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MCM Voter ID Updated Note 15.11.2022.docx
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Elections Act 2022 - Voter ID Provisions

Provisions contained in the Elections Act 2022 (the “EA 2022”) introducing the requirement to show photo ID at UK Parliamentary elections, police and crime commissioner elections and at local elections in England are due to come into force prior to the local elections in May 2023.

This note sets out our view on the viability of a challenge to these voter ID provisions, focusing on the exclusion from the list of accepted documents those IDs commonly held by young people such as railcards, travel passes, and student ID despite the inclusion of a broad range of travel passes commonly held by older people.

The note sets out the relevant statutory provisions, Government reasoning for the scope of acceptable form ID, namely that older people are less likely to have commonly held IDs such as a passport or driving licence compared to younger people, and the policy objections to voter ID, highlighting in particular the impact on younger people from marginalised groups. The note concludes on the prospects for a future legal challenge to the provisions, when they come into force. It concludes that such a challenge is likely to be difficult due to the obstacles in obtaining sufficient evidence, firstly, on ID ownership across various demographics, and secondly, on the impact voter ID requirements have had on marginalised groups’ access to voting.

Statutory provisions

  1. Schedule 1 of the EA22, amending the Representation of the People Act 1983 (“RPA 1983”), provides the “specified documents” (i.e. acceptable forms of ID for the purpose of voting) at paragraph 18(4)(1H). These include a UK, EEA, or Commonwealth country passport, a driving licence, PASS card, a biometric immigration document, a relevant concessionary travel pass, a ‘blue badge’, an electoral identity card, and an EEA national identity card.

  1. In relation to the acceptable concessionary travel passes, these are listed in paragraph 18(4)(1J) and include only those passes available to older and disabled persons, such as an Older Person’s Bus Pass, a Disabled Person’s Bus Pass, an Oyster 60+ card, and other similar passes from Northern Ireland, Wales, and Scotland.

  1. Paragraph 18(4)(1Q) provides that Regulations may make provisions varying the list of specified documents, by adding reference to a document, removing reference to a document (other than the list of travel passes in paragraph (1J)), or varying the description of documents already included. The power to remove documents is exercisable only on, and in accordance with, a recommendation of the Electoral Commission.

  1. During the legislative process, amendments to the Bill were proposed by the House of Lords to include a wider list of specified documents, including, amongst others, student ID, National Railcard, and 18+ student Oyster photocard. These amendments were ultimately rejected by the House of Commons as they were not considered ‘adequate photographic identification’.

Government’s reasons for including older persons’ travel passes

  1. The Government’s Equality Impact Assessment on voter ID found that the ID requirement is likely to have a greater impact on older people and people with disabilities, as the figures showed such people are less likely to have the most common forms of photo ID. The Government has stated that to mitigate this they have widened the list of acceptable ID to travel passes, which are more likely to be held by these groups.

  1. A Cabinet Office survey conducted in March 2021[1] (“the Cabinet Office survey”) found that 47% of those 70+ owned a travel pass funded by the Government, compared to 13% overall.[2] The survey equally found that those from the youngest age group 18-29 were less likely than people overall to own no photo IDs, with 99% in this group owning photo ID. According to the survey in the 18-29 group, 93% held a valid or expired passport, 92-94% held a full or provisional driving license, and 2-4% held a travel pass funded by the Government. Notably, however, the 2018 voter ID pilot in Woking accepted 16-25 railcards as an acceptable form of ID.

Policy objections

  1. Although individuals have the option to apply for a free voter ID card issued by their local authority in order to vote (the electoral identity card mentioned at paragraph 1, above) , the Cabinet Office survey found when individuals were asked how likely they would be to apply for such an identity card, referred to in the survey as a “Voter Card”, “over half (56%) reported that they would be unlikely or very unlikely to apply. Meanwhile, around one-in-three (31%) said that they would be likely or very likely to apply. Respondents with no photo ID were significantly more likely than the average across all other groups to say that they were likely or very likely to apply (43%). Despite this, it is important to note that a substantial proportion (42%) of respondents with no photo ID said that they were unlikely or very unlikely to apply. This would suggest that close to half of those without photo ID would not seek to apply for the Voter Card, and therefore be at risk of ending up without photo ID”.

  1. The impact of the introduction of voter ID is potentially significant given the already low voter turnout of young people.[3] In the 2019 general election, turnout for 18-34 year olds was 54% whereas turnout for those aged 65+ was 77%, with previous elections following a similar trend. Similarly, voter turnout amongst ethnic minority groups was 53-59% compared with 67-70% of white voters.

  1. In evidence submitted to the Elections Bill Inquiry conducted by the Public Administration and Constitutional Affairs Committee last year, it was argued by campaign groups that the figures from the Cabinet Office survey on individuals owning ID are an overestimate. It is worth noting that the Cabinet Office survey supporting the claim that 99% of young people own ID included only 8,500 respondents. In particular, concerns have been raised by groups representing young ethnic minority people and young trans people. A summary of the objections is outlined in an appendix to this note.

Prospects for challenging the provisions

  1. In our view, a legal challenge to these provisions will be difficult to mount and unlikely to succeed at the time the provisions first come into force. At the time the voter ID provisions contained in paragraph 18 of schedule 1 of the Act become law, a human rights claims could, in principle, be brought under Article 3 of Protocol 1 (right to free and fair elections), and Article 14 (prohibition on discrimination). However, at that stage it would likely be difficult to obtain sufficient evidence to discredit the Government’s figures on ID ownership to an extent sufficient to engage the Court.
  2. If such a challenge were to be brought, it would require a substantial investment to gather sufficient evidence, such as a comprehensive survey demonstrating that the figures on ID ownership relied on by the Government are inaccurate. Even if such resources and costs could be met, the issue would be subject to a test of proportionality, where the Court will allow the government a wide margin of discretion. In other words, the courts will provide the Government leeway in determining the balance to be struck in weighing the purported competing interests between ensuring elections are secure and access to voting. The Government may also rely on the Regulation-making power (see paragraph 3, above) to argue that they already hold the power to add other forms of ID if concerns do prove to be justified.

  1. A challenge on this basis, therefore, would require direct and substantial evidence of the impact voter ID requirements has had on particular demographics’ access to elections. As such, a challenge is unlikely to become viable until the voter ID requirements have been in force during an election when monitoring can be undertaken on the impact across demographics.

  1. The question of voter ID has previously been considered by the Supreme Court in the case of Coughlan.[4] The Supreme Court was not directly concerned with the issues outlined above as the case concerned separate provisions in the RPA 1983 introducing voter ID pilots in local government elections in 2019, and whether the introduction of the pilots was ultra vires under the Act and introduced for a lawful purpose. As interveners, a number of organisations raised similar objections before the Court to those detailed in the appendix in relation to the impact of the pilots on marginalised groups. Nevertheless, the Court found the pilots were lawful within the interpretation of the RPA 1983, and did not directly address the points raised in the interveners’ written submissions in determining the issues. As such, questions of the impact of voter ID and the human rights implications under Article 3 of Protocol 1 and Article 14 remain unexamined.

  1. Even more recently, draft Regulations addressing the application process for electoral identity cards, the Voter Identification Regulations 2022,[5] have been laid before the Houses of Parliament on 3 November 2022, but do not address or expand the list of acceptable ID. These Regulations are subject to the draft affirmative procedure, whereby they are scrutinised and debated by Parliament. However, Parliament does not have the power to amend a statutory instrument and is restricted to either rejecting or approving the instrument. In practice, it is highly unlikely for a statutory instrument to be rejected. There remains, however, the power to introduce separate Regulations expanding the list of acceptable IDs.


a. Hackney Council

  1. Hackney Council’s analysis[6] shows that young and non-white people in Hackney will be disenfranchised by the new rules. Their analysis shows that one in four residents don’t hold a UK passport, and in nearly half of households in Hackney, nobody holds a driving licence, with young people less likely to – and Black and Asian people and those from the Gypsy, Roma and Traveller communities less likely to do so than White residents. 

b. The Runnymede Trust

  1. More generally across the population, Runnymede reports[7] that in the UK, 3.5 million eligible voters do not have any form of photo ID. Although over three-quarters of white people hold a full driving license, 38% of Asian people and 48% of Black people do not. According to the 2011 census, only 66% of those of Gypsy or Irish Traveller background hold a passport.

c. Stonewall

  1. Stonewall submitted in their written evidence[8] to the Public Administration and Constitutional Affairs Committee’s Elections Bill Inquiry that in Northern Ireland the introduction of Voter ID negatively impacted voter turnout, and had a disproportionate impact on disadvantaged people, including people aged 18-24. Further, Stonewall submitted that LGBTQ+ young people make up one quarter of the youth homeless population (a disproportionately high figure considering 4.4% of those aged 16-24 identify as LGBTQ+). Stonewall submitted that this group is less likely to have a fixed address, and may therefore face barriers in obtaining a birth certificate and/or other documentation. Equally, Stonewall conducted a survey about the barriers voter ID create for LGBTQ+ people, and found 35% said they would be less likely to vote if they had to present ID, and 35% would be unlikely to apply for a free Voter Card. Particular concerns raised included the risk of intrusive questions when applying for or presenting ID, and being outed as trans when apply for or presenting ID.

d. Mermaids

  1. Similarly, Mermaids conducted a survey of trans young people[9] about their experiences in accessing representative ID and found that around 70% of respondents do not currently have a representative form of ID, and that 30% had been treated differently or harassed/bullied when presenting ID in the past, with 60% feeling that they may have been treated differently or harassed/bullied. Mermaids equally raised concerns about the ‘medicalised’ process for trans people to update their gender and other information on their ID, and the barriers this therefore creates to obtaining representative ID, with these same issues likely to arise in relation to the free Voter Card.

e. Helen Mountford QC

  1. Helen Mountford QC provided oral evidence to the Committee[10] that it is too soon to say whether there is a breach of the ECHR, but highlighted that there is a real concern about the equal enjoyment provision under Article 14 due to the impact on certain groups, and that in the absence of any analysis suggesting that there is a real risk of threat to the integrity of elections because of personation offences, there is a serious risk that the ID provision may be found to have a disproportionate effect on access to elections and the purported purpose of the measure. As such, she is of the view that the ID provision should be time limited in the first instance, and there should be proper provision to analyse the demographic effect of the provisions, and the opportunity for Parliament to reconsider in response to the outcome of such monitoring.

[1] Cabinet Office, Photographic ID Research – Headline Findings

[2] Elections Bill Equality Impact Assessment, p 7

[3] E Uberoi & N Johnston, Political disengagement in the UK: who is disengaged?, Briefing Paper Number CBP-7501, 25 February 2021, House of Commons Library 

[4] R (on the application of Coughlan) v Minister for the Cabinet Office [2022] UKSC 11


[6] Hackney Council, Voter ID plans will disenfranchise young, Black and Asian, Council tells MPs, 26 October 2021 

[7] Runnymede, Voter ID: a disproportionate solution to an invisible problem, 9 July 2021 

[8] Written evidence from Stonewall, Public Administration and Constitutional Affairs Committee, The Elections Bill Inquiry, August 2021 

[9] Written evidence from Mermaids, Ibid 

[10] Public Administration and Constitutional Affairs Committee, The Elections Bill, HC 597, 7 September 2021, Q23-24