To pre-tick or not to pre-tick ...

It has been over eight months since Parliamentary Brief first began its investigation into the proposed abolition of the edited electoral register.  Following the 2007 Data Sharing Review and the subsequent Ministry of Justice (MOJ) consultation on the subject, it has become clear that the main driving force behind the proposed abolition has been the Association of Electoral Administrators (AEA).  It certainly wasn’t the Information Commissioner’s Office (ICO). Phil Jones at the ICO has stated that although the Data Sharing Review ‘was associated with the office... we were rather surprised at the recommendation that the edited register be abolished and that certainly wasn’t, and isn’t, our policy.’

But it does appear as if it is the AEA’s policy. They even sought to stop its creation in the first place, detailing their objection in a letter to No.10, written in 2000, in which they described the edited register as ‘a worthless document.’ Indeed far from simply campaigning against it, over the last eight years the AEA appear to have pursued this policy both by ignoring legal advice and encouraging practices amongst Electoral Roll Officers (EROs) that include what the Electoral Commission describes as ‘significant departures from regulations’ and which may well end up being subject to legal challenge.

After a detailed investigation into the circumstances which brought about the MOJ’s consultation Parliamentary Brief has uncovered systematic breaches of the regulations that govern the edited register. In particular, the AEA has been actively involved in seeking to increase the number of opt-outs of the edited register to support their contention that the public does not favour its continued existence and to promote the case for abolition.

The practice of pre-ticking the opt-out box has now come under close scrutiny: the findings are of grave concern. The edited electoral register was created specifically as an opt-out model.  The thinking behind it was clearly considered: parliament, while recognising the data privacy rights of the individual — legally affirmed in the Wakefield vs. Robertson case — also recognised the social and commercial benefits that this national database delivered both to the public and businesses alike and clearly legislated for its continued existence, subject to an individual elector’s choice to opt-out.

The opt-out model was considered the most viable option, given that the costs of the alternatives would be so huge. The debt collection industry alone claims that the edited register’s abolition would cost £5bn in unclaimed debt — while the ramifications for the entire credit industry are almost unquantifiable.  Then there is the cost to a range of other commercial sectors, which would run into hundreds of millions and see the losses of thousands of jobs.  What’s more, the importance of this consented for national database cannot be underestimated: its uses extend far and wide; providing the only viable database for fraud prevention; identity and age verification and debt tracing, essential uses relied upon by UK plc.

But it’s not just the commercial sector that would suffer. There are numerous charities from the Salvation Army to the Anthony Nolan Trust for which the edited register is a vital database that helps reunite long lost family members and, in respect of the bone marrow donor database, saves lives.   An opt-out system was chosen in order to strike a balance between privacy rights and these economic and social benefits.  The practise of pre-ticking the opt-out box destroys that balance and changes the legislative scheme completely.

The impact of this practice has been the subject of much debate in recent years. The issue of pre-ticking was discussed as far back as June 2003, at a meeting held at the Electoral Commission attended by representatives of the AEA, the Information Commissioner’s Office (ICO), Peter Richardson of the Department of Constitutional Affairs (DCA) and Mike Lithgow of the Scottish Assessor’s Association (SAA).

According to the minutes of that meeting, which Parliamentary Brief has obtained from the ICO, the AEA sought approval for the practice of pre-ticking, claiming:  ‘it significantly reduces the workload for the ERO and their staff.’  Perhaps they also hoped pre-ticking would effectively switch the register from an opt-out model to an opt-in model. However the AEA were to be disappointed in this respect.  

Mike Lithgow of the Scottish Assessors Association, the AEA counterpart in Scotland, ‘was not convinced of the administrative benefit to be gained from pre-printing ... Further, [he believed] that the legislation suggests an active choice in that the elector is required to "state that request" '. Peter Richardson of the DCA (which has now become the MoJ), had sought further legal advice on the issue and made the position quite clear: ‘It was the view of the Department for Constitutional Affairs, on the advice of their lawyers, that the opt-out box should be left blank and not pre-printed. Pre-printing may effectively take away the individual's choice...’ Following the meeting the DCA provided a copy of legal argument to Karen Quaintmere of the Electoral Commission who then circulated it to all the attendees:

‘Our view remains that we think the opt-out should not be pre-printed. We think that section 9 of the RPA 2000 requires a person to make a conscious decision to have their name excluded from the edited register and we think this should be done each time the annual registration form is completed and returned to EROs. Again if the tick is left in, we think the registration form becomes in effect an opt-in form and so different to that prescribed by parliament in the regulations.’  

The Electoral Commission later reinforced this position: ‘...the law requires the elector to make a fresh choice each year.’ This is the same position they have repeated every year since 2003 in the ERO’s handbook.  It is also the same position that the SAA took when it emailed the DCA’s advice to its members and which was reiterated at an SAA meeting in 2004: ‘The (new canvass) form can be adapted for local use but not in regard to the opt-out. The DCA still maintain that the opt-out should not be pre-printed, requiring a fresh choice each year.’

So why has this firm legal advice been systematically ignored in England and Wales?  Does it have anything to do with the AEA’s apparent agenda of getting rid of the edited register altogether?  Despite the legal position stated by both the DCA and the Electoral Commission, the AEA has taken a different tack to their Scottish counterparts and seized upon the only input which favoured pre-ticking.  This was a view expressed by the assistant Information Commissioner that, from a data protection perspective, pre-ticking was acceptable – but the ICO also thought an ‘opt in’ provision was equally acceptable.   In fact, this view has no bearing on the ‘pre-ticking issue’ at all; it did not take into account electoral law and, in particular the regulations that cover the edited register. Phil Jones, the Deputy Information Commissioner recently wrote to Parliamentary Brief on this matter: ‘I appreciate that, in the view of the Electoral Commission, the DCA and the SAA, pre-ticking was apparently not consistent with the requirements of the relevant regulations. If the AEA subsequently used our advice inappropriately this is not our fault. We simply advised on the matter from a DP perspective. It was for the AEA to take proper account of electoral law.’ 

Even then, having seized upon the ICO advice as justification for the practice, most of the EROs that then pre-ticked largely ignored a crucial part of that advice that if they did pre-tick they had to make it clear that electors could opt back in and how to do so. Jonathan Bamford of the ICO made this point emphatically: ‘...but a clear message that this be can be varied is essential.’ Yet the majority have largely failed to heed this advice; in effect denying electors the opportunity to change their mind.  In other words, the EROs have disregarded the regulations, ignored DCA and Electoral Commission advice and placed partial reliance on ICO advice — disregarding that part of the ICO’s advice which was related to opting back in. In doing so, EROs have turned an opt-out not just into an opt-in, but into an irreversible opt-out. No wonder the rate has only been increasing.

In other words, even though it was made clear to the AEA that pre-ticking was a breach of regulation 9 of the RPA 2000 a majority of its members have continued to employ this practice. The reduction in the size of the edited register has then been held up by the AEA as further evidence that the public is in favour of abolition. Indeed statistics recently collated from over 300 councils demonstrate that for those councils who pre-tick the opt-out box, the average opt-out rate is 47.19 per cent, whereas those councils who do not pre-tick have an average opt-out rate of just 27.2 per cent. The policy really does have a cumulative effect.

Clearly the impact of pre-ticking has been huge and had EROs not adopted this practice the opt-out rates are likely to have remained low.  This reinforces evidence which has been corroborated by independent consumer surveys that the public has no problem with the existence of the edited register and actually support it for most commercial purposes. In fact over 97 per cent of people canvassed in a recent independent survey supported the edited register’s continued existence. Unfortunately the practice of pre-ticking has resulted in a quarter of the electorate having their annual choice taken away.  For example, Oldham Council stated that in their view, once an elector had opted out this was a choice to opt out for the future.

It is not just the practice of pre-ticking which has reduced the size of the edited register. In line with their apparent aim of abolition, the AEA and individual EROs have failed to provide the electorate with proper information and guidance. Instead of educating electors on the many and varied uses and benefits of the edited register, EROs have often ignored other uses and  persuaded people to opt-out through literature and guidance notes which focus on the least popular use, direct marketing. Yet the Direct Marketing Association has claimed that opting out has no effect on reducing ‘junk mail’.  Some EROs now accept this and have stopped telling people that it will have this effect.  

Indeed it sometimes appears that that the policy of pre-ticking is not being pursued in the interests of convenience for the elector or to reduce the workload of EROs but rather in order to increase opt-outs.  In fact in a voter registration newsletter sent out by Selby Council, the ERO actually celebrated the fact that they managed to increase the opt-out rate.

In a more recent Freedom of Information (FOI) request Parliamentary Brief asked a majority of EROs whether, having read the DCA and EC advice, they would continue to pre-tick or not.  After all, given that everyone from the MoJ to the ICO is agreed that they would not be in breach of any regulations should they leave the opt-out box blank, most responded by confirming that having now seen the DCA and EC advice they would immediately discontinue the practice of pre-ticking or seriously consider whether they should continue it. Incredibly though 76 (approximately 20 per cent) ERO’s said they still planned to continue with the practice regardless.  But why?

Some claimed that pre-ticking was not ‘unlawful’ but simply a ‘departure from guidance’. Others such as Medway claimed that it was up to the ERO to decide whether to pre-tick, which somehow suggests that EROs can decide the law for themselves.  Rother Council went so far as to say that they ‘have given greater weight to the Data Protection Act (DPA) and the Human Rights Act’. This suggests that they know better than the ICO, the Electoral Commission, the DCA, or indeed parliament how the balance should be struck between different rights. Bear in mind that this legislation has already been judicially reviewed by the courts in a failed application in Robertson vs. City of Wakefield Metropolitan Council in 2001. Indeed in 2005 the government reviewed the Representation of the People Act and declared that it ‘preserved the balance between individual privacy and rights of access...’ 

Of course, some EROs argue that it is more convenient for the elector if they pre-print all the information from the previous year. But when it comes to this issue there is a huge difference between printing information that is a ‘constant’ such as a person’s name, or the fact that they are over 70, and printing information which is a ‘variable’, such as a decision to request a postal vote or a decision to opt-out — a decision the elector can change from year to year. The legal advice from the DCA in 2003 regarding the opt-out made the difference clear: ‘Pre printing the names of persons is less contentious as they are not likely to change, and we see no difficulty with this.’ But opting out is a choice.  After all, just because someone voted for one party at one election does not mean they will do so at the next.

Some have even cited advice the Electoral Commission gave with respect to electors whose details are carried forward from one year to the next when they fail to return their annual canvass form. But this cannot be used as a justification. If someone fails to complete the form one year then it is obviously sensible that their previous choice is carried forward until they complete it the next year.  This practice does not support a policy of denying people the choice when they are completing the form themselves.  

In addition, electors who move into a property where a previous occupant has opted out often find the form they receive has already been pre-ticked. While the pre-filling of a previous occupant’s name can be amended, and instructions are clear on this, the statistical evidence shows that new applicants are twice as likely to opt-out where the previous occupants opt-out was pre-ticked.  What this demonstrates is that new occupants are unduly influenced by the pre-ticked form even when making a fresh application.  

While many EROs have sought to justify their practices, some have even suggested that pre-ticking was ‘not explicitly unlawful’ because it had not been tested yet in court.   However as a leading barrister,  Hugh Tomlinson QC, stated: ‘The law does not recognize the concept of a practice being ‘explicitly’ unlawful — something is either lawful or it is not.’ Therefore these assertions hold no water. For until the consultation for the future of the edited electoral register was launched and this magazine, amongst other interested parties, began investigating the practices deployed by EROs, few outside the AEA  were aware that pre-ticking was so widespread.  The expectation was that EROs would be following the regulations and the legal advice which had been given.  It is perhaps not surprising that, up to now, no court challenges have been made.  Now that such practices have been uncovered that may now change.   

Some EROs have also cited recent AEA advice to support their position on pre-ticking. So what is this recent AEA advice and why do they think this justifies pre-ticking?

Ignoring regulation 9 of the RPA 2000, to which the DCA referred when making their legal position clear, the AEA has instead referred to regulation 26, which makes a number of provisions relating to applications for registration. Regulation 26(g) provides for requests for opt out by people making applications for registration, both in rolling registration and during the household canvass process.  Section 10A(2) of the Representation of the People Act 1983 specifies who is to be treated as making an application for registration during the canvass, and specifically refers at 10A(2)(b) to people who are not for the time being (i.e. currently) registered as being treated as making an application. 

The AEA view is that this means that currently-registered electors are not treated as having made an application for registration. Their application will have been made previously and Regulation 26(g) will only have applied at that previous point. As Suffolk Coastal put it: ‘Our view is that the requirement for opt-out requests on the household canvass form applies only to people whose details are not pre-printed on the form e.g. only new ‘applicant’ electors, and that current electors are not required to re-express a previously-made request.’ 

However yet again EROs are being misadvised in this respect, as Hugh Tomlinson QC explained ‘Regulation 26(g) simply deals with the formal requirements for ‘applications for registration’ it does not say anything about the contents of the annual ‘canvas forms’.  These are dealt with by section 10(4) of the Representation of the People Act 1983 and the Schedule to the Representation of the People (Form of Canvass) (England and Wales) Regulations 2006.   Applicants must be given the option of saying on the form whether they wish their name and address to be excluded from the edited register. The AEA disregards the clear intent of the current legislation that the opt-out should be an annual choice. This was parliament’s intention and the DCA and the Electoral Commission have made the position quite clear.

So there seem to be two different paths that EROs have taken with respect to pre-ticking: they have either left the opt-out box blank and therefore abided by both the legislation and the regulations that support it or they have taken the legally dubious route and pre-ticked.  But when it comes to this practice EROs might well want to consider their position.  Only 9 claimed to have even taken any independent legal advice. Given the commercial value of the edited register to UK Plc and the legal stance taken by the DCA and Electoral Commission on this issue, they face the clear risk of legal challenges. Given that they act in a personal capacity in this regard and are responsible for the layout of their own canvass forms they pre-tick at their peril.