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?"
