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

Rights and freedoms

93. The GRO considers that its proposed Order would not prevent any person from exercising any right or freedom which they might reasonably expect to continue to exercise. In some instances, it is argued that the Order, or its practical effects, would increase the rights of the public or the ease with which their rights may be exercised (such as the proposal to make historic registration records available for digitisation and to make the database containing this material available via the internet).

94. The GRO does also recognise that its proposal in respect of access to registration records in future would limit rights where records fall into the modern category (i.e. are less than 75 years old in respect of birth records and 25 years old for death records).[50] The government believes that these restrictions are justified on the grounds of maintaining the right to privacy of the person named in the record, or their family as well as to protect the security of the information and to prevent fraud. For these reasons, the GRO records that "Overall the Minister is of the view that the groups affected cannot reasonably be expected to continue to enjoy the same level of access to modern records as they do now, due to the security concerns described."[51]

95. The difficulty we have found with this is that this part of the proposal is very vigorously opposed by many of those involved in the consultation exercise and by those who have supplied written evidence to us. These parties are largely composed of those who research the details of their own or others families, whether for their own interest or as part of their business (for instance, where 'probate genealogists' investigate the members of a family for purposes of administering the estate of a deceased person). As part of our consideration of this issue, we took oral evidence from members of the Federation of Family History Societies, who argued that, while privacy does have to be balanced with rights to access information, the information in registration records are details about a person which have been recorded as part of the official process of establishing a legal identity for that person, and on that basis should be information which is publicly available.[52]

96. As we have recorded in our analysis of the proposal's appropriateness, we consider this is a very contentious issue and not one which is suitable for resolution through the process of delegated legislation under the Regulatory Reform Act. We have to consider whether the proposal would prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise. It seems to us that it would do so. The right to obtain the information presently available in a death entry for the purpose of tracing individuals who are entitled to an inheritance seems to us one which it is reasonable to expect to continue. The tests in section 3(1)(g) of the Regulatory Reform Act and our Standing Order (No. 141) are not adapted to weighing the reasonable continuation of a right against another reasonable policy objective.

ACCESS TO SERVICES

97. Article 9 of the proposed Order would make local authorities, as registration authority, responsible for the provision of face to face registration services in their area. Article 14 of the Order would require each registration authority to observe the statutory Code of Practice for the discharge of their responsibilities contained in Schedule 4 to the Order. Schedule 4 requires that each registration authority to provide a face-to-face service for the registration of births and deaths and to provide these services in accordance with an explicit accessibility policy agreed by the members of the local authority. This policy would be required to meet community needs as demonstrated in community consultation or to state why a different level of access is being provided.

98. We were concerned that the provisions of Schedule 4 do not amount to any kind of guarantee of equality of access. There seems to be no reason why standards of accessibility might not vary between registration authorities and there is no reason, other than the effect which local dissatisfaction might have, why a registration authority would be required to maintain the current levels of access. Although remote registration is intended to be available for extended periods, and presumably at times when face-to-face services cannot reasonably be expected, this facility is not intended as a replacement for a face-to-face service but an alternative to it. It may be that some people would prefer not to use telephone or internet services for registration, whether from a wish to preserve something of the ceremony of the recording of life events or from unfamiliarity with or dislike of the internet and call-centre based services.

99. We asked how equality and consistency of access would be ensured when local authorities have more freedom to run registration services. The answers supplied appear to indicate that degrees of variation are to be expected and that this is not perceived to be a problem as variations must exist within the context of mandatory consultations with local authority electorates. Such consultations would be the mechanism by which local people would influence the access policy of their local registration service.[53] The proposed availability of remote registration services would mean the availability of face to face services would be augmented by other means of registration, whatever face to face services may be available in any given area.

100. We are concerned at the effect that this proposal might have on equality and uniformity of access to face to face registration services. The philosophy as explained to us is that the service would be more efficient because it would effectively be another local authority service and could in that way benefit from being combined with the provision of other local services.[54] We note that designating the registration service as another local authority service to be provided in accordance with views expressed in local consultations would expose that service to the pressures of local authority financing and puts it in competition for financial support with a range of other services. The GRO acknowledged in a written answer it gave us that "It is implicit in the philosophy that underpins the proposed changes that authorities would have discretion on funding the service."[55] We believe it should also be recognised that, as well as being a service, registration is a legal obligation for members of the public. Having laid on them the duty to act as informant, Parliament should also ensure that legislation ensures adequate facilities for them to fulfil their duties.

101. Under the proposal, face to face registration services in each community would also be in competition with remotely provided services and services provided by other, neighbouring registration authorities. While competition may bring some benefits and promote improvement in successful services it might have a detrimental effect on services which are less well-run. Not every citizen would wish to travel to access services or to use remote registration.

102. We asked the GRO whether it had considered using the proposed inspection regime to be run by the Audit Commission and the Audit Commission in Wales to ensure appropriate levels of local service to the public. In answering this question the GRO stated that "The prime external mechanism for ensuring an appropriate level of local service will be the national minimum standards. They are intended to provide a less prescriptive approach to compliance that operates at the primary level within the authority itself."[56] The GRO further advised that compliance with national minimum standards would be monitored by the Registrar General using direct reports from authorities and management information derived from the Register database. It therefore appears to us that the effectiveness of this monitoring regime as a means of ensuring a proper level of local service delivery depends on the national minimum standards actually imposing a meaningful external standard of performance, in the face of all the funding pressures and difficulties local authorities face.

103. We consider it would be appropriate for minimum prescription in this instance to include the specification of minimum times when face to face services must be made available by all registration authorities.

FUTURE ACCESS TO RECORDS

104. Article 11 of the proposed Order would allow the Registrar General to computerise existing archives of registration records. Under this power, it is proposed that the Registrar General would arrange a digitisation exercise in which records from "approximately 1935 onwards", which are the most heavily used in official transactions would be digitised in the first instance at public expense. The explanatory statement records that "the remaining records would not be computerised immediately. Thus, the extent to which modern records would be computerised will depend on funding and the business justification for their inclusion."[57]

105. Under the proposed Article 5(1) the Order, responsibility for the maintenance and preservation of original register books would be passed to local authorities. Schedule 4 provides that "A registration authority must ensure that there are proper arrangements in place for the storage of registration records."

106. The Government believes that this element of the proposal would have the effect of promoting the long term safety of information held in the current paper-based record system through the intended computerisation programme and the much reduced need after this to refer to the paper records, with the attendant risks of transport damage and storage of these documents.[58] Local authorities have duties to care appropriately for records which they own or of which they have custody under Section 224 of the Local Government Act 1972 and guidance on the discharge of these functions is issued to them by the ODPM in the light of advice from The National Archives. The expectation of the GRO is that records will be deposited in the relevant local record office, and that maintenance and preservation in this way will have the benefit of providing a greater degree of consistency.

107. It is acknowledged that the management of this task will constitute a burden for local authorities and their records management services, particularly insofar as the legal provisions in respect of access will need to apply to all non-historic records. In this context it is acknowledged that detailed arrangements will need to be made by each local authority in the light of available space and other resources, the rate of transfer and progress with the transfer of historic information to the database.

108. We understand from our examination of responses made to these aspects of the proposals in the GRO's consultation exercise that there was significant concern about the effect the relevant provisions might have as drafted. There was particular concern amongst those bodies which represent the genealogical and archival communities and in the light of their concerns we received written submissions and subsequently took oral evidence from both the Federation of Family History Societies and the National Council on Archives.[59] As with other areas of the proposal's policy which have given rise to concern, the difficulty which these bodies had with the proposed Order had much to do with the lack of clarity about how the reforms would be implemented in practice, and their possible unintended effects on the future availability of accurate registration information and the original records. We summarise key points made by either or both of these bodies in the following way:

The proposals as laid before Parliament do not take full account of the increased costs which would affect local authorities in caring for and providing access to registration records, particularly in view of the loss of their income derived from the issuing of certificates.
There is a need for a more comprehensive regulatory framework within which local authorities will manage the task of storing registration records and that framework needs also to include requirements/guidelines for the preservation and provision of public access to those records, not merely their storage.
Notwithstanding the GRO's assumption that information held centrally by the Registrar General constitutes the most appropriate source material for the digitisation of records, there was a view that locally held registers, which are the primary records and original source of that data, would be the best target for the digitisation programme and that using this material would avoid recording unnecessary errors into the Register database.
The digitisation programme needed to be full (i.e. to involve the entire corpus of extant registration records and to involve the capture of a digital image of each record) to be properly funded and to be carried out within the UK by operators familiar with English and Welsh names. The exercise needed to have adequate arrangements for quality control.

109. We found that both the National Council on Archives and the Federation of Family History Societies believed that the proposals represented a significant opportunity for the enhanced availability of registration information and the records themselves but that, without sufficiently clear undertakings as to the funding of the respective responsibilities of the Registrar General in the establishment of comprehensive electronic records and of local authorities in the future care and access of the paper registers it was not clear that the process would fulfil its potential.

110. We consider that the points put to us by both these bodies are well made and moreover are representative of well-informed constituencies involved in the care and use of registration records. In response to a request made during the course of their oral evidence to us, the National Council on Archives submitted an outline proposal for a regulatory framework for the future storage, preservation and access to locally held registration records and we publish it with our report as appendix G.

111. In a letter of comment on this proposed framework, the GRO advised us that the National Council's ideas would need to be subject to much further discussion with local government and with The National Archives before any firm conclusions could be taken about the merit of what is proposed therein. In particular, no undertakings could be offered in respect of any new funding to support the care of the transferred records. This letter is also published with our report as Appendix K. The GRO's response also questions whether such a framework would be needed at all in the light of the requirements of the Local Government Act 1972 and of the proposed Code of Practice at Schedule 4 of the Order. We understand that the GRO intends to continue discussion with the National Council on Archives about the Council's suggestions for a national registration records management framework.

112. Nevertheless, we find the GRO's response disturbing in its lack of engagement with the concerns which have been expressed about digitisation and records management. Neither are we persuaded that the issue of the care of the original records should not be a matter of national policy on the basis that they are to pass into the care of local authorities, or that the fact of digitisation will mean that mere storage of the original records is sufficient, without any further requirements in respect of the way in which these unique documents are to be preserved and made available.

113. We consider that future discussions about digitisation and the future of existing paper records would be more meaningful if they took place in the context of greater clarity concerning the sources and extent of future funding for these responsibilities. We consider that a clear commitment from GRO to provide adequate funding and to draw up detailed arrangements of a programme for the full digitisation of existing registration records should be made before Parliament is asked to approve any legislation giving the Registrar General power to incorporate the data contained in those records into a registration database. Formal legislative transfer of the responsibility for existing paper registers to local authorities should include provisions requiring that registration records be properly preserved and made available to the public, rather than merely stored.

RIGHTS TO OBTAIN CERTIFIED COPIES OF ENTRIES IN THE REGISTER

114. Article 39 of the proposed Order would enable the Registrar General and registration authorities to supply any person with a certified copy of an entry in the Register (i.e. a certificate of the birth or death of the subject of the record) for any purpose specified in Schedule 11. Such certificates must only bear information that the person to whom they are issued has a right or permission to see. Schedule 11 limits the purposes for which the Registrar General may issue certificates to instances where they are required in proceedings in any court or in relation to the applicant's dealings with any person or body having functions of a public nature. A registration authority would only be able issue certificates in relation to the latter purpose. Ultimately, it is intended that the issuing of certified copies of entries will be brought to an end, and any requirement of certification of a life event will be met through electronic data exchange.

115. We asked the GRO whether it was confident that the proposed Schedule 11 would provide sufficiently wide powers for the registration system to meet the legitimate requirements of all members of the public. In response the GRO told us:

"In the long term, the need for certified copies for official purposes would be removed. It is envisaged that certified copies would only continue to be required in a small number of situations. Thus the GRO considers that the proposed powers in Schedule 11 do give the Registrar General and registration authorities sufficiently wide powers for the issue of certified copies in the long-term. It is not proposed to bring this provision into force until such time as information is accessible electronically on the national database."[

116. We understand that the GRO aims at the reduction of fraud through the elimination of paper certificates and it is clear that such certificates are sometimes used to further deceptions.[61] For most purposes, we accept it is likely that electronic data exchange will indeed obviate the need for citizens to present certified copies of Register entries. We are not, as confident as the GRO that it will be possible to cease the issuing of certificates entirely. When a member of the public produces a certificate it is because some authority with which they are dealing has required this of them, often as a condition of accessing some service. We are concerned that, if the issuing of certificates was terminated through the repeal of Schedule 11, members of the public might be placed in difficulty in dealing with any authority which continued to insist that a certificate should be produced. For example, they might continue to be required for use in relation to authorities abroad. where electronic certification might be less readily accepted, or for private purposes, such as in relation to personal finance matters, insurance claims, admission to universities. We also note that the use of electronic data exchange as a total replacement for the issuing of paper certificates supposes that all authorities which might require access to the entry have both the capacity (in terms of having been accorded access facilities) to view the entry as an 'Authorised User' of registration data. We are not sure that this will always be the case.[62]

117. We do not consider that the GRO has demonstrated that it will be possible for electronic data exchange to take the place of paper certificates in every instance where the public might be required to provide proof of a registered life event. Nor are we satisfied that Schedule 11 will allow the issuing of certificates in all such circumstances. We therefore conclude that further careful consideration and wide consultation would need to take place before any decision that the existing right to obtain certified copies of entries in the Register can be brought to an end.

Proportionality and fair balance

New burdens and re-enacted burdens

118. The GRO described the new burdens it believes its proposal would impose at Chapter 13 of its explanatory statement. Chapter 12 addressed the extent to which the Order might re-enact existing provisions which impose burdens. The GRO considers that no currently existing burdens are re-enacted by its proposal.[63]

119. We consider the proposal would have the effect of imposing a series of individual new burdens, some of which have a high degree of correspondence with burdens under present legislation and to which it is the purpose of the order to give a new form or a different incidence. In general terms, the proposal would impose new burdens on the Registrar General and on registration authorities in the form of requirements and duties for the operation of the civil registration system as reformed in the proposed Order. Principal among these is the requirement on the Registrar General established under Article 9 of the proposed Order that he creates and maintains a register in the form of his choosing. Burdens would also be removed and imposed on informants in the registration process, particularly in relation to how they may provide the information they are required to give in registering a birth or death.

120. The relevant tests are that new burdens imposed by a Regulatory Reform Order are to be proportionate to the benefits expected from them and that the provisions of the Order as a whole must strike a fair balance between the interest of persons affected by burdens being created and the public interest.

121. There are many new burdens imposed on the registration service, the Registrar General and, to a lesser extent, the public. We do not consider that any of these new burdens gives cause for concern on grounds of its proportionality or in the balance struck by the Order between the interests of those on whom the burdens fall and the wider public interest.

Desirability

122. The GRO has asserted the proposal to be desirable in laying it before Parliament. Other parties in both correspondence and oral evidence to us have agreed that the overall aim of the reforms are to be welcomed, although they may have reservations about individual provisions of the proposed Order, which they would wish to see revised or excluded if the Order were to proceed.

123. We agree that, for the purposes of the test in section 3(2) of the Regulatory Reform Act, the extent to which the proposal would remove or reduce burdens and has other beneficial effects makes the proposal desirable. Nevertheless, as we record above, we recommend that the proposed Order not be made on the grounds that it makes an inappropriate use of delegated legislation.

Elucidation, plain English and drafting issues

124. The proposed order contained a large number of drafting and proof-reading errors many of which the GRO has acknowledged. These are recorded in Appendix F, questions 24 to 53. We discuss in the following paragraphs a number of other concerns we had about the drafting of several provisions of the order. We asked the GRO to explain why it had laid before the House a proposed order containing so many defects. The GRO acknowledges that the draft contained a number of incorrect cross-references occasioned by late changes to the draft, which ought to have been picked up, although it does not accept that all the drafting points we raised can properly be described as defects. It nevertheless welcomes our comments on the drafting of the order.[64] We agree that some of our concerns about the drafting of the order do not relate merely to obvious errors. Nonetheless, the number of minor slips and errors was significant. We consider it unacceptable that the GRO should have laid before the House a document containing so many minor drafting and proof-reading errors. We remind all Departments that proposals for regulatory reform orders should represent a finished and complete expression of how the proposals are to be given legislative effect.

ARTICLE 20

125. Article 20 would amend sections 16 and 19 of the Coroners Act 1988. These sections require a coroner in certain circumstances to send a certificate to "the registrar of deaths". Paragraph (3) of Article 20 substitutes for that phrase in section 16 of the 1988 Act "the registration authority within whose area the death occurred or the body was found or to the Registrar General as the case may be." Paragraph (4) makes the same substitution in section 19 but without the words "as the case may be." It was not clear to us what those words meant nor why they were included in the amendment to section 16 but not included in the amendment to section 19.

126. The GRO indicated that the words should also be included in the amendment to section 19, that it envisaged that the coroners' certificates would be sent to local registrars until they can be sent electronically to the central database maintained by the Registrar General and that it is not intended that a coroner may choose to whom to send a certificate.[65] In our view the words "as the case may be" do not adequately convey this intention, since it would not be clear from the amended section in what circumstances each case applies. We welcome the GRO's recognition that the wording of the amendments should be consistent, but we consider that the provision as drafted (and proposed to be amended) is defectively drafted.

ARTICLE 24

127. Article 24 would empower the Registrar General to amend errors of fact or substance in the register. But he could only do so where a statutory declaration, made in accordance with Article "25 or 27", was produced. Article 25 lays down the general requirements for the statutory declaration required by Article 24, which include those specified in Article 26 where it applies. Unlike Article 25, Article 27 does not refer back to Article 24 nor does it refer to a statutory declaration. We asked the GRO whether the reference to Article 27 should have been a reference to Article 26.

128. The GRO responded in the negative referring us to the express link between Articles 25 and 26 without mentioning Article 27.[66] We accept that Article 24 should not refer to Article 26 but it remains to be explained how the references in Article 27 to "a declaration" are to be understood as meaning "a statutory declaration." It is not clear to us that Article 27 is dealing with the correction of an error of fact or substance (the circumstances in which Article 24 applies), since it applies where an entry relating to a still-born child whose parents were not married to each other at the time of the birth does not identify the father, which we assume could properly occur in a case falling within paragraph 13 of Schedule 3. This creates a doubt whether the reference in Article 24 to Article 27 is correct. The use of the expression "a declaration" rather than "a statutory declaration" in Article 27 reinforces the doubt. We consider Article 24 to be defectively drafted.

ARTICLE 27

129. Paragraph (1) of Article 27 sets out the circumstances in which an entry relating to a still-birth must be amended to show the father's identity. One such circumstance is if each of the parents request that the amendment be made.

130. Sections 10 and 10A of the Births and Deaths Registration Act 1953, as they would be amended by Article 16(11) and (13) of the proposal, deal with the circumstances in which the name of the father of a child whose parents were not married to each other at the time of the birth may be entered in the register. Like Article 27 these sections (in subsection (1)(b)) specify the circumstance that each parent requests that the entry be made. But they also specify (in subsection (1)(a)) the circumstance that the parents jointly request that the entry be made. We asked the GRO to explain why similar provision is not made in Article 27.

131. In their reply the GRO say that Article 27 is intended to reflect for records of still-births the provision which would be made for records of live births by new section 10A(b) (by which we assume the GRO mean section 10A(1)(b)) which would be inserted by Article 16(13)(a), and that although Article 27 does not specifically provide for the parents to make a joint request, it does not preclude their doing so and that the provision was drafted to allow maximum flexibility to the parents of a still-born child and recognises that still-births are particularly sensitive.[67] We are not convinced by this explanation. While it may sometimes be possible for the parents to make virtually simultaneous requests under Article 27, a joint request is not the same thing as two separate requests - a distinction which is recognised by the inclusion of paragraphs (a) and (b) in new section 10A(1) - and, given the intention to provide maximum flexibility for parents, it is difficult to understand the omission from Article 27 of an equivalent to new section 10A(1)(a). We consider Article 27 to be defectively drafted.

ARTICLES 6 AND 54

132. Sections 13 and 14 of the Registration Service Act 1953 require local authorities to maintain local registration schemes, which deal with such matters as the number and boundaries of registration districts and sub-districts in the authority's area, the number of registrars and superintendent registrars for the area and their remuneration and other terms of service. Article 6 of the proposed order would bring to an end the operation of local schemes in two stages. Paragraph (1) would end a scheme's provisions regarding remuneration and other terms of service of registration officers, while paragraph (2) would terminate its remaining provisions when, and to the extent that, the authority is required to begin to discharge its duties as a registration authority. Article 9(2) would repeal sections 13 and 14 so far as they relate to the registration of births and deaths. Article 54 provides for a scheme to continue to have effect notwithstanding the repeal of sections 13 and 14 but then substantially repeats Article 6(2). We asked the GRO to explain the relationship between Articles 6 and 54.

133. In its response the GRO explain that they intend to terminate the employment-related provisions of schemes (Article 6(1)) as soon as registration officers transfer to local authority employment (under Article 4)) but that the other provisions of schemes will need to continue until the time at which an authority is able to discharge its new duties as registration authority. It acknowledges that schemes will need to continue as regards the registration of marriages until future provision is made about that and that Articles 6(2) and 54(2) need amendment to ensure that they do not terminate the provisions of any local scheme so far as it relates to the registration of marriages. They add that sections 13 and 14 will need to remain in force until future provision is made about the registration of marriages and that this will be achieved by not bringing the repeal of sections 13 and 14 into force until then.[68]

134. We understand the broad intention here. But the GRO does not explain why it needs to duplicate the provision made by Article 6(2) in Article 54(2). Indeed, it is not clear why Article 54 is needed at all. The policy intention can be achieved by the staged commencement of Article 6. Article 9(2) could be commenced (or completely commenced) to coincide with the taking up of its duties as registration authority for births and deaths by the last local authority to do so. There would be no need for provision preserving sections 13 and 14 thereafter in respect of marriage registration as Article 9(2) does not repeal those sections in that respect. Alternatively, if the GRO wishes to bring Article 9(2) fully into force before the last local authority has taken up its new duties, Article 54 could be retained, but there would then appear to be no need for Article 6(2). We are not satisfied that the GRO has properly thought out these provisions of the order.

SCHEDULE 10

135. Article 35 of the proposed order requires the Registrar General to allow the inspection of any entry, or any information in an entry, which is not otherwise available if he is satisfied that the person wishing to inspect it is specified in Part 1 or 3 of Schedule 10 or has the permission of a person specified in Part 2 or 4 of that Schedule. The headings to Parts 1 and 2 of Schedule 10 respectively read -

"Persons who have access (other than to an annotation made under Article 11(2))

"Persons who may give consent to information being accessed (other than access to an annotation made under Article 11(2))."

136. In response to our enquiry the GRO confirmed that the words in brackets are intended to limit the right of access to information conferred by Article 35 and state that they did not think it necessary for these limitations to appear in Article 35 itself, although they acknowledge that the matter can be put beyond doubt by re-drafting.[69] In our view that should be done. We do not regard it as good drafting practice to seek to secure such an important limitation on the right of access to restricted information by way of the heading to the list of persons.

137. The first paragraph of Parts 1 and 2 of Schedule 10 specify (as a person who has, or may consent to, access to restricted information) "Any person the subject of an entry." This seemed to us to have the unintended effect of authorising everybody whose birth is registered to have unrestricted access to every other entry in the register. In their written evidence to us the GRO accept that the drafting could be simplified, but do not acknowledge the fundamental defect in the present drafting.

ARTICLE 63(5)(F)

138. Under sections 16 and 17 of the Births and Deaths Registration Act 1953 relatives of a deceased person are qualified informants for the purpose of registering the death. Section 41 of the Act defines "relative" as including a relative by marriage. Article 63(5)(f) would substitute a new definition incorporating the present one but adding a person who at the time of the deceased's death was living with the deceased as husband, wife or "unregistered civil partner." We asked the GRO to explain the meaning of the latter expression.

139. The GRO referred to the provision for registering a civil partnership under what was then the Civil Partnership Bill (now the Civil Partnership Act 2004) and the extension by that Act of the definition of relative in the 1953 Act to include a relative by registered civil partnership. They indicate that the term "unregistered civil partner" is intended to refer to a person living within a relationship with a person of the same or opposite sex but where the couple are neither married nor registered civil partners.[70] This would appear to include persons who would not be able to enter into a registered civil partnership under the 2004 Act.

140. We are clear that the meaning of the term "unregistered civil partner" is not self-evident and requires definition and that the failure to include a definition constitutes defective drafting.

Subordinate provisions

141. The GRO has proposed that Article 2(1) of the Order should designate provisions in Schedules 1 to 14 as subordinate provisions amendable by a subordinate provisions order subject to annulment by a resolution of either House of Parliament. In the introduction to Chapter 16 of the explanatory statement these designations are justified on the grounds that these provisions of the Order "relate mainly to matters of registration detail or to areas where it would be inappropriate to place the provisions in the draft Order itself."[71]

142. Although we do not disagree that the matters contained in Schedules 1 to 14 of the proposed Order are mainly concerned with procedural issues and the specification of matters of detail, which may be expected to need updating in the future and to that extent are appropriately designated subordinate provisions, we nevertheless consider that these details and procedures do significantly determine the nature of the registration process and the extent of the burden which civil registration imposes upon the public.

143. We asked the GRO to explain in each case why it proposed that these Schedules to the Order be amendable by Order subject to negative, rather than affirmative, resolution procedures. The answer given was that the use of the negative resolution procedure would be consistent with the existing powers for making subordinate legislation under the Births and Deaths Registration Act 1953 and the Registration Service Act 1953. These Acts provide for the Registrar General to make regulations subject to the approval of the Chancellor of the Exchequer. We consider that this answer fails adequately to justify the proposed use of the negative resolution procedure for amendments to all of the Schedules to the proposed Order.

144. We comment further on the GRO's proposals in respect of the procedure by which the subordinate provisions could be amended in the following paragraphs.

Schedule 1

145. The Schedule prescribes the means by which information may be given to the Registrar General in the registration of births and deaths. As the Schedule is presently written, it reflects the intention that the Registrar General receive information remotely by telephone or via the internet. We are content that such matters be designated a subordinate provision but, in view of their importance, we consider that the Schedule should be amendable by instrument subject to affirmative resolution.

Schedule 2

146. The second Schedule to the proposed Order would prescribe the information which the Registrar General may enter in the Register, including information which has been required and provided under the Population Statistics Act 1938, life events of British citizens which take place overseas and naturalisation records. We consider the power to specify that additional matters be entered in the Register should be exercisable by the Minister subject to affirmative resolution of the House.

Schedule 3

147. The Schedule prescribes the arrangements to be followed by the Registrar General and registration authorities at the registration of births, deaths and still-births, for updating birth records where the parents were not married to each other at the time of birth and initial registration. The provisions of the Schedule are based, with some amendments, on those currently contained in the Regulations made under Births and Deaths Registration Act 1953.

148. We consider it would be appropriate for Schedule 3 to be amendable by instrument subject to affirmative resolution, notwithstanding the extant powers under the Birth and Death Registration Act 1953 to amend the equivalent current procedures under the negative resolution procedure, on the grounds that the Schedule makes detailed requirements for important matters such as reference of deaths to the coroner by registration service officers.

Schedule 4

149. The Schedule supplies the text of the statutory Code of Practice to be followed by registration authorities. We agree that this is appropriately designated a subordinate provision and that it may justifiably be subject to amendment under the negative resolution procedure.

Schedule 5

150. This Schedule prescribes the level of fees which would be payable in various circumstances, including for accessing a record in the database, for issuing a printed copy of an entry in the Register and for the supply of the proposed new commemorative certificates of life events.

151. We consider that it would be appropriate for the level of fees to be amendable by order subject to negative resolution. The power to determine that activities and services should be subject to the charging of a fee should however be exercisable under the affirmative resolution procedure.

Schedule 6

152. The sixth Schedule specifies the details of a birth or still-birth which Health Service agencies will be required to supply to the Registrar General, and which will begin the process of birth registration and make it possible to confirm information supplied by those seeking to register the birth. We consider that the GRO's proposal for permitting future amendments to the Schedule is appropriate.

Schedule 7

153. Schedule 7 specifies that information in the Register which it is proposed may be amended due to a change of circumstance. It is proposed that this information shall be the name of a person who requests the change in his own birth entry and the name of a minor when requested by the person who has parental responsibility for the minor. The Schedule also specifies the evidence with which the Registrar General or a registration authority must be supplied before making such an amendment in the Register.

154. We consider that the amendment of information in the register is an important matter and that any alteration to Schedule 7 should be by affirmative resolution procedure.

Schedule 8

155. This Schedule prescribes information in the Register which is not to be made available for inspection by the public, including annotations which may be made to records under Article 11(2) (the so-called 'through-life' records) and particulars recorded under the Population Statistics Act 1938. We consider that the power to vary the information in the Register which is not made public should be exercised under the affirmative resolution procedure.

Schedule 9

156. The schedule prescribes those details in entries in the Register which are not to be made immediately available to the public. It would establish that information relating to the mother's, father's and informant's addresses (in relation to birth records) and address of a deceased person or informant or a deceased person's cause of death (in relation to death records) are to be withheld from full availability until the elapse of specified periods of time. It also provides that information collected under the Population Statistics Act 1938 shall not be publicly available until at least 100 years after the information was recorded.

157. Again, we consider these to be important matters and that this Schedule should be amendable by instrument subject to affirmative resolution.

Schedule 10

158. This Schedule prescribes those persons who would have a statutory right to access restricted information recorded in the Register (including links between records and annotations made to entries) and those who may grant consent for another person have access to that information. The GRO explains the proposed designation in the following way:

"Including such details as subordinate provisions would allow the list to be updated to reflect changing government policy and public needs."

159. We consider that Schedule 10 deals with important matters and should be amendable under the affirmative resolution procedure.

Schedule 11

160. This Schedule prescribes those purposes for which a certified copy of an entry may be supplied by the Registrar General or a registration authority. As we note at paragraph 114 the GRO aims to restrict the circumstances in which certified copies of entries may be produced and that, in time, it may wish to cease issuing such certificates entirely. We consider that a decision to bring to an end the power to issue certificates (by repealing the entries in Schedule 11) should not be taken without careful consideration, given that persons generally apply for certificates only where they are required to produce them by some external authority. In light of this, we consider that this Schedule should be amendable only under the affirmative resolution procedure.

Schedule 12

161. The Schedule prescribes information which the Registrar either may or must provide to certain persons or bodies. We consider that the Registrar General should not be required or permitted to make registration information (which in most instances falls into the category of information which would be restricted from full public availability) available to any person without due Parliamentary consideration being given to such a proposal. We therefore consider that this Schedule should be amendable by affirmative resolution procedure.

Schedule 13

162. Schedule 13 to the proposed Order prescribes the information to be supplied at the time of the registration of a, still-birth or death birth under the requirements of section 1 of the Population (Statistics) Act 1938. These particulars are currently specified at Schedule 1 to that Act; the purpose of prescribing them in a Schedule to this proposed Order instead is to make it easier to amend the information which individuals may be required to provide.

163. We do not consider that it would be appropriate for Ministers to be empowered to add new particulars to this Schedule by negative instrument, particularly as any person who did not furnish the information required in the Schedule could be subject to criminal prosecution. We recommend that the Schedule be amendable by instrument subject to affirmative resolution.

Schedule 14

164. This Schedule prescribes the information which, if the applicant so wishes, may be given in a certified copy of an entry in the present registers of deaths pending the transfer of the contents of those registers to the new register to be established by the Registrar General. It allows for certified copies to be issued which do not record the addresses of the deceased or the informants of the death and the cause of death. We agree that this schedule is appropriate for amendment under the negative resolution procedure.

Compatibility with membership of the European Union

165. The GRO did not address the issue of its proposal's compatibility with obligations arising from membership of the European Union in its explanatory statement. When we asked the GRO what account had been taken of obligations arising from membership of the European Union in drawing up its proposals we were assured that it maintains close contact with other member states and had "taken full account of the European dimension."[72]

166. We have found no reason to consider that the proposal is incompatible with any obligation arising from the United Kingdom's membership of the European Union.

Consultation

167. The GRO provides details of the consultation exercise on its proposals (at that time including proposals for reform of arrangements pertaining to the registration of marriage) in Chapter 4 of its explanatory statement. The 325 page consultation document, "Civil Registration: Delivering Vital Change", was published on 10 July 2003 and the period for consultation then ran for over 3 months until 24 October 2003. The consultation document was sent to a large number of organizations, which are listed in Appendix 1 of the explanatory statement. The document was also made available on three central government websites.[73] Paragraph 4.3 of the statement records that officials from the GRO met with "representatives of key stakeholders in local government, registration officers, archivists, genealogical community… to discuss a number of the proposals…" but details of the meetings are not given beyond that.

168. In response to a question, the GRO has confirmed that there were 3,383 responses to its consultation document. This is much the largest response to any consultation undertaken on any regulatory reform order proposal and the difficulty of summarising and considering such a large number of responses should not be underestimated. Chapter 20 of the explanatory statement provides a descriptive analysis of the responses, summarising general trends in responses to various elements under the GRO's usual 18 thematic headings. Chapter 21 of the statement is a summary of the government response to the consultation submissions, giving reasoning for the decision either to amend the proposals in the light of respondents views or to leave them unchanged notwithstanding the views expressed.

169. At our request, the GRO supplied our staff with a database containing all of the written responses in advance of the laying of the proposal itself before Parliament. GRO staff also met with our staff in order to explain the operation of this database and to assist them in their preparations for our scrutiny of the consultation responses and the management of the consultation programme. We are grateful to the GRO and its staff for their assistance with this aspect of our task.

170. It has been clear from the correspondence we have received from a number of interested parties that the consultation process has been a subject of concern to them. Some of those who have made submissions to us have argued that appropriate account has not been taken of their concerns, on the grounds that requests they made for an amendments to the proposals, which they consider reasonable and necessary, have not been adopted by the GRO. We have taken the view that the examples given by our correspondents might reasonably be seen as differing conclusions about aspects of the policy of the proposal, rather than amounting to failures to take appropriate account of consultees' views.

171. A number of those from whom the Committee has received written submissions about the proposal or who have been questioned in oral evidence have suggested that the consultation exercise was not as easy to participate in as it should have been for the reason that the consultation documents were very long and complex.[74] While the documents clearly were longer than is usual for an RRO, and the proposal itself was unusually complex (particularly in view of the fact that at consultation stage it had yet to be split into separate birth/death and marriage/civil partnership RRO proposals) this clearly did not prevent a very large number of people offering their views in writing. We understand from our consideration of responses to the consultation and from oral evidence given by representatives of the genealogical community that representative bodies and interest groups operating in that field themselves acted to summarise and disseminate details of the proposals and that some 2300 of the responses to the consultation were produced and submitted as result of these efforts.[75]

172. We accept that the fact and nature of these proposals is probably not widely known and it would be desirable for the public to understand them better. On the other hand, they relate to a subject on which many people would not concern themselves to be well-informed and yet everyone is affected and many people when made aware of the proposals, express clear views on them.

173. We agree that it is desirable for proposals such as this, which have a bearing on the duties and rights of all citizens, to receive wide publication and for the consultations on them to be made as easy as possible in which to participate. We consider that it would have been appropriate for this proposal to have been the subject of a summary paper issued with the full consultation document in order to make it easier for individuals to understand the proposals.

174. Subject to this point, we consider that the proposal has been the subject of adequate consultations and that appropriate account has been taken of them.

Costs and benefits

175. Chapters 17 of the explanatory statement describes the Minister's judgement of the effect of the proposal on savings and costs. Chapter 18 describes other beneficial effect which the Proposal is considered to have. A Regulatory Impact Assessment has also been prepared and laid before Parliament with the proposed Order and explanatory statement. This describes the effect the proposal is expected to have on informants, on the registration service and on others who have a business or personal interest in civil registration information or processes.

176. The GRO considers that the new electronic registration system which it proposes to introduce will have the benefits of being more streamlined, efficient and easier to administer than the currently existing civil registration system. In addition to the expected benefits for the government and for the specific authorities which would required to operate the revised arrangements, it is argued that the system would be more convenient for members of the public, who would be able to register in new ways. It also stated that the system would lead to financial and other savings for individuals who would not have to present evidence of their life events when conforming their entitlement or accessing a service.

177. The GRO has indicated that the Government would meet the costs of establishing the new database from the Exchequer; costs of establishing the proposed 'through-life' records would also be met from central funds but these costs would be offset by payments from government and other bodies which would pay to use the information. It is asserted that, over time, the costs to the public purse should reduce although no cost forecast or quantification is given.

178. Paragraph 17.8.1 of the explanatory statement states that the establishment of facilities for data exchange between those bodies, including government GROs, which need to use and verify registration information about individuals as part of their business will result in long term savings for those bodies, notwithstanding the costs of accessing the database and, where relevant, obtaining the consent of the data subject to access. It is said in the subsequent paragraph that the costs of accessing the database will be less than the current cost of purchasing certificates.

179. Paragraph 17.10 addresses the financial impact of the proposal on the use of historic records. In addition to savings which may arise in relation to the less costly way in which the information these contain will be made available to users, we also note the likelihood (it is not said to be more than that) that the digitisation of historic records would be taken forward by the "not for profit sector or other interested party" and the suggestion that this would mean this process of archive to electronic transcription would be accomplished at no cost to the public purse.

180. In general terms, the GRO has identified the benefits it expects to arise from its proposal as being improvements in efficiency and a move to a more 'modern' civil registration process. Its explanatory statement does not record any estimates of costs in relation to the implementation of the proposal or of savings which might be expected to be achieved. Clearly, costs to be borne by individuals in relation to the registration of life events are very difficult to quantify. Meaningful forecasts of savings and costs are only possible in relation to the structuring and organization of the Civil Registration Service itself.

181. The Regulatory Impact Assessment includes some cost analysis of the provisions in the proposal. This records that it is estimated the data base would cost the Exchequer around £5 million to establish and the conversion of the extant records of the 'active population' around £20 million more. It further records the view that, because local authorities will have been the beneficiaries of Central funding to meet e-government targets, it is expected that only marginal costs will arise for local authorities across England and Wales in the establishment of electronic access arrangements to the database for their staff and customers.

182. Paragraph 3.6.1 of the RIA records that costs of £¹/₂ million are anticipated in staff training in the use of the new registration system software and for the production of written guidance material for staff. It also refers to a recognised need publicity about implementation and to adapt current information and advice materials, estimated together at £¹/₄ million.

183. The overall judgement given in the introduction to the RIA is that the proposal may lead, 5 years after introduction to reductions in income of £8 million (50%) to local registration service providers and of costs from £23 million to £16 million. These are said to be the maximum possible changes in costs/savings on the basis that efficient authorities should already have reduced their costs. It is also suggested that those local authorities which take steps to offer "additional replacement services" would be best placed to preserve their income streams from civil registration. When implementing such reforms, we expect the Government to ensure that the balance of net benefits between centrally and locally provided services is fair.

184. Our written questions 74 to 82 and 114 to 117 were designed to test the robustness of the estimated supplied in the RIA, which amounted overall to projected reductions in income after 5 years of £8 million (50% of current revenue) to existing local registration service providers and in costs from £23 million to £16 million.

185. The answer to written question 82 explicitly comments on the assumptions which have led to these broad estimates. The answer given to this question indicates an outline of the methodology and states that certain assumptions have been made. In the light of the uncertainty which the GRO acknowledges in its answer, the answer acknowledges that the estimate of cost savings arising from its calculations gives a range of between £16 and £23 million p.a.

186. We consider that the answers we have received to our questions under this heading have often been vague and in some instances, considerations of commercial sensitivity have meant that we were unable to pursue with the GRO the assumptions with which were adopted in the development of some of their forecast cost figures.[76] Furthermore, where more information is supplied, as in the answer to our questions 75 and 116 about the underlying assumptions behind the projected cost of £5 million for the cost of developing the national database, these projections themselves appear to involve a number of contributing assumptions, which themselves are unexplained. We have felt a degree of unease in examining the answers to these questions; given the proven difficulty of managing major government IT projects, we would have considered it prudent for estimates of costs to offer final figures between a range of values, rather than predicting cost figures.

187. Our conclusions are that the GRO has endeavoured to establish working estimates of the costs and savings which might arise from the introductions of its legislative proposals but that such estimates are still subject to further refinement as development work on the actual database project and associated IT mechanisms continues. Given our conclusions about the inappropriateness of this proposal for introduction by Regulatory Reform Order we did not consider it was necessary for us to seek further evidence concerning the reliability of the estimates. However, we consider that these are questions which the House may wish to pursue should further legislative proposals be brought forward.

Charges to be made to a public authority

188. In this instance, we note that the proposal would impose requirements for fees to be paid for various services or actions on the part of the registration service (specified in Schedule 5). We had no concerns about the level of fees proposed.

50 Explanatory statement, paragraph 11.8.3 Back

51 Explanatory statement, paragraph 11.8.3 Back

52 We also note that proposed restrictions on access to data in the Register would be subject to proposed discretionary powers for the Registrar General to release any information in the register to persons he considers appropriate in accordance with section 33 of the Data Protection Act 1998 (which allows for information to be provided for the purposes of research, history and statistics).This amounts to the exercise of a discretion by the Registrar General where there is no way of knowing in advance how he might choose to exercise that discretion in practice. We are concerned that had the proposed restriction been in place at the time, the pioneering research by Dr John Snow (1813-1858) into the cause of the cholera outbreak of 1854 in Soho would not have been possible. Back

53 Appendix F, Q12 Back

54 Q129 Back

55 Appendix J, Q114 Back

56 Appendix J, Q115 Back

57 Explanatory statement, paragraph 6.8.3 Back

58 Explanatory statement, section 6.12 Back

59 Ev 11 and Ev 20 respectively Back