England and Wales High Court (Administrative Court) Decisions

“I am advised that the compilation of the Register is a separate issue to the uses to be made of it. If a person meets the criteria for inclusion in the Register then they should be included.....Put simply your dispute would appear to be with the Home Office for not changing the law on the sale of the registers in time for the commencement of the Human Rights Act on October 2nd this year rather than with this Council. The issue of the sale of Registers is a separate matter to the process of electoral registration and I would therefore invite you to seek legal advice with a view to taking the issue up with the Government.”

The statutory framework

“10. Provisions requiring copies of the electors lists, register and other documents or prescribed parts of them to be available for inspection by the public at such places as may be prescribed.

11. Provisions authorising or requiring the registration officer to supply such persons as may be prescribed copies of the electors lists, register and other documents or prescribed parts of them, whether free of charge or on payment of a prescribed fee. ”

“(1) So long as there are sufficient copies available after allowing for the number which may be required for his registration duties......, the registration officer shall supply to any person copies of any part or parts of the electors lists on payment [of a prescribed fee] .”

By an amendment in 1990 customers were enabled to pre-order copies of the next list (regulation 54(4)). In these circumstances, an ERO was obliged to supply copies on payment of the prescribed fee, with no limitation by reference to “so long as there are sufficient copies available”. In addition, regulation 55 imposed an obligation on an ERO who is a data user to supply to a person with a regulation 53 interest relevant data and conferred upon him a discretion to supply data to other persons, in each case upon payment of a prescribed fee.

“Member States shall grant the data subject the right:

(a) at least in the cases referred to in Article 7(e) and (f), to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation. Where there is a justified objection, the processing instigated by the controller may no longer involve those data;

(b) to object, on request and free of charge, to the processing of personal data relating to him which the controller anticipates being processed for the purposes of direct marketing, or to be informed before personal data are disclosed for the first time to third parties or used on their behalf for the purposes of direct marketing, and to be expressly offered the right to object free of charge to such disclosure or uses.

Member States shall take the necessary measures to ensure that data subjects are aware of the existence of the right referred to in the first subparagraph of (b).”

“(1) An individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing for the purposes of direct marketing personal data in respect of which he is the data subject.

(2) If the court is satisfied, on the application of any person who has given a notice under subsection (1), that the data controller has failed to comply with the notice, the court may order him to take such steps for complying with the notice as the court thinks fit.”

“10 (1) Provisions requiring a registration officer to prepare in addition to the version of the register which he is required to prepare by virtue of the other provisions of this Act (‘the full register’), a version of the register which omits the names and addresses of registered electors by or on behalf of whom requests have been made to have their names and addresses excluded from that version of it(‘the edited register’).

(2) Provisions specifying a form of words to be used by a registration officer for the purpose of -

(a) explaining to persons registered or applying to be registered .......the purposes for which the full register and the edited register may each be used, and

(b) ascertaining whether the exclusion of their names and addresses from the edited register is requested by or on behalf of such persons.

10A. Provisions requiring copies of the full register and other documents, or prescribed parts of them, to be available for inspection by the public......

10B Provisions authorising or requiring a registration officer -

(a) to supply to such persons as may be prescribed copies of the full register and other documents, or prescribed parts of them, whether free of charge or on payment of a prescribed fee;

(b) to supply to any persons copies of the edited register, or any prescribed part of it, on payment of a prescribed fee.

..........

11(1) Provisions imposing prohibitions or restrictions relating to the extent (if any) to which-

(a)persons inspecting the full register.....may make copies of the register;

(b)persons to whom copies of the full register are supplied may-

(i) supply those copies, or otherwise disclose any information contained in them, to other persons, or

(ii) make use of any such information otherwise than for purposes specified in such regulations..... ”

“supply a copy or copies of the register.....to any person on payment of a [prescribed] fee”

unless to do so would result in his having insufficient copies for other statutory purposes. Subject to that proviso, and notwithstanding the enabling provisions of section 9 of the 2000 Act, anyone can purchase a copy of the Register. No provision is made in the 2001 Regulations for edited registers which have been edited pursuant to requests for exclusion.

The present application

Delay

Ground (1): Article 14(b) of the Directive.

“to object.....to the processing of personal data relating to him which the controller anticipates being processed for the purposes of direct marketing”.

In the context of this case, the Claimant is “the data subject” and the ERO is “the controller”. The alternative is to grant to the data subject the right

“to be informed before personal data are disclosed for the first time to third parties or used on their behalf for direct marketing, and to be expressly offered the right to object .....to such disclosure or uses”

“supply of the Register for commercial use is, and has for some time been, a major source of complaint to Government and to registration officers.” (para 2.4.3.).

I shall have to return to the evidence about this in more detail when I consider the second ground of challenge based on the ECHR. For present purposes, I confine myself to the fact that, for many years, the data contained in the Register have been purchased by commercial interests and it has been obvious to EROs and to others that the data so purchased have been used for, amongst other things, direct marketing purposes. In my judgment, that much is beyond dispute.

“Member States shall provide that personal data may be processed only if:

(a) the data subject has unambiguously given his consent; or

(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or

(c) processing is necessary for compliance with a legal obligation to which the controller is subject; or

(d) processing is necessary in order to protect the vital interests of the data subject; or

(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or

(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1(1).”

According to this submission, the sale of the Register by an ERO, pursuant to the Regulations, is permissible under Article 7 and, in particular, (c) and (e). If Article 14 had been made expressly subject to Article 7, this bold submission might have had some potential. However, it is plain from a consideration of Article 14 in its context that it is not so subject. Whereas Article 14 (a) cross-refers to Article 7(e) and (f) - and this in the context of conferring rights, not abrogating them - Article 14(b) contains no such cross-reference. Its currency is a right of objection. To construe it as being subject to Article 7 would be to emasculate it. Moreover, section 11 of the Data Protection Act contains no such limitation.

Ground (2): Article 8 of the ECHR

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Claimant does not suggest that a requirement that a person who is eligible to vote must supply his name and address to an ERO for electoral purposes contravenes Article 8. Nor does he complain about the use of the information for other purposes such as the administration of jury service pursuant to the Juries Act 1974. His concern is that EROs sell these personal details to commercial organisations in the knowledge that they will be used for direct marketing purposes.

“First, individuals will receive marketing offers because their details appear in the Register. A marketeer, possibly using geodemographic information will decide it wants to target particular types of individuals living in a specific area, perhaps women living alone in selected postal districts. Having chosen the postal districts it will then identify the individuals within them from the Register. Offers may be sent by post or could involve unsolicited telephone calls if information from the public telephone directory is combined with the Register. Analysis of the Register can also help marketeers identify targets such as ‘new movers’ and ‘empty nesters’ or those likely to fall within a particular age band. Second, the Register may be used for ‘cleaning’. A marketer might have a list of names and addresses from another source. It will run its own list alongside the Register removing names which do not appear on the Register on the assumption that the individuals have moved. It might also amend details on its own list on the assumption that names and addresses are more likely to be recorded accurately on the Register.”

The two main consumer credit reference agencies, Equifax and Experian, routinely purchase and computerise the complete Register. In 1998 they purchased paper copies which they sent overseas to be data captured, prior to disseminating the material to other commercial concerns. Having described ways in which technology and globalisation have intensified the commercial exploitation of the Register, the Registrar expressed the belief that

“technological advances and developing business practices mean the sale of the Register now impacts on the privacy of individuals to a significantly greater extent than was the case in the past.”

She further described the marketing techniques in this passage:

“Any consideration of the impact of the sale of the Register should bear in mind not just the personal information that is actually published in the Register but also other information that can be derived from it. The published information includes the dates of birth of 16 and 17 year olds as well as the full names and addresses of all those entitled to vote. By comparing the current Register with the previous one it is possible to produce a list of ‘new movers’. By going further back it is possible to establish how long someone has lived at their address and whether they have ‘ residential stability’. It is also possible to produce lists of men or women who appear to be living alone, or couples who have recently left home. It is even possible to estimate ages. For example, a ‘David’ living with an ‘Ethel’ is likely to be in a different age band to a ‘David’ living with a ‘Kylie’.”

In addition to the evidence about credit rating and direct marketing, there is evidence of resort to the Register for purposes of fraud and other crime although it may well be that uses for purposes of crime are often the basis of inspection rather than purchase of the Register.

(i) Is Article 8 engaged?

(ii) Justification

“the benefits resulting from such disclosure are enjoyed both by consumers and suppliers, and hence by the economy and the community generally.”

He supported this by reference to a Government consultation paper which preceded the 1986 Regulations and the findings of the Home Office Working Party on Electoral Procedures. Whilst it favoured the introduction of a right of objection, it concluded that

“the economic arguments for retaining a commercially available register are strong.”

On this point, I have no doubt that Mr. Crow is correct in his submission that there is a legitimate objective. It is when one turns to proportionality that the case for the Secretary of State runs into difficulty. Mr. Blake, in submitting that the absence of an individual right of objection is disproportionate, invokes impressive support. The Working Party on Electoral Procedures, reflecting the submission to it by the Data Protection Registrar, recommended an individual right of objection. Section 9 of the Representation of the People Act 2000 (to which I referred when describing the statutory framework) prepared the ground for sale of an edited Register. When the then Home Secretary the Right Honourable Mr. Jack Straw MP, moved the Second Reading of the Bill which became the 2000 Act he echoed the views of the Working Party and emphasised its all-party and unanimous nature. He said (Hansard, 30 November 1999, cols 168-169):

“.....our proposal - subject to the House agreeing the Bill and, later, the Regulations - is that the full Register should not be commercially available for sale, and that is right and proper”

The fact that the 2001 Regulations contained no move in that direction - but, rather, a step in the opposite direction by imposing a duty of sale on EROs - therefore comes as a surprise (which is to some extent mitigated by the information that further Regulations are now under consideration which would introduce an individual right of objection and an edited Register for commercial sales).

Ground (3) Article 3 of the First Protocol and the right to vote

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballet, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

The case for the Claimant is that the refusal of the ERO to ensure that the Claimant’s details would not be supplied to commercial organisations in the face of his objection imposed an unjustifiable condition on his right to vote. Although, at first sight, Article 3 may not seem to be expressed in a form which confers an individual right to vote, that is the direction in which the Strasbourg jurisprudence has moved. In Mathieu - Mohin and Clerfayt v. Belgium (1987) 10 EHRR 1 the Court said (at p.16):

“As to the nature of the rights thus enshrined in Article 3, the view taken by the Commission has evolved. From the idea of an ‘institutional’ right to the holding of free elections the Commission has moved to the concept of ‘universal suffrage’ and then, as a consequence, to the concept of subjective rights of participation - the ‘right to vote’ and the ‘right to stand for election to the legislature’. The Court approves this latter concept.”

It then prescribed the following approach:

“The rights in question are not absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations. In their internal legal orders the Contracting States make the right to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirement of Protocol No 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not ‘thwart the free expression of the opinion of the people in the choice of the legislature’.”

These principles have recently been considered by the Divisional Court in relation to the disenfranchisement of convicted prisoners: Pearson and Martinez v. Secretary of State for the Home Department (4 April 2001, Kennedy LJ and Garland J).

“If a substantial burden exists.....the restrictions on the right to vote must serve a compelling state of interest and be narrowly tailored to serve that state interest.”

The Court found there to be a “substantial burden”, attaching importance to the onward dissemination of the SSN, rather than its internal administrative use. The state interest relied on was the control of voter fraud. The Court concluded that the disclosure of the SSN was not narrowly tailored to fulfil that state interest which could be fulfilled by, for example, the use of a voter registration number as opposed to an SSN. Thus, to the extent that the rule

“sweep[s] broader than necessary to advance electoral order.....it creates an intolerable burden on Greidinger’s fundamental right to vote.” (p. 1355).

Conclusion