Out-Law / Your Daily Need-To-Know
The UK Government intends that voters will register their address with the security services, police and other public bodies when they register for the vote according to proposed regulations from the Department of Constitutional Affairs (DCA).
The Police and Credit Reference Agencies already have full access to the register for policing and credit purposes respectively. But a new consultation document published by the DCA reveals plans to extend these rights of access.
The consultation asks: "Do you have any comments on the Intelligence and Security Agencies being allowed to obtain and use the full register for the full range of their statutory functions as set out in the Security Act 1989 and the Intelligence Services Act 1994?"
Its next question asks: "Do you have any comments on the full register being used by the police forces and organisations for the vetting of their staff for the purposes of safeguarding national security?"
Wider use of the Electoral Register is also suggested for the Financial Services Authority, the Environment Agency and the Scottish Environment Protection Agency on the same lines as Government Departments. Registers which are 10 years old could be used for research purposes. National libraries would hold a complete set of Registers.
The Government in its consultation document states that the intended additional uses and disclosures from the Electoral Registers are fully compliant with data protection and human rights law. The former arises mainly because all the intended data items, uses and disclosures are specified by legislation which makes them lawful under the Data Protection Act. The latter arises because of a combination of two court decisions.
In the first case, Brian Robertson, a retired accountant, objected to the use of the electoral register for marketing purposes. He successfully claimed that the resultant junk mail was an unjustified interference in his private and family life. In 2001 the court upheld his view but in its judgment made an observation that the use of the register in relation to crime and national security purposes was "uncontroversial". This remark has been seized upon by the Government to allow the police and security services full access to the register.
The second case consolidated two appeals against South Yorkshire Police: one from an 11-year-old boy who had been accused of attempted robbery in 2001, but subsequently acquitted, who wanted the DNA samples taken by the police to be destroyed; the second, also seeking destruction of samples, from 41-year-old Michael Marper who had been charged with harassment by his partner only to have the charges dropped once the couple reconciled.
In this second case, the Law Lords rejected in 2004 the suggestion that innocent people like Mr Marper would be stigmatised as a result of the retention of DNA data and that "persons who do not go on to commit an offence have no reason to fear the retention of this information".
This was because if an individual's DNA was not present at any crime scene, his DNA sample would not be used. However, if anybody was at a crime scene, any use of the DNA sample would be a justified interference in human rights terms.
There are several unanswered questions in the 54-page consultation document, published last Tuesday, according to Dr. Chris Pounder of Pinsent Masons, the law firm behind OUT-LAW.COM.
He points out that there is now a rolling electoral register and it is already an offence not to complete an electoral registration form. The consultation document does not mention the offence, examine its impact on voter registration or provide the number of prosecutions to date. Dr Pounder commented, "Surely this is relevant when looking to expand the right of access to the register?"
A spokeswoman for the Electoral Commission told OUT-LAW by email that it "believes that uses of the electoral register should be confined to electoral purposes and certain limited statutory purposes (such as summoning juries)" and that "we do not have a great deal of information that would specifically address the question of the effect of the wider use of the register on registration numbers". OUT-LAW understands that research on this topic is forthcoming.
Dr. Pounder, Editor of Data Protection and Privacy Practice, noted that the consultation document also fails to consider any link with the ID card database. In that database, the Government determined that it would be a civil penalty (but not an offence) for the cardholder not to provide name and address details to the authorities. In the Electoral Register it is an offence not to provide name and address details to the authorities. "If there is an ID card database and an electoral register database and both mandate and contain the same up-to-date names and addresses, the need for the latter seems dubious," he said.
Dr. Pounder concluded, "The focus of this consultation seems to be rather blinkered. Important changes are about to be made by regulations, without the scrutiny of Parliamentary debate. Surely these matters are worthy of primary legislation?"
