PROPOSAL FOR THE DEREGULATION (CORRECTION
OF BIRTH AND DEATH ENTRIES IN REGISTERS OR OTHER RECORDS) ORDER
10. The Births and Deaths Registration Act 1953 ("the
1953 Act") provides that corrections may be made by the registry
officer to registers of births or deaths upon production to him
of a statutory declaration which sets out the error and the true
facts of the matter. The statutory declaration must be made by
two qualified informants.
In default of two qualified informants, the declaration may be
made by two 'credible persons' who have knowledge of the true
facts of the case.
11. The Registration of Births, Deaths and Marriages
(Special Provisions) Act 1957 ("the 1957 Act") contains
similar provisions to the 1953 Act. The 1957 Act is mainly concerned
with the registration of births, deaths and marriages outside
the United Kingdom involving members of the armed forces or specific
related organisations, or occurring on board certain ships or
Corrections to such registers may be made upon production to the
specified officer of a statutory declaration made by two credible
persons "having knowledge of the truth" of the matter.
12. On 26 March 2001 the Government laid before Parliament
the proposal for the Deregulation (Correction of Birth and Death
Entries in Registers or Other Records) Order 2001 in the form
of a draft of the Order and an Explanatory Memorandum by HM Treasury.
13. The purpose of the proposed Deregulation Order
is to amend section 29(3) of the 1953 Act and section 3(3) of
the 1957 Act to introduce an alternative procedure for certain
corrections in registers of births and deaths. The proposal would
allow registers of births and deaths to be corrected upon production
of a single statutory declaration supported by documentary evidence
of a finding made in judicial proceedings, in place of the current
requirement for declarations by two separate individuals.
14. Although the relevant provision of the 1957 Act
also concerns marriages, the proposal will provide an alternative
procedure only in respect of corrections to entries of births
and deaths. Amendments to marriage registers will continue to
be governed by the present provisions under section 3(3) of the
15. The House has instructed us to examine the proposal
against nine criteria and then, in the light of that examination,
to report whether the Government should proceed, whether amendments
should be made, or whether the order-making power should not be
We now report on the proposal against the criteria
in Standing Order No. 141(5)(A) as follows:
Does the proposal appear to make an inappropriate
use of delegated legislation?
16. We conclude that the proposal may be proceeded
with as delegated legislation.
Does the proposal remove or reduce a burden
or the authorisation or requirement of a burden?
17. Factual errors or errors of substance on the
registers usually concern identity and lineage. Whilst applications
for amendments may be made at any time after the registration
of the birth or death, it is often several years before the procedure
is initiated. The Office for National Statistics ("the ONS")
suggests that the requirement under the 1953 Act for two qualified
informants (or in default two "credible persons"), and
under the 1957 Act for two credible persons, has resulted in difficulties
in the past. The ONS states that cases have arisen in the past
when those seeking to amend the register have been unable to do
so since such cases tend to involve a dispute between the stated
father and the alleged father. In such situations, there has been
a tendency to use the correction to the register as another tool
in the bigger fight between the two parties.
18. The ONS gave examples of potential disputes
including those relating to maintenance provisions for a child,
or a situation where the mother fears that the named father, being
a foreign national, may obtain a passport for the child in order
to take the child out of the country. Another example given by
the department concerns matters of inheritance.
19. The proposal would prevent any injustice in the
situation where one of the qualified informants or credible person
is deceased, refusing to co-operate or is unable to make a statutory
declaration, for example for reasons of inaccessibility.
20. The Notaries' Society, in their response to the
consultation paper, suggested the addition of statutory declarations
made before a notary public who has judicial obligations beyond
those normally accorded to a solicitor or commissioner for oaths,
to be sufficient to effect a correction to the register. The Society
argued that this would be a more simple procedure which would
have the added benefit of being less costly than an application
to the Court for an order. This recommendation was rejected by
the Government on the grounds that any necessary protection would
be weakened. The proposal did not envisage that separate procedures
would be instituted for courts to consider applications for corrections
independent of other proceedings. Any court order would arise
out of the main proceedings between the parties.
21. The financial implications of the proposal are
not significant. The court finding in the form of a court order
is likely to arise as an ancillary aspect to pre-existing judicial
proceedings, for example, divorce or maintenance proceedings.
Since corrections to registers are free, no burdensome financial
implications are expected.
22. The Committee questioned the scope of the proposal
and why the Department did not seek to broaden the proposed Order
to include the correction of other matters such as incorrect gender
registration at birth. The ONS gave a detailed response to the
Committee which stated that courts do not issue orders determining
the gender of a person. Currently this is done by means of a statutory
declaration from a doctor and the parent or other qualified informant.
The ONS also drew attention to an interdepartmental working group
report on gender reassignment submitted to the Home Secretary
in the summer of last year. That report recognised that gender
reassignment was a complex issue which involved matters beyond
the simple correction of a birth certificate. Other legal matters
concerned pensions, insurance, criminal law, succession, marriage
etc. One of the options recommended by the report was the correction
of registers to reflect a change in gender and for courts to be
allowed to deal with gender changes during their consideration
of other matters, for example, the status of an existing marriage.
23. The requirements of the 1953 Act and the 1957
Act clearly place a burden on persons, in particular fathers who
wish the register to accurately reflect the paternity of a child.
We conclude that the proposal meets this criterion.
Does the proposal continue any necessary protection?
24. The Department asserts that no necessary protection
is removed. Any statutory declaration would need to be supported
by a court finding in the form of a court order. Before such an
order is made, the court would need to be satisfied of the true
facts. The Department also points out that under the Perjury Act
1991 it is an offence wilfully or knowingly to make a false statement
an offence which carries penalties.
25. We find this argument persuasive. We believe
that the proposal will not remove any necessary protection.
Has the proposal been the subject of, and does
it take appropriate account of, adequate consultation?
26. A consultation paper setting out the Government's
proposal was issued on 23 March 1998. A General Register Office
was also issued to all registration offices in England and Wales.
Responses were sought by 15 May 1998. The consultation paper concerned
the amendment of the 1953 Act.
27. Subsequently, and as a result of this consultation,
the 1957 Act was identified as containing similar provisions to
the 1953 Act. The 1957 Act was therefore deemed to be suitable
for inclusion in the proposal and a second consultation document
was issued on 12 March 1999. New organisations and individuals
were added to the list of original consultees and responses were
sought by 7 May 1999.
28. Twelve bodies as well as registration officers
and certain government agencies were consulted in respect of the
1953 Act. Four organisations replied as well as an individual.
Three supported the proposal, two were neutral and one suggested
a further amendment. In respect of the 1957 Act 17 bodies were
consulted in addition to registration officers and government
agencies of which three responded. Two were in favour of the proposal
and one was neutral.
29. We were concerned to note that the Department
did not initially consult more widely, especially among law firms
and agencies dealing with family law, divorce, the fostering of
children and more generally amongst those organisations dealing
with paternity disputes and we drew the Department's attention
to a consultation paper
published by the Lord Chancellor's Department in a similar area.
We are pleased to note that the Department has now taken account
of our concerns and has broadened its consultation to include
these bodies. We are therefore now satisfied with the range of
organisations consulted, initially and in response to our concerns:
although we do reach conclusions in this Report, we will not hesitate
to reconsider the proposal if the second round of consultations
casts a significantly different light on the issues.
30. Subject to the qualifications in the previous
paragraph, we accept that the scope of the consultation has been
adequate (although no more than adequate) and appropriate to the
issue, and that the Department has taken appropriate account of
the representations received.
Does the proposal impose a charge on the public
revenues or contain provisions requiring payments to be made to
the Exchequer or any government department or to any local or
public authority in consideration of any licence or consent or
of any services to be rendered, or prescribe the amount of any
such charge or payment?
Does the proposal purport to have retrospective
31. We have no issues to raise under the above
Does the proposal give rise to doubts whether
it is ultra vires?
32. Section 1(1)(a) of the 1994 Act defines the burdens
which may be lifted by a deregulation Order as "affecting
any person in the carrying on of any trade, business or profession
or otherwise" [our italics]. It is clear that the
principal beneficiaries of the present proposal will be individuals
in their private capacity, and not in relation to any trade, business
33. That raises, once more, the question of the breadth
of the expression "or otherwise". Its interpretation
was a key issue in persuading both this Committee and its Lords
counterpart to reject the proposal for the Deregulation (Civil
Aviation Act 1982) Order 1987. In that case, the concern was whether
the expression "or otherwise" allowed the Order-making
power to apply to a burden solely affecting a public body; and
in the end both committees concluded that it could not be so applied.
The question remains whether the expression may nonetheless be
interpreted to cover burdens solely affecting individuals in their
private capacity, and we therefore asked the Department
for clarification. Their initial response
cited two earlier examples of Orders relieving burdens exclusively
from private individuals which both parliamentary committees in
the previous Parliament accepted, but did not adduce any argument
on the point, which was supplied, after prompting, in a subsequent
34. We now understand that the Government justifies
inclusion of persons not acting in the course of any trade, business
or profession or anything of that sort, but in their purely private
capacities, within the scope of section 1 by reference to section
5 of the 1994 Act (which deals with enforcement procedures and
appeals). Section 5(1) enables Ministers to make statutory instruments
improving enforcement procedures in the case of provisions which
impose restrictions affecting persons in the carrying on of any
trade, business or profession or otherwise. Section 5(2)
disapplies that power where the persons concerned are solely or
mainly affected in their private capacities. The Government argues
that if the expression or otherwise did not include persons
acting in a private capacity that limitation would be otiose.
35. That it was intended that the expression should
cover individuals is made clear by the debate in Standing Committee
F on 17 February 1994 in which the then Minister, Mr Sainsbury,
opposing an amendment to delete it, argued, on the basis of Notes
on Clauses, that deletion of the expression would exclude individuals
from the benefit of lifted burdens.
36. We accept these arguments, and do not intend
to pursue the matter further, particularly since this infelicitous
wording is not reproduced in the new Regulatory Reform Act. We
accordingly have no further concerns to raise under this heading.
We nonetheless expect the Government to be alert to the limits
on its powers imposed by that Act and to be able, readily and
in writing, to justify any exercise of them which our successor
Committee may question.
Does the proposal require elucidation or appear
to be defectively drafted?
37. We were concerned by the drafting of the Order
and the uncertainty as to how the procedure would work in practice.
The Order defines the judicial finding as "a finding, made
expressly or by implication, in judicial proceedings in the United
Kingdom or elsewhere". It was not clear how in practice such
a finding by implication can be proved by documentary evidence
sufficient for the purposes of the registrar. We were therefore
concerned that this would impose new and difficult obligations
on the registry staff to interpret the words of the judge.
38. In their response
the ONS state that the current procedure is for registrars to
refer all applications for corrections to the Registrar General's
Office. The Department argue that this ensures a consistent approach
to corrections as well as permitting a core of expertise to be
built up. However, they also indicate that Court documents, which
are currently not admissible for this purpose, often contain a
clear statement on paternity, albeit one which is incidental to
the granting of a residence order, an order for parental responsibility,
39. We are not persuaded that, where court orders
contain a clear statement of paternity, there should be any need
for registry officers to interpret judicial findings. The issues
of identity and paternity are of such importance that the scope
for interpretation should be as limited as possible. Accordingly,
we are inclined to the view that the correction of registers should
be demonstrably fair, and should be possible only where there
is a clear judicial finding: we therefore conclude that the
draft Order should be amended to remove the words "or by
implication" in subsection (4) of the proposed new paragraph
29A of the Births and Deaths Registration Act 1953.
Does the proposal appear to be incompatible
with any obligation arising from membership of the European Union?
40. We have no concerns to raise under this heading.
41. The proposed Order would apply to England and
Report under Standing Order No.141
42. We have concluded that the proposal for the
Deregulation (Correction of Birth and Death Entries in Registers
or Other Records) Order 2001 should be amended as indicated in
paragraph 39 of this Report before a draft Order is laid before
14 Qualified informants are
defined as persons required or stated to be qualified to give
information concerning the birth or death. Section 1 (2) of the
1953 Act contains a list of persons considered to be qualified
informants for birth and includes:
"(a) the father and mother of the
child; (b) the occupier of the house in which the child was to
the knowledge of that occupier born; (c) any person present at
the birth; (d) any person having charge of the child; (e) in the
case of a still-born child found exposed, the person who found
the child." A similar list for deaths is contained at sections
16 and 17 of the 1953 Act. Back
15 The provisions of the 1957
Act relate to (i) the registration of births, deaths and marriages
outside the United Kingdom involving the armed forces: (ii) the
registration of births, deaths and marriages outside the United
Kingdom involving specified welfare organisations who accompany
the forces abroad; (iii) births, deaths and marriages on board
certain ships and aircraft; and (iv) the death of a traveller
on an HM aircraft who is accidentally killed. Back
16 The proposal originates
from the Office for National Statistics, but this Department does
not have the power to lay documents before Parliament. Copies
of the proposed Order and Explanatory Memorandum are available
to Members from the Vote Office and to members of the public from
the Office for National Statistics. Back
17 Standing Order No. 141 (the
text of which is set out at the front of this volume). Back
18 At paragraph 17 of the
Explanatory Memorandum. Back
19 Appendix 1
(exchange of letters between the Clerk of the Committee and the
20 Section 5. Back
21 Section 4. Back
22 GRO 2/98. Back
23 The consultation
paper entitled "Procedures for The Determination of Paternity
and on The Law on Parental Responsibility for Unmarried Fathers"
is available on the Lord Chancellor's Department's web site on
24 Eg. Deregulation
Committee, Twelfth Report, Session 1996-97 (HC387), paras 6-21. Back
25 Appendix 1 Back
26 Appendix 2 Back
27 See Official
Report, Standing Committee F, 17th February 1994, col. 35. Back
28 Appendix 1 Back