I-Cd Publishing Ltd. v Secretary of State

The claimant challenged regulation 114 of the Representation of the People (England and Wales) Regulations 2001 as amended (by the 2002 Amendment) on grounds of unlawful consultation, irrationality and failure to give adequate reasons, and sought declaratory relief as to the lawfulness of a proposed business model that would use the full electoral register. The court held that (1) the consultation carried out by the Secretary of State was lawful and there was no duty to consult I-CD specifically; (2) regulation 114 was not irrational in the context of the statutory scheme and post-Robertson developments; (3) no duty to give further reasons was shown; (4) the claimant’s delay and culpability in failing to engage with the consultation were relevant to discretion; and (5) declaratory relief as to the prospective criminality or lawfulness of I-CD’s detailed future business proposals was not appropriate because the case was not a "very exceptional" or "truly exceptional" case warranting such relief.

This is a judicial review by I-CD Publishing Limited challenging regulation 114 of the Representation of the People (England and Wales) Regulations 2001 as amended by 2002 Regulations. The claimant operates a low-cost identity-verification/credit-check service based on the full electoral register and complained that the amendment (which permitted sale of the full register to registered credit reference agencies for specified purposes) unfairly excluded its business, that the Secretary of State failed to consult it, and that the Secretary of State gave no adequate reasons. The claimant also sought declaratory relief that its proposed revised business model would fall within regulation 114 so that it could operate without fear of criminal liability.

The issues before the court were (i) whether there had been a legal failure to consult I-CD or to consult adequately; (ii) whether regulation 114 was irrational or unlawfully exclusionary; (iii) whether the Secretary of State had failed to give adequate reasons; (iv) whether the claimant’s proceedings were brought promptly; and (v) whether a declaratory judgment should be made about the lawfulness of the claimant’s contemplated future conduct.

The judge reviewed the statutory and factual background, including the earlier judgment in Robertson No 1 which led to the 2002 amendments, the content of regulation 114 and the claimant’s history of contact with Ministers and officials. On consultation the court found that after Robertson No 1 there was no realistic prospect of a materially wider regime and no legal duty to consult I-CD specifically; the May–June 2002 consultation was properly conducted and I-CD was, at worst, culpably ignorant or complacent in failing to engage. On irrationality the court construed regulation 114 as requiring the prospective purchaser to be carrying on the business of providing credit reference services when it requests the full register, and held the regulation neutral as to market structure and not irrational; Call Credit’s subsequent eligibility illustrated that eligibility was not confined to an entrenched duopoly. On reasons the complaint fell away with the rejection of the other grounds. On delay the court found the claim was not brought promptly and discretion would have been exercised against relief. On declaratory relief the court held that the authorities require a "very" or "truly exceptional" case to permit civil declarations as to prospective criminality; this case did not meet that test and the application for declaratory relief was refused.

The application for judicial review is dismissed. The Secretary of State’s consultation was lawful, regulation 114 is not irrational and no failure to give adequate reasons has been demonstrated; the claimant’s delay and culpability were relevant to discretion; and declaratory relief as to the lawfulness of the claimant’s proposed future business model is not justified because this is not a "very" or "truly exceptional" case.