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Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Voter identification (or ‘voter ID’) is the term for laws that require those eligible to vote first to show a form of official ID before they can register to vote or cast their vote.
The main rationale for such laws is that verifying the identity of voters minimises electoral fraud. It is said that, in exchange for some mild inconvenience to the public, voter ID can prevent ineligible people from voting; people voting more than once under different names; and even people using votes belonging to the deceased. In recent years, such laws have generated mounting controversy – particularly in the United States. According to the ACLU: “Voter identification laws are a part of an ongoing strategy to roll back decades of progress on voting rights”. A feature by FiveThirtyEight highlights that strict voter ID laws reduce turnout and disproportionately disenfranchise minority communities, older voters, and students (all of whom are less likely to have acceptable ID). Many also question how much of a problem voting fraud actually is.
The debate over voter ID has become increasingly heated in the UK since the government began piloting voter ID requirements in 2018. Many of the arguments are familiar from the US debate. For example, referring to “the government’s dangerous plans to deny people the vote”, the Electoral Reform Society has argued that electoral fraud is very rare in the UK and that voter ID is a “sledgehammer to crack a nut” and erects a barrier to democracy, given that 3.5 million, often already marginalised, citizens do not have access to photo ID and 11 million citizens lack a passport or driving licence (the most robust forms of ID).
A brief commentary on the UK debate can be found at pages 16-22 and 24 of ‘Electoral Law: The Urgent Need for Review’ (2019), a report of the House of Commons Public Administration and Constitutional Affairs Committee. The conclusions of the report include that:
It is essential that voters are able to have confidence in the integrity of UK elections, which voter ID can support but there is a lack of robust evidence about the potential effect of voter ID on particular demographics. Furthermore, in the absence of information on the potential cost of voter ID, it is impossible to evaluate the value for money of introducing such requirements. In the absence of such information, voter ID is something over which the Government should exercise extreme caution over proceeding with.”
The above provides the backdrop to the Coughlan case, which was a judicial review challenge brought by an opponent of voter ID laws. The challenge was to the lawfulness of decisions by the Minister for the Cabinet Office to order voter ID pilot schemes in the areas administered by Braintree District Council and other local authorities, under section 10 of the Representation of the People Act 2000. The claimant argued that voter ID requirements introduced by the minister’s orders were unlawful for three reasons.
First, the claimant said that the orders fell outside the power conferred on the minister by section 10. Section 10(2) refers to the need to specify “(a) when, where and how voting at the elections is to take place”. According to the claimant, these words had to be interpreted narrowly, as limited to the physical manner in which votes were to be cast. On that interpretation, the question of whether a vote could be cast at all (which is the issue in relation to voter ID) would fall outside the scope of “how voting…is to take place”.
Second, the claimant argued that the voter ID requirements introduced by the orders were contrary to the legislative purpose of section 10, which he identified as being to facilitate and encourage voting at elections, not to make it harder (as voter ID arguably does).
Finally, the claimant contended that the voter ID pilot schemes offended against the constitutional principle of legality. He argued that the scheme constituted interference by ministerial order with the fundamental right of citizens to vote. Such interference requires express words in primary legislation – a requirement not met by section 10(2)(a).
The claim failed in the High Court and was later unanimously rejected by the Court of Appeal. However, the arguments were said by Underhill LJ to be “quite finely balanced” and the judgments cast light on how courts’ currently interpret legislation and identify its purpose.
One of the basic functions of the courts in England and Wales is to ascertain and give effect to the intention of Parliament, as expressed in the legislation Parliament has enacted. The courts do this by interpreting the words Parliament has chosen to describe particular rules, powers or duties, thereby identifying their ‘true’ meaning.
The process of interpretation begins by establishing the natural, ordinary meaning of the particular words Parliament has used (read in the context of the document as a whole). If the words can only mean one thing, or, on an informed reading, there is no real doubt about what Parliament intended, then the court must adopt that meaning. If, however, there is some real ambiguity, such that the words have more than one available meaning, it is necessary to consider the wider circumstances and apply a range of tools outside the text to resolve any controversy. Relevant tools include rules about how to read legislation (called ‘canons of construction’); past judicial decisions; consideration of the likely consequences of each of the meanings contended for; and looking at the circumstances in which the legislation was enacted. As a rule of thumb, material that is not part of the legislation itself, but may shed light on it, should be approached with an open mind but a healthy scepticism.
As noted at paragraph 54 of the judgments in Coughlan, the courts are required to ascertain and give effect to the ‘true’ meaning of a statute having regard to “the purpose which Parliament intended to achieve when it enacted the statute” (see R (Quintavalle) v Secretary of State for Health  2 AC 687, per Lord Bingham of Cornhill). The courts therefore look to adopt the available meaning that best promotes the intention of Parliament and suppress whatever mischief the legislation is intended to remedy.
In Coughlan, McCombe LJ began the process of interpreting section 10(2)(a) on its own terms: “how voting…is to take place”. In his view, the natural, ordinary meaning of these words was clear. They were general and not restricted to the physical manner in which votes were to be cast, as the claimant contended. Requiring voters to produce ID was “an integral part and parcel of the essential procedure of how you vote” and so the intention of Parliament as expressed in the words of the legislation was for the section 10 power to be wide enough to allow voter ID pilot schemes.
McCombe LJ went on to consider the words of section 10(2)(a) in the context of the Representation of the People Act 2000 as a whole, to see if other features of the legislation problematized his initial interpretation. He concluded that nothing contradicted the general and broad meaning he had given to the word “how” and so his search essentially ended there.
Underhill LJ applied the principles of interpretation slightly more subtly. He began by saying that “I do not find it helpful to start by trying to identify a ‘natural meaning’ without reference to the context”. To him, both the claimant’s reading and McCombe LJ’s reading were undoubtedly available, but “It is only possible to form a view about which meaning is correct by considering the phrase against the background of the overall statutory purpose”. In other words he found ambiguity in the words of section 10(2)(a).
Because the words allowed for more than one sensible meaning, other interpretive factors needed to be considered to determine which was correct. In different cases, different tools may be decisive in reaching an informed interpretation of statutory words. In this case Underhill LJ considered the key to be the statutory purpose.
As stated by Lord Reid in Padfield v Minister of Agriculture, Fisheries and Food  AC 997 at 1030, a power like section 10 must be “used to promote the policy and objects of the Act”. If it is instead used “to thwart or run counter to the policy and objects of the Act” the court should protect those aggrieved as a result. It is up to the court to ascertain the policy and objects of legislation (i.e. what we tend today to call the ‘statutory purpose’).
In Coughlan the claimant relied on an array of extraneous evidence to argue that the statutory purpose of pilot scheme provisions in the Representation of the People Act 2000 was to facilitate and encourage voting at elections. The claimant presented the voter ID pilot schemes as obstructing voting and therefore frustrating this purpose. While McCombe LJ accepted that “the most immediate prompt for this part of the legislation was a perceived decline in voter participation”, it did not follow that Parliament intended to restrict the legislative purpose to remedying the particular “mischief which inspired its enactment”. Underhill LJ agreed and concluded that a “better characterisation of the statutory purpose” was that increasing voter turn-out was “one aspect… of a wider purpose of improving the voting process”.
Applying this identified purpose to their reading of section 10(2)(a), both judges concluded that the proper interpretation was that the legislation empowered the minister to use pilot schemes to explore ways of reducing malpractice, or indeed improvements and modifications to the voting process generally. Voter ID fell comfortably within that.
Any interference with the fundamental right of citizens to vote requires express statutory words of a kind not present in section 10(2)(a). This is a well-established aspect of the principle of legality. As stated by Lord Hoffman in R v Secretary of State for the Home Department, ex p. Simms  2 AC 115 at 131:
Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”
The claimant’s final argument was that the pilot schemes were an interference not sanctioned by Parliament.
McCombe LJ dismissed this argument by concluding that the pilot schemes did not actually “override or abrogate” the right to vote at all. Giving short shrift to the controversy around voter ID, he saw no problem: under the pilots, the “voter remains entitled to vote and must only produce sensible means of demonstrating that entitlement” in order to do so.
By contrast, Underhill LJ shared some concerns about the rationale for voter ID, saying that “I do not find it very plausible that any significant number of voters are deterred from voting by the perception that other people may be voting when they are not entitled to”. He also acknowledged the claimant’s “concern that the introduction of an identification requirement may inhibit some voters from voting, and that the impact may be greater on the more disadvantaged groups”. Ultimately, however, he agreed that the piloting of procedures to see if they in fact have such negative impacts, and if so to what extent, does not infringe the principle of legality.
This case illustrates how interpreting legislation is both an art and a science. Interpretation gives discretion to individual judges, both in the application of the relevant principles and in the identification of Parliament’s purpose. In this case the court came to a consistent position, thanks to the breadth of the agreed statutory purpose. In other cases judicial interpretations may diverge.
Underhill LJ ended his judgment by looking to the future of voter ID. He noted that, in order for ministers to introduce universal voter ID on a permanent basis without primary legislation, the Electoral Commission would need to recommend the change and both Houses of Parliament would need to approve it under the affirmative resolution procedure. This assessment may be welcomed by the claimant and other opponents of voter ID. In such a scenario the principle of legality could again be in play.
The measures being piloted are likely to remain controversial. Voter ID may yet give rise to future legal disputes, depending on how the government proceeds after the schemes conclude. The field of battle might shift away from the courts, however, if the government is confident enough to advance a voter-ID bill.
Kingsley Napley LLP regularly represents parties in judicial review challenges. Our lawyers also blog regularly about public law matters, including in relation to the impact of Brexit. Follow our Public Law blog and Brexit blog for the latest commentary.
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