IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
THE QUEEN ON THE APPLICATION OF BRIAN REID BEETSON ROBERTSON Claimant
- and -
CITY OF WAKEFIELD METROPOLITAN COUNCIL
SECRETARY OF STATE FOR THE HOME DEPARTMENT Interested Party/
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Jonathan Crow and Rhodri Thompson (instructed by Treasury Solicitors for the Interested Parties/Second Defendant)
AS APPROVED BY THE COURT
Crown Copyright ©
MR JUSTICE MAURICE KAY :
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 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..... ”
These enabling provisions (and they are more extensive than I have set out) are the basis for the Representation of the People (England and Wales) Regulations 2001 (“the 2001 Regulations”) which also came into force on 16 February 2001. Regulation 46 requires an ERO to supply copies of the register to specified persons, free of charge and without request, for uncontroversial public purposes. In similar fashion, regulation 47 provides for the supply of free copies on request to specified persons with a legitimate interest in the electoral process. Surprisingly, regulation 48 imposes upon an ERO an obligation to
“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
The Claimant is seeking permission and, if permission is granted, to apply for judicial review of the refusal of the ERO to accede to the Claimant’s request that his name and address on the Register should not be supplied to commercial organisations. Mr. Blake QC seeks to challenge that refusal and the position of the Secretary of State on three grounds. First, he relies on Article 14 of the Directive and, in particular, the provisions of Article 14(b), to support the submission that domestic law does not comply with the Directive. Secondly, he contends that the protection afforded to the Claimant by Article 8 of the ECHR has been breached in that his right to respect for his private and family life, his home and his correspondence has been contravened. Thirdly, he seeks to invoke Article 3 of the First Protocol to the ECHR which is headed “Right to free elections” to advance an argument that it is an unlawful interference with the right to vote to make eligibility to vote conditional upon consent to, or acquiesce in, the sale of personal particulars to commercial organisations. Although the ERO did not take an active part in the hearing before me, Mr. Crow, on behalf of the Secretary of State, disputed all three grounds of challenge. He also submits that permission should be refused by reason of delay and it is to that issue that I now turn.
The Claimant, then acting in person, lodged his application in the Administrative Court on 24 January 2001. Mr. Crow’s submission is that the application was not made “promptly and in any event within three months from the date when grounds for the application first arose” and that there is no good reason for extending time. To the extent that the application is based on the Directive, he observes that the grounds arose (if at all) on 24 October 1998 when the period for implementation expired. As regards the ECHR challenges, these were available from the commencement date of the Human Rights Act, over three months before the date upon which the application was lodged. Moreover, it does not avail the Claimant that in form he is seeking to challenge a decision of the ERO dated 20 December 2000 because, in substance, the challenge is to the validity of the Regulations. This submission was advanced by reference to Regina v. Secretary of State for Trade and Industry, ex parte Greenpeace Ltd  Env LR 415, 422
Mr. Blake responds to these submissions by contending that the Directive and the ECHR points are linked; that any application would have been premature before the ERO’s substantive response on 20 December 2000; and that if, contrary to his primary submission, the application lacked promptness, there is good reason to extend time because the grounds of challenge are arguable and raise important issues of general concern. Moreover, there is nothing in the present case akin to the large investment by the oil companies in Greenpeace.
In my judgment there is force in Mr. Blake’s submissions about the running of time but, even if they are not correct and there has been a lack of promptness, I would have no hesitation in extending time so as to enable these grounds of challenge (which, I am satisfied, pass the arguability threshold) to be considered substantively. They raise points which, if correct, affect every elector and potential elector in this country. If there are or may be respects in which our electoral arrangements are not Directive or ECHR compliant, there is a strong public interest in the matter receiving substantive judicial consideration. Accordingly I shall, if necessary, grant an extension of time and proceed to determine the issues on a substantive basis.
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”
Regulation 55(9) of the 1986 Regulations conferred upon an ERO the power (“may”) to supply to persons, including commercial organisations, data including the names and addresses of registered electors and Regulation 48(1) of the 2001 Regulations appears to go further by providing for a duty (“shall”) rather than a power. As a matter of fact EROs have been supplying such data to commercial organisations pursuant to statutory powers for very many years. On 8 October 1999 the Final Report of the Working Party on Electoral Procedures under the chairmanship of George Howarth MP (“the Howarth Report”) was submitted to the Secretary of State. It found that, in the commercial world, the Register is regarded as “a key source because it provides data across a national database and over a long period” (para 2.4.16). Most businesses do not obtain copies of the Register directly from EROs but source copies from the two leading credit reference agencies, both of which integrate electoral data with other databases to add value to the information they provide. The Howarth Report found that
“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.
Against that factual background, Mr. Blake submits that, after 24 October 1998, the Government failed to amend domestic legislation so as to make it compliant with Article 14 of the Directive and, as a result, either an ERO should have only exercised his power to supply copies of the Register to commercial concerns in a way which was compliant with Article 14 because that provision is of direct effect or he should have construed the Regulations in a manner which was compliant with Article 14 by reading in words such as “except where the data subject has objected to such disclosure”. Mr. Blake. concedes that Article 14(b) provided two forms of protection but that a Member State was obliged to implement only one of them. This follows from the disjunctive “or” in Article 14(b). He characterises the distinction between the two limbs of Article 14(b) as being essentially temporal - the first limb relates to the state of mind of the data controller at the time when he receives the data and is addressed to his “anticipation” of processing for the purposes of direct marketing; the second limb, on the other hand, is concerned with the situation where the data controller only considers disclosure to third parties for direct marketing purposes after he has received the data. In the event, Parliament has not implemented either limb and the Claimant can invoke one or both limbs in these proceedings.
On behalf of the Secretary of State, Mr. Crow submits that (1) Article 14 does not have direct effect; alternatively (2) English law is Directive compliant either because it satisfies Article 7 and that is sufficient or because Article 14(b) received appropriate implementation in section 11 of the Data Processing Act. It is this latter point which Mr. Crow identifies as his principal submission but it is more convenient if I approach the issues in a different order.
In my judgment it is axiomatic that, if English law was not compliant with Article 14 after 24 October 1998, in an appropriate case the provision in the Directive could be relied upon as having direct effect. In Marleasing SA v. La Commercial Internacional de Alimentacion SA  ECR 1-4135, the Court of Justice said (at p. 4159):
“.....as the Court pointed out in its judgment in .....Von Colson and Kamann v. Land Nordrhein - Westfalen  ECR 1891, paragraph 26, the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.”
Thus, for example, in Litster v. Forth Dry Dock Co Ltd  1 AC 546 the House of Lords acknowledged that the courts of the United Kingdom were under a duty to give a purposive construction to the Transfer of Undertakings (Protection of Employment) Regulations 1981 in a manner which would accord with decisions of the Court of Justice on the relevant Directive, implying where necessary words which would achieve that effect (see Lord Oliver of Aylmerton at pp 576-577). Although that case was concerned with Regulations adopted after and by reference to the Directive in question, it is clear from the passage I have emphasised in the judgment in Marleasing that the same principle applies to pre-Directive provisions such as the 1986 Regulations in the present case.
The doctrine of direct effect also gives rise to a cognate principle which was formulated (albeit not for the first time) by the Court of Justice in Francovich v. Italy  2 CMLR 66 as follows (at p. 109):
“.....a Member State which has not adopted the implementing measures required by a directive within the prescribed period may not, against individuals, plead its own failure to perform the obligations which the directive entails. Thus wherever the provisions of a directive appear.....to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or insofar as the provisions define rights which individuals are able to assert against the State.”
On the basis of these authorities, I conclude that the issue in this case is not whether Article 14(b) is capable of having direct effect - it clearly is. The question is whether domestic law is compliant with Article 14(b). Mr. Crow’s submission that Article 14(b) provides Member States with a choice of alternatives is undoubtedly correct in view of the disjunctive “or”. Accordingly, the question becomes: is domestic law compliant with at least one of the alternatives?
Mr. Crow’s primary submission is that domestic law appropriately implemented Article 14(b) by the enactment of section 11 of the Data Protection Act 1998, whereby an individual is entitled at any time by notice in writing to a data controller to require the data controller to cease, or not to begin, processing for the purposes of direct marketing personal data in respect of which he is the data subject. That, it is said, is a proper implementation of Article 14(b) by the adoption of its first limb - “the right....to object.....to the processing of personal data .....which the controller anticipates being processed for the purposes of direct marketing”. Moreover, the factual matrix of the first limb is confined to cases where the data controller is himself proposing to process data for direct marketing purposes. It is only the second limb which addresses the position where the data controller is proposing to disclose data to a third party who will in turn process it for direct marketing purposes. Thus, Parliament having opted for the first limb but not the second limb, an elector does not have the right to be informed about, or to object to, any disclosure of personal data by an ERO to a commercial concern which will use it for direct marketing purposes.
In my judgment Mr. Crow’s submission on the construction of the first limb of Article 14(b) is not correct. It is unduly narrow. I base this conclusion on the plain meaning of the text and with regard to the purpose of the provision. The narrower approach would limit the meaning of “anticipates” to something akin to “intends”. It is pertinent to observe that, in the French text, the verb is envisager. Moreover, the wider construction seems to me to be supported by the recitals to the Directive, when read as a whole. I therefore find that EROs inevitably anticipate that the personal data will be processed by commercial concerns for the purposes of direct marketing.
The next question is whether section 11 of the Data Protection Act is a sufficient implementation of the first limb of Article 14(b). In other words, is an ERO who sells the Register to commercial concerns which he anticipates will use them for direct marketing processing personal data “for the purposes of direct marketing”? It seems to me that, just as the “purposes” in the first limb of Article 14(b) extend to the anticipated purposes of transferees, the same must apply to the “purposes” of direct marketing in section 11(1). Any other construction would undermine the purpose of Article 14.
What are the implications of these conclusions? In my judgment they are that section 11 of the Data Protection Act complies with the first limb of Article 14(b) of the Directive and that, in principle, an elector such as the Claimant has a remedy by notice in writing and, if necessary, by application to the court pursuant to section 11(2). By this procedure he can claim and enforce his right to object. The problem that has arisen in the present case is compounded by the fact that there is no statutory cross-referencing between the Data Protection Act and the Representation of the People Acts and the 1986 and 2001 Regulations. In the pre-issue correspondence the Claimant, who was then acting in person, confined his argument to the Human Rights Act. This continued in his Claim Form. It was only when he instructed his present legal team that they took steps to amend so as to include the challenge based on the Directive. My understanding is that, until now, EROs have administered the Register without regard to the Directive and section 11 of the Data Protection Act. It follows from the conclusions I have reached about the latter that they were wrong to do so. It also follows from the authorities to which I referred at the beginning of this section that it is incumbent upon the courts to construe the 1986 and 2001 Regulations in a manner which is Directive compliant and consistent with the Data Protection Act. The world of electoral administration is not untouched by these developments. In due course I shall have to return to the question of relief in circumstances wherein, in my judgment, the Claimant has had a remedy since March 2000 (its commencement date) under section 11, albeit not by way of an application for judicial review.
Before leaving the Directive, it is necessary for me to refer to another of Mr. Crow’s alternative submissions. It is to the effect that, if a Member State complies with Article 7 of the Directive, it is under no obligation to deliver under Article 14(b) at all. Article 7 provides:
“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.
It is necessary for me to describe in more detail the factual circumstances which give rise to the Claimant’s concern. In this I am greatly assisted by the Final Report of the Home Office Working Party on Electoral Procedures under the chairmanship of George Howarth MP which was submitted to the Secretary of State on 8 October 1999 and which in turn relied on a detailed submission to it by the Data Protection Registrar. This material was adduced by the Claimant and was not the subject of contradiction or rebuttal. The Registrar identified two main ways in which the Register is used for direct marketing:
“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?
Mr. Crow submits that a person’s name and current address, without more, are not protected under Article 8. Disclosure of them under the 1986 or 2001 Regulations does not interfere with his right to respect for his “private and family life, his home and his correspondence”. The authorities which illustrate the engagement of Article 8 are concerned with more sensitive personal information.
On behalf of the Claimant, Mr. Blake submits that (a) the context in which an elector supplies his name and address is one of legal compulsion for a legitimate public purpose; (b) information supplied for such a purpose is being disseminated to others who use it for purely private purposes; (c) electors are thereby exposed to unwarranted marketing strategies and other attentions, some of them unlawful; (d) the problem has been exacerbated by advances in technology - what might have been the object of a parochial interest in the occupants of local addresses in the past has now become an internationally available search mechanism; (e) there is a convergence of views throughout Europe about the need to protect personal data from disclosure to third parties without consent and this must be taken into account when determining the scope and extent of the protection of privacy under Article 8.
It is undoubtedly correct that the Strasbourg and domestic authorities on Article 8 have been concerned with more obviously sensitive details than simply a name and address. For example, in X v. United Kingdom 30 DR 239, which concerned the compulsory completion of a census form, the Commission referred to “questions relating to the sex, marital status, place of birth and other personal details” which might involve a prima facie interference with Article 8. MS v. Sweden 28 EHRR 313 concerned the disclosure of medical records to which an obligation of confidentiality attached. And the domestic case of Regina v. Chief Constable of North Wales Police, ex parte Thorpe  QB 396, which considered the implications of Article 8 prior to the coming into force of the Human Rights Act 1998, was concerned with the disclosure by the Police of the fact that local residents were convicted paedophiles. It seems to me that there is force in Mr. Crow’s submission that I am being invited to go further than the courts have gone before by holding that the sale of the Register engages Article 8. However, that does not relieve me of the task of deciding whether that invitation is legally meritorious.
Essentially, Mr. Blake’s submission is that it is inappropriate to view the circumstances of this case as being limited to the bland details of names and addresses. What is in issue is the way in which names and addresses (and, in the case of first electors, dates of birth) are used, and are known by the Secretary of State and the EROs to be used, by the commercial concerns which purchase the Register either directly from EROs or via the two main consumer credit reference agencies. In this way, the sale of the Register affects electors as marketing targets and interference with their private lives is both foreseeable and foreseen. This is not precisely how Mr. Blake put it but it seems to me to be a fair representation of his argument.
In considering these rival submissions I found it useful to contemplate a hypothetical situation with a resemblance to this case. Assume that the Government Department which administers the State pension disclosed the names and addresses of all recipients of the State pension to private providers of residential care, knowing full well that the information would then be used to approach pensioners in their homes, by post or otherwise, as a marketing exercise. All that would have been disclosed would be names and addresses, together with, by implication, the fact that the persons named would be over 65. That, it seems to me, is a situation in which there would be a prima facie interference with the right to respect for family life. Moreover, that conclusion is reached by taking into account the expected consequences of disclosing the names and addresses.
In my judgment the submission on behalf of the Claimant is correct. It is necessary to examine not just the information which is disclosed but also the anticipated use to which it will be put. In the present case one therefore has to focus not only on the raw data - names and addresses and, by implication, the fact that those named are all over 18 (and, in some cases, recently so). Account also has to be taken of what is known and anticipated about the use to which it will be put. In these circumstances, I conclude that, quite apart from Mr. Blake’s submission about European convergence (to which I shall return) there is a prima facie engagement with Article 8.
The next question is whether the particular interference with the right to respect for private life is justified under the terms of Article 8.2. This requires a consideration of whether the interference is in accordance with the law, in pursuit of a legitimate objective and proportionate. Mr. Blake submits, firstly, that it is not in accordance with the law because, to the extent that the Regulations permit or, more recently, require the sale of the Register without a right of objection, they fall foul of Article 14(b) of the Directive. Secondly, there is no legitimate purpose in providing commercial concerns with general access to the Register. Thirdly, and in any event, a proportionate provision would embrace an individual right to object and would reflect current national and European opinion on this subject which speaks with one voice.
It is not necessary for me to repeat what I have held in relation to the Directive when considering the first ground of challenge. Is there a legitimate purpose in providing commercial concerns with general access to the Register? Mr. Crow submits that there is. In the words of his Skeleton Argument:
“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).
I, of course, acknowledge that the issue of proportionality involves a balance between competing interests and that the legislature has a margin of discretion in such matters. I have very much in mind the speech of Lord Steyn in Daly v. Secretary of State for the Home Department  2 WLR 1622, 1634-1636, including his final remarks (at p. 1636):
“Laws LJ rightly emphasised in Mahmood  1 WLR 840, 847, ‘that the intensity of review in a public law case will depend on the subject-matter in hand’. That is so even in cases involving Convention rights. In law, context is everything.”
Applying that principle to a review of the practice of selling the Register to commercial concerns within the factual context to which I have referred and without affording individual electors a right of objection is, in my judgment, a disproportionate way in which to give effect to the legitimate objective in question. This is particularly so in view of the implications of technological advance. So far as I can see, no voices are being raised in opposition to this analysis apart from those representing the commercial concerns in question. The evidence is really all one way. Moreover, as Mr. Blake points out, this drift is reflected by recent instruments of the European Union, all of whose Member States are parties to the ECHR. The Directive which I had to consider under the first ground of challenge is a case in point. In addition, the Charter of Fundamental Rights of the European Union (Official Journal 2000C 346/01) signed at the Nice Summit in December 2000, which I do not treat as a source of law in the strict sense, also includes a provision to the effect that everyone has the right to the protection of personal data concerning him or her and that such data
“must be processed fairly for specified purposes on the basis of the consent of the person concerned or some other legitimate basis laid down by law.”
Mr. Crow points to the facts that instruments concerning data protection are also concerned with the dissemination of information; that an individual right of objection would not on any view extend to objection to public inspection; and that commercial concerns can and do resort to other sources and techniques in pursuing their direct marketing strategies. All this I accept. However, in my judgment none of it provides a basis for concluding that, by late 2000, the sale of the Register to commercial concerns by a public body, absent an individual right of objection, was a proportionate interference with the Article 8 rights of electors who have provided their details under legal compulsion and for public purposes. In my judgment, the Claimant’s second ground of challenge is substantively irresistible. His Article 8 rights have been breached.
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).
In addition to these statements of principle, Mr. Blake also draws attention, for illustrative and persuasive purposes, to the American case of Greidinger v. Davis (1993) 988 Federal Reporter (2nd series) 1344, a decision of the United States Court of Appeal, Fourth Circuit, in which an elector in Virginia successfully challenged a requirement that those applying for registration to vote had to provide their social security numbers (SSNs) in circumstances wherein voter registration lists which then included the social security numbers were available for purchase. The Court concluded that disclosure of the SSN to the general public in that way was “nothing short of a condition on the exercise of the right to vote”. The constitutionality of that fell to be considered thus (at p. 1352):
“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).
This, it seems to me, provides an illustration from another jurisdiction in which principles akin to those expanded in Mathieu - Mohin were applied to facts bearing some resemblance to the present case. In my judgment, if and to the extent that the 1986 and 2001 Regulations make the right to vote conditional upon acquiescence in the sale of the Register to commercial concerns for marketing purposes, with no individual right of objection, they operate in a manner which contravenes Article 3 of the First Protocol unless they are justifiable by reference to the criteria set out by the Courts of Justice in Mathieu - Mohin. I approach the issue of justification and, in particular, proportionality on the same basis and by reference to the same reasoning as I articulated in relation to the second ground of challenge, based on Article 8. In this context, too, I find that the fatal flaw is the absence of an individual right of objection. Without there being such a right, and applying the Daly approach, I find that the Claimant has established an unjustified, disproportionate restriction on his right to vote.
The question of discretionary relief raises some difficult questions. As regards the Directive and the Data Protection Act, there was and is an alternative remedy and it predated the coming into force of the Human Rights Act. So far as the ECHR challenges are concerned, they too coexist with the same alternative remedy. Moreover, as Mr. Crow points out, it may be material to relief that the Claimant had had his details sold to commercial concerns by the ERO for some years by reference to his present address. On the other hand, I have found important shortcomings in the way in which EROs and the Secretary of State have been interpreting the law. It may well be that, regardless of this judgment, further Directive - compliant and ECHR and First Protocol - compliant Regulations are imminent. This was hinted at during the hearing. For these and other reasons I have taken the view that the question of relief should be the subject of further submissions. It may or may not be possible for these to be heard on the day when the judgment is handed down. If relief is not controversial, I shall deal with it then. However, if serious issues remain, it may be necessary for the matter to be relisted, with skeleton arguments in advance. Alternatively, it may be possible to deal with it solely on the basis of written submissions.