QUEENS BENCH DIVISION
NEUTRAL CITATION NO.  EWHC 1760 (ADMIN)
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN On the application of BRIAN ROBERTSON
|- and -
THE SECRETARY OF STATE
|(1) EXPERIAN LIMITED
(2) EQUIFAX PLC
Jonathan Crow and Steven Kovats (instructed by Treasury Solicitor) for the Defendant
David Pannick QC and Claire Weir (instructed by Addleshaw Goddard) for the Interested Parties.
Hearing dates : 19 May 2003
Crown Copyright ©
Mr Justice Maurice Kay:
"Subject to regulation 112(2) , the registration officer shall supply on request and on payment of a fee calculated in accordance with regulation 111 .copies of a relevant document to a credit reference agency which is registered under Part III of the Consumer Credit Act 1974 ..and which is carrying on the business of providing credit reference services.
(2) For the purposes of regulation 112(3) , the relevant restrictions apply except for the purposes set out in paragraph (3) below.
(3) Those purposes are
(a) vetting applications for credit or applications that can result in the giving of credit or the giving of any guarantee, indemnity or assurance in relation to the giving of credit;
(b) meeting any obligation contained in the Money Laundering Regulations 1993, the Money Laundering Regulations 2001 or any rules made pursuant to section 146 of the Financial Services and Market Act, 2000; and
(c) statistical analysis of credit risk assessment in a case where no person whose details are included in the full register is referred to by name or necessary implication.
(4) The registration officer may require a credit reference agency to provide such evidence that it is carrying on the business of providing credit reference services as he shall reasonably require."
"you may well face an uphill path. It is a rather steeper uphill path than you faced last time."
Expedition was ordered, I suspect in deference to the commercial interests of the interested parties. The case was listed to be heard on 12 and 13 February 2003 but that listing was vacated on the application of Mr. Robertson who was seeking to resolve his funding problem with the Legal Services Commission. On 24 February I directed that the case be heard on the first available date after 10 April, having regard to the convenience of counsel and Mr. Robertson. In the meantime, another challenge to Regulation 114 was being processed in the Administrative Court Office. The Claimant is I-CD Publishing Limited and its complaint is not that Regulation 114 is too permissive (Mr. Robertson's case) but that it is too restrictive. On 27 February Jack J ordered that there should be a joint directions hearing in the two cases. This took place on 12 March before Hooper J who ordered that the two cases should be heard consecutively, commencing on 19 May, with Mr. Robertson's case being heard first. He also ordered Mr. Robertson to produce a paginated trial bundle by 28 April and a skeleton argument by 1 May. Mr. Robertson has not complied with those orders. His energies have continued to be applied to the issue of funding. On 1 April the Legal Services Commission funded a further opinion of junior counsel, notwithstanding the unfavourable opinion of leading counsel which had been provided in January. As I have related, it seems that the opinion of junior counsel was also unfavourable.
"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 ."
In paragraph 26 I referred to his concern that electoral registration officers "sell these personal details to commercial organisations in the knowledge that they will be used for direct marketing purposes". In paragraph 32 I referred to the way in which such sales affect electors "as marketing targets". The crucial passage in relation to Article 8(2) is in paragraph 38 where the reference is to "commercial concerns within the factual context to which I have referred". That context concerned direct marketing. I expressed it unequivocally in the decision on Article 3 of the First Protocol in paragraph 42:
"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 .."
I consider it to be free from all doubt that Robertson (No 1) does not enable Mr. Robertson, without more, to claim victory in relation to the 2002 amendments permitting sale of the full register to credit reference agencies pursuant to regulation 114.
2. Regulation 114 and Article 3 of the First Protocol
"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
"In their internal legal orders the Contracting States make the rights to vote and 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 requirements 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'."
In Robertson (No 1) the then current Regulations and practice, in the absence of a right of individual objection, failed the proportionality test. The case for Mr. Robertson in the present case is that Regulation 114 is doomed to the same failure.
" .there should be continued access to the full register for credit reference agencies when vetting applications for credit. Without access to the full register it would be more difficult for lenders to verify an applicant's identity and hence assess their credit risk. They would have to rely upon less complete and accurate data sources which would increase the cost and difficulty of making such assessments and reduce the quality of the decisions. This would have a number of adverse consequences that conflict with the public interest:
- There would be more fraud, as the inability to properly verify identity and address would mean more fraudulent applications for credit were authorised.
- The overall cost of credit would increase both because of the increased fraud losses and because the alternative, and less effective methods, of assessing creditworthiness would be more expensive. These extra losses and costs would be passed back to borrowers generally;
- There would be less credit provided to people who lacked other documentary means of establishing their identity, increasing the problems of financial exclusion. The Government is keen to ensure that all sections of the community have access to financial services including, where appropriate, credit facilities. Witholding the full register from credit reference agencies will reduce access to credit for people in those circumstances. "
Mr. Robertson was one of those who responded to the consultation document.
"The Government took into account both the views of those who promoted the interests of business in allowing wider access and those (including the Electoral Commission and the Information Commissioner) who wanted to see access restricted, preferably only making the register available for electoral purposes. The resulting draft was felt by the Government to provide the best balance between the various competing interests and to provide the widest access which is consistent with the law."