House of Commons - Regulatory Reform

Select Committee on Regulatory Reform Second Report

5 ASSESSMENT OF THE PROPOSAL AGAINST THE STANDING ORDER NO. 141(6) CRITERIA

22. We are required firstly to report to the House on whether or not the proposal appears to make an inappropriate use of delegated legislation. This assessment requires careful judgement made on the basis of detailed scrutiny of each Regulatory Reform proposal.

23. In the past parliamentary and ministerial commentary about the meaning of appropriateness has tended to describe what might not be considered an appropriate use of the Order-making power under the Act rather than providing some explicit definition. Proposals that can be reasonably described as "large" and "controversial" have been considered less likely to pass the appropriateness test. For example, at the time of the debates in 2001 in the House of Lords on the Regulatory Reform Bill, Lord Falconer said:

"As has been repeatedly stated by everyone involved, the power in the Bill is not suited to large and controversial measures. The entire procedure contained in the Bill would weed out such proposals. A highly contentious issue would come up against serious problems during the consultation period and the Minister, obliged to set this out in the document he placed before Parliament, would have to reflect that explicitly. The scrutiny procedures in Parliament, involving careful examination by Committees and the co-equal status of the two Houses are such that any Minister would obviously be ill-advised to choose this route."

He also said:

"We have made it clear at all stages that we are dealing with Orders that are not politically controversial, although there may be controversy about the detail. If they were politically controversial to a serious extent, that would not be appropriate for a Regulatory Reform Order."[10]

24. Our predecessor Committee, the Deregulation and Regulatory Reform Committee, in its First Special Report of Session 2001-02 said that the RRO procedure "should not be used for implementing substantial policy changes requiring the much higher profile attention paid by Parliament to primary legislation".[11] This meant that the Committee would aim to prevent what it might see as "primary legislation by stealth." The Committee did not argue that any particular kinds of proposal were inappropriate for delegated legislation, but reserved its right to examine each proposal on its merits. In this context, the Committee noted Paragraph 47 of the Explanatory Notes to the Act:

"the super-affirmative order-making procedure, with its thorough consultation and weighing of evidence, is well suited to the objective consideration of complex issues. It is ideal where the judgement of experts is required; for issues on which a group of reasonable people, given the relevant facts, would be likely to reach consensus without compromise…."

25. The question our predecessor Committee felt it would have to ask under its Standing Order was: "are we in the Committee competent to come to the necessary judgements in respect of this proposal on behalf of the House; or are these matters the detail of which it must be for the whole House to debate and, if necessary, vote upon?." In assessing the appropriateness of the proposal for this civil registration proposal, we have borne in mind this key question.

OUR APPROACH: SIZE

26. The Proposal to reform civil registration is the largest Regulatory Reform proposal which has ever been presented to Parliament. It comprises 68 Articles and 15 Schedules, amending 20 Acts. The Financial Secretary to the Treasury, who has ministerial responsibility for this proposal, has described it in oral evidence to us as "the most important draft Regulatory Reform Order that the Committee has been asked to consider."[12] There can be little argument but that the proposal is large and it is the largest that we have had to consider.

OUR APPROACH: CONTROVERSY

27. It is clear by definition that, for a proposal for a Regulatory Reform Order to be controversial, it must be the subject of competing and irreconcilable views as to its merits, either as a whole or in relation to particular features. There were 3,383 responses to the consultation document on this proposal.[13] As a result of these representations a number of changes were made to the proposal before it was laid before Parliament. In relation to other important elements of the consultation proposals, the GRO decided to proceed notwithstanding the concerns which had been expressed. In respect of these elements of the proposal therefore, the proposed Order is likely to be the subject of a degree of continuing controversy. For instance, we note that in its description of responses the GRO has recorded that

"The majority of respondents…were concerned about computerisation and some were totally opposed to moving to an electronic system and particularly to online registrations by the public. The main concern (expressed to some extent by some of those who supported the proposal) was to do with the security and reliability of a computerised system."[14]

28. Given the centrality of this aspect of the proposal - it is the core element of the reforms, and it is the existence of the electronic register that would make it possible to introduce many of the other elements of the new civil registration system - it appears to us that there has indeed been serious concern in many quarters over the main feature of this proposed Regulatory Reform Order.

29. The availability of facilities for remote registration is another important element in the proposals. We note the statement with which the section of the explanatory statement summarising responses to the consultation exercise opens:

"The proposal which drew by far the greatest response was that in respect of remote registration via the internet or by telephone. Views were relatively evenly balanced, with 48% in favour and 52% against."[15]

30. Those opposing this element of the proposal, who were themselves almost entirely registration officers, believed that an arrangement which allowed the public to provide registration information without a registrar being present would be overly complicated and in many cases supplementary advice would be needed to augment the electronic system. Where registration officers were in favour of remote registration, their support was conditional on there being appropriate and reliable arrangements in respect of the security and reliability of the remote system. This situation indicates to us that these aspects of the proposal have been subject to a major division of views. We take it as self-evident that a key element of the proposal is controversial.

31. We also note that there were other, less central or integral elements of the proposal which have given rise to significant concerns and opposition. For example, the GRO records that 1,487 respondents in the consultation exercise commented on the proposed definition of family for access purposes, the vast majority of whom did not agree with the Government's proposed definition, most of them arguing that the definition should be widened.[16] The Government did not accept their arguments and the proposal before Parliament retains the original definition under Article 35 and Schedule 10.

32. Another instance of firm opposition to a particular element of the proposal which we noted concerns the possible ending of issuing of paper certificates (i.e. certified copies of entries in the Register rather than commemorative certificates which have no evidential validity). The GRO states that among those respondents who commented on this proposal there was significant opposition on the basis that the current certificates have "legal, evidential and symbolic value" to the public.[17] We note that prominent among those expressing concern about the ending of the issuing of certificates were the local authorities and registration staff who currently provide this service.

33. During our scrutiny of the proposal, we also found evidence in our own consultations of serious continuing concern about aspects of the proposed Order. On the day following the laying of the proposal before Parliament, we issued a Press Notice in accordance with our usual practice inviting any interested parties to put their views to us in writing. At the time of publishing this report, we had received letters from 42 bodies and individuals, all of whom asked us to consider their concerns about particular parts of the proposed Order, or otherwise wished to express concern about it.

34. In addition, we decided to take oral evidence from four of the organisations that wrote to us. We were especially interested in their views on the way in which the proposal for the Regulatory Reform Order had been developed and the suitability of the policy upon which it was based.[18] All of these witnesses expressed some dissatisfaction with the consultation exercise. Some felt that their views had not been recognised or may not have been adequately regarded in the framing of the proposed Regulatory Reform Order.[19] At the same time, witnesses expressed clear support for the general thrust of the proposed reform in the direction of an IT-based civil registration system, which they variously felt would have advantages over the present arrangements in terms of public convenience, accessibility of information and other benefits. Our observation of the GRO's own consultation exercise and the evidence we have ourselves sought and received from interested parties has suggested to us that elements of the proposal are indeed controversial and are likely to remain so.

35. We invited Stephen Timms MP the Financial Secretary to the Treasury, to give oral evidence to us on this and other aspects of the proposals. In response to the question whether he regarded the proposal as controversial the Minister said:

36. He characterised it as a reform which is important and perhaps overdue, but fundamentally of administrative character and an instance of the Government making full use of the potential of the Regulatory Reform Act procedure.[21]

37. We recognise that many of those who have expressed views about the proposal either at the consultation stage or since the laying of the Regulatory Reform proposal accept the fundamental direction and raison d'etre of the reforms. Nevertheless, we also recognise that serious concerns have been expressed about important elements of the proposals or about administrative and practical aspects of their implementation. We appreciate that some of the concerns may be allayed somewhat once details of the implementation of the reforms are clarified. But we are required to assess the proposal as it stands, and before details of how the new civil registration system will operate in practice are known. In our view, the Government is therefore expecting Parliament and the public to accept its proposal to introduce new legal, administrative and technological arrangements without providing sufficient details of those new arrangements which are at present still being developed within the General Register Office and elsewhere within government. The explanatory statement provides very limited responses to concerns raised in the consultation about the computerisation of registration services, including concerns about the safety, reliability and security of the new electronic Register and associated systems. For instance, in its response to consultation responses dealing with the issues of computerisation, the central database and records management, the GRO comments

38. We consider that this issue, more than any other, is the key in assessing whether this proposal is controversial. While there are specific concerns and disagreements amongst interested parties about individual points of policy (which would be likely to emerge with any proposal for legislative reform) much of the concern relating to this proposal arises because the GRO is not yet in a position to explain how the new registration system will be implemented and how various risks will be managed in practice. It may be that some of the people who are concerned now about aspects of the proposal would ultimately have their concerns assuaged when the system is up and running. But at present, when faced with insufficient reassurance as to how robust and secure the new system will be in practice, we consider the proposal remains subject to a significant level of continuing controversy.

OUR APPROACH: LEGISLATIVE SIGNIFICANCE

39. Another factor which we considered carefully in our analysis of the appropriateness of this proposal for delegated legislation was the legislative significance of the proposal In oral evidence, the Financial Secretary told us that the proposal

" …[is] aiming for… the most far reaching reform of the civil registration service in England and Wales since its inception in 1837… so it is certainly of considerable historical significance."

40. Later during the same discussion, the Minister considered that

"..It is complex. Whether it is substantial is a matter we might debate. The reason it is complex is because it involves changing quite a lot of rather historic legislation and in that sense there is a good deal of complexity to be addressed. I do not think it is controversial in the sense that the Act [i.e. the Regulatory Reform Act] uses that term.. I think it is quite an appropriate measure for us to look at through this procedure."

41. We agree with the Minister that the proposal does not aim at or achieve any thoroughgoing change in civil registration policy but seeks to amend the way in which current statutory functions and processes are carried out. The proposed reforms to the registration service are to a large extent predicated on the greater use of computer technology in order to deliver a more flexible service, better able to meet the needs of the public and of those who use registration information. It would therefore be reasonable to regard the most significant single part of the proposed Order to be Article 9, which, among other things, inserts the following new wording into the Registration Service Act 1953:

"The Registrar General shall create and maintain a register, in such a form as he may determine, which shall be accessible at all reasonable times for any person to carry out obligations imposed or exercise rights given by the enactments relating to the registration of births and deaths."

42. This proposed provision, and the use of technology it would allow, would make possible the establishment of a centralised registration service where registration information could, for the first time, be provided from any location. Article 10 and Schedule 1 to the proposed Order would permit the public to provide information using the telephone and internet. We take particular note of Article 9 in this context not because we consider the use of technology to be controversial in itself, but because we note that the proposed provision does not actually specify that the Register shall have the form of a computer database, even though the present reform package is largely justified on the grounds of the benefits that such an arrangement would make it possible to introduce. Its effect is rather to give the Registrar General an unlimited discretion over the form the Register will take. When we asked the GRO to explain why it had not proposed to define the form of the Register in its proposed Order, it responded that

"Advances in information technology provide an opportunity to create and maintain records electronically. The Registrar General's aim is to ensure that he is not constrained by advances in technology from keeping registers in the most appropriate format."[

43. The response goes on to refer to two other registers established by the Registrar General acting under powers provided in recent legislation - the Adopted Children's Register (established under the Adoption and Children Act 2002) and the Gender Recognition Register (established under the Gender Recognition Act 2004). We agree that it may be desirable for the legislation which permits the Registrar General to establish a national Register not to limit him unnecessarily to the use of a single technology, which may be overtaken by time. Present legislation requires the use of paper register books kept and maintained by local registration officers and these collectively constitute the present legal record of registration data.

44. The concern that we have regarding the proposal's appropriateness for delegated legislation in this respect is that it would replace the present specific statutory requirements governing the nature and safeguarding of registers with a single wide discretionary power exercisable by a sole statutory office-holder. In our view, Parliament is being invited to give away the power to determine the form of the Register and also thereby the means of ensuring that the Register is maintained safely, appropriately and reliably. In those instances noted above which the GRO cites as precedents for the creation of electronic register databases under similarly wide discretionary powers, the Registrar General received those powers through primary legislation.

45. We also have concerns that other elements of the proposal would also establish broad new powers for the Registrar General, or for Ministers. Article 41 of the proposed Order provides as follows:

"The person for the time being appointed as Registrar General for England and Wales under section 1 of the Registration Service Act 1953 may use any information which comes into his possession in his capacity as Registrar General, in the exercise of any functions conferred on him in his capacity as administrative head of the Office for National Statistics."

46. This clearly provides a very broad power to enable the Registrar General to perform all kinds of operations using data collected during the registration process, and where members of the public supplying such information would not necessarily be aware of the purposes to which data they had been required to provide would be put. We asked the GRO to indicate how functions might be conferred on the Registrar General in his role as head of the Office for National Statistics and what limitations might apply as to which functions may be conferred on him. The GRO informed us that

47. The position therefore appears to be that the proposal would authorise the Registrar General to make use of information he holds as Registrar General in furtherance of his present functions as Head of the Office for National Statistics and additional unspecified future purposes. While information of the kind which the Registrar General holds can clearly be put to many valuable statistical purposes to inform the work of Government and improve the delivery of public services, we consider that this element of the proposal creates an open-ended power in a sensitive area.

48. We thought that it would be useful in this context to outline connections between the current proposal for the reform of the civil registration service and the Government's intentions regarding the development of a national identity scheme. In oral evidence, the Financial Secretary acknowledged that civil registration would be "a small but an important contributor to the national identity scheme. It certainly is not any sort of substitute for ID cards [so] there is a relationship…".[25]

49. The Registrar General of England and Wales (Mr Len Cook) confirmed in oral evidence given to the Treasury Sub-Committee in October 2003 that the development of a civil registration database would be "a key source of information" for a future Population Register.[26] Clearly, the information about individuals contained in the civil registration database would be only one part of the data required in supporting a full Population Register or Identity Cards Scheme, but the processes of maintaining an electronic civil registration database and a national identity scheme, if developed, are likely to be related. In saying this we make no judgment as to whether Identity Cards should or should not exist. Our point is that there is a potential practical connection between this proposal to reform Civil Registration arrangements and other actual or potential Government policies.

APPROPRIATENESS: OUR CONCLUSIONS

50. We have considered the appropriateness of this proposal very carefully. It has given rise to greater and deeper consideration on these grounds then any other Regulatory Reform proposal. We accept that the proposal has the potential to improve and modernise the current system of civil registration, which could potentially generate significant benefits. But the question we have to decide is whether it is appropriate for enactment through the regulatory reform procedure. A number of the issues surrounding the proposal are highly technical and complicated. The proposal would introduce policy changes that would potentially affect everyone in England and Wales and would reform legislation in a sensitive area. It would do this by sweeping away the existing detailed legal requirements and replacing them with wide administrative powers which can only be described in a general way.

51. When we asked the GRO to indicate how it proposed to deal with important matters such as the verification of the identity of informants in remote registration processes or the mechanisms by which the Register would be protected from unauthorised access, sabotage or accidental damage — aspects of the intended reforms which are not on the face of the legislative proposal — the GRO was unable to tell us more than that the necessary arrangements were under consideration.[27]

52. We accept that in any major IT based project there will be some detailed development work to be carried out once the policy - in this case the legislation - has been approved, but we note that it is Government guidance for IT projects to have a robust and reasonably detailed business case developed at an early stage.[28] The Minister indicated in his oral evidence to us that it is appropriate to obtain legislative authority for the expense required in developing technology needed to put the registration service on an electronic footing.[29] That may be so, but we come back to the point that the question for us is whether it is appropriate for such new powers to be conferred by regulatory reform order.

53. We have sought clarification from GRO on many aspects. Indeed, we have asked over a hundred questions. But the replies we have received have not provided sufficient reassurance to enable us, on behalf of the House, to judge whether the proposal should proceed.

54. There are also particular aspects of the proposal which require a decision to be taken with reference to matters which have unambiguously been highly contentious. The clearest instance is whether the GRO would be right to propose in some circumstances curtailing the existing right to access information held in registration records on the grounds that to do this would protect the privacy of the data subject and their family. We discuss this issue further in connection with the Regulatory Reform Act test whether the proposal would prevent any person from continuing to exercise any right or freedom he or she might reasonably expect to continue to exercise. Clearly an existing right would be removed and the GRO's contention is that, in this case, the right is outweighed by privacy considerations. We do not see that an issue framed in this general way, where reasonable people might come to entirely opposite conclusions, can be scrutinised adequately within the machinery of the Regulatory Reform Act.[30]

55. Given the continuing concerns and uncertainties about a number of aspects of the proposal, especially what happens during the implementation stage, and our inability to obtain and report informed assurances that could meet those anxieties, we have concluded that the proposal is not one which can appropriately be implemented by delegated legislation. We consider that, at their current stage of development, these reforms could only appropriately be considered and approved by the House itself by means of primary legislation.

56. Our conclusion therefore on the test of appropriateness for this proposal is that the proposal is not appropriate for delegated legislation.

Vires

57. Our standing order requires us to consider whether the proposal gives rise to doubts whether it is intra vires. Four matters gave us concern under this heading.

BURDENS AND NEW BURDENS ON INFORMANTS

58. To be capable of reform under section 1 of the Regulatory Reform Act, legislation must have the effect of imposing burdens "affecting persons in the carrying on of any activity."

59. Section 2 of the Births and Deaths Registration Act 1953 requires the parents of a child and, in the case of the death or inability of the parents, certain other individuals to provide the relevant registrar with the information needed to register the child's birth in accordance with the Act. Where the information is not duly provided section 4 permits the registrar to require any of these persons to attend at the registrar's office and provide the information. The Act imposes similar requirements on the relatives of a deceased person and certain other individuals to inform the registrar of the death. Articles 16 and 19 of the proposed order would reform these duties. While such duties have the nature of burdens, it was not clear to us how they affect the individuals on whom they fall "in the carrying on of any activity."

61. We found the GRO's written responses on this question unclear and contradictory and therefore found it necessary to seek clarification of their argument from the Minister when he appeared before us. The argument put to us then was that the activity carried on by informants is the registration of births and deaths or, more exactly, the providing and recording of information regarding those events.[31] Whilst we cannot be sure that a court would accept this argument, we consider that it was the intention of Parliament in enacting section 1 of the Regulatory Reform Act to provide a broad power and, in that context, we are prepared to accept the argument as sufficiently tenable. It is certainly possible to take the view that registration is an activity carried on only by registrars with the consequence that the burdens on informants do not affect them in the carrying on of that activity. On the other hand, it is possible to look at the registration requirements in the existing legislation as an activity involving two parties - the informant and the registrar - who will normally be present together when they carry out their respective duties. The duties placed on each party alone do not achieve the intended result - the registration of the relevant event. The informant must first provide information which the registrar must then record. The argument is helped by the requirement on the informant to sign the register after the information has been duly recorded. We consider the GRO's argument to be sufficiently cogent and do not report this aspect of the proposal for doubtful vires.

BURDENS ON REGISTRAR GENERAL

62. Section 2(1) of the Regulatory Reform Act provides that a burden which affects only a Minister or government department is not a burden for the purposes of the Act. Such burdens therefore may not be removed by a regulatory reform order. It appeared to us that the proposal would remove a number of burdens which affect only the Registrar General. As it was not clear whether these burdens affect only a government department, we sought clarification on the point from the GRO.[32]

63. Article 30 of the proposed order would remove burdens imposed on the Registrar General by sections 25 and 28(4) of the Births and Deaths Registration Act 1953 (section 25 requires the Registrar General to provide registers and forms for making certified copies of entries in registers; section 28(4) requires the Registrar General to keep copies of certified entries and completed registers sent to him by local registrars). Article 9(2) would remove the burden imposed on the Registrar General by section 12 of the Registration Service Act 1953 (which requires him to provide fire-resisting boxes to hold local registers). In their evidence to the House of Lords Delegated Powers and Regulatory Reform the GRO accept that these burdens do not affect anyone else.[33]

64. The Registrar General is a statutory office holder appointed by Her Majesty under section 1 of the Registration Service Act 1953. Section 3 of that Act authorises the Registrar General to appoint officers and servants for the purposes of his functions. It also authorises anything required to be done by, to or before the Registrar General to be done by, to or before members of his staff authorised in writing for the purpose. Under current arrangements for the machinery of Government the holder of the office of Registrar General is also head of the Office for National Statistics, which is a government department. In the light of these matters we asked the GRO whether burdens which affect only the Registrar General thereby affect only a government department.

65. The GRO responded that as a statutory office holder the Registrar General is not a government department.[34] We did not find this particularly illuminating. In evidence to the House of Lords Committee on Delegated Powers and Regulatory Reform the GRO said that the Registrar General is not part of the Crown, that his powers cannot be affected by orders made under the Ministers of the Crown Act 1975, that he does not appear in the list of authorised government departments issued under the Crown Proceedings Act 1947, that his staff, although currently civil servants, are not in the GRO's view a government department and that he delegates to his staff and cannot perform every function personally.[35]

66. We consider these points inconclusive. We accept that the Registrar General himself is not a government department. But a statutory office holder may be the head of a government department (for example, the Director General of Fair Trading is a statutory office holder but the Office of Fair Trading is a government department). It is thus not clear to us from the evidence provided by the GRO whether or not the Registrar General's staff are a government department, or part of one (the Office for National Statistics). We note in this connection the statement at page 234 of the Forty-First Civil Service Yearbook that the Office for National Statistics "includes the General Register Office" - although that too may not be conclusive. Should a similar issue arise on a future proposal we would expect the relevant department to provide more thoroughgoing evidence than we have received in respect of this proposal to support its position. In the absence of a proper analysis of the matter by the GRO, we are not persuaded that the burdens affecting only the Registrar General which the proposal would remove do not affect only a government department and we report this aspect of the proposal for doubtful vires.

PILOT SCHEMES

67. Section 1 of the Population (Statistics) Act 1938 requires persons providing particulars of a birth or death to a registrar under the Registration Acts also to provide certain further information set out in the Schedule to the 1938 Act. The proposal would amend the 1938 Act by substituting the information set out in Schedule 13 to the proposed order for that set out in the Schedule to the Act. The proposal would designate Schedule 13 as a subordinate provision capable of amendment by a subordinate provisions order which would be subject to annulment if either House so resolved.

68. Article 52 of the proposed order purports to authorise the inclusion of various provisions in a subordinate provisions order which amends Schedule 13 for a limited period ('a pilot scheme'). Section 4(4) of the Regulatory Reform Act states that a subordinate provisions order is one made under the Act which contains a statement that it makes only provision which modifies the subordinate provisions of a previous regulatory reform order or which is incidental, consequential, transitional or supplemental to such modifying provision. It appears to us that section 4(4) of the Act contains an exhaustive statement of what a subordinate provisions order may contain and we therefore asked the GRO what authorised the inclusion in Article 52 of provisions purporting to extend power to make a subordinate provisions order in connection with pilot schemes.

69. In their response the GRO rely on the power in section 1(6) of the Regulatory Reform Act to make incidental and supplemental provision and say that Article 52 is incidental or supplemental to provision amending the Schedule to the Population (Statistics) Act 1938.[36] This seems to us to be misconceived. It is not clear what the GRO mean by the reference to provision amending the Schedule to the 1938 Act, since the proposed order would not amend that Schedule but would amend section 1 of that Act to require the provision of the information in Schedule 13 to the proposed order instead of the information in the Schedule to the 1938 Act. But whether the argument is that Article 52 is incidental or supplemental to the proposal to substitute Schedule 13 to the order for the Schedule to the 1938 Act or that it is incidental or supplemental to the designation of Schedule 13 as a subordinate provision, we cannot agree. We do not see how any regulatory reform order can itself extend the power in section 4(4) to make subordinate provisions orders. We conclude that Article 52 is of doubtful vires.

OFFENCES

70. Article 53(1) of the proposed order would create new criminal offences. Article 53(2)(a) sets the maximum period of imprisonment on summary conviction for a contravention of Article 53(1) at twelve months. However, section 3(3)(b) of the Regulatory Reform Act limits to six months the maximum period of imprisonment which may be imposed on summary conviction of a new offence created by a regulatory reform order. We therefore asked the GRO to explain what authorised setting the maximum at twelve months.

71. The GRO replied that section 282 of the Criminal Justice Act 2003 provides the authority but point out that that section is not yet in force.[37] It seems to us that section 282 is not relevant to offences created by regulatory reform orders made after the passing of the 2003 Act. Paragraph 8 of Schedule 27 to the 2003 Act amends section 3 of the Regulatory Reform Act by increasing the maximum term of imprisonment on summary conviction which may be specified in a regulatory reform order in relation to England and Wales to twelve months. That amendment also is not yet in force. We conclude that until that amendment is in force Article 53(2)(a) cannot specify a maximum term of imprisonment of twelve months. We consider that the GRO should have made the position clear in their explanatory statement on the proposal.

Removal and reduction of burdens

72. The aim of the proposal is to effect a wide-ranging reform of the civil registration service in England and Wales so as to allow the use of new technologies to make the process of acting as informant of a birth or death more convenient to members of the public. Other aspects of the proposal would also mean that the civil registration process better reflects modern social structures and expectations. The proposal is not therefore fundamentally de-regulatory in its intent but aims at adjusting the incidence and form of a great many burdens as administrative structures and patterns of legal obligation are given a revised form. In achieving this, the proposal would modernise a necessary legal and administrative procedure affecting all citizens.

73. Overall, the proposal would widen the options which members of the public have as informants in the registration process as to how they fulfil their legal responsibilities and the result would be a registration process which would be less onerous in its demands on them. A particular burden which is removed and which may cause inconvenience or distress to some people is that which presently prevents a person's partner (i.e. a person to whom they are not married with whom they live as husband or wife, or a 'civil partner') from acting as informant in that capacity at the registration of their death.

74. The GRO has described the effect it believes its proposal to have in terms of burdens at chapters 8 (existing burdens) and 12 (new burdens) of its explanatory statement, making use of the 18 general subject headings used elsewhere. In most cases where a particular legal provision imposing a burden is removed, a new provision creates a similar burden taking a different form, the extent of the difference amounting to the policy justification for refocusing the burden. The GRO has identified each burden which it believes its proposal would remove.

75. In describing the effect of its proposal on existing burdens, the GRO has in many instances not been clear as to whether a particular legal provision adversely affects a person in some way, and thus truly is a burden in terms of the tests of the Regulatory Reform Act, or whether it may simply occasion trouble or expense (what might be termed its 'regulatory impact').

76. We nevertheless agree that the proposal has the effect of removing some burdens and reducing the impact of others.

Necessary protection

77. In restructuring the civil registration service in England and Wales and establishing it in a modernised form which makes use of information and communications technology the GRO argues that all necessary protections would be maintained.[38]

78. We identified a number of areas where it was unclear to us that necessary protections would be maintained and put questions about these matters to the GRO. We also received representations from a number of parties concerning specific issues of necessary protection and we took oral evidence on some of these points.

FORM OF THE REGISTER

79. The present law imposes a clear series of requirements for the maintenance of registration records by the Registrar General and other statutory office holders, including such matters as appropriate and safe storage.[39] The proposal will remove these arrangements and replace them merely with a requirement on the Registrar General that he shall create and maintain a register in such form as he may determine. We note that he will be under no specific requirements as to the safety, security and recoverability of information held in the register, notwithstanding that it will of course be his policy to make proper arrangements in these respects.

80. We asked the GRO to explain why a more specific requirement on the GRO has not been proposed in the Order. In its response, the GRO indicated that this was because the Registrar General wished to avoid being "constrained by advances in technology from keeping registers in the most appropriate format".[40] The Financial Secretary was subsequently offered an opportunity further to explain why the proposal to do without any legal requirements on the Registrar General in respect of the care of the information entrusted to him should not be considered a loss of protection. He told us:

81. We accept that the modern technological environment makes it more difficult and less desirable to prescribe actual details of technological systems in legislation. Nevertheless, we also consider it self-evident that protections about the safety and security of information held in the register which subsist by virtue of the register's current form and of the specific requirements of current law would be lost and replaced not with protections in law but with a reliance on the Registrar General's good judgement and technical competence. The view of the GRO is that such a situation is the inevitable corollary of modernization and increased use of technology in a changing world.

82. We asked a number of questions about the GRO's intentions in respect of the safety, security and reliability of the proposed computer based Register. The GRO has asserted that the form of the Register and associated IT facilities will be such that there will not be a realistic risk of unauthorised access, corruption of data or damage by accident or intent.[42] We consider that simple assertion cannot provide a basis on which we can accept that this element of the proposal meets the necessary protection test. We therefore consider that in framing legislation for the modernisation of the civil registration service without imposing any requirements on the Registrar General to endeavour to ensure the reliability, security against unauthorised access and falsification and damage and the recoverability of the systems used to maintain registration information the proposal fails to maintain necessary protections.

LIMITATIONS ON DUTIES TO BE PLACED ON REGISTRAR GENERAL AS ADMINISTRATIVE HEAD OF THE OFFICE FOR NATIONAL STATISTICS

83. We noted at paragraph 45 that Article 41 of the proposed Order would give the Registrar General power to use any information which comes into his possession in that capacity in furtherance of any function which is conferred on him as administrative head of the Office for National Statistics. In the answer given by the GRO to our questions about how functions could be conferred on the Office for National Statistics and what limitations applied to the conferring of such functions, we were told that any such functions could be conferred by legislation or by the exercise of the Royal prerogative and that the limitations on the conferring of functions are those "common to the exercise of such powers generally."[43] On further enquiry, we were informed by the GRO that these limitations were those common to the conferring of additional functions on government departments generally.[44] The GRO argued that these limits would mean that entirely new functions could be conferred on the Office for National Statistics by primary or secondary legislation. Existing functions of government departments could be reallocated by means of the Prime Minister's power to reorganise the Executive; powers under section 1 of the Ministers of the Crown Act 1975 could be used to transfer functions of other government bodies by means of Order in Council.

84. We remain unclear about the limitations which would apply to the conferring of new functions on the Office for National Statistics. It is obviously the case that new functions could be conferred on the ONS in legislation. We further appreciate that it is regarded as conventionally appropriate for legislation to be used to establish new functions of government where these involve the commitment of significant expenditure and personnel. Our exchanges with the GRO have not left us clear as to the extent to which ministers, as a matter of administrative action, could require the ONS to carry out work which does not require the creation of new legal powers or duties and it is this that causes us concern in particular. We take the view that it would not be desirable for the government to identify significant new uses for data held by the Registrar General and for that data to be used for those purposes without Parliamentary approval being obtained.

85. We are not satisfied that Article 41 maintains necessary protections.

IDENTITY OF INFORMANTS

86. Under the present law, when births, still-births and deaths are registered, the information is provided, prepared for entry by the registrar and then verified by the informants and, at the end of the process, the register is signed. The GRO states "The signature may be evidence that the person is who they claim to be but no corroborative evidence is sought by the registrar."[45] Our understanding of this statement is that beyond the need to establish a minimal match between the information given by an informant and the information that is already held by the registrar (such as birth notification details or information supplied by medical authorities or the coroner in relation to a death) there is no current test to establish the true identity of informants.

87. Our concern is that the establishment of facilities for remote registration might make it easier for persons falsely to register births and deaths, or details thereof, in pursuit of fraud. We asked the GRO how this possibility could be protected against. In its response, the GRO stated that its proposal to link each registration event with a notification of that even from the NHS would provide "a more secure and robust means of ensuring that duplicate or fictitious entries are not made."[46] It acknowledged however that the issue of identity will be particularly important for birth registrations where the parents are not married, as in that case both parents need to acknowledge the paternity of the person who is the father of the child. Remote registration would therefore increase the risk of a man being recorded as the father of a child without his consent (for instance by the mother logging on twice and falsely identifying herself as the man concerned).

88. In the light of this potential risk, the GRO proposed that remote registration would not be introduced until the Government Authentication Framework was fully developed, this being the mechanism by which the identity of those persons accessing remote services would have their identity verified. Furthermore, in his oral evidence to us the Financial Secretary proposed that, given the importance of Parliament having confidence in the eventual Authentication Framework, the Government considered it would be appropriate for Members of the House to debate the detail of the proposed arrangements before they are introduced.[47] We welcome the Minister's suggestion and agree that Parliament should be given the opportunity formally to consider the proposed means of verifying the identity of informants in any remote registration procedure.

AUTHORISED USERS

89. Under Article 35 of the proposed Order, the Registrar General would have a duty to make entries in the Register available for inspection, to the extent that any person viewing information is either entitled to see it or has been granted permission to see it by a qualified person. The GRO expects that the establishment of electronic registration will facilitate the exchange of data and the more effective processing of data by government departments and agencies.[48] It also expects that non-government bodies such as financial institutions and insurance companies will wish to have direct electronic access to registration information. Those bodies who would have direct electronic access are referred to as 'Authorised Users' and it would be technologically possible to provide each such users with levels of access which matched his level of entitlement to information, although no details are given about the likely practical arrangements. It notes that the Data Protection Act 1998 applies to the sharing of information about individuals between government bodies and that this Act provides a measure of protection for individuals. In its statement the GRO provided a description of some features of the suggested framework for the use of registration data once the electronic registration system has been established. In some instances, the exchange of data is permissive and requires the consent of the data subject - the example is given of passport applications, where the United Kingdom Passport Service would need to obtain consent to access restricted data in the register. In other instances, existing provisions for the release of data provide for the release of data to Government departments and these would not be affected by the proposal.

90. We asked the GRO what criteria it expected would be applied in determining the suitability of applicants for Authorised User status. In response, we were informed that the primary considerations would be the privacy of individuals and the security of registration information and the registration system.[49] It was expected that applicants would need to show the following:

ii. Access is required on a frequent, on-going basis;

iii. Clear, robust and auditable processes are in place for obtaining consent;

iv. Secure IT systems are in place.

91. The GRO also said that Authorised Users would need to sign a contract or service level agreement, and that such an agreement would be likely to include:

ii. An agreement to abide by the legislative requirements

iii. An agreement to keep a list of operators and to ensure their adherence to the terms of the contract;

iv. An undertaking to allow inspections/audits aimed at ensuring compliance with the legislation and/or service level agreement;

v. A statement agreeing to ensure the security of any technical facilities allowing them access to the restricted data.

92. We note both these suggested criteria for the designation of Authorised Users and the proposed service level agreements and agree that these could lead to an enhanced service. We consider such requirements should feature in any future arrangements for the granting of direct electronic access by Authorised Users. Nevertheless, we note the provision for designating Authorised Users under Article 35 is another instance where the Registrar General is to be given a discretionary power.

10 HL Deb, 23 January 2001, col 298 Back

11 HC (2001-02) 389, para 16. Back

12 Q85 Back

13 Appendix H, Q94 Back

14 Explanatory statement, paragraph 20.7.12 Back

15 Explanatory statement, paragraph 20.1.2 Back

16 Explanatory statement, paragraph 20.8.22 Back

17 Explanatory statement, paragraph 20.8.35 Back

18 Qq1-67 Back

19 Q1 and Q69 Back

20 Q87 Back

21 Q86 and Q90 Back