The political removal of the 15-year bar followed an unsuccessful legal challenge in the European Court of Human Rights, brought by the late harry Shindler OBE, which I have previously discussed on this blog. In the Department for Levelling up, Housing & Communities Policy Paper of 2 February 2022, the government offered the following rationales:

• First, most British citizens overseas retain deep ties to the UK. Many still have family here, some will return here. Many will have a lifetime of hard work in the UK behind them, and some will have fought for our country.
• Second, advances in technology have enabled high-speed global communications, allowing British citizens to follow domestic affairs in real-time.
• Third, Britons overseas are directly affected by decisions made in Parliament – for example, on foreign policy, defence, immigration, or pensions. It is therefore right that they have a voice in elections to that body.

Yet, in our constituency-based electoral system, overseas constituents’ voices are substantively muted by a weak system of representation in Westminster. They are represented by the MP in an area they may have left decades ago. These MP are likely to have had little experience of dealing with case works concerning citizens abroad. Their concerns are, by definition, dwarfed by those of most constituents who live in the territorial jurisdiction.

An overseas constituency is an electoral district located outside of the state territory borders that is designated as a district for the representation of eligible voters residing there. 17 countries of different sizes and electoral systems have overseas constituencies; in Europe alone, this includes countries as diverse as Croatia, France, Italy, Lithuania, North Macedonia, Portugal, and Romania.

There are three key rationales for establishing overseas constituencies:

• First, aligned concerns and interests: overseas voters’ concerns and interests are more likely to align with electors formerly resident in other UK constituencies who now reside alongside them abroad. In the European/EU context, this is particularly acute given challenges arising from loss of EU citizenship and divergent practices across the EU-27 in respect of the implementation of the Withdrawal Agreement.
• Second, acquired expertise: overseas constituents will have an opportunity to have their voice clearly heard through designated and effective representation, building casework expertise.
• Third, simplification: moving from registering for and voting in 650 Westminster constituencies to registering for and voting in overseas constituencies by dint of being a UK citizen will make registration and voting easier.

The charity I chair, New Europeans UK, has been campaigning for overseas constituencies. At their recent Autumn conference, the Liberal Democrats voted for a policy motion supporting their establishment. Should this policy be adopted by the government, boundary division would need to be established by the Boundary Commission. A possible division might be as follows: North/West Europe; Central/East Europe; South Europe; Australia & New Zealand; the Americas; Africa; the Middle East; and rest of Asia. The exact number would be determined based on the proportion of overseas constituents of the overall electorate. It is likely that the promise of effective representation will lead to a higher number of registered overseas voters; therefore, the creation of overseas constituencies should not necessarily come at the expense of existing constituencies: if the electorate is larger, and the number of electors per seat remains the same, there should be more MPs.

Read more:

• Proposed Voter ID Reforms in the UK: The Dangers of ‘Fraud’ Based Regulation.
• Case C-673/20 EP v Préfet du Gers: The Stripping of the Right to Vote.
• Direct Democracy in Action: Swiss Voters Decide to Augment the Statutory Old Age Pension.
• Stripping a state of its statehood: Disenfranchisement of the people of Jammu and Kashmir.

It is important to situate this referendum within Ireland’s recent history of constitutional amendments to understand why such confusion took hold in the public sphere. This referendum was framed as an endeavour to “modernise” the Irish Constitution, by adopting a more encompassing vision of familial relations and removing the sexist language of Article 41.2. This resonates with recent referenda, such as the referendum on the 34^th Amendment in 2015 which recognised civil marriage regardless of sex, and the referendum on the 36^th Amendment in 2018, which repealed  the clauses added by the 8th, 13th, and 14th Amendments of the Constitution to allow the Oireachtas (Parliament) to legislate for abortion. Not least by choosing to hold the Article 41 referendum on International Women’s Day, the Government clearly envisioned this amendment as yet another milestone in an overall trajectory toward a more liberal Constitution that is truly reflective of modern Ireland.

In the previous referenda to adopt the 34^th and 36^th amendments, however, there was little to no disjuncture between the proposed constitutional amendment and the subsequent legislative upshot. The same cannot be said for the Article 41 referendum. It was clear that a vote for the 34^th amendment was a vote for the legalisation of same-sex marriage. It was clear that a vote for the 36^th amendment was, constructively, a vote for the enactment of the Health (Regulation of Termination of Pregnancy) Act 2018, legalising abortion up to twelve weeks. It was in no way clear to voters, however, what the recognition of the family based on “durable relations” and a duty on the State to “strive to support” family carers would entail. Unlike referenda of the past geared toward liberalisation, this time around the public were given no concrete assurance of what this proposed “liberalisation” would look like. The fact that there was no transparent legislative upshot undergirding a Yes vote, which renders a vote for constitutional amendment a constructive vote for legislative amendment, went against the grain of previous referenda, thereby stoking confusion in the public sphere.

The role that public confusion played in the failure of this referendum demonstrates how referenda are at their best when the proposed constitutional amendment is easily translatable into concrete social change, either through the introduction of a unambiguous right or removal of a constitutional inhibition to a proposed new legislative regime. The trouble with this referendum stemmed from the fact that it asked the Irish electorate to take a leap of faith in terms of how the amended Article 41 would be interpreted by the Courts, something which voters were not accustomed to. Accordingly, the Government was heavily criticised for the vagueness of the proposal, which provoked somewhat of a reaction on its part. For instance, Equality Minister Roderic O’Gorman ensured the public that polyamorous relationships would not be considered a “durable relationship” for the purpose of Article 41, an assurance which of course, the Government technically is unable to make due to the scope of the Article falling to the Courts to decide. In future referenda of this nature, the Government should do more to emphasise the mere expressive function of the Constitution, so that the legislative aftermath of constitutional amendments are not over-hypothesised in the public psyche and confusion is minimised.

One of the aftermaths of the abrogation was the reorganisation of J&K, which was carried out at the behest of the Parliament of India. The authority granted under Article 3 empowers the Parliament to reorganise states by forming a new state by separating territory from any state, uniting two or more states, or uniting any territory to a part of any state. However, it does not confer the power to morph a state into a Union Territory – a centrally administered constituent unit. The asymmetrical federal nature of the Indian Constitution provides for establishing certain territories as Union Territories that do not enjoy the status and privileges of a ‘state’ and are administered by the Union of India. The federal scheme is at the heart of India’s constitutional structure, and depriving a state of its statehood leads to retrogradation of the people of J&K, who have benefitted from the democratic autonomy that comes with statehood.

For the inhabitants of J&K, the stripping of their state’s statehood has resulted in systemic disenfranchisement by depriving them of their civil and political rights. The Constitution grants a state and its citizenry certain rights and privileges; for example, the states enjoy plenary legislative competence and executive control. In addition, the people of the state have a right to vote in the Legislative Assembly elections and enjoy democratic representation in the Upper House of Parliament. These rights and privileges are not available to the Union Territories as they are under the direct control and supervision of the centre and, thus, lack the autonomy granted to a ‘state’ under the Indian federal arrangement.

The Supreme Court adjudicated upon a challenge instituted against the Act and delivered its judgment on 11 December 2023. The court’s ruling on the issue of reorganisation of the states is a missed opportunity to establish the scope of Parliament’s authority over the territorial autonomy of the states. For the two Union Territories created out of the erstwhile state, the Supreme Court responded in the following manner:

First, for the creation of the Union Territory of Ladakh, the court upheld its formation by reading the Parliament’s authority to undertake the reorganisation under Article 3 with its proviso and Explanation I. The court opined that after the operation of Explanation I on clause (a) of Article 3, which states that the meaning of the term “state” under Article 3 would also include “union territories”, the Parliament was granted the authority to form a new Union Territory by separating the territory from any state.

Second, regarding the Union Territory of Jammu and Kashmir, the court’s approach towards adjudicating the stripping of the state of J&K of its statehood bespeaks an evasive strategy. The court has circumvented the issue of the extent of the power of the Parliament to morph a state into a Union Territory entirely. The court’s stance stands on the clutches of an assurance extended by the Solicitor General that the status of J&K as a Union Territory is only temporary, and the government will restore the statehood as soon as possible. It is not justifiable to grant unbridled power to someone on an assurance that the same would not be abused. So far, no positive steps have been taken or even proposed by the Union to honour this assurance. Addressing the Rajya Sabha, hours after the Court’s decision, Union Home Minister Amit Shah said that he has already assured that the statehood of J&K will be restored at an “appropriate time”.

Apart from this assurance, the Supreme Court has not provided any other cogent reason to justify its hands-off approach. Paradoxically, the court did acknowledge security concerns in the territory of J&K and the denial of political rights, particularly the right to be represented by an elected government. More than two months have lapsed from the date of the judgment, and the government is yet to notify a date for conducting the general elections in J&K (scheduled for the rest of the country between April-June), which could have been indicative of their intention to restore a democratically elected government. By not affording finality to the issue of converting a state into a union territory, the Supreme Court has denied the residents of J&K the vital right of representation and to be governed by their elected representatives.

Internationally, the right to form political parties is a relatively new right. It is not included in the Universal Declaration of Human Rights nor the International Covenant on Civil and Political Rights (ICCPR). As Chilton and Versteeg note, in 1946 a mere 8 percent of constitutions included the right to form political parties, but by 2016 that number had grown to 65 percent. Since the right is relatively novel, its contours are less defined and ripe for interpretation by specific countries.

The ECP’s order

On 22 December 2023, the ECP invoked the Election Act 2017 (the Act) to declare that PTI was ineligible to obtain the election symbol they had applied for. The ECP alleged that the PTI failed to comply with section 209 of the Act, which required the PTI to, “within seven days from completion of intra party elections”, submit a certificate to the ECP confirming that elections were held in accordance with PTI’s constitution. The ECP made its order on the basis that no evidence was provided that a Federal Election Commission was appointed for intra-party elections under PTI’s Constitution.

The right to vote: intra-party or national?

Article 17 of the Constitution of the Islamic Republic of Pakistan provides every citizen the right to form or be a member of a political party. For the SCP, if intra-party elections were not held in a party, it rendered that party “a mere name without meaning” [26]. It also violated a person’s right to form or be a member of a political party, which includes the ability to put oneself forward as a candidate and vote for candidates of their choice [31]. The SCP, quoting judgments of various US States, held that the right to freely choose candidates for party office is “as valuable” as a right to vote for them after they are chosen [54].

The SCP’s reasoning introduces a tension between two related rights. The first is the right to vote freely for a candidate of one’s choice at a national level. Any restrictions on that right strike “at the heart of representative government” (Justice Shah at Elahi v ECP [1]). The second is the right to be a member of a party, which, according to the SCP, must also cover the ability to vote for party candidates. While holding these rights to be equally “valuable”, the SCP appears to have disregarded the national position. The fact that PTI has lost its electoral symbol makes the elections inaccessible to voters who cannot read. As the Peshawar High Court noted, the use of a symbol has a “unifying effect” and ultimately helps in the establishment of a democracy [23].

A historical construction?

The SCP also noted the ECP was a constitutional body which had duties confirmed by Workers’ Party Pakistan v Federation of Pakistan [39], such as the duty of “regulating intra-party affairs”. That duty was set out against the backdrop of the previous version of Article 17 of the Constitution, which had required that “every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders” [44]. The duty of PTI to submit a certificate under section 209 of the Act could only be fulfilled after the conclusion of intra-party elections [55]. Against that, the SCP held there was no evidence provided by counsel to show intra-party elections were held, noting the absence of nomination forms [28].

The SCP gave questionable weight to repealed laws on ‘intra-party’ elections. The present laws were enacted by a democratically elected Parliament and, as the SCP noted, “must be abided by” [43]. Bearing Pakistan’s fragile experience with democracy in mind, the decision also sets two worrying precedents. First, the ECP can make inquiries about the way intra-party elections are held. This means that parties can be deprived of their electoral symbol for mere procedural errors, which harms the ability of voters who cannot read to express their choices. Second, the SCP can, beyond assessing errors of law, make a finding of fact as to whether an election was held at all. The SCP’s appeal to repealed law and its fact-finding approach is difficult to reconcile with the decision of the Peshawar High Court, which found that elections did take place (“widely reported in print electronic media not only in Pakistan but even internationally” [8]) and that it was not for the ECP to question their legitimacy [19].

In a nation where no prime minister has yet served their full five-year term, another tool has emerged to take away political choice from the people.

The Indian Parliament’s winter session of 2023 has become the backdrop for a disturbing and dramatic chapter in the nation’s constitutional history. The suspension of over 140 MPs has almost emptied the Parliament of the opposition. Unfortunately, this is not just a parliamentary crisis, but a stark reminder of the fragility of one of the world’s largest democracies.

The suspensions arise from the opposition’s request for a statement on a recent security breach in the Lok Sabha, the Lower House of the Parliament. Their reliance on placards and slogans, while perhaps unorthodox, is not uncommon in the often-charged atmosphere of the Parliament. Rule 374 of the Rules of Procedure and Conduct of Business in Lok Sabha provides power to the Lok Sabha speaker to name an MP that “disregards the authority of the Chair or abuses the rules”. Similar powers exist with the chairman of Rajya Sabha under Rule 256 of the Rules for the Council of States. However, the nature and timing of these suspensions cast serious doubts about their fairness.

Is India Facing a Democratic Backsliding?

These efforts to quash criticism suggest a potential regression in India’s democratic principles. Democratic backsliding is a gradual decline in democratic principles over time, not necessarily marked by a sudden collapse of power but rather by the actions of elected leaders.

India has witnessed several periods of democratic strains in the past, with ‘the Emergency’ leaving a painful scar on the country’s democratic history. From June 1975 to March 1977, Indira Gandhi’s government suspended elections, detained opposition leaders, censored the press, curtailed civil liberties, and weakened the judiciary through constitutional amendments.

In recent years, India has experienced an informal erosion of its democracy. The shift to being classified as ‘Partly free’ from ‘Free’ by Freedom House in 2021 underscores this decline. Moreover, India’s drop to 161 out of 180 countries in the 2023 World Press Freedom Index is troubling. These rankings result from excessive governmental control over institutions: for example, in 2020 Amnesty International was forced to shut down its operations in India due to multiple raids and freezing of bank accounts. Oxfam India faced a similar fate in 2022, whereby authorities seized staff members’ computers and mobile phones.

Freedom of Speech: A Fundamental Right Protected by Indian Courts?

 The right to freedom of speech and expression is guaranteed by Article 19 (1) of the Indian Constitution and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The Constitution of India allows the imposition of reasonable restrictions on such rights under Article 19(2). However, this clause only applies in cases where danger to the State is involved, as seen by a six-judge bench of the Supreme Court in the case of Romesh Thappar v State of Madras. 

At the core of democracy is its fundamental principle of freedom of speech, as noted in Maneka Gandhi v Union of India. In this landmark judgment, Justice Bhagwati emphasised that “democracy is based essentially on free debate and open discussion,” enabling citizens to exercise their rights effectively. Similarly, in the case of Union of India v Motion Picture Association, the Supreme Court observed that free speech is the foundation of a democracy, with the courts carefully scrutinising any limitations imposed.

Moving Forward

Declining space for dissent and the erosion of civil liberties are ominous signs. Tolerance—or lack thereof—for political opposition is a core component of democracy. With India’s shrinking democracy, the Indian judiciary is called upon to develop a path towards a strengthened system of checks and balances. Unreasonable restrictions which curtail fundamental rights must be questioned. It is imperative that the courts check the actions of the legislature to ensure adherence both to constitutional provisions and to international standards on freedom of speech.

A democratic society, in theory, provides a fertile ground for the effective protection and realisation of human rights. In order to build such a democratic society, the right to vote – based on the free expression of the will of the electorate – must be guaranteed by law. Article 25 of ICCPR plays a fundamental role in ensuring governments are elected based on citizens’ will and consent. In contradiction of this, the Draft law confers on the President the exclusive right to choose a Governor and Deputy Governor. Although Article 10(2) mentions a role for the Local People’s Representative Council in providing opinions or recommendations, such involvement is arguably futile, as only the President has the final say on appointments. Such a violation of political rights under the ICCPR not only eliminates public participation in these elections, but further presents the President with a pandora’s box in which he may install his crony within local government. Thus, the Governor is liable to act according to the President’s needs, and not the people’s aspirations.

Although the Human Rights Committee in Mazon Costa v Spain emphasised that Article 25 of ICCPR does not impose a specific political model or structure, in its Concluding Observations on Swaziland, the Committee highlighted that the concentration of power into one branch is incompatible with Article 25. The withdrawal of the right to vote from the people to the President, without any meaningful intervention from the legislative branch, indicates such concentration of power to the executive. Hence, it is a palpable violation of Article 25 of ICCPR.

The exercise of the rights under Article 25 of the ICCPR may indeed be excluded on grounds which are established by law and which are objective and reasonable. However, the criteria of objectivity and reasonableness are not clear, as they have been decided thus far on case-by-case basis. The Indonesian House of Representatives presented two main reasons for its proposal in the Draft, namely, the expense of elections and the need to increase central government’s effective management of many national assets in Jakarta. While the high cost of elections is not an exclusive problem of Jakarta, the protection of national assets can still be achieved by coordination between central and local government. Therefore, it is clear that the Draft manifestly breaches the rights to participate in public affairs and to vote.

Indonesia has a clear historic example of how the designation of Governor by the President has previously resulted in manipulations of democracy, violations of economic and social rights by means of corruption, as well as the exploitation of local resources during New Order Era. Under Act. No. 5 of 1974, President Suharto (New Order Era) specified the hierarchy of local government and appointed them either directly or through the Ministry of Home Affairs. Hence, the appointed Governor served more as agent of central government rather than the independent leader of an autonomous local government. In the first parliamentary election under Suharto’s rule in 1971, these designated Governors, along with military and civilian bureaucrats, were required to persuade their subordinates and local voters to vote for Golkar (also of President Suharto’s Party). Consequently, the rights to fair election, freedom of expression, and to information were systematically abused. Citizens were accordingly forced to vote for Golkar, while the opposition and its aspirations were suppressed, facilitated by local elites also designated by the President. Through these elites, the President was capable of the mass exploitation of local natural and human resources, producing environmental degradation that still persists today.

These consequences are amplified by the fact that Jakarta – as the current capital of Indonesia – retains a significant role in politics, the economy, and demography. As the most populous city, the decisions carried out by its local government affect 10.68 million inhabitants. Precisely because of the scale of the deprivation of rights proposed by the House of Representative, it is critical that we continue to scrutinise Indonesia’s putative democratic values and civil rights.

Kenya’s 2010 constitution demands the elimination of all forms of gender-based discrimination and the equality of men and women in all spheres of life. In a joint report published by Kenya’s Human Rights Commission and the International Federation for Human Rights, the organizations emphasize Kenya’s dire situation: sexual and gender-based violence are significant components of election-related political violence. Gender-based violence in Kenya exists to maintain the marginalized status of women. In recent years, election-related gendered violence has escalated, including violence perpetrated by state actors like police officers. These assailants operate with impunity as police forces and the judiciary fail to investigate or prosecute these acts of violence. State action is necessary to end Kenya’s current trends of gender violence, especially as constitutional laws addressing gender-based issues continue to be disregarded.

Addressing the lack of female representation in government would bring Kenya closer to political and social equity, as this current disconnect between the government and societal groups allows for gendered issues to remain unresolved. Kenya’s latest general election saw more women attain positions of power, but the numbers remain dramatically below the constitutional gender quota. After the 2022 elections, only twenty-one percent of Kenya’s parliament was female, twelve percent below the constitutionally mandated thirty-three percent representation quota.

Women in Kenya recognize how government agencies have the potential to improve their lives but face multiple challenges when planning to run for office or participate in the country’s political sphere in any capacity. Women candidates are impeded by reduced media coverage and insufficient funding compared to their male counterparts. Moreover, women attempting to participate in any form of politics face persistent violence, including physical assaults, coercion, sexual harassment, and economic threats.  This threat of violence prevents womens’ full participation in voting for parliament members, thereby ingraining the disadvantaged status of women in Kenya.

The Kenyan government must be proactive in ensuring the implementation of the two-thirds gender rule. Without proper enforcement of this quota, the human rights of Kenyan women will continue to be violated. Currently, the country acknowledges its failure to meet the quota but has yet to make an effort to prescribe specific regulations to address this shortcoming. Legislation that provides a pathway toward meeting the gender threshold is required to counteract the government’s entrenched patterns of gender inequality.  For instance, the Kenyan government can enforce the gender quota through legislation that mandates political parties to financially support women candidates. 

Kenya’s failure to enforce its representation quota not only violates its constitutional obligation but also breaches international obligations. Kenya is a signatory to international treaties and agreements that promote gender equality, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Kenya should implement its gender quota to avoid legal action against its government and restore positive public perception at both national and international levels. 

The 2010 gender-centric constitutional amendments were implemented in response to the country’s high rates of violence against women and other minority groups. Representation in government encourages policymakers to produce legislation that reflects the needs of minority groups. The Kenyan government must fully implement its constitutional obligations through specific regulations that support women candidates These changes are necessary to combat and prevent gender-based violence and discrimination.

Want to learn more?

• Read: The Supreme Court of Kenya Has Ordered a Fresh Election. But What Does That Mean?
• Read: Is the two-thirds gender rule discourse engendering double invisibility in public life for other vulnerable groups in Kenya?
• Read: The Fulcrum for the Invalidation of Kenya’s 2017 Presidential Election: Section 83 of the Elections Act

Ruling of the CJEU

After the request for a preliminary ruling from the French tribunal lodged in 2020, the Court of Justice of the European Union held that UK nationals have lost their EU citizenship as a result of Brexit (CJEU Press Release 98/2022) in Case C-673/20.

Consequently, individuals resident in Member States can no longer vote nor stand as a candidate in municipal elections. EP asserted that she no longer enjoyed the rights in the EU (the Member State of residence) nor in the UK due to the British ‘15-year rule’ of nationals who have lived outside of the UK for more than 15 years being no longer entitled to take part in elections in the UK. The Court was asked to consider whether nationals who transferred their residence before the end of the transition period to one of the Member States retain election rights in the EU, and if not, in light of the principle of proportionality, whether the Withdrawal Agreement (‘WA’) is valid.

First, the Court held that as of 2020, nationals of the UK became third country nationals under the Treaties, and as a result, did not retain the same rights as EU citizens. Second, the CJEU found the Decision 2020/135 which approved the WA, holding it to be valid.

Although there is no explicit provision for loss of EU citizenship as a result of withdrawal under the TFEU, the Court presumes it to be implied. A Member State’s withdrawal implies the loss of citizenship as the nationals in question would no longer meet the criteria nor the definition of those qualifying for such status. Thus, it follows from the Treaties that in case of a State’s withdrawal from the EU, its nationals may be deprived of their electoral rights altogether, just as in the case of Britons who have resided outside of the UK for more than 15 years.

The CJEU considered it proportionate given that British people would have their electoral rights reinstated if/when they move back to their home country, and thus found the WA valid. Following Brexit, British nationals have lost their EU citizenship status and, consequently, are no longer protected to the same extent under EU human rights law as they used to be.

Legal Position under the ECHR

Nonetheless, Britons are still protected by the European Convention on Human Rights (famously, not an EU legal instrument). The European Court of Human Rights may reach a different conclusion as Article 3 of the Protocol 1 ECHR (‘A3 P1’) obliges States to hold free elections. From this, the right to vote and stand for elections (the ‘active’ and ‘passive’ aspects) is derived.

Furthermore, the principle of universal suffrage is the cornerstone of A3 P1 jurisprudence, and States must rationalise the loss of voting rights by individuals or groups of people, such as convicts. In practice, the principle has more bark than bite. In 2006, the ECtHR ruled the UK’s blanket ban on prisoner voting was a violation of the right to vote under A3 P1. More than a decade later, the judgment has not been implemented – the policy stands due to limited enforcement measures available under the Convention. Given the shift in focus that EP’s case brings, it would be interesting to see the development of the human rights narrative concerning all the British nationals who no longer enjoy their election rights, neither in the UK nor in their Member State of residence.

Under the ECHR, deprivation or restriction of the right to vote must achieve a legitimate goal while also passing a stricter proportionality test. In a variety of cases, the Commission (ECtHR predecessor) declared ‘inadmissible, as manifestly ill-founded, complaints about restrictions on voting rights based on a residence criterion’ (X and Others; X v the UK; Polacco and Garofalo; Luksch). Thus, the ECtHR subsequently reiterated the compatibility of the residence criterion with A3 P1. The Court declared inadmissible applications of nationals who had left their country of origin (Hilbe). The ECtHR considered the fact that non-residents may vote in national elections for the first 15 years after emigrating, and that their right was restored in any case whenever they return to live in their home country, ruling that the provision was not disproportionate (Doyle; Shindler). Arguably, the same decision would most likely be reached in this case.

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.

Earlier this month Parliament’s Joint Committee on Human Rights (JCHR) raised concerns about Voter ID, concluding in their report that the impact of these proposals may fall ‘disproportionately on some groups with protected characteristics under human rights law’ whilst also noting that the Cabinet Office have failed to produce evidence of how they will mitigate this risk. The Committee has stressed that the government needs to do more to demonstrate why these measures are ‘necessary and proportionate’.

In this assessment the JCHR have highlighted the key failings of this policy: on the basis of the evidence from the Electoral Commission and from the government’s own research, Voter ID is neither necessary nor proportionate. According to Electoral Commission statistics there were just 33 reported cases of personation fraud in 2019 (the last General Election year) and only one of these resulted in a conviction, one other a caution. In the face of scant evidence of need, the government claims to be pursuing the policy ‘to protect the public from the idea of voter fraud’. But with around 2.1 million people lacking the necessary identification for this scheme, according to the government’s own research, voter ID is clearly not a proportionate response to this notional crime.

What the evidence does show is that far more people are likely to be prevented from voting than have ever been accused of personation fraud. During a handful of pilots at the 2018 and 2019 local elections over 1000 people were turned away for not having the right ID and subsequently didn’t come back. Scaled up to a General Election, many thousands of people could be prevented from voting, and it is highly unlikely that the impact will fall evenly across society with poorer voters being the most at risk.

The Electoral Commission has found that more disadvantaged groups are less likely to have identification, with 11 percent of unemployed people lacking ID and 13 percent of those renting from a local authority. Eight percent of disabled people lack ID, meaning this policy will add another layer of difficulty for disabled citizens accessing their right to vote.

A comparative lens reveals the impact of these proposals on voter access and equality. Earlier this year, three leading US civil rights groups criticised ministers’ ID plans highlighting how these laws disproportionately affect people from poorer and marginalised communities. The American Civil Liberties Union (ACLU), Southern Poverty Law Center (SPLC), and Commons Cause stress that ID laws are used as a tool of voter suppression rather than electoral integrity, and they affect the most marginalised communities most significantly.

In the first half of this year, 18 US states enacted 30 laws that restrict citizens access to the vote – including imposing harder voter ID requirements. These changes, described as ‘the most aggressive’ restrictions to date, have been motivated by false claims of voter fraud. Far from securing the ballot, these moves serve to undermine electoral integrity, decreasing confidence in elections. The elections bill shows the UK government is intent on heading in the same direction.

The government claims that providing a free elector card will prevent people being disenfranchised but we have yet to hear how this will work in practice. Research from the Brennan Centre in the US shows that ID card provision often excludes voters with issuing offices open for limited hours (one office only opened on the fifth Wednesday of every month) and requiring citizens to travel significant distances. Similar problems are likely to emerge in the UK. With financially constrained councils being required to administer the cards, the provision could be variable.

The Elections Bill presents a number of threats to equality of participation in our democracy and the risk it poses to legitimate voters casting their ballots is one that the government should take seriously. Parliamentarians have raised their concerns  –  the cross-party Public Administration and Constitutional Affairs committee recently questioning the ‘extreme urgency’ in which this bill is progressing and why there has been no pre-legislative scrutiny.

With widespread concern from rights groups, academics and parliamentary committees the government should be pausing and thinking again about this legislation. Our democracy deserves better.