R (Robertson) v Wakefield Metropolitan District Council and another; R (on the application of Robertson) v Electoral Registration Officer
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY |
| Judgment Date | 16 November 2001 |
| Neutral Citation | [2001] EWHC 915 (Admin) |
| Docket Number | Case No: CO/284/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 November 2001 |
[2001] EWHC 915 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEENS BENCH DIVISION
The Honourable Mr Justice Maurice Kay
Case No: CO/284/2001
Nicholas Blake QC and Jonathan Marks(instructed by Irwin Mitchell for the Claimant)
Jonathan Crow and Rhodri Thompson (instructed by Treasury Solicitors for the Interested Parties/Second Defendant)
The Claimant objects to the fact that Electoral Registration Officers (EROs) sell copies of the Register to commercial interests. In September 2000 he received the form whereby, each year, an application has to be made for inclusion on the Register. Only those who appear on the Register are eligible to vote. It is a criminal offence to fail to return the form, duly completed. On 6 October 2000 the Claimant wrote to the ERO in Wakefield stating that he did not intend to complete the form because the practice of selling copies of the register to commercial interests was something he opposed. He referred to the Human Rights Act 1998 which had come into force four days earlier. Following receipt of a standard form letter dated 31 October in which the ERO announced his intention to include the Claimant in the 2001 Register, the Claimant wrote again on 3 November expressing his objection. One of the matters exercising his mind was that the Representation of the People Act 2000 which had received the Royal Assent on 9 March 2000 and which, when in force, would enable regulations to be passed permitting the sale of the register in an edited form, excluding the names of those who objected, had not yet given rise to any such regulations and the relevant legislation was still to be found in the Representation of the People Act 1983 and regulations made under it in 1986. Correspondence ensued. On 20 December the ERO made his position clear:
"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."
On 26 January 2001 the ERO wrote to the Claimant informing him that he intended to include his name and address in the list of names which he was proposing to add to the Register. By then, however, the Claimant had lodged an application for judicial review. In a nutshell, the Claimant's case is that, as a potential elector, he is being unlawfully required to tolerate the dissemination of the Register to commercial interests who utilise it for marketing purposes and that his enfranchisement cannot lawfully be made conditional upon acceptance of this practice. Initially, the ERO alone was named as defendant, with the Secretary of State as an interested party, but at the commencement of the hearing the Secretary of State was added as second defendant. The ERO took no active part in the hearing, preferring to leave the matter to the Secretary of State.
The statutory framework
Electoral registration officers (EROs) are charged with the duty of preparing and publishing each year a register of parliamentary electors and a register of local government electors for their areas. (Representation of the People Act 1983, section 9). Section 53 of the same Act provides a power to make regulations and Schedule 2, which is headed "Provisions which may be contained in regulations as to registration etc." refers to, amongst other things:
"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."
The Representation of the People Regulations 1986 ("the 1986 Regulations") enabled an ERO to require persons to give "information required for the purposes of his registration duties or for the purpose of his duties under section 3(1) of the Juries Act 1974 (regulation 29(1)). Regulation 51 required an ERO to publish the Register by making a copy of it available for inspection. Regulation 53 required him to supply, on request and free of charge, copies of the Register to the local Member of Parliament and prospective candidates for election. Regulation 54 provided:
"(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.
On 24 October 1995 Directive 95/46/EC was promulgated ("the Directive"). Its subject is "the protection of individuals with regard to the processing of personal data and on the free movement of such data". I shall have to refer to some of its other provisions later. At this stage, I confine myself to Article 14 which is headed "The data subject's right to object". It provides:
"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)."
National implementation was required by 24 October 1998 (Article 32).Section 11 of the Data Protection Act 1998 is specifically concerned with the right to prevent data processing for the purposes of direct marketing. It provides:
"(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."
The Human Rights Act 1998 came into force on 2 October 2000. As will be seen in due course, in the present proceedings the Claimant seeks to rely on Article 8 of the European Convention on Human Rights and Article 3 of the First Protocol. Indeed, it was the coming into force of the Human Rights Act which acted as the catalyst for these proceedings. By that time, the Representation of the People Act 2000 had been enacted. Section 9, which came into force on 16 February 2001, revisited Schedule 2 to the 1983 Act and replaced paragraphs 10 and 11 with the following enabled catergories:
"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...
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