§ 8.2 p.m.
§ Lord Bassam of Brighton
rose to move, That the draft regulations laid before the House on 27th June be approved [34th Report from the Joint Committee].
The noble Lord said: My Lords, in moving these regulations on behalf of my noble friend Lady Scotland, I shall speak also to the draft Representation of the People (Scotland) (Amendment) Regulations 2002.
The two sets of regulations are very similar save for some differences reflecting differing electoral provisions and institutions in Scotland, but their effect is the same. Similar regulations have been laid relating to Northern Ireland, but they differ in some important points of detail and are being considered separately. I shall refer primarily to the England and Wales regulations and mention any important differences which appear in the Scottish draft regulations.
These regulations are necessary to implement Section 9 of the Representation of the People Act 2000. Your Lordships will be aware that this provides for two versions of the electoral registers to be compiled—that is, a full register containing, as now, the names and addresses of every elector and an edited version to contain the details of only those electors who have not indicated via an opt-out box that they object to their details appearing on the version of the register which is available for commercial purposes.
These regulations seek to strike a balance between the right of individual electors to their personal privacy and the needs of industry to have access to personal information when this can clearly be demonstrated to be in the public interest. The regulations we are debating today represent the results of wide consultation. They are constrained, as with all legislation, by the need to be compliant with the Human Rights and Data Protection Acts. By proposing to permit access to the registers for specified, defined commercial purposes these regulations provide a reduction to the financial burdens placed on some sectors of the financial services industry, a move welcomed by the companies concerned.
I do not intend to speak on each of the new regulations but I shall say something on the major provisions. New Regulations 92 to 94 place general restrictions on the sale of and access to the full registers and on the use which recipients of the register may make of the data. I emphasise that nothing in these regulations prevents members of the general public from inspecting the full registers. Indeed, it is essential that electors should continue to be able to do so, so 1176 that they can check to see that they themselves are correctly registered and also be able to object to the registration of anyone who they think is not entitled to be included. The full registers will be open for inspection at council offices and other appropriate places, where they can be supervised to prevent unauthorised copying. The public will be able to take hand-written notes but not to make photocopies.
New Regulation 103 provides for the supply of the full register to elected representatives—that is to MPs, MEPs, Members of the National Assembly for Wales, local councillors, the Mayor of London and London Assembly members and elected mayors. They may receive free of charge the parts of the register covering the areas which they represent and can use the information for all electoral purposes and for any purpose connected with their office. For example, if an elected representative wants to contact a group of his constituents, he may refer to the register to ascertain its address. He may pass the register to his research assistant to assist with constituency matters. The full registers may continue to be used as a tool in the work which representatives are elected to carry out.
New Regulation 108 provides for the supply of the full register to candidates at a parliamentary, European parliamentary or local government elections for electoral purposes. This allows candidates to know precisely who the electors are so that they can carry out their canvassing in the traditional way. Provision for copies of the full register for electoral purposes to holders of elective offices in terms of the Scottish Parliament are not made in these regulations. They will be provided for in a new order to be made under Section 12 of the Scotland Act later in the year. That will deal with a range of matters concerned with elections to the Scottish Parliament.
New Regulation 104 allows MPs, MEPs, members of the devolved Parliament and Assemblies, local councillors, elected mayors, and so on, and also candidates at parliamentary, local government or authority elections, to have free copies of all the full registers to enable them to comply with the statutory controls on political donations contained in Schedule 7 to the Political Parties, Elections and Referendums Act 2000 and Schedule 2A to the Representation of the People Act 1983.
New Regulation 105 provides for the supply of the full register to local constituency parties for electoral and electoral registration purposes. These purposes have been deliberately defined in a very broad way so that electioneering can continue unhindered. There are no restrictions on elected representatives using the full registers for canvassing or for any other activities connected with the electoral process. It is however not permitted for the full registers to be passed to charities which might previously have used them for local fundraising.
I am aware that fundamental questions were asked in another place about the nature of "electoral purposes". It is a broad concept and it is right to adopt a broad interpretation of its meaning. The Government's view is that it should include anything 1177 that is for the purpose of seeking election and representing the public in a democracy. It is right that it includes fundraising by a party or a politician for purposes connected with elections. It would be a different matter if money were to be raised to buy equipment for a local hospital or for the refurbishing of a party's offices. But fundraising for the core purpose of communicating with electors and campaigning clearly counts as "electoral purposes". The Government do not wish to tie this down too much in regulations. If we were to do so we would create the contrary effect and restrict various things that we might all agree should be legitimately part of the electoral process.
New Regulation 113 provides for the sale of the full register to government departments and restricts its use to the prevention and detection of crime and the enforcement of the criminal law; the vetting of employees and applicants for employment where such vetting, is required; and the supply and disclosure of information to an "authorised person", who may not disclose information contained in it except to other authorised persons, and only for use for the purposes for which such a person could obtain the full register directly under these regulations.
This provides the means for legislative support to secure the effective participation of all local authorities in the LASER project now being proposed by the Improvement and Development Agency to clean and standardise electoral register data in electronic format. I should make it clear that we are currently considering the agency's business case, received at the end of last month, and while we strongly support developing an electronic register we have yet to decide whether the current proposals will be the best way forward for everyone.
I now come to that section of the regulations which specifies what limited commercial use is to be permitted of the full registers. Many commercial companies have used information from the electoral registers for many years and for a range of purposes, including direct marketing and credit reference checks. A High Court case last year made it clear that electoral registration officers had been wrong to sell the registers for those purposes without first giving electors the right to opt-out of having their personal details sold in that way.
The Government have carefully considered the situation and have consulted with bodies representing commercial interests such as the British Bankers' Association, the Finance and Leasing Association, the Direct Marketing Association, the credit reference agencies themselves and numerous others. All have impressed on us the importance of the electoral registers as a tool in checking a person's identity and consequently their credit-worthiness.
In addition, banks and financial institutions have a statutory obligation under the Money Laundering Regulations to verify the identity of their clients. In complying with the Money Laundering Regulations, banks and financial institutions make extensive use of the electoral register to verify information about the 1178 identity and address of their customers. They usually carry out these checks using credit reference agencies as their agents. If institutions were denied access to the full register to make these checks and had to rely on lower and poorer quality information, there would be a lower level of compliance with the Money Laundering Regulations.
The Government are, however, very much aware of the importance of the human rights of individuals, in this case the right to a private life and to participate in free and fair elections. Although such rights are qualified ones, which can be interfered with in the pursuit of a legitimate objective of the state, we are mindful that the extent and nature of any such interference must be proportionate to the importance of and benefits to be obtained from the interference. We have therefore given very careful consideration to the balance to be struck between any interference with individual rights and the public benefits obtained.
The Government are proposing regulations that permit the sale of the full register to credit reference agencies; first, to enable financial institutions to meet their statutory obligations to prevent money laundering and, secondly, to enable credit checks to be fully undertaken.
In relation to money laundering, the credit reference agencies will be permitted to provide information, from a full register that they have obtained, to banks and financial institutions for the purposes of these bodies meeting their statutory obligations. It is clear that the strong public interest in enforcing the laws against money-laundering and the relatively limited purposes for which access is permitted, result in the balance being in favour of those purposes.
The second category of cases where the Government have concluded that there should be continued access to the full register is 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 the credit risk.
The consequences of denying credit reference agencies access to the full register in terms of increased fraud, increased cost of credit, and reduced availability of credit, especially to those at risk of financial exclusion, amounts to a strong public interest for continued full access. This public interest can be balanced against the following two factors which relate to the extent of the interference with human rights which will be permitted.
In cases where an application for credit is the first transaction between any individual and a financial institution, there is, in any event, a statutory obligation to verify identity under the Money Laundering Regulations. That will usually be fulfilled through a check with a credit reference agency. Applicants for credit are always told that their details will be checked as part of the assessment process and their consent to such checks is required before these can be undertaken.
1179 There is a clear public interest in there being efficient and prudent availability of credit to all sectors of the economy. It is the Government's view that there would be a real risk to this continued availability of credit if the full registers were no longer available.
Given the strong public interests in facilitating the use of this information for identity checking in relation to the provision of credit, the overlap between the use of the full register for money laundering and credit assessment checks, and the fact that people have to consent to the checks being made, the Government consider that the interference with individual privacy is proportionate to the public benefits obtained.
I am satisfied that this limited commercial access represents an important public service and pursues a legitimate public aim in a manner which is proportionate to the intrusion into individual privacy and is therefore compliant with the Human Rights Act 1998 and the European Convention on Human Rights. The Electoral Commission, while maintaining its own basic view that electoral registers should not be made available for any commercial purposes, has publicly stated that it welcomes the Government's intention to put in place a comprehensive regulatory framework to ensure compliance with the human rights requirements.
Should the limits imposed by these regulations on authorised recipients of the full registers be breached, new Regulation 115 creates a criminal offence for information from the full registers to be passed to an unauthorised person, or for an unauthorised person to use such data, however he or she came by them.
The regulations implement the decision of Parliament to allow electors to decide, subject to some exceptions in the public interest, the limit to which their personal information may be used. They represent a legitimate balance between individual rights and the public interest. I commend them to the House. I beg to move.
Moved, That the draft regulations laid before the House on 27th June be approved [34th Report from the Joint Commit tee].—(Lord Bassam of Brighton.)
§ Lord Norton of Louth
My Lords, I do not wish to go over the discussion we had during the passage of the Representation of the People Act. The noble Lord, Lord Bassam, will doubtless remember those discussions well. I find the need to have a full electoral register and an edited one a rather heavy-handed way of ensuring that electors can remove their names from lists sold to commercial bodies. I should have preferred one register, with that register not being available for commercial use. The present situation is thus not ideal. However, I concede that it is the reality.
Given that we are to have an edited register, I make just two points on the regulations before us. I refer to the forms prescribed under Regulation 4 in both sets of regulations. The first concerns the form to accompany the electoral registration form. It explains that there are two versions of the register and there is a short paragraph on the edited register. Given how 1180 short these sections are, and given that the situation is a new one, I hope that the Minister can give some assurances that there will be more to educating citizens about the edited version than simply the words contained in the form. Otherwise, I fear that there is the danger that many electors may not realise that they have the right to have their name excluded from the register that is sold to commercial concerns.
The second point concerns the electoral registration form. Under the England and Wales regulations, the heading of the relevant column reads:If the person does not wish his or her name to appear on the edited register enter [a tick] below".That construction strikes me as somewhat awkward and may well confuse many who have to complete the form. I reflected after I had read the regulations whether a better form of words was possible. I thought of one. I then looked at the regulations for Scotland. I find there a different formulation of words, more or less along the lines that had occurred to me. In the electoral registration form in the regulations for Scotland, the relevant heading reads:If the person wishes their name to be excluded from the edited register enter [a tick] below".That strikes me as a much clearer and less ambiguous form of words.
Can the Minister advise the House why there is a difference between the two registration forms and whether there is a possibility at this late stage of changing the wording in the registration form that is to be used in England and Wales to bring it into line with that for Scotland?
§ Lord Borrie
My Lords, I raise a query with regard to Regulation 114 which, as the Minister has explained, allows the full electoral register to be made available for certain crime prevention purposes such as money laundering and crime covered by the Financial Services and Markets Act. I suggest that it is important for the public to fight financial crime in general, including, for example, fraud by cowboy dealers. Is it not a pity that the full electoral register is not available for the prevention of all types of financial crime, as I believe the regulations provided for when they were originally drafted? It may be that there is some concern arising out of the case referred to under the Human Rights Act. That is not easy for some of us to understand. I hope that the Minister will place the Government's legal advice on the matter in the Library.
§ The Duke of Montrose
My Lords, I thank the Minister for his exposition of the instruments. He said that he expected further regulation to be brought forward under Section 12 of the Scotland Act. I was interested to note that under the Scotland regulations the candidates who are allowed to obtain copies of the register are those involved in European Parliament elections and local government elections. I believe that there is another section on Westminster elections. Does that mean that the use of any register in a Scottish election will be in a local government election? 1181 Will the candidates be able to gain access to the register, or must a separate register be kept for Scottish elections because access will not be available?
§ Lord Goodhart
My Lords, I was surprised to discover only a few years ago that electoral registers were on sale to anyone who wanted to buy them. Indeed, I discovered that one could buy a CD-ROM containing all the registers for the whole of the United Kingdom. I then discovered that such sales had been taking place for a long time. However, there can be no doubt that the development of information technology, in particular the publication of electoral registers in electronic form, made it simpler to use them for commercial purposes and therefore more valuable for, say, direct marketing.
It then became apparent that the sale of electoral information gathered under compulsion from people who did not want the information to be used for other purposes was likely to be in breach of both data protection laws and the Human Rights Act. Therefore, in the Representation of the People Act 2000 the Government proposed restrictions on the availability of the full electoral register and at the same time provided for an edited version of the register which could be available for sale generally and which omitted the names of those who wanted to opt out.
That move was strongly opposed by marketing organisations, which wanted continued access to the full register. We supported the Government's proposals to have an edited register and these regulations implement the provisions in the Representation of the People Act providing for separate full and edited registers. We therefore welcome the regulations and regret the delay in introducing them.
It is a little surprising that a new set of regulations was issued in 2001, after the Representation of the People Bill 2000 had been passed, which did not provide for edited registers. I wonder whether it is a little cynical to suggest that the Government were prodded into moving on the matter only by the decision in the case involving Wakefield Metropolitan District Council, as mentioned by the noble Lord, Lord Bassam. That case held that the sale for commercial purposes of the full register was a breach of data protection legislation.
The Electoral Commission has produced an interesting paper recommending that there should be no commercial sales of electoral registers, even if on an edited basis. I have some sympathy with that viewpoint, but the policy was established by the Representation of the People Act two years ago and we cannot and should not revisit that when considering the statutory instruments which implement that Act. That Act provided that electors should be required to opt out rather than required to opt in to the edited register.
The question whether the vetting of applications for credit is a proper ground for access to a full register is, in my view, somewhat uncertain. There is a case for saying that it should be open to an individual to take 1182 the view that he does not expect to require credit and sees no reason why his name should therefore remain on an edited register. However, it would obviously he necessary to ensure that any instruction form warned people that if they opted out they would be at risk of difficulty if they sought credit which required reference to a credit reference agency.
The paper from the Electoral Commission, while I do not feel able to support its major proposition, raises a number of more limited points which I would like to bring to the attention of the Minister. First, under the regulations as amended, people are allowed to inspect the full register but to take only hand written notes of it. I can see why that is done. However, that could require constant monitoring by electoral registration officers, or their staff, in order to prevent abuse; for instance, someone who produces a hand-held scanner and runs it over the electoral register while officials are out of the room. Do the Government therefore accept that the proposal is potentially burdensome?
Secondly, the Electoral Commission states that the prescribed form of instructions, while mentioning the right to buy the edited register, should specifically refer to direct marketing as a potential use of the edited register. It may well not occur to a person completing the form that it is likely to be used for that purpose. I agree also with the points made by the noble Lord, Lord Norton of Louth, on the form.
Thirdly, where an applicant for registration makes his application on a non-standard form, the regulations require the electoral registration officer to send to the applicant a request to be told whether or not the applicant wishes to be excluded from the edited register. If the applicant does not apply within 21 days, it is then assumed that he or she does not wish to be excluded. It appears that the application may not therefore be complete until the applicant either replies or until 21 days have elapsed. If so, it seems that the delay caused by this could deprive the applicant of the right to vote if he or she would otherwise have been on the register which was in force at the date of the election. I wonder whether that is the case and, if so, whether anything can be done about it.
In addition to the points raised by the Electoral Commission, we on these Benches have two questions of our own. First, when the full register is supplied for electoral purposes, can it be supplied in a form which will make it electronically possible to identify those who have opted out of the edited register? There are a number of reasons why that might be useful. Some candidates may, for example, prefer to avoid sending direct mail to those who have opted out for fear of irritating them.
Secondly, does the expression "electoral purposes" include referendums? My inspection of the regulations suggests that it probably does not, because a referendum does not involve the election of anyone. I cannot see any wider definition of "electoral purposes" either in these regulations or in the 2001 regulations which they amend. I believe it is plainly desirable that the full register should be made available to those who are contesting referendums so that a right 1183 to copies should extend to all people who are permitted participants in referendums under the Political Parties, Elections and Referendums Act 2000. It may be that the Government believe that the appropriate way of dealing with the matter is by including a power to make such regulations in primary legislation which would be necessary to authorise any future referendum. However, if there is no such provision, plainly a major lacuna would be created.
§ Lord Kingsland
My Lords, the Register of Electors is a document prepared and maintained by local councils. In essence, the document is produced as a list of persons who are eligible to vote at elections.
Legislation enables commercial organisations to purchase the data and use them for a variety of purposes, such as marketing and credit references. This has been a constant matter of concern to electoral registration officers as, in effect, those persons supplying their details for electoral registration were given no notice that that was the case.
Last November, an individual initiated legal action against an electoral registration officer under the Human Rights Act—the Robertson case—for failing to confirm that his details would not be sold on for commercial gain. The case was upheld in the High Court and since then the provision of information to organisations, other than those involved in elections, has been suspended on the advice of the Electoral Commission.
In May this year, the DTLR published draft regulations to address the situation. In the main the proposals set out a process whereby electors could decide whether or not their details could be sold on for commercial purposes. Effectively, this will provide two electoral registers: one complete list for electoral purposes and another available for commercial purposes. It is also the Government's intention to allow the complete list to be used for credit reference and law enforcement purposes.
The DTLR invited comments on the draft regulations and the Association of Electoral Administrators, along with the Society of Local Authorities Chief Executives and the Electoral Commission, objected strongly to the provisions allowing credit reference companies and commercial organisations to purchase the data. Effectively, the new arrangements will place a responsibility on local councils to prepare a statutory document solely for commercial purposes.
Additional resources will need to be identified and there is a real possibility that the accuracy of the data will be compromised as members of the public learn that information they provide is made available for other purposes. The draft regulations do not address the primary issues of the Robertson case.
The Electoral Commission and others, in commenting on the proposals, made a strong, consistent objection to the commercial aspect. Despite these representations, and many others made by individual councils across the country, no account was taken of them and the revised regulations now before the House remain unaltered.
1184 Organisations and council officers with extensive experience of electoral matters devoted considerable time and energy to the consultation process, only to find that their time had been completely wasted. Furthermore, the delay in the government department responsible (now the Lord Chancellor's Office) reacting to a High Court judgment made last November has seriously compromised the annual process of updating the information.
Overall, councils and the appointed electoral registration officers now find themselves in a most precarious position. Hiding behind a process of collecting information for electoral purposes to satisfy commercial activity is wrong and will cause concern among the public.
§ Lord Bassam of Brighton
My Lords, I am grateful for the questions that have been asked. I shall try to respond to them in turn as best I can, although I freely admit from the outset that I shall not be able to cover all the points raised.
The first of two questions asked by the noble Lord, Lord Norton of Louth, related to the clarity of understanding that people might have of the new registration form with its extra tick-box. It is the case that the Electoral Commission intends to issue guidance to electoral registration officers on the information to be sent out with the form. Obviously, it will cover that aspect.
The noble Lord also made a point about the wording above the opt-out box, saying that it was slightly different. He is right about that, but we are satisfied that it has exactly the same effect. I have to advise the House that the wording cannot at this stage be changed for the purposes of these regulations.
The noble Lord, Lord Borrie, made a point about Regulation 114. This does not allow wider access with regard to financial services for the purposes of prevention of fraud more generally, beyond the specific requirements under the money laundering regulations. The Government consider that the proposed level of access strikes the right balance between private rights and public interest. This level of access allows our statutory obligations to be met.
The noble Lord suggested that we might consider placing a copy of the legal advice made available to the Government in the Library. It is a convention of government that we do not make available legal advice given to the Government. To do so would endanger legal professional privilege. But I hope that I have given a full explanation of the Government's view on the issues involved.
The noble Lord, Lord Goodhart, made a number of helpful and useful comments and observations. I do not intend to respond to them all, but it is worth reminding the House that, although the Electoral Commission has a firm and interesting view on the use to be made of electoral registers, it made it clear that it very much welcomed the Government's intention to put in place a comprehensive regulatory framework for the purposes of ensuring consistency with the requirements of the European Data Protection 1185 Directive and the Data Protection Act 1998, and our desire to make sure that we are fully compliant with the European Convention on Human Rights and the provisions of the Human Rights Act. The commission, although it had its view, recognised that we had put in place a firm framework which attempted to secure the right balance.
The noble Lord, Lord Goodhart, made a point about the way in which applicants might be disenfranchised. An applicant is given 21 days in which to state whether he or she wishes to be on the edited register. Applicants are put on the full register before being asked their wishes. So I do not think that they will be disenfranchised. They certainly should not be. If they were, we would want to know about that, because, clearly, the scheme would not be operating properly.
The noble Duke, the Duke of Montrose, made a point about the register in Scotland. Registers of electors for UK parliamentary elections will be created and registers for local government elections in Scotland. The local government register is the register which is used for elections to the Scottish Parliament. The entitlement of MSPs to obtain copies of the full register, and the other circumstances in which access can be obtained to the full register in relation to elections to the Scottish Parliament, will be fully set out in an order under the Scotland Act later this year.
The noble Lord, Lord Kingsland, made some observations about the scheme. These issues were debated, as the noble Lord, Lord Norton of Louth, said, very fully during the passage of the Representation of the People Act. The Government have worked hard and have consulted extensively to try to strike the right balance. We think that we have achieved that balance for the purpose of these regulations. For those reasons, I commend the regulations to the House.
§ Lord Goodhart
My Lords, before the noble Lord sits down, the most important point that I made was that relating to referendums and whether that was an electoral purpose.
§ Lord Bassam of Brighton
My Lords, I do not have an answer to that question. It is an extremely interesting point. I shall write to the noble Lord and circulate a copy of my response to all Members of this House who have contributed to the debate.
The other question that I did not cover related to copying. Yes, of course, we shall have to keep that carefully under review. Electronic copying is becoming easier in many forms and there are other ways in which data can rapidly be stored.
On Question, Motion agreed to.