RE COUNCIL TAX AND ELECTORAL ERGISTER DATA

RE COUNCIL TAX AND ELECTORAL REGISTER DATA

FURTHER ADVICE

GENERAL
1  I am asked to advise the Audit Commission on certain questions arising in
connection with the powers of an appointed auditor to require an electoral
registration officer or a local authority to provide the appointed auditor with a
copy of the full electoral register. I have advised previously on these and related
issues on 26 November 2007 and this advice should be read with that earlier
advice.

BACKGROUND
2  By way of background, local authorities are required to have their accounts
audited: see section 2 of the Audit Commission Act 1998 (“the Act”). Auditors
are appointed for this purpose by the Audit Commission: see section 3 of the Act.
Those appointed auditors have certain powers to require that they be provided
with documents relating to the local authority whose accounts they are auditing:
see section 6 of the Act.

3  Questions have arisen as to the power of an appointed auditor to require officers
of a local authority, or the electoral registration officer, to provide a copy of the

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full electoral register. In addition, the appointed auditor is seeking documents
containing council tax information for the local authority.

4 This information is being sought 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.

5 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. That may indicate, amongst other things, that fraudulent
claims for single person discounts are being made. Where potential problems
arise, those matters are referred back to the local authority concerned to
investigate further,

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6 In my opinion of 26 November 2007, I advised, in summary, that an appointed
auditor could require the production from local authority officers, or from the
electoral registration officer, of a copy of the full electoral register for that
particular local authority pursuant to section 6 of the Act. An appointed auditor
could legitimately conclude that the production of the full electoral register and
the council tax, and a comparison of the data contained in each set of records, was
necessary for the discharge of his statutory functions, in particular those under
section 5 of the Act. I considered that the disclosure of a copy of the full electoral
register to an appointed auditor would not involve a contravention of regulations
94 or 107 of the Representation of the People (England and Wales) Regulations
2001 (“the Regulations ”).

7 A local authority, Cannock Chase District Council (acting for itself and others)
had obtained an opinion from Mr Timothy Pitt-Payne on 7 November 2007 (“the
Cannock Chase Opinion”). He expressed the view that councillors and employees
of the local authority could not provide the appointed auditor with a copy of the
full electoral register as that was prohibited by regulation 107 of the Regulations.
He considered that regulation 107(4)(a) of the Regulations, which would have
permitted disclosure to the appointed auditor, did not apply for, essentially two
reasons:

(1) the disclosure would not be for a statutory function of the local authority;
it would be for a function of the Audit Commission;

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(2) it would not be for a function relating to security law enforcement and
crime prevention but rather for a function relating to the economy,
efficiency and effectiveness with which resources are used by public
authorities.

8  The Cannock Chase opinion also expressed the view that disclosure by the
electoral registration officer would not involve a contravention of regulation 94 of
the Regulations. However, the Cannock Chase Opinion considered regulation 107
of the Regulations also applied to the electoral registration officer as he was an
employee of the local authority. It considered that the requirements of regulation
107 were not satisfied.

9  Paragraph 57 of the Cannock Chase opinion notes that the Audit Commission
may provide further explanation or analysis as to why regulation 107 does not
have the effect described. The Cannock Chase opinion was, of course, written
before my opinion of 26 November 2007.

10  The Association of Electoral Administrators (“AEA”) has also issued a statement
expressing views on the correctness of certain aspects of my earlier opinion.

11  Against that background, I am asked to advise on the points raised in the Cannock
Chase Opinion, referred to above, and on the points made by the AEA.

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LEGISLATIVE FRAMEWORK
12  The statutory provisions governing the powers of appointed auditors to require the
provision of information are contained in section 6 of the Act which 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.
…..
“(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…..”

13  In addition, there are specific provisions governing the electoral registration
officer and the electoral register. Section 8 of the Representation of the People
Act 1983 (“the 1983 Act”) provides that “there shall be electoral registration

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officers”. In England, the district council or London Borough must appoint an
officer of the council as the electoral registration officer. Although appointed by
the local authority, and although also holding a post as an officer of that authority,
the electoral registration officer is, in my opinion, an independent statutory officer
with specific statutory duties placed upon him so far as electoral matters are
concerned.

14  Section 9(1)(b) of the 1983 Act provides for each electoral registration officer to
maintain registers of local government electors. Part VI of the Regulations deals
with the supply of the register to other persons. Restrictions are imposed on the
persons to whom, and the purposes for which, copies of the electoral register may
be disclosed.

15  Regulation 94 of the Regulations provides, so far as material, that:

“”94 (1) This regulation applies to –
(a)  the registration officer;
(b) any deputy registration officer
(c)  any person appointed to assist any such officer or who in the
course of his employment is assigned to assist any such officer in
his registration duties.
…..
(2) 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 any use of such information

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

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16  Regulation 102(1) of the Regulations provides that persons falling within
regulations 103 to 109 of the Regulations may request a copy of the electoral
register. The electoral registration officer shall supply the register in accordance
with a request: see regulation 102( 4) of the Regulations A person who is
provided with that information under regulation 102(4) must comply with any
restrictions which apply under whichever of regulations 103 to 109 of the
Regulations entitles that person to obtain the document: see regulation 102(6) of
the Regulations.

17  Local authorities obtain the electoral register by virtue of falling within regulation
107 of the Regulations and are subject to the restrictions imposed by that
regulation. Regulation 107 provides, so far as material, that:

“107(1) Paragraphs (2) to (5) of this regulation apply to –

(a)  the local authority by which the registration officer was
appointed; and

(b) a local authority whose area falls wholly or partly within the
registration area of that local authority, other than a parish
council or community council…
…..
“(3) Subject to paragraph (4) below, no councillor or employee of
the local authority may –

(a) supply a copy of the full register other than to another
councillor of or employee of the same local authority;

(b) disclose any information contained in it that is not included in
the edited register; or

(c) make use of any such information .

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“(4) A councillor or employee of the local authority may supply a copy
of the register or 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…..;”.

SUPPLY OF THE REGISTER BY LOCAL AUTHORITY EMPLOYEES
18 Local authorities will generally have obtained a copy of the full electoral register
by making a request to the electoral registration officer under regulation 102 of
the Regulations. A councillor or employee of the authority concerned may not
supply a copy of the full register to any person (including the appointed auditor)
other than a councillor or employee of that authority unless such disclosure is
permitted by regulation 107(4) of the Regulations. The two points raised in the
Cannock Chase Opinion are first that the disclosure is not for a statutory function
of the authority but for a function of the Audit Commission (more accurately, a
function of the appointed auditor who is an independent officer holder separate
from, although appointed by, the Audit Commission). The second point raised is
that the disclosure would not be for a function relating to security, law
enforcement and crime prevention within the meaning of regulation 107(4) of the
Regulations.

19 On the first point, the position in my opinion is that the disclosure is for “a
function” of the local authority. The background is that local authorities must
make up their accounts annually and have those accounts audited. Furthermore,
the responsible financial officer for a local authority is required to determine its

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accounting records and accounting control systems. Those systems must, among
other things, include measures to “enable the prevention and detection of
inaccuracies and fraud”: see regulation 5(4) of the Accounts and Audit
Regulations 2003 made pursuant to section 27 of the Act. The appointed auditor is
required by an examination of the accounts and otherwise to satisfy himself of a
number of matters including that the body whose accounts are being audited “has
made proper arrangements for securing economy, efficiency and effectiveness in
its use of resources”: see section 5 of the Act. The general functions of the auditor
are described in Asher v Secretary of State [1974] Ch. 208 at 219 and West
Wiltshire District Council v Garland [1995] Ch. 279 at page 308 (both
summarised in my earlier opinion). Essentially, the aim is to ensure that the
money of the audited body has been properly spent and accounted for.

20 Against that background, appointed auditors have a specific power to require
persons, which will include officers and members of the authority, to produce
documents (see section 6(2) of the Act). Failure to comply is a criminal offence:
section 6(5) of the Act. As a minimum, in my opinion, officers and members of
the authority have an implied statutory power to provide such documents.

21 Consequently, in my opinion, the provision of information to an appointed auditor
pursuant to a request under section 6(2) of the Act is done in the discharge of a
function of a local authority. It is done in the exercise of a power to provide such
information. As was expressed by the House of Lords, albeit in a different

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context, the “word “functions” embraces all the duties and powers of the local
authority; the sum total of the activities that Parliament has entrusted to it”: see
Hazell v Hammersmith and Fulham London Borough Council [1992] 2 A.C. 1 at
p. 29

22 More broadly, in my opinion, a local authority has statutory obligations to have its
accounts audited. As part of that process, the auditor has power to request, and the
local authority to provide that information. There is also a specific obligation on
the local authority to “provide the auditor with every facility and all information
that he may reasonably require for the purposes of his functions under this Act”:
see section 6(4) of the Act. In my opinion, steps taken by the local authority to
facilitate the audit of its accounts, by the provision of information pursuant to a
request or in the discharge of its section 6(4) duty, are acts done in the discharge
of “a function of the local authority”.

23 Furthermore, in my opinion, the disclosure of the information does relate to the
prevention of crime. The functions under section 5 of the Act require the
appointed auditor to satisfy himself that there are proper arrangements for
ensuring economy, efficiency and effectiveness in the use of resources. Those
arrangements are to include arrangements for ensuring that the local authority’s
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 issued under section 4 of the Act. Furthermore, potential cases of

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fraud which are identified when the electoral register is compared with council tax
records are referred back to the local authority for investigation. In my opinion,
therefore, the disclosure of information to the auditor for the purposes of ensuring
that there are adequate mechanisms in place for detecting and preventing fraud is
for a function of a local authority “relating to” crime prevention.

24  For those reasons, in my opinion, the provision by an officer or member of a local
authority of the full electoral register following a request by the appointed auditor
would be permitted by regulation 107(4) of the Regulations.

PROVISION BY THE ELECTORAL REGISTRATION OFFICER
25  In my opinion, the question of whether or not an appointed auditor may require an
electoral registration officer to provide him with a copy of the full electoral
register depends on two questions, first, whether the powers of the appointed
auditor to require the production of information extends to electoral registration
officers and secondly, whether the supply of a copy of the full electoral register
consequent upon such a requirement is permitted by the Regulations.

26  On the first point, in my opinion, the power in section 6(2) of the Act to require
“any person” to provide information or produce a document applies to the
electoral registration officer. That phrase includes persons who are employed by
the local authority. It includes persons who contract with the local authority (see R
v Hurle-Hobbs [1945] 1 KB 165). There is no reason at all, in my opinion, why

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the phrase “any person” cannot encompass an electoral registration officer, i.e. a
person holding an independent statutory office.

27  On the second point, regulation 94 of the Regulations provides that an electoral
registration officer cannot supply to any other person a copy of the full register
“otherwise than in accordance with an enactment including these Regulations.”

28  In my opinion, producing a copy of the full electoral register pursuant to a request
by the appointed auditor under section 6(2) of the Act would be to supply it “in
accordance with an enactment” –i.e., in accordance with the provisions of section
6(2) of the Act. In my opinion, therefore, supply of a copy of the full electoral
register by the electoral registration officer to the appointed auditor pursuant to a
request under section 6(2) of the Act would not involve a contravention of
regulation 94 of the Regulations. I note that the Cannock Chase opinion agrees
with that analysis: see paragraph 50 of that opinion.

29  The reason why the Cannock Chase opinion considered that electoral registration
officers could not supply the appointed auditor with a copy of the full electoral
register proceeds, essentially, in a two-stage argument. First, it was considered
that regulation 107 applied to the electoral registration officer as well as
regulation 94 of the Regulations and secondly, that the requirements of regulation
107(4) were not satisfied.

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30  On the first point, in my opinion, regulation 107(4) of the Regulations does not
apply to the actions of the electoral registration officer. Supply by the electoral
registration officer is governed by regulation 94 not regulation 107. I reach that
conclusion for the following reasons.

31  First, regulation 107(1) of the Regulations identifies the persons who may request
the electoral registration officer to provide a copy of the register pursuant to
regulation 102: in the case of regulation 107 it is the local authority. Secondly, a
person - here the local authority - who obtains a copy from the electoral
registration is bound by the restrictions in regulation 107 (see the wording of
regulation 102(6) of the Regulations). In other words, as a matter of literal
construction of regulations 102 and 107, the restrictions in regulation 107 attach
to the members and officers of the local authority which receives a copy of the
register. Regulation 107 does not apply to the electoral registration officer who
supplies the register to the local authority.

32  Secondly, that interpretation accords with the structure of the Regulations. That is
why the electoral registration officer is dealt within in regulation 94 of the
Regulations. That is necessary because he is not otherwise caught by regulation
107 and there needs to be provisions in the Regulations authorising him to
disclose the register. Similarly, when an electoral register supplies a copy of the
register to one of the other persons falling within the description in regulations
103 to 106 or 108 to 109, the electoral registration officer does not also have to

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satisfy the requirements of regulation 107 of the Regulations because he also
happens to be employee of the local authority to whom the register relates. It is
sufficient if the person falls within the relevant regulations and a request is made
in accordance with regulation 102 of the Regulations. If those requirements are
satisfied, the provision of a copy of the register by the electoral registration officer
is done in accordance with the Regulations and is authorized by regulation 94 of
the Regulations.

33 Thirdly, that is also consistent with the language of regulation 107(3) which refers
to councillors and employees. The electoral registration officer is an independent
statutory officer holder. It is correct that he is also an officer and hence an
employee of the local authority who appointed him. But the provisions of
regulation 107(3) of the Regulations are, in my opinion, applicable to members
and employees of the authority other than the electoral registration officer when
he is acting in his capacity as registration officer.

34 In those circumstances, the second point, whether the restrictions in regulation
107(4) of the Regulations are satisfied, does not arise as that regulation does not
apply to disclosure by an electoral registration officer. For completeness, if
regulation 107(4) had been applicable, then, in my opinion, its requirements
would have been satisfied for the reasons given above.

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35 I turn next to specific points made by the AEA in its statement. First, the AEA
points out, correctly, that the Regulations set a statutory framework by which the
register is managed and set out the persons to whom the register may be supplied
and for what it may be used. Neither the Audit Commission nor appointed
auditors are specifically mentioned as persons who have a right under the
Regulations to be supplied with a copy of the full register. However, an appointed
auditor does have a right under section 6 of the Act to require production of
documents relating to a local authority which include, in my opinion, the electoral
register. The appointed auditor does not need a specific right under the
Regulations to require the information – he has it under another enactment. Nor
do the Regulations prohibit the supply by the electoral registration officer of a
copy of the full register. Regulation 94 of the Regulations provides that the
electoral registration officer is not prohibited from supplying the register if he
does so in accordance with an enactment. He would be supplying it in accordance
with an enactment, i.e. section 6 of the Act, if he were requested to produce it by
an appointed auditor.

36 Secondly, the statement refers to the fact that the register is owned by the
electoral registration officer and is only supplied to the local authority for specific
purposes laid out in the Regulations. In that regard, as already explained, the
Regulations contemplate and permit supply by the electoral registration officer of
the register in accordance with an enactment (including, but not limited to the
Regulations). Production of the information can be required under the provisions

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of an enactment, i.e. under section 6 of the Act. So far as supply by the local
authority is concerned, it is correct that councillors and employees may only
supply it where that is necessary for the discharge of a function of the authority
relating, amongst other things, to crime prevention. Supply in the exercise of a
power to provide information to an appointed auditor in the course of an audit of
the local authority accounts as part of the machinery of ensuring that adequate
arrangements are in place to prevent and detect fraud is, in my opinion, supply
for the discharge of a statutory function of the authority relating to crime
prevention for the reasons given above.

37 Thirdly, the statement states that no power is cited in the earlier opinion as
supporting the fact that copies of the full register may be requested from the
electoral registration officer. In fact, the power is cited at paragraph 22 of my
earlier opinion. It is section 6(2) of the Act. The statement notes that the electoral
registration officer is an independent statutory officer holder and he is not an
auditable body. That is, of course, correct. But the power under section 6(2) of the
Act (unlike that in section 6(4) of the Act) applies to “any person” holding a
document relating to a body subject to audit. “Any person” includes, in my
opinion, independent statutory office holders if they are holding documents
relating to a body subject to audit. I accept that the Regulations set out rights to
obtain copies of the register and impose prohibitions on the supply and use of
information and provides criminal sanctions for unlawful disclosure. However,
for the reasons given, the production of the register to an appointed auditor would

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be made in accordance with an enactment, section 6(2) of the Act, it would be
compatible with Regulation 94 of the Regulations (which specifically
contemplates disclosure in accordance with enactments) and would not involve a
contravention of the Regulations and would not give rise to any criminal
sanctions.

38  Finally, the two regimes – the regime governing audits contained in the Act and
the regime governing the register in the Regulations – are not contradictory, they
are complementary. Regulation 94 contemplates that the register may be supplied
in accordance with an enactment. That is what the Act provides for.

39  For those reasons, in my opinion, the production of a copy of the full electoral
register by the electoral registration officer to the appointed auditor pursuant to a
request under section 6(2) of the Act would not involve a contravention of
regulation 94 and would not involve the commission of an offence contrary to
regulation 115 of the Regulations.

CONCLUSIONS
40  For the reasons set out above, in my opinion, the production of the full electoral
register by an officer of a local authority to an appointed auditor pursuant to a
request under section 6(2) of the Act would not involve a contravention of
regulation 107 of the Regulations and would not involve the commission of an
offence contrary to regulation 115 of the Regulations. Further the production of

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the full electoral register by an electoral registration officer may be required by
the appointed auditor under section 6(2) of the Act. The production of the full
electoral register in response to such a request is authorised by Regulation 94 of
the Regulations and would not involve the commission of an offence by the
electoral registration officer contrary to regulation 115 of the Regulations.

CLIVE LEWIS Q.C.

11 King’s Bench Walk
Temple
London EC4Y 7EQ
31 January 2008.

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