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  • pg 1

                                  VOTE FOR LIFE



1.   The National Health Service is concerned to increase the level of organ donation.

     This is done, at least in part, by maintaining an organ donor register. It is no

     doubt fair to say that organ donation is regarded by a large number of people as

     important and valuable. However, there are some people who feel uncomfortable

     about the idea of organ donation or who have reservations about the way any

     scheme for organ donation operates.

2.   The point now for consideration is whether the Vote for Life Scheme, being a

     scheme to increase the level of organ donation, can be promoted using the

     mechanisms which are annually necessary to maintain the electoral register. In

     particular, the question arises whether the annual canvass can be used to promote

     the Vote for Life Scheme.

3.   In approaching this matter the following must be borne in mind. The courts

     approach the electoral regime without any preconceptions as to the views of the

     electorate or the outcome of the electoral process. It is not assumed (for example)

     that a large or any proportion of the electorate will vote for the Labour Party or

     the Conservative Party. All stand before the electoral process as equals.

4.   I have mentioned the preceding point to highlight this observation. One cannot

     assume that simply because organ donation may largely be regarded as a good

     thing that its promotion alongside an electoral canvass would not have any impact

     on some people in the electoral canvass or electoral process. In other words some

     people whose views, in the ballot, are of equal value to others may be deflected

     from or deterred from the electoral process because they hold unconventional

     views about organ donation. I appreciate that the canvass is removed from the

     ballot but the overall position can be of significance.

5.   There is a further framework point to be borne in mind. The electoral process as a

     whole is highly regulated. Timetabled and precise steps have to occur. The

     general approach of the courts has been that such steps have precisely to be

     followed; there is no scope to add to the regime or vary it because, for example, it

     is thought that to do so may be conducive to fairness or otherwise advantageous.

     This is in contrast to a regime for legal process (under the Civil Procedure Rules)

     which will generally allow for some flexibility.

6.   It is against that background that I turn to the steps required to be taken under the

     electoral process with which, it is contemplated, promotion of the Vote for Life

     Scheme may be allied.

7.   Section 10 of the Representation of the People Act 1983 requires an electoral

     registration officer (such as my Instructing Solicitor) to conduct an annual

     canvass for the purpose of ascertaining the persons who are entitled to be

     registered in the registers maintained under Section 9 of the Act (the registers of

     electors). It should be noted that a single express purpose is given for the annual

     canvass namely the ascertainment of these entitled to be registered; no other

     purpose is identified.

8.   Section 10(4) identifies the form to be used for the purposes of the canvass as

     either a form prescribed or a form to the same effect. Once again one sees a

     precisely prescribed mechanism. It is noteworthy that the variant on the

     prescribed form is a form to the same (rather than like or substantially similar)


9.   It is contemplated that a personal appeal from the Chairman of the Council would

     be sent in the envelope with the annual electoral registration forms (i.e. as part of

     the annual canvass). The donor forms (on the back of the personal appeal) would

     be returned, it is intended, with the prescribed canvass forms. In other words the

     annual canvass would be employed not merely for the purpose of ascertaining

     those entitled to be on the registers but also for the purpose of securing support

     for an organ donor scheme.

10.   There are two substantial points to be made. First, Parliament has laid down an

      exclusive purpose for the canvass. I consider that having a second purpose

      offends, in the context of the legislative regime, that exclusive purpose. Second,

      Parliament has indicated that particular forms are to be used and that for a

      particular purpose (section 10(5)) a registration office may make house to house

      inquiries. In that context Parliament appears to have been concerned to ensure

      that the focus was on the electoral process. To add but one paper to that process

      for a different purpose may deflect some from providing the information.

11.   Accordingly, I am not in the least surprised that the Electoral Commission have

      advised against incorporating the Vote for Life Scheme in the annual canvass

      under Section 10. I advise that to do so offends against Section 10 because the

      electoral registration officer would be acting for two purposes as opposed to the

      single purpose identified by the Act in a context where the regime has to be

      closely followed. Further, one of those purposes has nothing to do with the

      electoral process and may (especially because no particular assumptions are made

      about the electorate) deflect some from their given task of responding to the form.

12.   The Representation of the People (England and Wales) Regulations 2001 deal

      with a variety of matters affecting the electoral process. Part VI is concerned with

      the supply and use of the electoral register. Regulation 94(3) provides that an

      electoral registration officer may not make use of any information contained in

      the full register (and not contained in the edited register) otherwise than in

      accordance with an enactment.

13.   The exercise in mind would seek to use as information the full register because

      such information is used, as it would appear, in the canvass. Accordingly,

      regulation 94(3) supports the proposition I have previously advanced namely that

      the electoral canvass cannot be used to promote the Vote for Life Scheme.

      Further, to contravene regulation 94(3) constitutes (regulation 115) an offence

      leading to liability or summary conviction to a fine.

14.   Recent changes have led to the existence of both a full register and an edited

      register. The former includes the names of all entitled to vote and, subject to

      exceptions, their addresses. The latter has to omit the names and addresses of

      those electors whose details are in the full register in circumstances when requests

      have been made for exclusion (see regulation 93(2) of the 2001 Regulations).

15.   There are no restrictions on the sale of the edited register or on the uses made of it

      by purchasers. A copy of it has to be supplied on payment of a fee as set out in

      the 2001 Regulations. In those circumstances, it is perfectly proper for a properly

      empowered body to acquire the edited register and use it. Such a use could be the

      promotion of the Vote for Life Scheme.

16.   In my view an Electoral Registration Officer as such ought to be concerned

      exclusively with the electoral process. However, if an electoral registration

      officer has different roles and the edited register is properly in his hands for that

      role then it can be used. It follows that the answer to question 3.2 in my

      instructions is that the information on the edited version of the register can be

      used to promote the Vote to Life Scheme by sending the organ donor information

      to those on the edited register.

17.   I understand it may be desired to share this opinion with other electoral

      registration officers. I have no objection to that course.


18.   The Vote for Life Scheme proposal ought not to accompany the annual electoral

      canvass. The information in the edited register can be used by a body which has

      properly secured a copy of the edited register. Such use is, of course, subject (in

      the hands of a public body) to ordinary doctrines of empowerment. Promotion of

      the Vote of Life Scheme could, in that way, occur using information in the edited


4-5 Gray's Inn Square                                TIMOTHY STRAKER Q.C.
Gray's Inn
London WC1R 5AH                                      15 July 2003


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