Select Committee on Deregulation and Regulatory Reform Ninth Report


The Deregulation and Regulatory Reform Committee has agreed to the following Report:




1. On 11th March 2002 the Government laid before Parliament the draft Deregulation (Correction of Birth and Death Entries in Registers or Other Records) Order 2002, together with an explanatory memorandum by the Office for National Statistics.[1] Our predecessor Deregulation Committee reported on the Government's proposal for this draft Order, which would amend the Births and Deaths Registration Act 1953 ("the 1953 Act") and the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957 ("the 1957 Act") to 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.[2]

"First-stage" scrutiny

2. Our predecessor Committee accepted the Department's argument that the requirement for two statutory declarations presented a serious inconvenience in circumstances where there was no serious doubt as to the identity of the father of the child but only one person could be found willing or able to make a statutory declaration. The Committee accepted that the 1953 Act placed a burden in particular on fathers who wished the register accurately to reflect the paternity of the child and found persuasive the Department's argument that the conjunction of a statutory declaration and a judicial finding in the form of a Court Order did not remove any necessary protection.

3. The Committee did, however, make two points. Firstly it expressed concern that the Department had not initially consulted more widely and, indeed, drew to its attention a consultation paper published by the Lord Chancellor's Department in a similar area.[3] Before the Committee reported, the Department took account of this concern and broadened its consultation.[4] Secondly, the Committee questioned whether it was right to permit an applicant for the correction of the register to rely on a finding made by implication, as well as expressly, in judicial proceedings as the Department had originally proposed. The Committee was concerned that reliance on a finding by implication would impose new and difficult obligations on the registry staff to interpret the words of the judge.[5]

4. On the subject of consultation, the Committee expressed satisfaction with the range of organisations eventually consulted, but warned that it would not hesitate to reconsider the proposal if the second round of consultations cast a significantly different light on the issues.[6]

The second round of consultation: objection by the Official Solicitor

5. One of the organisations consulted during the second round was the Children Committee of the Solicitors' Family Law Association. That Committee passed a copy of the consultation documents to the Official Solicitor, which, it transpired, had not been consulted by the Department. As the office of the Official Solicitor is, according to its website, administered as part of the Lord Chancellor's Department, there was nothing surprising in its omission from public consultation; on the other hand, it might be expected that any part of the government with an interest in the subject matter of the proposal would have been consulted before the Department went public on it.

6. The Official Solicitor raised a number of concerns about the proposal, focussing chiefly on whether necessary protection was maintained against inappropriate amendment of the register.[7] Initially, and having tried, unsuccessfully, to contact the Official Solicitor's office to discuss his concerns, the Department concluded that none of these concerns had sufficient substance to justify further amendment of the draft Order.[8] It therefore proceeded to lay before Parliament, on 9th January 2002, a draft Order amended only to take account of the Committee's concerns about findings "by implication".[9]

7. However, on considering that draft Order, and the accompanying explanatory statement, we were concerned that the difficulties which had been raised by the Official Solicitor did not appear to have been satisfactorily resolved. In particular, at least one of his points appeared to us - and indeed to the Department, albeit that they had ultimately rejected the argument - to have some merit. The Official Solicitor had noted that a court finding such as is proposed to be used as an alternative to one of the two statutory declarations currently required by the 1953 and 1957 Acts may be based only on the evidence of the person who makes the single statutory declaration required under the proposed new procedure. As a result, it would have been possible for a correction to the register to be made on the basis of uncorroborated evidence. The Department's original response to this point seemed to us to be inadequate.[10]

8. We therefore invited both the Department and the Official Solicitor to appear before us, so that we could judge for ourselves as to whether the draft Order should be withdrawn and amended to take account of the Official Solicitor's concern, or whether we could recommend its approval.

Response to the Official Solicitor's concerns

9. Following the invitation to appear before us, the Department and the Official Solicitor's office did what they had not managed to do previously and met to discuss the Official Solicitor's concerns. As a result, the Department agreed that the draft Order should be amended to meet the Official Solicitor's concern about correction of the register based on uncorroborated evidence; and the Official Solicitor's representative expressed himself satisfied in respect of the other concerns he had originally raised.[11] The draft Order was accordingly withdrawn to allow the amendment to be made, the intention to do so being reported to us at the evidence session on 22 January 2002.[12]


10. The Order currently before us therefore incorporates both an amendment to meet our predecessors' concern about the interpretation of findings "by implication"; and an amendment to meet the Official Solicitor's concern about the possibility of corrections being made to registers on the basis of uncorroborated evidence. No other substantive representations having been made during the period for Parliamentary consideration, we are now satisfied that the draft Order meets the relevant criteria and should be approved.

11. We cannot conclude our Report on this draft Order, however, without expressing our dissatisfaction at the way it has been handled by the Government Departments concerned. Although the eventual result was, in our opinion, the right one, neither the Office for National Statistics (ONS) nor the Official Solicitor's office emerge from this saga with much credit. The ONS should have made sure that all Government departments, and parts of departments, with an interest in the proposal were consulted even before an official public consultation document was issued. For its part, the failure of the Official Solicitor's office to respond in timely fashion to ONS's requests for further comments on the concerns originally raised on the second round of consultation was, to say the least, unfortunate. We trust that other Departments will learn the lessons of ONS's experience, and ensure that all necessary consultation is carried out in a full and timely manner.

The final Deregulation Order

12. Finally, we note that this is the last of the draft Orders to be brought forward under the old Deregulation and Contracting Out Act 1994, which has for almost all relevant purposes now been superseded by the Regulatory Reform Act 2001. We are pleased that all these Orders have now been dealt with, and we look forward to the Government making time for the appropriate rationalisation of the Standing Order governing our work, including a change of name to the Regulatory Reform Committee.




13. On 14th January 2002 the Government laid before Parliament the proposal for the Regulatory Reform (Vaccine Damage Payments Act 1979) Order 2002 in the form of a draft of the Order and an explanatory memorandum from the Department for Work and Pensions.[13] The proposed Regulatory Reform Order would extend the circumstances in which a claim under the Vaccine Damage Payments Act 1979 ("the 1979 Act") can be made.

14. The House has instructed us to examine the proposal against the criteria specified in Standing Order No. 141(6) and then, in the light of that examination, to report whether the Government should proceed, whether amendments should be made, or whether the Order should not be made.[14]

15. We have concluded that the proposal should be amended before a draft Order is laid before the House. The amendments which we propose are, however, of a minor drafting nature only. Our detailed comments on matters arising from our consideration of the criteria specified in the Standing Order are contained in the remainder of this Report.[15]

Purpose of the proposed Order


16. The 1979 Act, which came into force on 22 March 1979, introduced a statutory scheme for payments for those severely disabled as a result of vaccination. Where the Secretary of State is satisfied that a person has been severely disabled and that, on the balance of probabilities, this is as a result of vaccination against any of the diseases specified in the 1979 Act and associated orders,[16] a tax-free one-off lump sum is payable. That amount has been increased several times since the scheme was introduced, as follows:

  • claims made on/after 22 March 1979£10,000
  • claims made on/after 16 August 1985£20,000
  • claims made on/after 15 April 1991£30,000
  • claims made on/after 1 July 1998£40,000
  • claims made on/after 22 July 2000£100,000

17. Section 1(1) of the 1979 Act states that if the Secretary of State is satisfied that a person is, or was immediately prior to their death, severely disabled as a result of vaccination against any of the specified diseases and that the conditions of entitlement in section 2 are satisfied, a payment shall be made. Severe disablement is defined for the purpose of the 1979 Act in section 1(4) as disablement to the extent of 80 per cent or more, assessed as for the purposes of section 103 of the Social Security Contributions and Benefits Act 1992 or the corresponding Northern Ireland legislation.

18. Section 3(1)(c) of the 1979 Act provides that a claim under the 1979 Act shall be made within six years of whichever of the following dates is the latest:

      (a)  the date of the vaccination to which the claim relates,

      (b)  the date on which the disabled person attained age two, or

      (c)  9 May 1978 (the date that the extra-statutory scheme which preceded the 1979 Act was announced).


19. A review of the Vaccine Damage Payments scheme, completed in June 2000, resulted in proposals for a number of changes to the scheme. Two of these proposals (an increase to £100,000 of the lump-sum payment; and the making of top-up payments to past recipients of payments under the scheme such as to bring the real-terms value of their payments up to the new £100,000 level) did not require changes to primary legislation. This Order is intended to implement a further three changes, which require amendment of the 1979 Act, as follows:

  • where a person had previously applied under the Act, but where that application was not considered as it was outside the then existing time limit and where they would at that time have satisfied the proposed new time limit for claims, or

  • where a person had previously claimed under the Act at any time within the current time limit, or under the extra statutory scheme which was in force between 2 Aug 1978 and 21 March 1979, but the degree of disability was assessed not to be 80 per cent, or more, or

  • where no claim under the Act was previously made and there is documentary evidence of advice that the current time limit or level of disablement was not met and the claimant would have satisfied the proposed new time limit had it been in force at the time of the advice, or

  • where no claim under the extra-statutory scheme was made and there is documentary evidence of advice not to claim under that scheme because the current level of disablement was not met.

    The causal link between vaccination and the disablement will not be looked at again in cases where that link was accepted at the time of the original claim. In cases where the causal link was not considered at the time of an original claim, that link will be considered at the time of the transitional claim. The level of disablement will be considered as at the time of the transitional claim. Such claims will be required to be made within 3 years of the enactment of the changes.


20. The proposal would have effect in England, Scotland, Wales, Northern Ireland and the Isle of Man.


21. Noting particularly that this proposal is one of those discussed in principle during passage through Parliament of the Bill which became the Regulatory Reform Act,[17] we are satisfied that the proposal is appropriate to be proceeded with as delegated legislation.

Removal or Reduction of Burdens

22. The existing legislation imposes a burden in that it restricts the circumstances in which the Minister may make payments under the 1979 Act. Each of the proposals described above would relax one or more of the qualifying conditions; and thus would reduce a burden imposed by that Act. The burdens to be reduced fall on a Minister of the Crown (the Secretary of State for Work and Pensions). However, they affect anyone adversely affected by the current restrictions. Thus the provision, in s2(1) of the Regulatory Reform Act, precluding the reform by means of a regulatory reform order of any burden "which affects only a Minister of the Crown or government department" does not apply.

Imposition of Burdens/Proportionality

23. The Order would impose a burden only to the extent that it might increase to a small degree the work of the appeal tribunal provided for in the 1979 Act, in so far as disappointed new claimants appeal to it. We consider that any such new burden is clearly proportionate to the benefits of affording claimants a right of appeal.



24. A consultation document outlining the Government's proposals was published on 23 July 2001, including publication on various Government websites. It was the subject both of a press notice from the Department for Work and Pensions and of a Parliamentary written answer. The consultation period ended on 15 October 2001, although the Department asserts that account was taken of all representations received by and including 23 November 2001. A list of those consulted can be found at Annex A of the explanatory document. We are satisfied that the proposal was the subject of adequate consultation.


25. There was, unsurprisingly, a broad level of support for the proposals. Those opposing them did so mainly on the basis that they did not go far enough (eg. because payments to be made should be greater, or the time limits longer) or were being implemented in the wrong way (eg. that a sliding scale of payment depending on level of disability should be operated, rather than one payment based on a single threshold). Details of the Government's response to the points raised by consultees may be found in paras 35-38 and Annex B of the explanatory document.

26. Some of the points raised in consultation, and one not raised then but which the group concerned has subsequently pursued, were also raised with us. One group representing those who have been the victims of vaccine damage suggested that the provision for transitional claims should be extended to cover all those who failed to claim within the original 6 year limit for claims relating to vaccination before passage of the Act. That group also argued that it could be unreasonable to require documentary evidence of advice not to claim in support of a claim under the relevant provision of the proposed Order, and that a statutory declaration from the relevant person should be required instead. Another group raised the problems of cases where a claimant is denied payment under the Act at a tribunal, but where the evidence put before the tribunal was wrong, or where new evidence later comes to light; and of missing medical records.

27. Given the terms of the Standing Order under which we operate, we have not considered it appropriate to examine the merits of these points, since they concern matters of policy unconnected with the regulatory reform criteria. Some are already the subject of a response in the Government's explanatory memorandum;[18] those not made during the original consultation will (if they have also been made to the Department during the period for Parliamentary consideration) be the subject of a response in the explanatory memorandum accompanying any draft Order consequent on this proposal.[19] Whilst we appreciate, and to some degree sympathise with, consultees' desire for the Government to go further in relaxing the conditions for payment under the Act, we do not believe that the Government's failure to accept the arguments for doing so invalidates these proposals, which as they stand would make very welcome changes to the vaccine damage payments scheme. We are thus satisfied that the proposals take adequate account of the responses to consultation.


28. Notwithstanding our comments above concerning the nature of the representations which have been made to us about this proposal, we would like to take the opportunity to remind other Members of the House of the procedures available for debate on issues, such as these, which may be unconnected with the regulatory reform criteria and therefore outwith the normal remit of this Committee - or indeed any issue concerning a regulatory reform proposal which other Members may wish to pursue. Standing Orders provide that this Committee may invite Members of the House who are not Members of the Committee to attend meetings at which witnesses are being examined; and that such Members may, at the discretion of the Chairman, ask questions of those witnesses.[20] This procedure may be considered analogous to the debate in Standing Committee which would normally take place on orders subject to the affirmative resolution procedure, and is in addition to the provision for debate on the floor of the House should the Committee divide on its recommendation as to whether the draft Order should be approved.[21]

29. Although this procedure has been available since the institution of the deregulation procedure in 1994, it was never used by our predecessor Deregulation Committee, nor have we yet found occasion to use it ourselves. However, should any Member, now or in the future, wish to make representations to us that the procedure should be used in any particular case, we will of course consider those representations, and if appropriate make arrangements for a hearing before the Committee.

Necessary protection

30. The proposal is concerned entirely with relaxing restrictions on who could receive payments under the Vaccine Damage Payments Act. Any protection which might be removed from the existing legislation would therefore apply only to the proper use of taxpayer's money: we have no concerns to raise in this regard.

Rights and freedoms; fair balance; desirability

31. We are satisfied that the proposal does not prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise. We note in particular that the receipt of a payment under the Act does not in any way prejudice the right of anyone affected to pursue a claim for damages through the courts.

32. As the proposal may have the effect of creating a small additional burden on the appeals tribunal, it must also meet the "fair balance" test, which states that the provisions of the order, taken as a whole, must strike a fair balance between the public interest and the interests of the persons affected by the burden being created; and the "desirability" test, which states that the extent to which the order removes or reduces one or more burdens, or has other beneficial effects for persons affected by the burdens imposed by the existing law, makes it desirable for the order to be made.

33. We consider that the public interest in this case lies in ensuring that an appropriate scheme for payments to those damaged by vaccination is in place; the interests of the tribunal, on whom the burden being created will fall, is in not having an unreasonably heavy burden placed upon them. The "fair balance" test is thus largely the same as the "proportionality" test considered above, and we are thus satisfied that it is met. We are also satisfied that the reduction of burdens affecting those who may be the victims of vaccine damage makes it desirable that this Order be made.

Costs and benefits

34. We are required to consider the extent to which the proposal has been the subject of, and takes appropriate account of, estimates of increases or reductions in costs or other benefits which may result from its implementation. The proposal will result in costs to the Government as a result of the making of additional payments under the Act. However, the Department has not able to estimate the number of new claims, and hence payments, that will arise as a result. If the number of successful claims under the new, relaxed criteria were to rise by 50%, the Department say that the additional cost would be £200,000/year; in respect of previously disallowed applications, if, similarly, the proportion of successful claims were to rise by 50%, the further cost would be in the region of £2.5 million. There would also be additional costs in acquiring the necessary medical records and advice to assess new claims.

35. We would usually expect Departments to be able to provide a much better estimate of the costs and benefits of a proposal than has been the case for the proposal which we consider here. However, we appreciate the unquantifiable nature of the effect of this particular proposal and the uncertainties inherent in trying to assess its financial impact. In this instance we consider it sufficient to conclude that the vaccine damage payments scheme is a valuable means of helping the victims of vaccine damage, and their families, to deal with the consequences of their disablement, and we are quite satisfied that the benefits to those victims fully justify the costs to the Exchequer in each case.

Subordinate provisions

36. It is proposed that the 'transitional provisions' of the Order be designated as subordinate for the purposes of section 4 of the Regulatory Reform Act, thus enabling later amendment by means of a 'subordinate provisions order'; and that any such subsequent subordinate provisions order be subject to affirmative resolution procedure. However, the original explanatory memorandum did not explain, as required under s6(2)(g) of the Regulatory Reform Act, why it was proposed that these provisions be so designated.

37. The Department's first response to our invitation to do so was unsatisfactory.[22] It gave two reasons for the designation. The first was that "the transitional claim provisions are quite detailed and complex and it was considered preferable not to include them on the face of an otherwise relatively straightforward Act," the Department going on to note that "the amendment to section 7B(1) of the Vaccine Damage Payments Act 1979 ... made by article 5 of the Order provides a clear cross­reference to the Order." This is, however, misconceived. The fact that a provision of an RRO does not form part of the Act it reforms does not of itself justify its designation as subordinate. Designation of a provision as subordinate is done in order to enable its subsequent amendment without the need for the whole regulatory reform procedure to be repeated.

38. This brings us to the Department's second reason for the designation of these provisions as subordinate. "As the provisions are complex," it says, "it is possible that experience of working them may indicate the need for fine­tuning at a later date and it appears to the Department that it would be sensible to deal with this by a subsequent [subordinate] provisions order."[23] Bearing in mind that a subordinate provisions order could be brought forward without any prior consultation; that the transitional provisions in the Order are as provided for in the original consultation on the proposal; and that the original consultation did not envisage that the transitional provisions might be subject to further amendment, we asked the Department in what circumstances it might envisage amending these provisions, and to what end.[24]

39. The Department's reply to our further question focussed on those who might wish to take advantage of the ability to make a claim where advice had previously been received that the conditions would not be met. Noting that any such cases may have their origins some 20 years or more ago, the Department argued:

    It is possible that experience of applying the conditions set out in the draft order may throw up situations that we could not have envisaged and where unreasonable constraints might be imposed on cases that were considered to have merit. Given the overall small number involved it might then be thought to be neither a good use of public funds nor a worthwhile use of Parliamentary time to go through the full RRO process to effect an amendment. Therefore, although the provisions of the draft Order reflect those described in the consultation document, we felt it prudent to allow for possible amendment without the need for a further RRO.[25]

The Department also noted that "while it is possible that an amendment could prescribe tighter conditions it is far more likely that, if a subordinate provisions order were ever to be considered, the intention would be to relax the conditions."[26]

40. We are content that the designation of the transitional provisions as subordinate is appropriate for the purposes to which the Department has suggested it may be put; and that the affirmative resolution procedure should apply to any ensuing subordinate provisions order. As we note above, however, the transitional provisions in the Order are as provided for in the original consultation on the proposal, and the original consultation did not envisage that the transitional provisions might be subject to further amendment. We therefore suggest that the Department will wish to consider before bringing forward any subordinate provisions order what consultation it may be appropriate to undertake; and this will be a matter we will examine as and when any such order comes before us.[27]


41. It appeared to us that the expression "six years from the date of the vaccination", used in article 3 of the proposed Order, created uncertainty as to whether the date of the vaccination was to be included or excluded in calculating that period. Noting that the 1979 Act currently avoids this uncertainty, we suggested to the Department that the Order be revised to do the same.[28] We are pleased to note that the Department has accepted that the current wording causes uncertainty, and has undertaken to make an appropriate amendment.[29] We recommend that the proposed Order be amended accordingly.

Report under Standing Order No. 141

42. We recommend that the proposal should be amended as proposed in paragraph 41 above before a draft Order is laid before the House.

1   Copies are available to Members from the Vote Office and to members of the public from the Office for National Statistics. It is also available on the Cabinet Office website http://www.cabinet­ proposals.htm. Back

2   Fourth Report from the Deregulation Committee, Session 2000-01 (HC 450), The Final Deregulation Proposals, paras 10-42. Back

3   Procedures for The Determination of Paternity and on The Law on Parental Responsibility for Unmarried Fathers, available on the Lord Chancellor's Department web site Back

4   Fourth Report, op cit, para 29. Back

5   ibid, para 39. Back

6   ibid, para 29. Back

7   Explanatory statement, paras 11-13. Back

8   See explanatory statement to draft Order laid 9th January; also correspondence attached to explanatory statement to draft Order laid 11th March. Back

9   See Votes & Proceedings of the House of Commons, 9th January 2002, Appendix I, item 2; and explanatory statement to that draft Order, para 10. Back

10   Explanatory statement to draft Order laid 9th January, para 15. Back

11   Q2. Back

12   ibidBack

13   Copies are available to Members from the Vote Office and to members of the public from the Department for Work and Pensions. It is also available on the Cabinet Office website http://www.cabinet­ proposals.htm. Back

14   Standing Order No. 141(2). Back

15   Where a criterion specified in the Standing Order does not appear in this Report, there are no matters which we wish to raise under that heading. Back

16   See Appendix 2 for a list of those diseases currently so specified. Back

17   See explanatory statement, para 10. Back

18   Explanatory statement, Annex B. Back

19   Regulatory Reform Act 2001, s8(5). Back

20   Standing Order No. 141(13). Back

21   Standing Order No. 18(1). See also sub-para (2) for the procedure where the Committee recommends that a draft Order should not be approved. Back

22   Appendix 2. Back

23   ibid. Back

24   Appendix 3. Back

25   Appendix 4. Back

26   ibidBack

27   As per Standing Order No. 141(1)(iii). Back

28   Appendix 1. Back

29   Appendix 2. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 22 March 2002