas and with new partners, providing additional evidence and experience in preparation for national rollout.
2. We are looking to take forward pilots in authorities representing a diverse range of relevant socio-economic and demographic conditions and different types of areas (e.g. metropolitan, rural, urban). We would also encourage applications from authorities that have a history of electoral fraud."
"1. The Government remains aware that not all types of identification are universally held by individuals who are eligible to vote in polls in the UK and it is essential that we maintain the accessibility of the polls. At the same time, we must enhance voters' confidence in the system in which they are participating on polling day. The types of ID we are testing through these pilots will aim to balance these two requirements.
2. The types of ID that the Government is interested in testing will be for each pilot one of the following: photographic ID, a combination of photographic and non-photographic ID or poll cards, whether or not enabled by additional technology.
3. Any elector unable to produce the required identification must have the option to apply to their returning officer for a locally produced document that satisfies the voter ID requirement and which will be issued to the elector free of charge." (p.10)
Legislative Framework
Representation of the People Act 2000
"10. Pilot schemes for local elections in England and Wales
(1) Where—
(a) a relevant local authority submit to the Secretary of State proposals for a scheme under this section to apply to particular local government elections held in the authority's area, and
(b) those proposals are approved by the Secretary of State, either—
(i) without modification, or
(ii) with such modifications as, after consulting the authority, he considers appropriate,
the Secretary of State shall by order make such provision for and in connection with the implementation of the scheme in relation to those elections as he considers appropriate (which may include provision modifying or disapplying any enactment)."
"A scheme under this section is a scheme which makes, in relation to local government elections in the area of a relevant local authority, provision differing in any respect from that made under or by virtue of the Representation of the People Acts as regards one or more of the following, namely—
(a) when, where and how voting at the elections is to take place;
(b) how the votes cast at the elections are to be counted;
(c) the sending by candidates of election communications free of charge for postage."
"(7) The report shall, in particular, contain—
…
(c) an assessment of the scheme's success or otherwise in facilitating—
(i) voting at the elections in question, and
(ii) (if it made provision as respects the counting of votes cast at those elections) the counting of votes,
or in encouraging voting at the elections in question or enabling voters to make informed decisions at those elections.
(8) An assessment under sub-section (7)(c)(i) shall include a statement by the authority concerned as to whether, in their opinion—
(a) the turnout of voters was higher than it would have been if the scheme had not applied;
(b) voters found the procedures provided for their assistance by the scheme easy to use;
(c) the procedures provided for by the scheme led to any increase in personation or other electoral offences or in any other malpractice in connection with the election;
(d) those procedures led to any increase in expenditure, or to any savings, by the authority.
(9) If the Secretary of State so requests in writing, the report shall also contain an assessment of such other matters relating to the scheme as are specified in his request."
"If it appears to the Secretary of State, in the light of any report made under s.10 on a scheme under that section, that it would be desirable for provision similar to that made by the scheme to apply generally, and on a permanent basis, in relation to—
(a) local government elections in England and Wales, or
(b) any particular description of such elections,
he may by order make such provision for and in connection with achieving that result as he considers appropriate (which may include provision modifying or disapplying any provision of an Act, including this Act).
The power of the Secretary of State to make such an order shall, however, be exercisable only on a recommendation of the Electoral Commission."
Representation of the People Act 1983
"(1) A registration officer in Great Britain must enter a person ('P') in a register maintained by the officer if—
(a) an application for registration is made by someone who appears to the officer to be P,
(b) any requirements imposed by or under this Act in relation to the application are met, and
(c) P appears to the officer to be entitled to be registered in the register."
Representation of the People (England and Wales) Regulations 2001
The Local Elections (Principal Areas) (England and Wales) Rules 2006 and the Local Elections (Parishes and Communities) (England and Wales) Rules 2006
"33—Questions to be put to voters
(1) At the time of the application (but not afterwards), the questions specified in the second column of the following Table—
(a) may be put by the presiding officer to a person applying for a ballot paper who is mentioned in the first column, and
(b) must be put if the letter 'R' appears after the question and the candidate or his election or polling agent requires the question to be put:
Q. No. | Person applying for ballot paper | Question |
1. | A person applying as an elector | (a) Are you the person registered in the register of local government electors for this election as follows? read the whole entry from the register [R] (b) Have you already voted here or elsewhere at this election… otherwise than as proxy for some other person [R] |
…
(3) A ballot paper must not be delivered to any person required to answer any of the above questions unless he has answered each question satisfactorily.
(4) Except as authorised by this rule, no enquiry shall be permitted as to the right of any person to vote."
The Pilot Schemes
"This Order is made in the exercise of the powers conferred by section 10(1) of the Representation of the People Act 2000 ('the 2000 Act').
…
The Minister for the Cabinet Office makes the following Order:
… Conduct of elections
3—(1) In relation to the election, the enactments specified in this article shall have effect subject to the substitutions and modifications made by this article.
(2) The provisions in Schedule 2 to the 2006 Principal Areas Rules set out in column (1) of the Table in Schedule 1 to this Order shall have effect subject to the modifications in column (2) of that Table.
…
Schedule 1
Modifications to Schedule 2 to the 2006 Principal Areas Rules
Table
(1) | (2) |
Rule | Modification |
… | |
35 | At the beginning of paragraph (1) insert 'Subject to paragraph (2A) to (2J).' |
Voting Procedure | After paragraph (2) insert— '(2A) A ballot paper must not be delivered to a voter unless that voter has produced a specified document to the presiding officer or a clerk. (2B) Where a voter produces a specified document, the presiding officer or clerk to whom it is produced must deliver a ballot paper to the voter in accordance with paragraph (1) unless the officer or clerk decides that the document raises a reasonable doubt as to whether the voter is the elector or proxy he represents himself to be'." |
Specified documents include a passport, a photocard driving licence, various financial documents, a utility bill, birth certificate and a marriage certificate (see para (2F)-(2H)).
The Parties' Submissions and Discussion
The meaning of the words used in s.10(2)(a)
The purposes for which the power under s.10(1) may be exercised
"The Working Party recommended that pilot schemes of innovative electoral procedures—such as weekend voting, electronic voting, early voting, mobility polling stations—should be run so that their effectiveness could be evaluated and that successful ones should be rolled out more widely."
"Any inquiry as to frustration of purpose must consider whether there is a rational connection between the challenge requirement and the legislation's purpose."
"… the Government wishes to see in place systems that can mitigate risks to the integrity of our electoral processes and address the perception of electoral fraud. If voters have confidence in the integrity of the electoral system then they are more likely to participate in that process (p.8)."
Delay
Conclusion