Select Committee on Deregulation Fourth Report

Appendix 1

Exchange of letters between the Acting Clerk of the Deregulation Committee and the Office for National Statistics

Letter from the Clerk of the Deregulation Committee to the Office for National Statistics (dated 6 April 2001)

The Deregulation ( Correction of Birth and Death Entries in Registers or Other Records) Order 2001

The Deregulation Committee of the House of Commons considered this Order shortly after it was laid last week and would welcome clarification on the following matters by Friday 20 April.

The Committee expressed concern that the consultation process did not include more law firms and agencies dealing with family law, divorce and the fostering of children. The Committee believes there are several other groups which could have been consulted on the proposed order and we accordingly expect these bodies to be consulted.

The Committee has noted that the proposal is limited to the correction of birth and death entries in registers but believes that the scope of the order could be widened to include incorrect gender registration at birth. We would therefore ask the Department whether it could expand the order to include the incorrect entries based on gender.

The Committee also noted that the statutory declaration (to the registrar) has to be supported by a finding in judicial proceedings, "made expressly or by implication". How in practice will such a finding by implication be proved by documentary evidence sufficient for the purposes of the registrar? May this not impose new and difficult obligations on the registry staff to interpret the words of the judge? The Committee looks forward to the Department's elucidation on this matter.

The Committee further notes that the proposed measure is clearly designed to benefit, and to lift a burden from, individuals in their private capacities. However, section 1 (1) (a) of the 1994 Act defines the burdens which may be lifted as "affecting any person in the carrying on of any trade, business or profession or otherwise". The Committee would appreciate the Department's clarification on this issue.

This letter is being copied to the Clerk of the Delegated Powers and Deregulation Committee in the House of Lords and to the Regulatory Impact Unit.

Letter from the Office for National Statistics to the Acting Clerk of the Deregulation Committee (dated 17 April 2001)

The Deregulation (Correction of Birth and Death Entries in Registers or Other Records) Order 2001

Thank you for your letter of 6 April. No doubt you will be aware that Ms Alagbala and I have discussed the questions raised.

We have obtained from the Lord Chancellor's Department copies of their lists for consultation on family policy matters and will write to appropriate groups from that list. You will be aware from the list provided with the explanatory memorandum that we have already consulted the Solicitor's Family Law Association, the Local Government Association, the Justices Clerks' society, the Association of County Court & District Registrars and the Magistrates' Association who are involved with relevant legal issues.

With regard to widening the scope of the order to include cases where the incorrect gender is recorded in the birth register; currently the courts do not issue orders which determine a person's gender and a statutory declaration is sought from a doctor together with a qualified informant for the birth registration (usually a parent) who can declare that the person was, at birth, not of the sex recorded in the register. Where this is the case there is generally not a problem in obtaining the declaration required.

Last year an interdepartmental working group considered the issues raised by gender reassignment and it was recognised that it was not sufficient simply to provide an amended birth certificate. A change of gender has implications for a wide range of legal issues including pensions, insurance, criminal law, succession, marriage etc, as well as raising questions about existing family relationships of the person who changes gender. A report was made to the Home Secretary and a parliamentary question on the report was answered on 26 July 2000. One of the options included in the report was for legislation to provide for Court Orders to be made recognising change of gender and providing for a new birth registration to be made. At the same time the Court might resolve any outstanding issues, such as the status of an existing marriage contracted in the applicants birth sex, and related matters. It would not be appropriate for this deregulation order to pre-empt the outcome of the Home Secretary's deliberations on that report. I have attached an electronic copy of the report to my email if you think this would be helpful to the Committee.

The Committee is concerned that new and difficult obligations may be imposed on registrars in interpreting findings made by implication. Currently registrars refer to the Registrar General's Office all applications for corrections to errors of substance (those that affect the status or identity of individuals). This ensures consistency of approach and enables a core of expertise to be built. Local registrars, particularly those outside the large urban areas, may receive no more than one or two applications for such a correction in a year. Our experience of Court documents currently sent in by applicants, (which we cannot accept in place of statutory declarations at present) is that the judge often makes a clear statement about paternity which is incidental to granting an order for residence, parental responsibility etc. Anonymised examples are enclosed to illustrate the type of document seen in practice.

The Committee asks for clarification of the use of the powers in section 1(1)(a) of the 1994 Act which defines burdens which may be lifted as 'affecting any person in the carrying on of any trade, business or profession or otherwise'. We have acted on the advice of Cabinet Office lawyers who have said that they are reasonably sure that to expand the circumstances in which the register could be changed in this way would be to remove a burden on the person named as father. It seems credible to say that the named father is burdened by being registered as the father of another man's child and allowing the register to be corrected would remove that burden. Substituting a need for other evidence for two statutory declarations would probably be more burdensome in most cases. However, that is not proposed. The proposal is by way of an alternative to one of the statutory declarations.

Two previous Deregulation Orders have been made to remove burdens on individual members of the public concerning registration functions:

112.  The Deregulation (Still- Birth and Death Registration) Order 1996 SI 1996 No. 2395 which removed the burden of having to attend the register office for the district where a still-birth or death occurred from the person registering the death, and enabled them to attend any register office.

1.  The Deregulation (Validity of Civil Preliminaries to Marriage) Order 1997 SI 1997 No. 986 which removed the burden of the 3 month limitation on a notice of marriage and enabled couples to make legal arrangements for their marriage 12 months in advance.

It is not intended that applicants should be advised to commence judicial proceedings in order to obtain a court order to accompany a statutory declaration. The existing provision will remain for a correction to be made where two statutory declarations are provided. Experience shows that requests for corrections to paternity in a birth registration often arise at times of family dispute when judicial proceedings may be underway already on a range of issues concerning the child such as residence, access, or change of name.

It may be helpful to clarify that the correction to paternity in a birth registration is used to remove a man's details and not to add a new man's name. Section 29(3) of the 1953 Act requires a correction to be made by entry in the margin of the registration without alteration of the original entry. This means that the incorrect father's details remain in the entry and the note in the margin reads "In space 4 for John Smith read ____, in space 5 for London read ____". Thus the legal record contains all the details of the correction. If a new father is named the 1953 Act provides for the birth to be re- registered under section 10A or section 14, as appropriate, and a new birth certificate is issued which contains no reference to the original corrected record.

I have copied this letter to the Clerk of the Delegated Powers and Deregulation Committee in the House of Lords and the Regulatory Impact Unit and DH solicitors.

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