Coughlan v Minister for the Cabinet Office: Legitimising Voter ID under the guise of Statutory Interpretation

by | Feb 8, 2022

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About Kuberan Hansrajh Kumaresan

Kuberan Hansrajh Kumaresan is a second-year undergraduate reading Law (Jurisprudence) at New College in the University of Oxford. He is the President of the New College Law Society and also a Linklaters Oxford Law Access Ambassador. As an aspiring human rights barrister, he spends his time debating and mooting frequently as well as playing football with his friends on the weekend.

Image description: A placard with ‘Voting is my superpower’ written on it. 

In less than a week, the Supreme Court has before them a case that may set the voting rights of the marginalised back decades. In essence, two issues were in contention in the Court of Appeal. Firstly, whether the power of local authorities to alter “how” voting is to take place through Secretary of State approved pilot schemes includes asking for photo identification. Secondly, whether such a broad power is inconsistent with the principle of legality. In spite of the insistence of the Court that this decision has nothing to do with the benefits of the pilot scheme, one cannot help but notice substantive arguments on voter ID laws lurk in the background.

 Statutory purpose/context

With respect to the context and purpose of the Representation of the People Act 2000, the Court ruled that the broad wording of the Act was intended to convey a wide power, not defined so “precisely” as to exclude considerations other than voter participation [74]. It is also suggested that concerns like voter fraud could be considered notwithstanding that an increase in voter participation was the Act’s “most immediate prompt” [58,79].

However, the suggestion that there is “no reason in principle” that Parliament would have intended pilot changes to only be made if their “authority” was “obtain(ed)” rests on the Court’s arbitrary assumption that there is no germane threat to the ability to vote through this scheme [74]. Were the Court more willing to entertain that this could genuinely constitute a threat to voting, they may have recognised the possibility that Parliament did in fact intend for pilot changes like these to be expressly approved by them. Furthermore, a passage in the Cabinet’s Office “prospectus” relied on heavily by the judges and counsel for the Respondent states that “if voters have confidence in the integrity of the electoral system then they are more likely to participate in that process” [79]. This illustrates that the benefit of preventing voter fraud is only valuable insofar as it increases participation. If it does not, one would be hard pressed to construe this as a legitimate purpose of the Act.

Legality

The appellants insist that the scheme impedes the fundamental right to vote, and it would violate the principle of legality to allow power applied by a ministerial order to limit a right to vote conferred by primary legislation [65].

The Court disagreed and was of the opinion that the use of the power in Section 10 to test a pilot scheme of this type does not in truth override the right to vote at all [68]. However, the insinuation that a test does not affect the right to vote as it is completely “distinct” from a “permanent” change is rather dangerous. An individual’s right to vote in a single election is crucial to secure benefits for themselves and an exercise of their personal autonomy.

Significance

The Court opining that it is “not concerned with the merits” of the decision to introduce these pilot schemes is ill reflected in the Court of Appeal’s judgement [3]. In adjudicating whether this would constitute an additional “pre-condition” of voting which would inherently deviate from the definition of “how”, McCombe LJ declares that he does not accept that “a requirement of suitable identification is a restriction on voting at all” and is thus not a “pre-condition” [40]. In contemplating the purpose of the Act, the Court posits that “the aim of facilitating voting must surely be to facilitate lawful (emphasis added by author) voting” [59]. In considering whether the principle of legality had been infringed, the Court declared that the application of Section 10 power did not abrogate the right to vote at all as the voter “remains entitled to vote and must only produce sensible means of demonstrating that entitlement” [68].

It thus appears that hidden beneath the veneer of this judgement lurks the stark reality that these decisions rest quite firmly on the “merits” of voter ID laws and their overstated capability to prevent voter fraud. While the Court seems to treat the illusion that voter ID laws have no impact on voter participation as an objective fact, data from multiple regions including outside the UK show that these laws do indeed constitute a “pre-condition” to otherwise lawful voting and does effectively disenfranchise the most underprivileged of us all.

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