The electoral register is compiled by each local Electoral Registration Officer on an annual basis by conducting a canvass of local residents. The Electoral Registration Officer can require any person to provide any information he needs in order to compile the registers, with a criminal sanction for failure to comply. Since 2001, the register is also updated on a monthly basis. Copies of the electoral register have been available in the UK for public inspection and for sale in one form or another since about 1832. Its information has been used for many non electoral purposes, such as direct marketing, credit referencing, private investigation etc.
Regulation 48 of the Representation of the People (England and Wales) Regulations 2001 (and similar provisions in the Representation of the People (Scotland) Regulations 2001 and the Representation of the People (Northern Ireland) Regulations 2000) requires an Electoral Registration Officer to sell a copy of the register at a specified price to anyone who wishes to buy it. Section 9 of the Representation of the People Act 2000 provides for regulations to be made on the access to, sale and supply of electoral registers.
In 2001 a court ruling (the 'Robertson case') upheld the view that it was not lawful for an elector's details to be available to commercial concerns against his will, but regulation 48 was not quashed (see para 7 below).
As a direct result of this ruling, and since there is currently no administrative framework under which individuals can choose to have their details withheld from the register in any circumstances, those responsible for access to the electoral register have tended to refuse access to the latest canvass material (October 2001) for any other than electoral purposes. This has proved deleterious to businesses which have been accustomed in the past to using such information for non electoral purposes such as vetting credit applications. This response to the ruling does not necessarily seem to be the most appropriate or proportionate means of compliance.
On 13 May 2002, following wide initial consultation, over a number of months, with those likely to be affected by regulations (such as Electoral Registration Officers and businesses which had traditionally made use of the registers), the Government published draft regulations on access to, and supply and sale of, the electoral register. There was a further consultation period of one month.
A major policy objective of the draft regulations is to make clear the extent to which electoral registers can lawfully be made available for purposes other than electoral purposes. The regulations also provide for an orderly administrative framework to give effect to the human rights and data protection requirements, including the Robertson case, in particular allowing individuals to 'opt out' of an edited electoral register which will be available for sale for any purpose. (Details of all electors will however still be held on the full register, which will be available only for electoral and certain other restricted purposes.)
In the Robertson case a UK elector, Mr Robertson, objected to the fact that he could not have his personal details removed from the electoral register that was generally for sale. The court held that under the current law, including the Data Protection Act 1988 (which implemented the European Data Protection Directive) and the Human Rights Act 1998, an elector had the right to object to his or her details being included in an electoral register that was available for sale to commercial organisations. Hence, on the basis of this judgement, previous practice of electoral registers being generally available was held to be unlawful.
However, the relevant regulation was not quashed and remains in force. Electoral Registration Officers are therefore required to interpret it consistently with the Data Protection Act 1988 (which implemented the European Data Protection Directive) and the Human Rights Act 1998. Given that the judgement simply indicates that the previous practice was unlawful, Electoral Registration Officers will have taken their own advice and made a judgement as to the legality of supplying a copy of the register to any particular applicant. This has resulted in an inconsistent and sometimes overcautious approach.
At the same time as the draft regulations were issued, a questionnaire on the financial impact of these changes on affected business sectors was issued to:-
British Bankers' Association (BBA)
Direct Marketers' Association (DMA)
Institution of Charity Fund Managers
Confederation of British Industry
Advertising Association
Federation of Small Businesses
Addressees were encouraged to copy this to any other interested parties, or let the issuers know of any other body which might wish to receive it. The questionnaire was also posted on the Departmental web-site. Closing date for returns was 13 June 2002. Three addressees responded (see attached table), representing many hundreds of business interests throughout the UK.
For purposes of comparison, information was sought from affected business sectors about their estimates of the financial impact of two options:-
option 1 where electoral registers would be available for electoral but not for commercial purposes; and
option 2 (which represents the circumstances for which provision is made in the proposed regulations) where full electoral registers would be available not only for electoral purposes but also for certain other purposes including the vetting of applications for credit, and edited registers would be available for any purpose.
Option 1 (the circumstance generally prevailing today) would have the benefit of unarguably meeting the data protection and human rights requirements. However, it would be against the public interest in particular respects and would continue the current deleterious effects on business. Questionnaire replies (see table) show that option 1 results in significant costs to industry.
Option 2 equates to the proposals in the draft regulations, which set out a framework for meeting the human rights and data protection requirements, including the setting-up of full and edited registers. It also specifies certain non electoral uses of the full register which the Government consider to meet the requirements of the data protection and human rights legislation, and introduces offences (together with penalties for offenders). There remains some risk of legal challenge, but the Government is confident that the provisions provide clear public interest benefits. There can be no return, however, to total freedom to use the register for any purpose, so that some costs to industry remain.
A 'do nothing' option would be of no benefit, as the current situation is already damaging to industry. UK law and practices in respect of electoral registers need to be brought clearly into line with legal advice on human rights and data protection requirements. A non regulatory option such as guidelines or a code of practice is not acceptable. This is because, in the interests of public confidence in the electoral process, and bearing in mind the compulsion to register as an elector, these matters require an element of certainty and an ability to enforce (e.g. involving the institution of offences and penalties) which such means cannot achieve.
The proposed Representation the People (England and Wales) (Amendment) Regulations, Representation of the People (Scotland) (Amendment) Regulations and Representation of the People (Northern Ireland) (Amendment) Regulations do not, and could not, seek to change the legal position in relation to primary legislation. What the proposed Regulations do provide is an orderly administrative framework to give effect to the requirements flowing from the 1988 and 1998 Acts, in particular the right of electors to 'opt out' of an edited register. The provisions also seek to make clear the extent to which, pursuant to the 1988 and 1998 Acts (as interpreted by the Robertson ruling), electoral registers can be made available for certain uses including some financial services industry purposes.
The Government believes that option 1 is disproportionate, i.e. is more restrictive as to the availability of electoral registers than is required by the 1988 and 1998 Acts. In the Government's view option 2 provides the degree of access to electoral registers by business that is consistent with 1988 and 1998 Acts. This greater degree of access, as shown in the table, results in significantly less cost to business than under option 1. Any greater degree of access than option 2 has significant risk of being contrary to the 1988 and 1998 Acts.
Option 2 was developed following wide consultation with affected parties over a considerable period, both before and after the Robertson judgement. The Government took into account both the views of those who promoted the interests of business in allowing wider access and those (including the Electoral Commission and the Information Commissioner) who wanted to see access restricted, preferably only making the register available for electoral purposes. The resulting draft was felt by the Government to provide the best balance between the various competing interests and to provide the widest access which is consistent with the law.
By making the proposed regulations Government will give business, electoral administrators, and the public generally some certainty about the degree of access to the electoral registers permitted under the 1988 and 1998 Acts. Without the regulations, business, electoral administrators and others might well consider the extent of the option 2 access to present too great a legal risk and hence adopt the more costly practices of the more restrictive option 1. Indeed, this is the circumstance that is generally prevailing today, following the Robertson case.
Accordingly, it is the Government's belief that making these regulations will enable practices as to the availability of the electoral registers to change from what they are today to practices that will impose a significantly lower burden on business.
DLLB
26 June 2002
declaration:-
I have read the regulatory Impact assessment and I am satisfied that the benefits justify the costs.
YVETTE COOPER
Parliamentary Secretary
Lord Chancellor's Department
