Jacob Eisler: Voter ID and the Elections Bill 2021: Legislative Manipulation of Democratic Procedure and the Limits of Judicial Review

The Elections Bill 2021, as of the date of publication for the House of Commons Committee stage, advances a variety of changes to the regulation of elections and the practice of voting in the UK. Of the reforms, one controversially reshapes the practical experience of voting for most citizens. A new voter ID requirement will amend the Representation of the People Act 1983 to require proof of identity, in the form of a photographic ID such as a passport, drivers’ license, or dedicated voter identity document, for in-person voting. While this may seem like a light burden, both the broader impact of such a requirement on voting and the underlying anti-fraud rationale have raised significant concerns.

There is alarming evidence that voter ID measures suppress voting, particularly among historically politically oppressed or vulnerable groups such as racial minorities. While some have advocated for adoption of a voter ID requirement as an anti-fraud measure, there is a lack of evidence of widespread or systemic voter fraud. The pathological effects on electoral participation combined with a tenuous policy benefit have raised concerns that the voter ID measure in the Elections Bill is an attempt by Conservatives to favour its own constituencies in the practice of voting, thereby reshaping the broader patterns of representation.

Accepting arguendo that the voter ID requirement is an objectionable act of partisan entrenchment, the question is what could be done about it. On first glance, the answer appears to be ‘trust the democratic process.’ Under an orthodox understanding of Parliamentary sovereignty, the only recourse would be Parliamentary action itself, motivated by dissatisfied voters perceiving distortion of democratic practice and either altering or threatening to alter the composition of Parliament. Yet because the provision at issue would likely impact voter participation and thus substantive popular authorisation of Parliament, this solution poses a paradox for the democratic constitutional order: what can be done when Parliament self-servingly reshapes the very conditions of representation?

By traditional lights, the prospect of a legal rather than political solution appears slim. The voter ID provision is precisely articulated such that legal interpretation offers little space for shifting its policy effects. Furthermore, the judiciary has shown itself to be broadly tolerant of decisions by the legislature and executive that shape the democratic process. The judiciary has condoned restrictions on political speech and deprivation of the voting power of a particular disfavoured class (prisoners). In Moohan v. Lord Advocate, ([34]) Lord Hodge explicitly articulated the principle that there is, at common law, no “general right of universal and equal suffrage.” The question of prisoners’ voting has also been the primary focus of concern regarding application of Article 3 under Protocol 1 of the European Convention on Human Rights and the Human Rights Act 1998. While the Grand Chamber had deemed the UK’s policy on prisoner voting illegal, the UK judiciary had shown little interest in policing the democratic process through enforcement of statutory human rights.

However, none of these disputes have addressed legislation with as direct and universal an effect on voting practices as the voter ID provision. Furthermore, the Miller cases displayed the UKSC’s willingness to invoke the integrity of the general constitutional arrangement of the UK to resolve cases. In R. v. Miller (No.2) / Cherry, the UK Supreme Court specifically declared that a foundational principle of the UK constitution is its status as a “representative democracy” ([55]), with Parliamentary legitimacy derived from its population by “the democratically elected representatives of the people” ([57]). A fundamental constitutional principle of popular self-rule could provide a point of entry for the judiciary to police the terms of elections. A provision that broadly transforms the terms of voting might activate just such a principle.

The Miller cases, of course, used this principle to constrain the executive from acting in a manner that did not adequately respect the democratically authorised priority of Parliament. Judicial review of the legality of statutory voting provisions would address the relationship internal to the principle of Parliamentary sovereignty. If Parliament’s constitutional authority is derived from legitimate authorisation by the people, any Parliamentary action that diminished the relationship between formal selection of representatives and legitimate popular authorisation would itself be constitutionally suspect. This raises a tension with the basic principle of Parliamentary sovereignty. But the famous obiter in Jackson v. Attorney General of Lords Hope and Steyn raised the possibility that the judiciary may no longer recognize formal Parliamentary approval as sufficient to guarantee constitutionality.

The electoral process offers a unique opportunity for revisiting Parliamentary sovereignty, because Parliamentary transformation of electoral procedure impacts the terms of Parliament’s own status as democratically legitimate. If Parliament enacts legislation that undermines its own connection to popular legitimacy, particularly to entrench or benefit the group in power, it would be a natural candidate for identifying a constitutional principle outside of Parliamentary sovereignty. This is a matter of political structure, and has been identified as a possible limit to Parliamentary sovereignty. In Moohan, Lord Hodge speculated in obiter that if “a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful” ([35]). However, judicial review based on contravention of fair democratic process elicits a bedrock normative question – how could the judiciary undertake freestanding review of statutes that impact democracy without committing itself to a substantive conception of popular autonomy? While the rhetoric of representative democracy and popular autonomy is attractive, it does not provide sufficient specificity to determine the legality of legislation that modifies the structure of the electoral process. This problem not only evokes the contestable nature of democracy itself, but the appropriate extent of judicial authority and the role of courts in the constitutional structure. This is nested within the more general difficulty of how any institution – whether legislature or the judiciary – can dictate how popular will is translated into authorisation of the state, given that it is such terms that give the state and its institutions democratic legitimacy.

The result is a paradox: if courts have the authority to assert appropriate terms of democratic structure by adverting to basic constitutional norms, their power seems unbounded; but if they cannot, then Parliament has the hypothetical power to dominate the polity by freely setting the terms of its own composition. This harkens to the debate over the ultimate source of authority under the UK constitution – Parliament or the judiciary – but frames it as an intermediary question to achieving democratic legitimacy rather than the question of ultra vires. Lord Hodge’s statement in Moohan suggests a general judicial mandate to protect democratic constitutionalism that can, in extreme circumstances, override Parliamentary legislation, but does not explicate the basis or bounds of such judicial power.

Of course, while voter ID may shift the terms, trends, and power allocation of democratic representation, it is unlikely to be a sufficiently blatant hijacking of popular self-rule to prompt such extraordinary judicial intervention. However, entrenching legislation of this type raises two further issues. Firstly, should Parliament or the government undertake more aggressive measures to turn electoral procedure to favour the party in power, the impetus for judicial action could grow. The precise terms of such intervention, and if they would prompt a constitutional crisis, remain unsettled. Secondly, if the party in power were to take incremental steps to entrench itself, it could distort substantive democratic process and outcomes without the single moment of salience that would elicit either broad popular outrage or exceptional judicial innovation, or which might not even, as discrete reforms, appear blatantly anti-democratic.

The question becomes the appropriate judicial response to either type of anti-democratic legislation. The Miller cases suggest a willingness to advance general constitutional principles in the process of judicial review, but rely on the well-established principles of Parliamentary sovereignty and balance of powers. Terms of democratic procedure do not have as clearly specified or robustly developed legal-constitutional legacy. While the HRA might seem to offer some guidance, the right to ‘free elections’ guaranteed by Article 3 of Protocol 1 generally affords member states a broad margin of appreciation such that only the most blatant violation of electoral norms (such as outright denial of the vote) will activate it. Furthermore, even were the Court to identify manipulation of electoral process as denial of free elections, where directly undertaken by the legislature, the available remedy would be a declaration of incompatibility. While this would highlight problematic legislative action, it would not interdict basic distortion of terms of self-rule or dedicated attempts at legislative entrenchment. Such declarations might be especially ineffective against incremental erosion of fair democratic process, because no one instance would indicate to the electorate the cumulative erosion of democratic process. The development of new constitutional principles forged in norms of popularly accountable representation – parallel to the principles given novel independent force in Miller – seems the most promising solution, despite the prospective risks and unanswered questions.

Jacob Eisler, Associate Professor of Law at Southampton Law School

(Suggested citation: J. Eisler, ‘Voter ID and the Elections Bill 2021: Legislative Manipulation of Democratic Procedure and the Limits of Judicial Review’, U.K. Const. L. Blog (29th Sept. 2021) (available at https://ukconstitutionallaw.org/))