Robertson, R (on the application of) v Experian Ltd & Anor

The origins of this case are to be found in R (Robertson)) v. Wakefield MDC [2002] QB 1052 (Robertson No 1), in which I held that the practice of selling the electoral register for direct marketing purposes without affording an individual elector a right of objection was a disproportionate interference with the individual’s right to respect for private life under Article 8 of the ECHR and that, to the extent that the prevailing Regulations made the right to vote conditional upon acquiescence in the practice with no right of objection, they also involved an unjustified and disproportionate restriction on the right to vote by reference to Article 3 of the First Protocol. In the light of that decision, an amendment was made to the Representation of the People (England and Wales) Regulations 2001 by the Representation of the People (England and Wales) (Amendment) Regulations 2002. The position now is that Electoral Registration Officers maintain two registers – the full register (which is open to public inspection and copies of which are available by purchase or otherwise to certain persons and bodies subject to restrictions) and the edited register (which excludes the names and addresses of those electors who have requested to be excluded from the edited register and which is generally available for purchase). In the present case, the same Mr. Robertson has permission to apply for judicial review in relation to a provision in the amended Regulations which deals with the sale of the full register to credit reference agencies. Regulation 114 of the 2001 Regulations (as amended by Regulation 15 of the 2002 Regulations) is in the following terms:

Mr. Robertson’s challenge to regulation 114 is put in two ways. First, it is said that my judgment in the earlier case makes it clear that all sales of the full register to commercial concerns are unlawful and that regulation 114 is inconsistent with that judgment. Secondly, even if the point was left open in the earlier case, regulation 114 still falls foul of Article 3 of the First Protocol.

Shortly before the Court assembled for the hearing of the application on 19 May, the Administrative Court Office received a copy of an e-mail sent that morning by Mr. Robertson to the Treasury Solicitor. It refers to funding difficulties regarding legal representation. As to that, the position is that Mr. Robertson commenced these proceedings in person and, although he was granted permission to apply by Sullivan J, the Legal Services Commission has refused to fund him. He has received two unfavourable opinions from highly respected counsel – one Queen’s Counsel and one junior – and his equally respected solicitors are unable to take the matter further. Other firms have declined to act. The e-mail stated that he was not fit enough to travel from Yorkshire for the listed hearing and that he cannot afford to do so.

I should refer to the listing history of this case. Permission was granted at a hearing on 4 November 2002, Sullivan J warning Mr. Robertson that

On 22 April Mr. Robertson lodged an application, without notice to the Secretary of State or the Interested Parties, for the proceedings to be stayed pending the resolution of his funding problem. I directed that he give notice of the application to the other parties and lodge a copy of counsel’s opinion with the Court Office. All then went quiet until 16 May, the working day before the listed hearing, when Mr. Robertson e-mailed the January opinion of leading counsel to the Office and pursued his application for the listing to be vacated. I was in court on another matter until 5 p.m. on 16 May and had only a brief opportunity to consider Mr. Robertson’s position during a short adjournment. I refused his application but said that he could renew it orally on 19 May. In the event he was not present to do so.

At the hearing on 19 May Mr. Crow on behalf of the Secretary of State and Mr. Pannick QC on behalf of the Interested Parties correctly observed that, in the absence of Mr. Robertson, the choice lay between adjourning the hearing (which they both opposed), dismissing the application without consideration of the merits (which neither sought) and hearing and ruling upon the application on the merits (the preference of both). I decided that the overall interests of justice called for the third of these possibilities. In reaching this decision I had regard to all the circumstances of the case including: (1) the previous listing history; (2) the history of Mr. Robertson’s failure to secure funding; (3) the fact that he had chosen to commence and pursue the application in person; (4) the fact that he is an experienced and particularly intelligent litigant in person as the history of proceedings and (until he obtained representation late in the day) the earlier case shows; (5) the tenuous evidence of his inability to travel for health or financial reasons; (6) the uncertainty as to when the case could be relisted; (7) the absence of reason to believe that, notwithstanding the grant of permission (which seems to have been more on a public interest than an arguable basis), the Legal Services Commission would ever fund the case; (8) the interests of the Secretary of Sate and the Interested Parties in the prompt resolution of an expedited case; and (9) the interests of the many other litigants who are waiting to have their cases heard in this Court.

I turn now to consider Mr. Robertson’s challenge to Regulation 114.

The first ground of challenge is uncomplicated. It is to the effect that Robertson (No 1) decided that any sale of the unedited register to commercial concerns or for commercial purposes is a disproportionate interference with an elector’s rights.

It is true that in some passages of my judgment I referred to the sale of the register “to commercial concerns” (see paragraphs 1, 36, 38, 39 and 40). However, it is clear from the judgment as a whole, and the way in which the case had been put, that its essential subject – matter was the sale to commercial concerns for direct marketing purposes. Thus, in paragraph 2 I said:

The next question is whether Article 3 affects Regulation 114. It provides:

In Mathieu – Mohin and Clerfayt v. Belgium (1987) 10 ECHR 1, 16, para. 15, the Strasbourg Court described and approved the way in which an “institutional” right had developed into “subjective rights of participation – the ‘right to vote’ and the ‘right to stand for election’….” It described the ambit of Article 3 in this passage (at para 52):

Now that the direct marketing problem has been resolved, I propose to start from the position submitted by Mr. Pannick QC, which I accept, namely that Regulation 114 constitutes, at most, a very limited interference with the right to vote. Moreover, it is common ground that it pursues a legitimate aim.

After Robertson (No 1), the Secretary of State embarked upon a consultation exercise. A consultation paper was published in May 2002. It set out, accurately, the implications of my judgment. It explained that the Government had concluded that, in principle, it would be lawful to provide for the sale of the full register “to certain commercial concerns”, in addition to making it available, uncontroversially, for certain purposes related to security, law enforcement, crime prevention and the conduct of elections. In the commercial context, the policy considerations were explained thus:

There would be more fraud, as the inability to properly verify identity and address would mean more fraudulent applications for credit were authorised.

The overall cost of credit would increase both because of the increased fraud losses and because the alternative, and less effective methods, of assessing creditworthiness would be more expensive. These extra losses and costs would be passed back to borrowers generally;

There would be less credit provided to people who lacked other documentary means of establishing their identity, increasing the problems of financial exclusion. The Government is keen to ensure that all sections of the community have access to financial services including, where appropriate, credit facilities. Witholding the full register from credit reference agencies will reduce access to credit for people in those circumstances. ”

When the draft 2002 Regulations were published, they were accompanied by a regulatory impact assessment which stated:

In my judgment, it is clear that the approach and the conclusion demonstrated by these documents fall within the wide margin of appreciation referred to in Mathieu – Mohin. Regulation 114 permits the dissemination of information which is in any event a matter of public record. It permits it only to a narrow group of recipients, subject to conditions, for a limited purpose. It represents a balance struck by Parliament following a process of consultation in which Mr. Robertson’s voice was heard. It was undoubtedly permissible to conclude that the public interest in the facilitation of credit and the control of fraud outweighed the very modest interference with the right to vote. Although Mr. Robertson maintains that the contribution to the control of fraud is slight and inefficient, the contrary view is at the very least a permissible one. Indeed, the evidence and the written and oral submissions on behalf of the Secretary of State and the Interested Parties, which contain far more detail of a technical and demographic nature than I have rehearsed in this judgment, dispose me to the view that the balance struck by Regulation 114 is wholly unassailable by reference to public law criteria.

It follows that the two issues raised by this case must be resolved against Mr. Robertson. On this occasion, his application for judicial review fails and is dismissed. I shall hand down this judgment on the same occasion as the judgment in the I-CD case. Mr. Pannick has already indicated that the Interested Parties are not seeking costs against Mr. Robertson. If the Treasury Solicitor and Mr. Robertson are able to agree a form of order before judgment is handed down, there will be no need for any attendance when the hand down is listed.