Select Committee on Constitutional Affairs Written Evidence


Memorandum by The Information Commissioner (VOT 23)

1.  EXECUTIVE SUMMARY

  1.  The Information Commissioner is responsible for promoting and enforcing the Data Protection Act 1998 and Freedom of Information Act 2000. Information held on the electoral register falls under the Data Protection Act 1998 as it constitutes personal data. The Commissioner has always underlined the need for a quality electoral register with uses which are apparent to those whose details it contains and the option for them to choose whether or not their information is disclosed for commercial purposes.

  2.  The Commissioner believes that moving to a system of individual registration would be the most reliable way of ensuring that individuals are able to maintain a choice as to how the information they provide is used, as well as helping to improve the accuracy of the data held about them. He would also welcome the possibility of "pseudonymous" registration, ie using a voter number in place of a name and address to help those for whom access to their details on the electoral register could pose a threat to their personal safety.

  3.  The Commissioner recognises that the development of on-line and telephone voting might necessitate the creation of a reliable identity verification system where this is not currently needed. Problems which may be encountered in doing this are likely to be similar to those encountered in setting up identity cards.

  4.  An area of concern for the Commissioner is the use of "marked" registers. He suggests that the secrecy of the vote should extend to the act of voting. Whilst public inspection of the marked register to safeguard against electoral fraud may be proper, restrictions on wider use and the requirements to provide information to individuals registering should be consistent with those in place for the other versions of the register.

2.  BACKGROUND

  5.  The Information Commissioner is an independent officer who is appointed by Her Majesty the Queen and who reports directly to Parliament. The Commissioner has responsibility for promoting and enforcing the Data Protection Act 1998, Freedom of Information Act 2000 and associated regulations. The current Information Commissioner is Richard Thomas he has been in post since November 2002.

  6.  The information collected for the electoral register is personal data as defined by the Data Protection Act 1998 (the 1998 Act) and the collection, use and disclosure of the information about voters is regulated by the 1998 Act. However by virtue of Section 34 of that Act, electoral registration officers will be exempt from large portions of the 1998 Act because they are required to collect, publish and make available the information under enactment.

  7.  The principles of the 1998 Act are derived from international instruments such as the 1981 Council of Europe Data Protection Convention, but the 1998 Act, replacing the Data Protection Act 1984, was enacted to transpose Directive 95/46/EC into United Kingdom law. The legislation sets out a code of good information handling practice whose purpose in the words of Article 1.1 of the Directive is to "protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data." The essence of the 1998 Act can be found in the eight principles set out in its First Schedule (Annex A).

  8.  The Commissioner has been actively involved in discussion on the use and disclosure of the electoral register since 1998. The Commissioner made a submission to the Home Office Working Party on Electoral Procedures (Howarth Committee), and responded to the consultations on the draft regulations in 2001 and 2002 and the Electoral Commission's Consultations on the Implication of Online Campaigns 2002 and the Electoral Registration Review 2003.

  9.  In all of his dealings concerning the electoral register the Commissioner has sought to highlight the need for: the integrity and quality of the register; the uses of the register to be apparent to those who are entered upon it; allowing individuals to exercise choice about the disclosure of their information for commercial purposes and strictly limiting the disclosure of the information in the full register to instances where a significant public interest can justify the disclosure under Article 8 of the Human Rights Convention. The Commissioner has done this mindful of the importance of the electoral register in the democratic process and the burdens and responsibilities placed on electoral registration officers.

3.  THE INFORMATION COMMISSIONER'S VIEWS ON THE ISSUES RAISED BY THE JOINT COMMITTEE

Advantages of individual registration compared with the existing system of household registration

  10.  The Commissioner welcomed the setting up of two forms of the electoral register. This gives individuals an important choice as to whether information about them provided for electoral purposes can be sold direct to marketers and others. In the Commissioner's view the most reliable way to ensure that individuals are able to exercise their choice would be for registration to take place on an individual basis.

  11.  There may well be other advantages in individual registration. For example, the accuracy of the data might be improved if individuals were to provide information about themselves, rather than for the head of household to provide it on behalf of others. From a data protection perspective, we can see no obvious advantages in registration continuing to be carried out on the basis of households rather than individuals.

  12.  The Commissioner recognises the administrative and democratic advantages of the expedient method of imposing a duty on householders to make a return. He asks whether the balance of public interest has not now shifted to prefer a system of individual responsibility for registration to protect the privacy of individual voters, but understands that different public interests may have to be weighed against each other.

Strategies for encouraging registration, in particular among young voters, and tackling resistance to registration

  13.  The Commissioner is not in a position to express an opinion on the strategies that might be pursued to encourage registration.

Examination of advantages and disadvantages of compulsory registration

  14.  As the Commissioner understands the current legal compulsion in respect of electoral registration is for the head of household to provide accurate information to the electoral registration officer when requested to do so. It is not in itself an offence not to appear on the electoral register. It would seem, therefore, that the existing offence concerns the provision of information to the electoral authorities. If there is a move, therefore, from household-based to individual registration, it would be understandable for the current offence to be transferred from the head of household to the individual. This would in effect constitute a compulsion for individuals to provide information about themselves, and therefore to appear on the electoral register with the likely effect that the information will be more accurate. The benefits of the most complete electoral register in a democratic society carry great weight. Parliament might wish to count those benefits more highly than the loss of individual freedoms caused by compulsion. However, the move to individual compulsion emphasises the need for effective safeguards against use of the information for unwarranted purposes, such as for direct marketing.

Issues of geographic and ethnic variations in levels of voter registration

  15.  The Commissioner is not aware that it is possible to profile ethnic variations in levels of voter registration from the information provided to the electoral registration officer in the canvass. Assumptions of ethnicity should not be drawn from the names of those registering or their place of residence. Data Protection law treats both race and political opinion as especially sensitive. The Commissioner would expect considerable caution to be exercised if ethnic voter profiling information were to be collected. However, the use of aggregate figures drawn from the electoral register which concern levels of voter registration by geographical area do not engage the Data Protection Act 1998.

Advantages or disadvantages of electronic rather than paper-based registration systems

  16.  Whilst this is not strictly a data protection question as the safeguards afforded to the individual regarding the disclosure of the electoral register will apply whether or not the system is electronic or paper based we would support on-line or indeed telephone registration in so far as this facilitates registration by those who are unable or unwilling to register using traditional means. There would need to be full and careful testing prior to any such system going live to ensure sufficient identification of individuals, the security of the system and the integrity of any subsequent register.

  17.  The Commissioner has no knowledge of the extent of fraudulent registration under the present system. The risk of fraud should not, however, drive policy makers to adopt disproportionate means of personal identification. Comparisons might be drawn with the Criminal Records Bureau activities or anti-money laundering policy where individuals sufficiently establish their identity by reference to other documents or activities. It should be borne in mind that if Identity Card legislation is enacted, it is not clear from the provisions in the current Bill before Parliament that an individual could be required to produce an identity card when registering / voting or that their details could be required to be checked on the proposed National Identity Register until such time as Parliament may decide to make registration under the national identity registration scheme compulsory.

Difficulties for the disabled and others unable to complete forms

  18.  Electronic registration in addition to a paper based system should increase flexibility of the registration process and benefit those with disabilities that would stop them manually completing the canvass form. A system of registration that was solely electronic might risk disadvantaging those who do not have ready access to a computer.

Availability and confidentiality of the register

  19.  The Commissioner recognises that public scrutiny of the register has long been considered to be a fundamental part of our electoral system. However, there are some advantages in allowing "anonymous" registration, or at least a system where there is no, or only limited, public scrutiny of the register. The Commissioner recognises though, that the possible impact of such change on the integrity of the registration system and on the functioning of our democracy will need very careful assessment.

  20.  The primary purpose of electoral registration is to allow the proper conduct of elections. Provided that "anonymous" registration is compatible with those objectives, the Commissioner would encourage the Joint Committee to consider the possibility of allowing at least some of the electorate to register "anonymously", or to prevent public scrutiny of entries relating to them.

  21.  The Commissioner is aware that some individuals would like the facility of anonymous registration, for reasons either of personal safety or privacy. Clearly many individual telephone subscribers choose to be ex-directory for a number of reasons. It would be reasonable to assume that such individuals would choose not to appear on the publicly available register of electors, for similar reasons to those that lead them to be ex-directory. Those living under genuine threat have a stronger case for anonymous or pseudonymous registration. In the Commissioner's view an effort should be made to investigate whether the wishes of such individuals can be accommodated whilst preserving the integrity of the electoral registration system.

  22.  The Commissioner does not believe that truly anonymous registration is a possibility. However, the adoption of privacy enhancing approaches such as pseudonymisation, or the substitution of explicit identifiers such as name and address with non-explicit ones, such as a voter number or other token, should be investigated.

Basis for individual registration eg address-based or on personal criteria such as NI number or birth date

  23.  It is for those responsible for the administration of the electoral registration system to determine the most appropriate means of identifying those eligible to vote. The experience of using voter entitlement cards in Northern Ireland will presumably be valuable in this context.

  24.  The integrity of the voting system could be damaged if existing identifiers such as those contained on passports or bank cards were to be used as the sole means for determining the eligibility to vote. There might also be problems in basing an identification system on existing private or governmental databases, such as those held for credit referencing or national insurance purposes. For example some individuals might be liable to pay national insurance but would not be eligible to vote, whilst some who are eligible to vote would not have a credit reference history. It should not be assumed that there is an easy way to check or maintain the integrity of the electoral register. Indeed, the existing electoral register is itself a component of many current identity checking procedures.

The desirability of a national electoral register

  25.  This is not primarily a question for the Information Commissioner. There is a danger that a unified national database could be a target for procurers of information and others seeking unauthorised access, for example for tracing purposes.

Means of ensuring the security of the register: PIN numbers, electoral voting cards, signatures

  26.  As we understand it, under the current arrangements the head of household provides the names of those in his or her household who are eligible to vote or who are approaching eligibility. As far as we are aware, no hard checks are made on the information provided. If the current arrangements are generally sufficient to protect the integrity of the electoral system, we would question the need to put in place an additional system for identifying individuals.

  27.  We recognise, though, that with the advent of on-line or telephone voting and the possibility of individual registration the opportunity for systematic electoral fraud or abuse could increase. Countering this may necessitate the establishment of a reliable system for ensuring that only those entitled to register to vote can do so, and only once. Such a system could be operated in compliance with data protection law, but its design would require care. Many of the problems likely to be encountered in issuing identity cards would probably be encountered in issuing identification tokens for electoral registration and the Commissioner raised those matters in his response to the Government's consultation about legislation on identity cards. That response is annexed to this Memorandum (Annex B) and although the Bill has subsequently been published, the comments on the administrative and technical arrangement (paragraphs 4-6) are still valid.

Other concerns: The use of the marked register

  28.  The marked up register provided to the Clerk of the Crown in Chancery should only be created and used for the purpose of conducting an election and to investigate electoral irregularities. It is a voter's own business whether or not he or she has voted and, in the Commissioner's view, the secrecy of the vote should extend to the act of voting. Any intrusion into that secrecy must be justifiable under Article 8 of the Human Rights Convention. The right of individuals to inspect the marked register to guard against electoral fraud is important and justifiable.

  29.  The Commissioner understands that political parties might collect this information about the behaviour of individual voters over a period of time in order to profile individuals and better target them. The Commissioner is aware of advice to the Electoral Commission that attendance at a polling station and by extension voting are public rather than private activities. However, in the light of the use of powerful data analysis techniques, the Commissioner is not persuaded that it is right to treat the marked register as a fully public document. Such analysis techniques enable the combination and comparison of information on individuals obtained from a variety of sources which can generate a very detailed picture of how individuals lead their lives. Public inspection to guard against fraud seems proper. Making copies available to profile the behaviour of individuals looks more doubtful.

  30.  The First Data Protection Principle requires that processing be fair and as part of that requirement individuals should be aware of the way in which their personal data will be processed. Individuals are not currently made aware during the canvass process that the fact that they have or have not voted will be disclosed to the political parties following an election. There is a need for consistency in the approach taken to the register whether it is the full, marked or edited version.


 
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