Microsoft Word - 071126 AUDITCOMMISSIONPOWERSADVICE

RE COUNCIL TAX AND ELECTORAL REGISTER DATA

ADVICE

GENERAL
1.  I am asked to advise the Audit Commission on whether an appointed auditor for a
local authority has power to require that that local authority provide him with
copies of the full electoral register for its area and certain council tax information
relating to persons registered as council taxpayers in that authority’s area. I am
also asked whether an appointed auditor for a local authority may require the
electoral registration officer to provide him with a copy of the full electoral
register for that authority’s area. In addition, I am asked whether the Audit
Commission would have power to require local authorities to provide council tax
records and the full electoral register to it under section 32B of the Audit
Commission Act 1998 (“the Act”) when that provision comes into force.

2.  For the reasons set out below, in my opinion, an appointed auditor for a local
authority does have power to require the provision of information relating to the
council tax records for that authority and a copy of the full electoral register for
that authority’s area pursuant to section 6 of the Act.

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3.  In addition, the Audit Commission will have power to require a local authority, or
its officers or members, to provide a copy of council tax records and the full
electoral register to it for the purposes of data matching under section 32B of the
Act, as amended by the Serious Crime Act 2007, when the provisions come into
force.

BACKGROUND
4.  In brief, appointed auditors for local authorities have powers in certain
circumstances to require that they be provided with documents relating to each
local authority whose accounts they are auditing. One question that arises is
whether an appointed auditor may require the provision of a copy of the full
electoral register for the local authority area. That document is prepared and
maintained by an electoral registration officer pursuant to section 9 of the
Representation of the People Act 1983 (“the 1983 Act”). An appointed auditor
may seek to require a copy of the register from either an officer of the local
authority or from the electoral registration officer himself. The copy of the
electoral register will contain the following information: the electoral register
number of each individual on the register, a unique property reference number for
the property where that individual is resident and the full name, address, postcode
and date of birth of the individual.

5.  The question also arises as to whether an appointed auditor may require officers
of the local authority whose accounts he is auditing to provide him with certain

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documents containing council tax information for that local authority. The
information sought in this instance will contain the unique council tax reference
for an individual, a unique property reference number and the full name, address
and date of birth of individuals residing at the address and liable to pay council
tax, including information about whether or not the individual is claiming that he
or she is eligible to receive discounts from the full council tax normally payable.

6.  This information is being required in the context of the National Fraud Initiative.
In brief, pilot schemes in London have demonstrated that a large amount of
revenue (in the region of £50-100 million pounds annually) is being lost by local
authorities. In particular, persons are claiming to be a single occupant of a
property and so eligible for a 25% discount on the council tax for which they are
liable. Frequently, there are other persons living at the property and the person is
not in fact eligible to receive the single occupant discount. Consequently, the local
authority is losing revenue.

7.  The provision of the electoral roll and council tax records for a particular local
authority will enable the appointed auditor for that authority to match or compare
the two sources of data. The electoral register may indicate, for example,  that
there is more than one person living in a particular property but the council tax
records may show that the person liable for paying council tax is claiming the
single occupant discount.

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8.  The issue that has arisen is whether the appointed auditor for a particular local
authority has power, and may lawfully require, the local authority to provide the
council tax data and electoral register for its local government area to him and
whether he may require the electoral registration officer to provide a copy of the
full electoral register for the local government area.

STATUTORY FRAMEWORK
9.  Local authorities are required to have their accounts audited annually: see section
2 of the Act. An auditor is appointed by the Audit Commission to carry out the
audit: see section 3 of the Act. Arrangements may be approved by the Audit
Commission for a person or persons to assist an auditor by carrying out such of
the auditor’s functions under the Act as are specified in the arrangements: see
section 3(9) of the Act.

10. Section 5 of the Act sets out the general duties of the appointed auditor. He must
“by examination of the accounts and otherwise satisfy himself”, among things,
that the audited body:

“has made proper arrangements for securing economy, efficiency and
effectiveness in its use of resources”.

11. In carrying out these duties the appointed auditor must comply with the Code of
Audit Practice issued under section 4 of the Act (see section 5(2) of the Act). The

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current Code of Audit Practice provides, amongst other things, that the auditor is
responsible for satisfying himself that the audited body has put in place proper
arrangements for securing economy, efficiency and effectiveness. Those
arrangements are to include arrangements for ensuring that its affairs are managed
in accordance with proper standards of conduct and to prevent and detect fraud
and corruption: see paragraphs 19 and 21 of the current Code of Practice. In
addition auditors must give an opinion on the authority’s financial statements
including whether they fairly represent the financial position of the local
authority and its expenditure and income for the year in question. In so doing, the
appointed auditor must provide reasonable assurance that the financial statements
are free from material misstatement, whether caused by fraud or other irregularity
or error: see paras. 15 and 16 of the current Code of Practice.

12. The appointed auditor also has power to make a report on any matter which, in the
public interest, he considers should be drawn to the attention of the audited body
or the public: see section 8 of the Act.

13. The general functions of the appointed auditor have been summarised in Asher v
Secretary of State [1974] Ch 208 at p. 219 where Lord Denning M.R. said, so far
as material for present purposes:

“The district auditor holds a position of much responsibility. In some
respects he is like a company auditor. He is a watchdog to see that the
accounts are properly kept and that no one is making off with the funds.
He is not bound to be of a suspicious turn of mind…..but if anything

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suspicious does turn up, it is his duty to follow it up…..In other respects,
however, the duties of a district auditor go far beyond those of a company
auditor. He must see whether, on the financial side, the councillors and
their officers have discharged their duties according to law. He must listen
to any elector who makes objections to the accounts. He must make his
own investigation also.”

14. More recently, in West Wiltshire District Council v Garland [1995] Ch. 279 at
page 308  the Court of Appeal summarised the purpose of the audit as follows:

“The object of any audit is to ensure that the money of the audited body in
question has been properly spent and accounted for.”

15. The functions relate to expenditure unlawfully incurred as well as a failure to get
in money which is due to the local authority (see, e.g. Asher v Secretary of State
for the Environment [1974] 208 at page 219D-F).

POWERS OF AN APPOINTED AUDITOR TO OBTAIN DOCUMENTS AND
INFORMATION
16. Section 6 of the Act provides, so far as material, that:

“(1) An auditor has a right of access at all reasonable times to every document
relating to a body subject to audit which appears to him necessary for the
purposes of his functions under this Act.

“(2) An auditor may –
(a)  require a person holding or accountable for any such document to give
such information as he thinks necessary for the purpose of his
functions under this Act; and
(b) if he thinks it necessary, to require the person to attend before him in
person to give the information or explanation or to produce the
document.
…..

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“(4) Without prejudice to subsection (2), the auditor may –

(a) require any officer or member of a body subject to audit to give him
such information or explanation as is necessary for the purposes of his
functions under this Act; and
(b) if he thinks it necessary, require the officer of the member to attend
before him in person to give the information or explanation.

“(5) Without prejudice to subsections (1) to 4), every body subject to audit shall
provide the auditor with every facility and all information which he may
reasonably require for the purposes of his functions under this Act.

“(6) A person who without reasonable excuse fails to comply with any
requirement of an auditor under subjection (1), (2) or (4) is guilty of an
offence…..”

THE PRESENT CASE
The Power to Require Access to or Copies of the Council Tax Records and the Full
Electoral Register
17. The documents that an appointed auditor for a particular local authority is seeking
here is a copy of the council tax records for that local authority and the full
electoral register of local government electors maintained under the 1983 Act.

18. First, in my opinion, those document fall within the scope of section 6 of the Act.
The council tax records relate to a body subject to audit (i.e. the particular local
authority in question). They contain details of the individuals liable to pay council
tax to that authority and details of any discounts that those persons are claiming.
The electoral register similarly, in my opinion, relates to the body subject to audit.
It contains information concerning the persons who are local government electors
in respect of that body. Such persons are given specific statutory rights under
section 15(2) and 16 of the Act. Furthermore, regulation 107(4) of the

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Representation of the People (England and Wales) Regulations 2001 (“the
Regulations ”) provide that a councillor or officer of a local authority may supply
a copy of the register where necessary for the discharge of a statutory function of
that authority relating to security, law enforcement and crime prevention. That
presupposes that the electoral register may be used for the discharge of a local
authority’s functions. That reinforces my opinion that the electoral register is a
document relating to that local authority.

19. Secondly, an auditor could, in my opinion, reasonably conclude that the provision
of the documents containing the council tax records and the electoral register is
necessary for the purpose of his functions under the Act. Comparing the data in
the council tax records with the data in the electoral register is part of the means
by which he “may otherwise satisfy himself” that the body has made proper
arrangements for economy, efficiency and effectiveness in the use of resources”.
It is part of the means by which the auditor can ensure himself that appropriate
arrangements are in place to ensure that revenue lawfully due to the council is got
in. It is part of the means by which he is able to give his opinion on whether the
authority’s financial statement fairly represents the financial position of the local
authority and its expenditure and income. Put briefly, it assists the auditor in
ensuring that revenue due to the local authority is not being foregone. Finally,
consideration of that information may, along with other information, indicate to
the appointed auditor whether a public interest report should be made under
section 8 of the Act. Again, put briefly, if there appears to be prima facie evidence

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of amounts of revenue being foregone (because, for example, persons are
claiming a single occupant’s discount from council tax to which they appear not
to be eligible), if the amount of revenue foregone is significant and if no
arrangements are in place for taking steps in relation to that matter, the appointed
auditor may well consider it appropriate to issue a report under section 8 of the
Act.

20. The appointed auditor would, in my opinion, be able to form the view that
obtaining such information is necessary and is not Wednesbury unreasonable (i.e.
so unreasonable that no reasonable auditor would ask for those documents). First,
I am instructed that the information is the readiest and most accessible means by
which a cross-check can be carried out which may indicate a possible loss of
revenue through misuse of the single occupant discount in relation to council tax.
Secondly, the nature of the information obtained is limited. The council tax
records contain details of names and addresses and dates of birth and financial
details relating to liability to council tax and receipt of discounts. In the case of
the electoral register, the information it contains is the names, addresses and dates
of birth. Furthermore, the full register is available for inspection by members of
the public: see regulation 43 of the Regulations. That further indicates that the
nature of the information on the electoral register is not so sensitive that it would
be unreasonable for an appointed auditor to require that he be provided with a
copy. Thirdly, there are statutory restrictions on the ability of the auditor to
disclose the information. In those circumstances, a court would, in my opinion,

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conclude that a request that documents containing such information would not be
unreasonable or, phrased differently, would be a proportionate aim of achieving a
legitimate audit objective.

Statutory provisions relating to restrictions on disclosure of the documents
21. I turn next to considering whether there are any provisions which would prevent
or restrict the obtaining of either set of information.

22. So far as the electoral register is concerned, copies may be requested from the
electoral registration officer or, alternatively, from the local authority itself if, as
is usual, the local authority itself has obtained a copy of the full register pursuant
to regulation 102 and 107 of the Regulations. The electoral registration officer is
an independent statutory office-holder: see section 8 of the 1983 Act. Access to or
production of the documents may, however, be required under section 6(1) or 6(2)
of the Act from an officer or member of the authority or any other person. That
appears from the wording of section 6(2) which refers to “any person” being
required to attend and produce the document. That is in contrast with the powers
under section 6(4) of the Act which enable an auditor to require only “any officer
or member of a body subject to audit” to provide information. Furthermore, R v
Hurle-Hobbs [1945] 1 K.B. 165 considered that the powers under the predecessor
provisions to section 6(1) and (2) of the Act extend to third parties (in that case,
accountants acting as auditors of a company contracting with the local authority).

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23. Nor, in my opinion, is there any restriction in the Regulations which would
prohibit the electoral registration officer or an officer of the local authority
disclosing the full electoral register to the appointed auditor. Regulation 94 of the
Regulations applies to the electoral registration officer, his deputy and any person
appointed or employed to assist an electoral registration officer. Regulation 94(3)
provides that:

“(3) No person to whom this regulation applies may –
(a) supply to any person a copy of the full register,
(b) disclose information contained in it (and not contained in the
edited register), or
(c) make use of any such information,

otherwise than in accordance with an enactment, including these
Regulations.”

24  If a copy of the full register was required of an electoral registration officer under
section 6(1) or (2) of the Act, it would be supplied in accordance with an
enactment, i.e. the Act.  Consequently, there would be no breach of the
Regulations.

25  In relation to members and officers or employees of the local authority, regulation
107(3) provides that “subject to paragraph (4) below” such persons cannot supply
a copy of the full register to another person other than a councillor or employee of
the same authority. Regulation 107(4) of the Regulations provides so far as
material, that:

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“(4)A council or employee of the local authority may supply a copy of the
register, disclose or make use of information contained in it that is not
contained in the edited register –

(a) where necessary for the discharge of a statutory function of the
local authority or any other local authority relating to security, law
enforcement and crime prevention….”.

26  In my opinion, disclosing the copy of the full electoral register would be done for
the purposes of discharging a function under section 6(1), (2), (4) or (5) of the
Act, i.e. giving the auditor access to documents, producing documents or
providing information or explanations. Those statutory functions relate in part to
crime prevention. They relate to ensuring that the auditor is in a position to audit
the accounts, ensure that appropriate arrangements for economy efficiency,
effectiveness are in place, include arrangements that the financial affairs are free
from material misstatements including misstatements resulting from fraud.

27  Dealing with the council tax records, there appears to me to be no provision in the
Local Government Finance Act 1992 (“the 1992 Act”), or the regulations made
in connection with the administration and enforcement of the council tax, which
qualify the powers of the appointed auditor under section 6 of the Act or prevent
the local authority from complying with its implicit and express obligations under
section 6 of the Act. In particular, paragraph 16 of Schedule 2 to the 1992 Act
provides a power to make regulations which may include the provision (so far as
the authority does not have power to do so apart from the regulations) to supply
relevant information to another authority. Paragraph 17 provides a power to make
regulations for supply of certain information to other persons. Paragraph 18A sets
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out circumstances in which the billing authority may use the information. None of
those provisions were intended, in my opinion, to curtail the power conferred by
the Act on appointed auditors to obtain information or the implicit obligation or
power of local authorities to comply with such requests. Rather, they are
provisions which empower the making of regulations or prescribe additional
circumstances in which information obtained by a billing authority may be
disclosed.

28 Dealing with the Data Protection Act 1998 (“the DPA”), by reason of section 34
DPA personal data is exempt from the subject information provisions (defined in
section 27(2) DPA), the fourth data protection principle and the non-disclosure
provisions (defined in section 27(4) DPA) if the data consists of information
which the data controller is obliged to make available to the public by, amongst
other things, making it available for inspection. If the exemption applies, there is
no obligation on the electoral registration officer (or the local authority if it
provides a copy) to provide notice to the data subject of various matters including
the purpose for which the data is being processed (referred to here as the “fair
processing notice”) in accordance with paragraph 2 of part II to Schedule 2 to the
DPA.

29 In my opinion, the exemption provided for by section 34 DPA is applicable to the
provision of a copy of the full electoral register. Regulation 43 of the Regulations
provides that the electoral registration officer must publish the register by making
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it available for public inspection. Consequently, in my opinion, that has the result
that the exemption in 34 DPA applies and, amongst other things, there is no
obligation on the electoral registration officer (or the local authority ) to have
served a fair processing notice prior to providing a copy of the full register to the
appointed auditor.

30 So far as disclosure of council tax records are concerned for the present financial
year, section 35 DPA provides for an exemption from the non-disclosure
provisions (which include the obligation to provide a fair processing notice under
paragraph 2 of Part II of Schedule 2 to the DPA) if “the disclosure is required by
or under any enactment”. In my opinion, disclosure of the council tax records for
this financial year pursuant to a request under section 6 of the Act falls within the
scope of this exemption. The local authority concerned will not, therefore, have to
provide fair processing notices to the individual council tax payers prior to
disclosing the data to the appointed auditor for that local authority. To the extent
that provision of the council tax records still involves processing of data which is
required to satisfy one of the conditions in schedule 2 to the DPA, in my opinion,
the provision of a copy of the full register to the appointed auditor pursuant to
section 6 of the Act would be processing which is necessary for the exercise of
any functions of a public nature exercised in the public interest within the
meaning of paragraph 5 of schedule 2

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31 For completeness, I would add that if, contrary to my opinion expressed above,
the disclosure of the electoral register did not fall within the exemption in section
34 DPA, it would fall within the exemption provided for by section 35 DPA for
the reasons given in relation to the council tax records.

32 I have also considered the provisions of the Audit Commission’s Code of Data
Matching Practice. Paragraph 2.3(e) and (f) provide that “wherever practicable”,
information that data may be disclosed for auditing purposes in order to identify
possible cases of fraud should be given to the data subject prior to the initial
collection of the data. It should in any event be provided to the data subject prior
to the disclosure of the data to the auditor “unless it is impractical to do so”. In the
present case, in my opinion, a court would accept that it is not practical in the
present case to require notification to data subjects (whether the council tax
records or the electoral register) prior to the data being disclosed to the appointed
auditor. I am instructed that the pilot studies in London alone have revealed loss
of income in the region of £50 to £100 million. Consequently, it is not feasible to
leave matters to the next financial year (2008/2009) as the scale of revenue
foregone this year may be very significant. I am also instructed that the optimum
time for comparison of data from the full electoral register and the council tax
records is when the electoral register is re-published in December each year.
Thus, for this financial year, the optimum time for comparison is December 2007.
It may be that local authorities did not provide data subjects with notice that their
council tax details might be disclosed to the auditor. However, I am instructed
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that it is not practicable to do that by way of individual notices until the next
billing round begins for the next financial year, i.e. before 6 April 2008. It would
require a large amount of time and expenditure to send notices now. On balance,
in my opinion, a court would be likely to conclude that the provision of the
council tax records and electoral register details before the data is disclosed now
to the appointed auditor is not practicable and so disclosing the data without the
provision of the notices would not be a breach of paragraph 2.3(e) and (f) of the
Data Matching Code.

33 In any event, in my opinion, I doubt that a court would conclude that it would be
so unfair as to amount to an abuse of process to resile from any expectations
created by paragraphs 2.3(e) and (f) of the Data Matching Code (even assuming
that those provisions do give rise to legitimate expectations) and so would not be
unlawful (applying the approach set out in R v IRC ex p. Unilever [1996] STC
681). Or, put another way, in my opinion, a court would conclude that the action
taken was necessary and proportionate to achieve a legitimate aim, i.e. the taking
of immediate steps to quantify the potential amount of loss of revenue and the
taking of steps to minimise that loss (applying the approach set out in Nadarajah
v Secretary of State for the Home Department [2005] EWCA Civ 1363). In those
circumstances, even assuming that an individual had a legitimate expectation
arising out of paragraph 2.3(e) and (f) of the Data Matching Code, resiling from
that would not be unlawful.

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34 Nor, in my opinion, would the disclosure of the full electoral register or the
council tax details involve any breach of Article 8 of the European Convention on
Human Rights (“ECHR”). Even assuming that the disclosure of the details
involved an interference within the meaning of Article 8(1), any interference
would, in my opinion, be justified under Article 8 (2) ECHR. The disclosure
would be for a legitimate purpose, i.e. the economic well-being of the country, the
prevention of crime and the protection of the rights of others. It would be
proportionate, involving disclosure of a limited amount of information, none of
which is sensitive (and which is available for public inspection in any event in the
case of the electoral register) to an appointed auditor discharging statutory
functions. Further disclosure is controlled by section 49 of the Act and, in relation
to the electoral register, by regulation 96 of the Regulations. In those
circumstances, requiring the disclosure of the council tax records and the full
electoral register under section 6 of the Act would not, in my opinion, involve any
breach of Article 8 ECHR.

35 I am also asked whether the cases of R (Robertson) v City of Wakefield Council
[2002] Q.B. 1052 and R (Robertson) v Lord Chancellor’s Department [2003]
EWHC 1760 (Admin) have any bearing on the ability of an appointed auditor for
a particular local authority to obtain the full electoral register and council tax
records for that authority and to compare the data in those records. In my opinion,
the first Robertson case is not relevant to the particular issue that arises. That case
determined that the practice of selling the electoral register for direct marketing
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purposes without affording individual electors a right of objection contravened
Article 8 EHCR and Article 3 of the First Protocol to the ECHR. However, that
case, and its factual context, is far removed from the situation involving the
powers of the auditor. The second Robertson case, in my opinion, supports the
view that the disclosure of the full electoral register to the auditor is done for a
legitimate aim and is proportionate. In that case, the Administrative Court held
that the provision of the full electoral register to credit reference agencies for,
amongst other things, purposes related to the prevention of fraud, was compatible
with Article 8(2) ECHR and Article 3 of the First Protocol. The prevention of
fraud was a legitimate aim. The degree of interference involved was limited.
Hence, any interference was justified under Article 8(2) ECHR. In my opinion,
that decision supports the view that disclosure of the electoral roll to the
appointed auditor for audit purposes is compatible with Article 8 ECHR.

ADDITIONAL POWERS
36 The Serious Crime Act 2007 has amended the Act and, when the relevant
provisions are in force, will provide powers for the Audit Commission (in
addition to the powers of auditors under section 6 of the Act) to conduct data
matching exercises. These powers are exercisable for the purpose of assisting in
the prevention and detection of fraud (see section 32A(3) of the Act). Section 32B
enable the Audit Commission to require a body subject to audit, or any officer or
member of such a body, to provide the Audit Commission with such data as it
may reasonably require for the purpose of conducting data matching exercises. In
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my opinion, that would empower the Audit Commission to obtain copies of the
council tax records from a local authority. It would also empower the Audit
Commission to obtain a copy of the full electoral register from a local authority
which has been supplied with it pursuant to regulations 102 and 107 of the
Regulations. A councillor or officer may supply the electoral register to the Audit
Commission without breaching the Regulations as disclosure will be necessary for
the discharge of a statutory function relating to crime prevention, i.e. complying
with a requirement made under section 32B of the Act.

37 The position is less clear in relation to electoral registration officers. On the one
hand, electoral registration officers must also be officers of a local authority –
section 8 of the 1983 Act provides for a local authority to appoint “an officer of
the council” to be an electoral registration officer. Read literally, it could therefore
be said that an electoral registration officer falls within the phrase “any officer or
member of” an audited body. Furthermore, the links between the electoral
registration officer and the local authority are close: the local authority must
appoint him and he must be a council officer. Further, it could be said to be
anomalous if the appointed auditor could require the electoral registration officer
to disclose the list to him under section 6 of the Act but the Audit Commission
could not require the electoral registration officer to disclose the register to it
under section 32B of the Act. That is particularly the case when the electoral
register is available for public inspection and the information contained within it
is not sensitive.
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38  The contrary argument is that electoral registration officers are holders of an
independent statutory office. In order to be eligible for appointment to that office,
they must also be office holders of the local authority. But when acting as
electoral registration officers they are acting in the execution of their separate
statutory office. Further, it could be argued that section 32B(1) is intended to
enable the Audit Commission to require an officer of an audited body, acting as
an officer of that body, to provide data. Where a person is acting as an electoral
registration officer, and is discharging his duty of maintaining an electoral
register, he is not acting as an officer of the audited body. He is performing his
own, independent statutory duties. For that reason, there is an argument that
section 32B of the Act does not empower the Audit Commission to require the
electoral registration officer to provide the electoral register.

39  The arguments are finely balanced. In my opinion, and on balance, I am of the
view that section 32B of the Act does not empower the Audit Commission to
require the electoral registration officer to provide a copy of the full electoral
register. I recognise that the contrary argument is strong, and accords with the
literal wording of the Act and avoids an obvious anomaly. There is a real
prospect, therefore, that the court would reach a different view from that
expressed here and would hold that that section 32B of the Act was to be
interpreted as enabling the Audit Commission to require the electoral registration
officer to provide a copy of the full electoral register. In practice, this difficulty
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need not arise. First, there is scope for the Secretary of State to add a public body
to the list in section 32B: see section 32H(3) of the Act. If the Secretary of State
took the view that the power did not extend to the electoral registration officer,
that body could be added to the list. Secondly, and in any event, there is unlikely
to be any real difficulty as I understand that local authorities routinely obtain
copies of the full electoral register. In my opinion, the Audit Commission can
require the members or officers of the local authority to provide it with the full
electoral register. The Audit Commission may not therefore need to test the scope
of section 32B of the Act.

SUMMARY
40 In summary, therefore, my opinion on the specific questions asked as follows:

(1) the obtaining by an appointed auditor of a particular local authority of
council tax records and the full electoral register for that particular
local authority, and a comparison of that data, is capable of amounting
to an exercise of the auditor’s statutory functions under the Act, in
particular section 5 and 8 of the Act;

(2) the auditor may in principle conclude that he needs access to, or be
provided with a copy of the council tax records and the full electoral
register for a particular local authority and may exercise his powers
under section 6 of the Act to require the local authority (or the
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electoral registration officer in the case of the electoral register) to
provide copies;

(3) the collection and matching of council tax and electoral register data
for a particular local authority by the appointed auditor for that
authority would not breach the DPA, the Regulations, the legislation
governing council tax data;

(4) the Audit Commission will have power under section 32B of the Act
to require a local authority to provide council tax records and the full
electoral register and to match that data. It is more debatable as to
whether the Audit Commission could require the electoral registration
officer to provide a copy of the full electoral register but, on balance,
in my opinion, the Audit Commission could not do so. In practice, the
problem is unlikely to arise as electoral registers are routinely obtained
by the local authority to which they relate and the Audit Commission
can require the local authority to provide a copy;

(5) the decision in the first Robertson case does not have a bearing on
whether the exercise of powers by the auditor under section 6 (or the
Audit Commission under section 32B) of the Act is compatible with
the ECHR. The second Robertson case, in my opinion, supports the
view that the requirement that the full electoral register be disclosed to
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the auditor (or the Audit Commission) is compatible with Article 8
ECHR.

CLIVE LEWIS Q.C.

11 King’s Bench Walk
Temple
London
EC4Y
7EQ

26 November 2007.

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