The Representation of the People Act 2000 came into force in March 2000. Since, there have been two versions of the electoral register: a full version, to which access is limited, and an edited version that is sold on a no-questions-asked basis. To prevent your name and address appear on the "for sale" register, which at the time was known as the "edited register", you need to opt out.

This status quo was challenged in 2008. The previous year HMRC had lost the personal details of 25 million people. The data included people's name, address, date of birth, bank account details and national insurance numbers. This prompted a wide-ranging review into how Government shares data, and in July 2008 Information Commissioner Richard Thomas and Mark Walport of the Wellcome Trust presented their Data Sharing Report. The report made 19 recommendations, most of which were fairly tame. The final recommendation, though, re-opened the discussion about selling voters' personal details:

Recommendation 19: The Government should remove the provision allowing the sale of the edited electoral register. The edited register would therefore no longer serve any purpose and so should be abolished. This would not affect the sale of the full register to political parties or to credit reference agencies.

It is not really surprising that this recommendation was thrown in. The ICO has always opposed using the electoral register as a commodity, and so a report triggered by a massive data breach was a great opportunity to remind the government that maybe it should comply with its own data protection legislation and stop selling data collected for electoral purposes. Perhaps unwisely, the report also mentioned that there is a belief that the sale of the electoral register deters some people from registering at all. As I mentioned earlier, no thorough research has been done into this issue and it is extemely unlikely people give up their right to vote and risk a huge fine just to reduce junk mail. The argument only leads to speculative debates about whether or not the selling voters' personal details might deter people from registering to vote. This is exactly what was about to happen, but I am getting ahead of myself again…

In any case, here is the report's rationale for the recommendation to abolish the edited register:

• The edited register is available for sale to anyone for any purpose. Its main clients are direct marketing companies and companies compiling directories. Members of the public can choose to have their details omitted from the edited register by ticking a box on their electoral registration or annual canvass form. Currently around 40 per cent of those registered to vote across the UK opt out in this way. However, the language used on these forms can be confusing, and many people do not realise it is the edited register that is on public sale.
• In any event, we feel that selling the edited register is an unsatisfactory way for local authorities to treat personal information. It sends a particularly poor message to the public that personal information collected for something as vital as participation in the democratic process can be sold to ‘anyone for any purpose’. And there is a belief that the sale of the electoral register deters some people from registering at all. We are sympathetic to the strong arguments made by the Association of Electoral Administrators and the Electoral Commission that the primary purpose of the electoral register is for electoral purposes.

Let's consult

The Government accepted the first 18 recommendations but wasn't sure about abolishing the edited register. Lord Tunnicliffe set out the Government's thinking in May 2009:

The Government clearly understand the concerns around the sale of personal details through the supply of the edited register but, before deciding whether or not to take forward Recommendation 19, we need to establish how removing the provisions would impact on the UK economy, businesses, charities and the general public. We emphasise that this is particularly true at a time of economic difficulty, when the impact of such changes would need to be carefully considered in the light of all relevant factors. It would be most unfortunate if such amendments had a demonstrably negative impact on the activities of local small businesses, while not being thought to be necessary by the public. It is for this reason that in our response to the Recommendation 19 we announced that we would hold a public consultation. The consultation will enable us to build a firmer evidence base about the advantages and disadvantages of the edited register and consider the way forward on the basis of the responses received.

Later in the debate the Lord confirmed the consultation would be launched by the summer Recess. It was eventually launched in November 2009, more than a year and four months after the Data Sharing Review was published. The government clearly wasn't in a rush but the consultation itself looked promising; it was centred around six options, three of which would abolish the register and two of which would further restrict it. The only option that would more or less keep things as they were aimed to improve the information voters are given about the edited register:

Options abolishing the Edited Register

1. Abolish the Edited Register as soon as practicable.
2. Set a timescale or 'trigger point' for abolition of the Edited Register.
3. Abolish the Edited Register as soon as practicable, but extend access to the Full Register for other purposes to be decided in light of the consultation.

Options retaining the Edited Register

4. Retain the Edited Register, but impose restrictions in legislation on who can purchase it and for what purposes.
5. Replace the current 'opt out' provision with an 'opt in'.
6. Improve guidance for the public about the Edited Register.

Let's debate

The Direct Marketing Association had started its opposition a couple of days after the Data Sharing Review was launched. A media statement on its website is no longer available (and wasn't archived by the Wayback Machine) but Campaign Live quoted the lobby group's director of public and legal affairs, Caroline Roberts, as saying: Everyone agrees that direct mail should be correctly targeted and access to the edited electoral register is an efficient way of verifying data to do just that. This is the same argument the industry used in 2000, when the introduction of the edited register was debated in parliament.

Meanwhile, the Local Government Association and the Association of Electoral Administrators launched their own campaign. A survey they conducted showed that a whopping 98 per cent of electoral officers wanted to see the edited register abolished. Most likely the survey was made up of leading questions, as it also concluded that 88 per cent of election officers believed the trade in voters' names and addresses deterred people from registering to vote. Either way, it is unfortunate this argument was wheeled out again, as it wasn't substantiated. It almost invites the government to reject the case against the for-sale register.

The government's response

The Labour Party was kicked out of office in May 2010 and replaced by the Tory / Lib Dem coalition led by David Cameron. Labour had chosen not to respond to its own consultation before the 2010 election, and so the issue was inherited by the incoming administration. For a while it looked like the new government would simply ignore the issue, perhaps encouraged by an early day motion in favour of keeping the edited register, tabled in June 2010. One of the motion's sponsors was Jeremy Corbyn — who would have guessed at the time that he would be the leader of Labour Party within five years.

As it goes with early day motions, it was never debated in parliament. Still, it is interesting to note the arguments put forward by fans of using the electoral register as a commodity:

[…] this House believes that the edited electoral register provides very significant social and economic benefits for the UK as a whole; notes that the edited electoral resister does this by helping charities to fundraise, helping reunite lost friends and family (including the 3,000 people found by the Salvation Army), locating and connecting organ and bone marrow donors, enabling adoption organisations to find biological parents of adoptive children, and assisting businesses provide age verification, to reduce credit card fraud, minimise identity theft, pursue bad debts, repatriate dormant financial assets to their rightful owners, and support probate; and opposes all steps which might further significantly restrict access to or abolish the edited electoral register.

The list with very significant social and economic benefits doesn't include list brokers using the edited register, even though the junk mail issue had been brought up in every debate about the sale of voters' personal details. It is also worth noting that, strictly speaking, the motion is compatible with the fourth option in the 2008 public consultation on the future of the edited register (Retain the Edited Register, but impose restrictions in legislation on who can purchase it and for what purposes). That option would deny junk mail companies access to the register but allow access to others. I guess, though, that the MPs who signed the motion would have argued that charity junk mail is somehow different from all other junk mail and that all junk mail needs to be allowed in order to make sure charities can continue to send unsolicited appeals. After all, charities can do no wrong.

The issue was brought to the government's attention again in June 2011. The government had published its draft legislation on Individual Electoral Registration. This had very little to do with the edited register and the draft legislation only mentioned the existence of the edited register in passing — it stated that the Robertson case had established that the opt-out provision was compatible with the European Convention on Human Rights. Nevertheless, the Political and Constitutional Reform Select Committee brought the issue back on the agenda. It had heard evidence from the Electoral Commission, the Association of Electoral Administrators and the people-finding website 192.com, and it had concluded that the edited register should be scrapped:

Whatever benefit it might bring, we cannot justify the sale to commercial organisations of personal details gathered by the Government for electoral purposes. The Electoral Commission has suggested that if Government decides to keep the edited register that it should be changed to an opt in system, instead of opt out. We suspect that this option might well make the edited register too incomplete to be of much use. We recommend that the edited register should be abolished.

The evidence provided by Electoral Commission and the Association of Electoral Administrators was made public. Both argued that the electoral register should only be used for electoral purposes, crime prevention and national security. The evidence provided by 192.com was not made public but is partly quoted in a House of Commons briefing paper. It is remarkably similar to the Early Day Motion tabled by Jeremy Corbyn and friends in June 2010.

…the Edited Register has significant social and economic benefits. Businesses rely on it to verify potential suppliers and customers, tackle credit card fraud, meet obligations where supplying age-restricted goods or when tracing debtors. For charities, it helps reunite lost friends and families (including 3,000 found annually by the Salvation Army), underpins locating and connecting organ donors, locating natural parents of adoptees and supports fundraising. Local government relies on it for purposes not permitted with the Full Register such as debt recovery. Individuals rely on it for finding lost family members and for building trust in strangers that they are about to transact with.

The government responded to the Political and Constitutional Reform Select Committee's recommendation in February 2012. At the time, it was still mulling over the issue:

The Committee cited concerns over the sale to commercial organisations of personal details gathered by the government for electoral purposes. This recommendation was echoed by the EC and AEA. However, responses from 192.com and groups involved in finding people, for example those representing adopted people seeking to trace their birth parents, supported the retention of the edited register as it currently is, with better guidance for the public on the use of the opt out.

The Government is aware of and considering the finely balanced arguments on the future of the edited electoral register. The Government takes the handling of personal information seriously, and is committed to working to maximise registration rates. This needs to be balanced against the potential economic impact of abolishing the edited register. The Government’s approach to this issue is currently under consideration in the context of the wider access regime for the electoral registers.

A few month later the government had made up its mind. On 25th June 2012 the chair of the Political and Constitutional Reform Select Committee, Labour's Graham Allen, asked the government for an update in a House of Commons debate:

When my Committee conducted its pre-legislative scrutiny of the Bill, it recommended the abolition of the edited electoral register. We did not feel that it was appropriate for personal details gathered by the Government for electoral purposes to be sold to commercial organisations. Sadly, on this occasion the Government did not accept our recommendation, and that is why I am pressing the Minister tonight. I want to understand this thinking and to establish whether he wishes to think about the issue further, either now or at a later stage. The Government did, however, say in their response that they were "aware of and considering the finely balanced arguments on the future of the edited electoral register."

The Parliamentary Secretary for Political and Constitutional Reform, Mark Harper, confirmed that the edited register would be retained:

It is relevant to amendment 34, standing in the name of the Chairman of the Political and Constitutional Reform Committee, to confirm that the Government have concluded that the edited version of the electoral register should be retained. We have discussed whether it should be abolished with interested parties on both sides of the debate and received numerous representations. The previous Government consulted, but did not have the opportunity to take a decision before leaving office. There are those, particularly in the electoral community, including the Electoral Commission, who argue that having an edited register acts as a disincentive to people registering, but we have seen no convincing evidence of that. On the other side of the argument, some argue that it provides significant wider social and economic benefits, and in the previous Government’s consultation, 7,447 of about 7,600 responses favoured the edited register’s retention for those reasons. On balance — it is a finely balanced decision — the Government believe that keeping the edited register from which voters can choose to opt out is the right decision. I know it will be disappointing to some and welcomed by others, but that is the decision the Government have made.

So there you have it. The government felt there was a strong economic case for selling voters' personal details and it rejected the case made by opponents of the trade by pointing to the fact that they hadn't substantiated their claim that the practice acts as a disincentive for people to register to vote. In retrospect, this was all too predictable.

Defending the principle of choice

It wasn't quite the end of the discussion. The edited register was again debated in the House of Lords in January 2013. For the most part, the same 'ol arguments were rehashed but there were a few interesting clarifications. For instance, although the government rejected an amendment that would change the opt-out to an opt-in, it did confirm that electors would no longer have to opt out every year. If you opt out, you are now opted out unless you actively opt in again:

However, we believe that the current system, where most electors are asked to make a fresh choice each year about whether they wish to opt out, is unnecessary. We are therefore proposing that under IER an individual's choice will be carried forward unless and until they inform their registration officer that they wish to make a new choice or they complete a new application to register. We also intend to make it as simple and straightforward as possible for electors to change their preference at any time.

In practice, most electoral registration offices already carried forward opt-outs, much to the annoyance of the likes of the DMA — the lobby group had been campaigning against registration offices carrying forward opt-out preferences since 2004. They acknowledged that few people who had opted out previously would want to opt in the next time, but they felt it was important to defend the principle of choice. The DMA's mates at Equifax went a step further: they argued that carrying forward opt-out preferences was restricting consumer choice and business opportunities.

No hard evidence

In a second debate, on 23rd January 2013, there was an interesting contribution from Lord Wills, who was Minister of State between 2007 and 2010. He responded to Lord Norton, who argued that the edited register should be abolished. What is interesting is that the Labour peer provided a rare insight into how evidence was assessed. He pointed out that financial arguments put forward by companies that buy the electoral register were not supported by hard evidence:

When I was the Minister responsible for this issue in the last Government, I was minded to adopt an approach very similar to that put forward by the noble Lord, Lord Norton, both in Committee and today. Predictably, perhaps, I was vigorously lobbied by representatives of credit agencies who made fearsome claims about the potential detriment to businesses that would arise from any changes. Clearly there are arguments on both sides of the issue, so I asked those who had lobbied me to come back with detailed evidence of the potential damage: their analysis of what might be done to replace the electoral register as a source of data for them, how much the alternatives might cost, and a detailed principled case for public subsidy rather than their being put into the same position as other private sector firms that produce goods and services and fund their businesses from their own resources. I felt that when these people came back with the information, a proper assessment could be made of the advantages and disadvantages of different policy approaches.

I have to say to the noble Lord, Lord Tyler, and the noble Baroness, Lady O’Neill, that the same arguments apply to charities and other non-governmental organisations that use the electoral register for wholly commendable objectives. The argument is not so much about the usefulness of the electoral register, because that is clear and I think we all agree on it. The argument I would put is whether this is the best use of public money. What principled case is there for using public subsidy in this way, and could the sums involved perhaps be deployed more effectively in other ways? I have never seen any evidence to that effect, either as a Minister or subsequently. If there were any compelling evidence I might be prepared to change my mind, but in the absence of detailed analysis and evidence it seems that the noble Lord, Lord Norton, has made a compelling case for change. I hope that the Government, even at this late stage, might think again.

For the government, Lord Wallace of Saltaire reversed the argument: he pointed out that he had seen no evidence that people might avoid registering to vote because their personal details might be sold to junk mailers:

My Lords, the last Government did consult on the future of the edited register and received some 7,600 responses, of which 7,450 were in favour of its retention. Last year, Ministers carefully considered the future of the edited register again and took further detailed representations from both sides of the debate. They concluded, as had their predecessor, that the edited register should be retained. We saw no evidence that people are put off registering and agreed with those who highlighted the wider social and economic benefits that it provides.

And the Lord also indicated that the government would introduce a statutory text that described the purpose of the edited register to electors:

[…] the edited register serves a variety of purposes, some of which are commercial and some of which are very clearly valuable in social terms. To this end, the Government have therefore proposed, in the draft secondary IER legislation, that application forms will include a clear statement on the processing of data supplied by the individual and are looking at the language used to describe the uses of the registers. The Government will be working closely with the Electoral Commission to ensure that the forms will be user-friendly, clear and straightforward.

The Government believe that providing electors with a choice of an opt-out, alongside sufficient information to allow the individual to make an informed choice, provides electors with appropriate protection and control. So long as electors have an informed choice and can alter their preferences, there is little practical difference between an opt-out and an opt-in. We are not aware of any large-scale demand for change in the current situation.

That statutory text features large in the final chapter of this section, about the open register.