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

The proportionality of electoral-register disclosure depends on the purpose, recipients, safeguards and practical effect of the disclosure. A previous finding concerning disclosure for direct marketing does not establish that every commercial disclosure is unlawful. Disclosure of the full register to regulated credit reference agencies may be compatible with Article 3 of the First Protocol where it serves legitimate aims, is limited in scope and reflects a legislative balance between privacy, electoral rights, fraud prevention and access to credit.

The claimant challenged regulation 114 of the Representation of the People (England and Wales) Regulations 2001, as amended by the Representation of the People (England and Wales) (Amendment) Regulations 2002. The regulation required electoral registration officers to supply copies of the full electoral register to qualifying credit reference agencies for specified purposes.

The claimant relied on the court’s earlier decision in R (Robertson) v Wakefield MDC and argued that the amended regulation remained incompatible with Article 3 of the First Protocol. The court proceeded on the merits despite the claimant’s absence, and the central issue was whether the amended disclosure scheme was a disproportionate interference with the right to vote.

1. The application was dismissed. The earlier decision in R (Robertson) v Wakefield MDC concerned disclosure of the electoral register to commercial organisations for direct marketing. It did not determine that all commercial disclosure of the full register was unlawful.
2. Article 3 of the First Protocol protects subjective rights to vote and stand for election. States enjoy a wide margin of appreciation, but restrictions must preserve the essence and effectiveness of those rights, pursue a legitimate aim and employ proportionate means. The court applied the approach in Mathieu-Mohin and Clerfayt v Belgium (1987) 10 ECHR 1.
3. Regulation 114 involved, at most, a very limited interference with the right to vote. The information was already a matter of public record. Disclosure was confined to a narrow class of recipients, subject to conditions, and permitted only for specified purposes.
4. The regulation pursued legitimate aims, including facilitating credit, verifying identity, controlling fraud and supporting access to financial services. Parliament had struck a permissible balance following consultation, including consultation in which the claimant’s views were considered.
5. The court concluded that the balance struck by regulation 114 was wholly unassailable by ordinary public-law criteria. Both grounds of challenge therefore failed.

The interested parties did not seek costs against the claimant.