Should you be fined if you failed to register with the local police, the national security agencies, any Government Department or a Credit Reference Agency? Should the national security agencies, for instance, be entitled to create a population register, the core of which could be similar to that of associated with the ill-fated ID Card (much beloved by the previous Government)?
Surprised by these questions? Both these outcomes are possible, courtesy of the Electoral Registration and Administration Bill just published following last week’s Queen’s Speech.
This Bill allows for individual electoral registration; this means that each elector must apply individually to be registered to vote. To ensure that all voters are registered, the Bill permits extensive data matching powers to verify applications, to check existing entries in electoral registers against other sources of data, and to hunt for individuals who do not currently appear on the electoral roll.
Also like registration for an ID Card, there will be a civil penalty for those who fail to make an application when required to do so by an Electoral Registration Officer (“ERO”). This continues the compulsion under the current law which makes it an offence if an individual fails to provide information to an ERO when asked.
The details provided on such registers are usually the voter’s name, address, nationality and age; however the associated Privacy Impact Assessment adds that the register will need to have access to Nationality (plus immigration status where appropriate), NINO and previous and/or alternative address. All these details formed core elements of the ID Card’s database (the National Identity Register or NIR).
Each full register is updated every month and published once a year. Like the ill-fated NIR, the full register can be used for several purposes: there is the obvious electoral purpose, a prevention and detection of crime purpose, a safeguarding national security purpose and a purpose related to checking the identities of individuals who have applied for financial services.
Each full register can also be sold to any government department for its purpose, it can be used for vetting job applicants and employees if this is required by law, and by credit reference agencies. The selling price for a full register is about £15 per 1,000 names so a 100,000 constituency will cost about £1,500 (for details see references). The Bill does not propose a central database of voters, but clearly this has not stopped the collection of a comprehensive set of electoral rolls (e.g. by the credit reference industry).
Despite an obligation to inform the ERO (and thence several state institutions) of your name, address and age (when asked), the Explanatory Notes accompanying the Bill plays down concerns over Article 8 and the obligation to respect private and family life. The Notes explain:
“The operation of the provisions in the Bill involves the processing of individuals’ personal information and therefore arguably engages Article 8 ECHR” (my emphasis on arguably). The Notes then add “The question of compatibility with Article 8 will, therefore, depend to an extent on the way in which the new system is implemented”. (As we shall see, the implementation is by wide ranging, unfettered, exercise of power by the Secretary of State).
The claim that Article 8 is not engaged arises because:
a. it is necessary for EROs to ensure that only those individuals who are entitled to be registered to vote are included on the register and to reduce voter fraud;
b. all secondary uses (e.g. prevention of crime) are exclusions in Article 8(2) of the Human Rights Act; and
c. a challenge to the current scheme for the disclosure and use of the electoral register was found to be a “very modest” interference with the right to vote (and if challenged, is likely to fall within the margin of appreciation associated with Article 8; see R (Robertson) v Secretary of State [2003] EWHC 1760 (Admin)).
Now I turn to the powers of the Secretary of State in the Bill (and can you remember that what the ERO puts on an electoral register potentially goes to everybody allowed a copy of the full register e.g. police, credit reference agencies etc). The powers can be used to permit any ERO:
(a) to verify information relating to a person who is registered or who is named in an application for registration, or alteration of, an entry in a register (note that such verification includes checking with other sources of information held by other persons);
(b) to ascertain the names and addresses of people who are not registered but who are entitled to be registered (note that this is a “hunt the errant voter” provision possibly by data matching from such sources identified above), or
(c) to identify those people who are registered but who are not entitled to be registered (perhaps doing checks with the immigration service – who knows!).
The Secretary of State’s powers may also authorise “comparisons” (i.e. more data matching) with other information and allow the “conferring of other functions on a person” (this should make the processing undertaken by the other person, legitimate in terms of Schedule 2 of the DPA) and authorise the Secretary of State to make grants to a person on whom functions are conferred (this means the tax payer pays for the pleasure).
The idea behind the above is, for example, to set up a system whereby information provided with applications for registration and information held by specified public authorities are passed to say another person for comparison, with the results passed back to EROs for registration. The Audit Commission (or its replacement when abolished) springs to mind with its considerable data matching experience countering Local Government benefit fraud.
The powers can also minimise the impact or protection afforded by the Data Protection Principles; they can:
a. authorise “a person to disclose or otherwise process information only in accordance with an agreement” (i.e. this makes the data sharing lawful, provides a Schedule 2 ground but the processing may have to be in accordance with a data sharing protocol);
b. authorise or require “a person to disclose or otherwise process information only in accordance with requirements imposed by the Secretary of State” (i.e. allows the Secretary of State to mandate such disclosures in the absence of an agreement; any disclosure becomes lawful in terms of the First, Second and Seventh Principles);
c. require “the retention or disposal, or otherwise regulating the processing, of information disclosed” (i.e. this can legitimise retention criteria that are more extensive that the minimum retention criteria that would be established by Fifth Data Protection Principle).
Now take a big breath as we are not finished discussing powers. Are you ready? There is also a power so that “Provision made under this paragraph (e.g. to require disclosure or data sharing) has effect despite any statutory or other restriction on the disclosure of information”! No comment except to say “overkill to the power of a million”.
The only safeguard re exercise of these powers is that the “Secretary of State must consult any relevant person” (e.g. the Electoral Commission, the Information Commissioner). Note that what this really means that the Secretary of State is free to ignore what either Commissioner says; the obligation only is to “consult”.
The degree of compulsion that will be placed on voters to register under the new arrangements is yet an unknown quantity; however, the current position was set out in an answer to a PQ six months ago. Mr Clegg, Deputy PM, wrote that:
“It is currently not compulsory to be registered to vote and this will not change under the Government’s individual electoral registration (IER) proposals. It is an offence at present for anyone not to provide information when required to do so by an electoral registration officer (ERO), for example, in response to the household canvass form. The Government propose to retain this offence under the new system, however, it is not proposed to create a new offence for an individual failing to respond to an invitation to register. We believe that the act of registering is one of personal responsibility, and as such there should be no compulsion for an individual to make an application to register to vote”. (Hansard, 17 Oct 2011 : Column 714W).
To be fair to EROs, they have not pursued many prosecutions and I have only seen the odd one or two over the last decade. However, the fining regime that involves civil penalties could be completely different as there appears to be a shift in enforcement power: fining policy is in the hands of the Secretary of State and not in the hands of an ERO (as in the case or prosecution). All the Bill vaguely says is that “The procedure for imposing a civil penalty on a person is to be set out in regulations”; it outlines an appeals process but does not define the amount of the penalty.
If these civil penalty regulations are used to implement an combative approach to enforce voter registration, then you almost turn the clock back to the ID Card situation where failure to register on the NIR attracted a penalty, and entitlement for services depended on the existence of an entry in the NIR. Under an aggressive penalty regime, for instance, those in receipt of a benefit or driving licence or paying tax could be “reminded” by the relevant government department that they are not on the local electoral register, and be told that the local ERO “has been informed”. I think you can follow the rest of the logic by yourself!
The Government intend that the number of such organisations that can have copies of the individual voter registers are not really part of the discussion; this is because the wide powers of the Secretary of State, found in Schedule 2 (para 10B) of Representation of the People Act 1983, are being enhanced and strengthened (and not questioned! - even by the published PIA).
Under the 1983 Act provisions, the Secretary of State can continue to authorise or require an ERO “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”; the Secretary of State can also continue to define the secondary purposes for which the information contained in the registers may be used.
In other words, the Secretary of State has complete control over use, content and disclosure from all electoral registers and the Secretary of State has untrammelled powers to deliver any outcome the Government wants. All these powers exercised by Statutory Instruments which usually get little or no scrutiny; this is very redolent of New Labour’s surveillance state legislation.
The real issue is of course, is whether Electoral Rolls should be used for these wider purposes; and of course there are arguments either way on this score. In my view, the primary purpose of the Electoral Roll is to encourage voters to engage with the democratic process; having an infrastructure of wide ranging data sharing powers so that recalcitrant voters can be issued civil penalties will discourage such political engagement. Far better, I suggest, is to make the institution of Parliament more in tune or responsive with the needs of the voters; what we have with majority Governments is a Parliament that usually offers a degree of scrutiny at the level of a rubber stamp.
Such penalties do make more sense if the objective is to populate the databases of the police, credit reference agencies, other Government Departments and the national security agencies etc etc; this is especially the case when the improved accuracy of individual voter registers become available. So, in summary, I can see in about five years time (when this Bill is settled in), there will be increased pressure for even further wider use of electoral rolls by different bodies.
Those of you with memories of the National Identity Register will remember that the NIR was to be used for a Population Register, accessible to all public authorities. Remember that NIR was supported by wide ranging disclosure powers for the Secretary of State, a strict eligibility criteria of registration, and strident civil penalties for refusenicks.
Now consider the new system of voter registration and that pinnacle of inductive reasoning: “if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck”.
And now you know where I am coming from!
References
Explanatory Notes on the Electoral Registration and Administration Bill: from http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0006/en/13006en.htm
The Electoral Registration and Administration Bill itself: http://services.parliament.uk/bills/2012-13/electoralregistrationandadministration.html
Privacy Impact Assessment (which amazingly does not consider any of the legislative issues raised here) https://update.cabinetoffice.gov.uk/sites/default/files/resources/Privacy-Impact-Assessment-090512.pdf.
Download background details of the supply and sale of the Electoral Roll (Parliamentary Paper):Download Electoral roll document_for blog May2012
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