Data protection and human rights legislation have brought into question the private investigator’s right to consult the electoral register.
Electoral register: history
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The electoral register, in respect of parliamentary voters, first came into force following the passing of the Representation of the People Act (ROPA) of 1832. There were various Acts dealing with registration the most important of which were passed in 1843, 1865, 1867, 1868, 1878, 1885 and 1888, collectively they are called ‘The Registration of Electors Act 1843 to 1891’. Thus over a period of some 60 years the foundation of the electoral register was set.
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To qualify at that time it was necessary that the elector was an ‘ownership elector’, ‘occupation elector’, ‘old lodger claimant’, and ‘ownership claimant’. The register was compiled by the clerk to the town or county council or the returning officer in the parliamentary borough who passed their lists to the overseers. Objections to the inclusion or exclusion from the register could be made to the Revision Courts. Revising barristers ‘of not less than seven years standing’ staffed these courts. The overseers were entitled to claim their expenses and these were approved by the barristers and claimed from the next poor rate raised. The route for appeal from these Courts was to the King’s Bench Division. Such were the rules that only property owners or tenants could claim the right to vote. The appearance of a person’s name on the register was ‘conclusive proof of the right to vote except where a disability exists’. Those entitled to be elected were defined, at the time, as ‘every male British subject of full age (then 21) and sound mind is eligible, unless specially disqualified’. This definition excludes infants, lunatics, aliens and women. The principal other disqualification was of being a peer, member of the clergy of the Church of Scotland or Roman Catholics in Holy Orders. Judicial Officers of the Courts. Holders of offices under the Crown or pensioners of the Crown but not those from the civil or diplomatic service. Others excluded were Contractors for public service, colonial and Indian governors, bankrupts, convicted felons, until sentence served, and persons guilty of corrupt or illegal practices. Not many people left to elect as modern MPs, of any political persuasion, as some may be disqualified under a few of those headings.
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ROPA 1832
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The Representation of the Peoples Act of 1832 has naturally been revised and been subject to amendment over the years. We presently have the ROPA 1983. The register of electors for each district shows against every address the name of the persons living there, or otherwise qualified in respect of that address to vote at parliamentary, European or local government elections. Anyone may inspect the Register at no cost. Amongst other matters dealt with in the Act there is a requirement on the returning officer to MAINTAIN, PUBLISH AND MAKE AVAILABLE (my emphasis) a register of electors. The Act also states that copies of the register can be sold for an appropriate fee. This is the law as it stands.
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Personal experiences
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On January 21, 2002 I attended at the central public library in Southampton and requested sight of the 2002 electoral register. I was asked if I wished to look at my own entry and I said no, I wished to look at someone else’s. The library assistant advised me that this was not possible because of ‘the new legislation’. I requested details of this new legislation and was further advised that the advice not to disclose had come from the Electoral Registration Officer of Southampton City Council. I was advised that I could look at all registers up to and including the 2001, compiled October 2000.
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Then …
I requested, in writing, a written explanation from the chief librarian regarding his refusal to allow me sight of a "public document". I have received a letter from the assistant city librarian which states that the Electoral Registration Officer had given a copy of the 2002 register to the library on the condition that: there is no information given in response to telephone enquiries, no photocopies are made and that inspection is limited to ‘own entry or close relative only’.
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So then …
I went to the Electoral Registration Offices of Southampton City Council and repeated my request to obtain sight of the 2002 Register. I received the same response to that given by the library assistant that I could not inspect the register. I left a card requesting an explanation, in writing, from the Electoral Registration Officer of Southampton City Council why I had been refused sight of a public document. Once again the explanation given by his staff was the ‘new legislation’
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And then …
The Southampton ERO wrote to me on January 22, 2002 and confirmed that The ROPA 1983 requires the council’s ERO to MAINTAIN, PUBLISH AND MAKE AVAILABLE FOR INSPECTION (my emphasis) a Register of Electors. The ROPA 1983 does not specify who should or should not inspect the register. He continued by saying that in November last year (2001) an individual secured victory in the High Court against the Wakefield ERO on grounds that his information was being supplied to others without his permission. I wrote back and challenged the fact that although the ROPA 2000, intended to restrict the availability of electoral registers to only electoral purposes, had received Royal Assent on March 9, 2000 the relevant sections concerning availability of electoral registers had yet to be brought into force. The intention of ROPA 2000 was to have a full register of electors and an edited version that would exclude the names of persons who wished to ‘opt out’. This reduced register would be the one available for inspection without restriction. At the opposite end of the scale I made a similar request of Fareham Borough Council electoral registration department and was freely given the information. When I raised the point about not being able to look at someone else’s entry the reply was ‘of course you can, it is a public document’.
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R ‘ v – City of Wakefield Metropolitan Council & another ex parte Robertson (November 16, 2001) Kay J
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The Robertson judgment followed from a refusal by Mr Robertson to enter his name on the electoral register because the council sold his information to companies who used it for mail-shots to households. Having refused to register he lost his right to vote in the general election. The judge found that the Government had breached the European Convention on Human Rights in that the interference to Mr Robertson’s private life was disproportionate and not justified and it had restricted his right to vote. The judge also found that the local authorities sold registers without following the relevant European Union rules, which the Government failed to enact fully in the 1998 Data Protection Act (DPA). The second Principle of Data Protection states: ‘You can only use information for the purpose it was intended’. EROs are under a legal duty to supply the full Register upon payment of an appropriate fee (ROPA 1983(as amended by ROPA 2000), in particular # 9 to 13, as supplemented by Representation of the People (England & Wales) Regulations 2001 (SI 2001/No.341), regulations # 48 and 49, and representation of the People (England & Wales)(Amendment) regulations 2001 (SI 2001/No.1700)) whilst having no authority in law to limit the content of the Register.
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The Information Commissioner
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The use of the register for direct marketing purposes gives rise to the majority of complaints and there can be no justification of public interest in this regard. The use for credit and crime prevention uses must surely be fully justified as having a ‘public interest’. The Information Commissioner (the ‘Commissioner’) welcomed the ruling in this matter. To date EROs are under a legal duty to disclose the full Register upon payment of the appropriate fee. This follows from ROPA 1983 and the Commissioner recognises that the ROPA 2000 and the subsequent amendments still have no authority in law to change this requirement. Conversely the Commissioner is set to enforce the Freedom of Information Act 2000 which is coming into force from now until January 2005. This gives a right for information held by public authorities to be disclosed. Funny world but at least it keeps a large number of people employed. Nonetheless the Commissioner’s present view with regard to the electoral register is that individuals are required to supply personal information to EROs on penalty of a criminal offence any additional, that is, non-electoral, uses of that information that may be permitted should be kept to a bare minimum. There are, of course, methods by which persons can opt out of receiving mail, faxes and telephone calls by subscribing to the appropriate agency such as MOPS. Credit agencies also have facilities for personal information supply to be restricted and individuals can be advised who has enquired about them.
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Right to privacy
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The Commissioner’s long-held view has been that current arrangements for the sale of the entire register to anyone prepared to pay the fee were inconsistent with the requirements of the data protection principles. It also appeared to conflict with the right to respect for private and family life embodied in Article 8 of the European Convention on Human Rights (ECHR) and, in UK law, the Human Rights Act 1998. The Commissioner notes that the Electoral Commission is advising EROs not to sell to commercial concerns the revised register, which is now becoming available on a rolling basis. I assume by this the Commissioner means an opt-out version. The best way around the argument that the information is covered by the DPA is to declare that it is being sought to prevent and detect crime. The Commissioner advised David Palmer, President of the Institute of Professional Investigators, in writing that this applies to any enquirer, not just official enquiries. Any absconded debtor may have committed an offence under Section 15/16 Theft Act 1968, or Sec 1/2 or 3 Theft Act 1968, so it’s a valid argument unless/until the debtor has been interviewed. At all times remembering that the DPA and PACE [Police and Criminal Evidence Act] should be observed by all investigators to prevent loss of evidence if incorrectly obtained.
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Register use or abuse
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In the June 2001 issue of Professional Security Kenneth Rogers indicated that ‘several MPs’ were seeking ways of banning CD-Roms containing the register. He had previously written a lengthy article suggesting the sale of such sources of information should be banned. The register has been available for inspection since its inception; it is only technology that has made it easier to read.
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Ways of use
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Let us consider the ways in which the register is currently used by the security and credit industries: pre employment and other forms of vetting; and tracing absconders and due diligence enquiries come to mind. The prevention of fraudulent credit and mortgage applications, benefit and insurance frauds. Assessing credit risks and ensuring persons already indebted do not over extend themselves. These must surely be of benefit to the individual and the community. There are estimated to be one million people out of our 44.5 million electors not on the electoral register. That is coming up to 2.2 per cent of those deemed eligible to register. Then there is the estimate that if an opt-out or opt-in register were to be complied that about another 80pc would wish to be excluded. We could end up with less than 18pc of the electoral register remaining. The trend of not registering increased with the poll tax bringing all persons on the register into a taxable group. The easiest way not to pay was not to be on the register. Many of those who failed to register were not concerned about becoming disenfranchised from voting.
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Access today
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Access to the Electoral Register by official sources and those in the private security industry is mainly via Equifax, Experian and now Dun & Bradsteet’s new Callcredit system which is planned to roll out over the next six months. There is also Uk-info Disk and AFD. The Palatine (R & D) Group also supplies ‘bespoke credit information’ among others. Chris Brogan, who has for many years been known for his considered views on the DPA, prepared a press release for the Fraud Advisory Panel which stated that the DPA infringed on the investigation of fraud. As a courtesy he sent a copy to the Commissioner who replied, in no uncertain terms, that she disagreed. He refers to having received a comment from the Commissioner’s colleagues and officials of the Home Office who have said ‘It is up to the security industry to develop cogent arguments as to why some of their processing should be exempt, not the Commissioner’s office’.
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The future
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Where do we go from here’ The implications of the judgment are still being considered by Home Office lawyers, the Electoral Commission has issued guidelines that information should no longer be supplied to third parties. Until further guidance is issued information from the Register has been restricted, by some EROs, to inspection of ‘own’ details only. Revised legislation to cover this issue was expected in March/April 2002. No sign of this new legislation has been forthcoming. I understand that the credit agencies have a counter legal argument to that being suggested by the Electoral Commission. For my own part I return to the ROPA 1983 which requires an ERO to MAINTAIN, PUBLISH AND MAKE AVAILABLE for inspection a Register of Electors. Any ERO, who fails to do this, in my opinion, commits an offence, whether this is a civil or criminal one I am not qualified to say. The Robertson judgment was given on 16th November 2001 and the closing date for compilation of all Electoral Registers for 2002 was 31st October 2001. The judgment was not retrospective so it could be argued that it does not apply to the 2002 Register. Let us hope that common sense will prevail and that this most valuable source of information is returned to those of us who use it. Without it many debtors and fraudsters could flourish.
