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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