APPENDIX A
Letter from the Committee Specialist to the General
Register Office dated 12 October 2004
Proposal for the Regulatory Reform (Registration
of Births and Deaths) (England and Wales) Order 2004: request
for information
Thank you for the helpful presentation which you
and your colleagues made today on the subject of this Regulatory
Reform Order proposal.
The Committee considered the proposal at its subsequent
meeting and resolved to seek your further comments on a number
of points. The issues which concern the Committee are set out
below, under the relevant categories for consideration in the
Regulatory Reform Act and the Committee's Standing Order.
In view of the implications which the issues raised
have for the further consideration of the proposal, the Committee
would find it helpful if it could consider your response to matters
under section 1 of this letter at its next meeting. Could I therefore
ask you to respond to questions 1 to 5
below by no later than noon on Monday, 18 October. It will be
helpful to have your response to the remaining questions in this
letter by Tuesday 26 October.
Questions for urgent response (by Monday 18
October)
Whether the proposals give rise to doubts whether
they are intra vires (S.O.141(6)(g))
Burdens and New Burdens on informants
1. Section 1 of the Regulatory Reform Act enables
Ministers to reform legislation which imposes burdens "affecting
persons in the carrying on of any activity."
2. Article 16(4) removes and replaces the present
duties on parents, occupiers of the place of birth, anyone present
at the birth, anyone having charge of the child and anyone finding
a still-born child to give particulars of the birth to the appropriate
registrar. Whilst these duties are in the nature of burdens, it
is not clear how they affect these persons "in the carrying
on of an activity." If they do not do so they cannot be reformed
by RRO. A similar point arises on article 16(7) and (14)(a). It
also arises on article 19(3), (4) and (6) in relation to deaths.
It also arises in relation to births and deaths on article 48(2).
Q 1 Please explain how the legislation which
would be affected by these provisions may be reformed by an order
under section 1 of the Regulatory Reform Act, given that the burdens
it imposes do not appear to affect persons in the carrying on
of any activity.
3. A related difficulty arises over the imposition
of new burdens on informants. Section 1(1)(c) of the RRA allows
a RRO to impose a new burden which "affects any person in
the carrying on of the activity." "The activity"
seems to refer to that carried on by those affected by the existing
burdens. If the existing burdens on informants do not affect them
in the carrying of an activity, then new burdens on them cannot
affect them in the carrying on of that activity. Article 10 imposes
new burdens on informants (by limiting the ways in which informants
can provide registration particulars). It is not clear how this
falls within the section 1(1)(c). Similar questions arise on articles
15(1), 16(4), 19(3), (4) and (5) and 49.
Q 2 Please explain how the new burdens which
would be created by these provisions fall within section 1(1)(c)(i)
of the Regulatory Reform Act.
Burdens on Registrar General
4. Section 2(1) of the RRA provides that a burden
which affects only a Minister or government department is not
a burden for the purposes of the Act. The Order would remove a
number of burdens on the Registrar General. He is a statutory
office holder appointed by Her Majesty under section 1 of the
Registration Service Act 1953. The holder of that office is also
in practice head of the Office for National Statistics, which
is thought to be a government department.
Q 3 Can you confirm that burdens imposed on
the Registrar General are not burdens which affect only a government
department, so that the legislation which imposes those burdens
may be reformed by RRO?
General Issues of Policy
5. The Committee is required to report on whether
a proposal for an RRO is appropriate for delegated legislation.
The Committee is concerned to understand what relationship if
any exists between this proposal to establish an electronic register
of births and deaths and wider efforts by Government concerned
with verifying the identity of individuals. In this context it
notes that it is expected that one of the benefits for government,
business and individuals of the proposed new registration database
would be the effects it might have in preventing the problem of
identity fraud.
Q 4 What consideration has been given to making
use of the proposed registration database for the purposes of
verifying the identity of individuals, beyond that necessary for
the purposes of passport applications or benefit claims?
Q 5 Does the GRO expect that additional uses
for data held in the registration database might be identified
subsequent to the implementation of the proposed reforms and if
so, whether any legal constraint now exists or would be created
by the proposed Order which might impede the use of database information
for the purpose of detecting or preventing fraud and other kinds
of crime?
Other Questions (to be answered by Tuesday
26 October)
Whether the proposals give rise to doubts whether
they are intra vires (S.O. No. 141(6)(g))
Pilot schemes
6. Article 52 purports to confer power to include
various provisions in subordinate provisions orders. Section 4(4)
of the RRA states what a subordinate provisions order may do.
There is no power under the RRA to confer additional powers of
this kind.
Q 6 Please explain what authorises the inclusion
of article 52 in the proposed order.
Offences
7. Section 3(3)(b) of the RRA limits to 6 months
the maximum period of imprisonment which may be imposed on summary
conviction of a new offence created by a RRO. Article 53(2)(a)
provides that for a contravention of article 53(1) the maximum
period of imprisonment on summary conviction is 12 months. This
is clearly ultra vires.
Q 7 Please explain what authorises setting
at 12 months the maximum term of imprisonment on summary conviction
in article 53(2)(a).
Whether the proposal continues necessary protection
(S.O. No. 141(6)(c))
Authentication of the identity of informants
Q 8 How is it intended that the identity of
a person presenting themselves as an informant to a given registrable
event will be proved when such a person makes use of the proposed
telephone call-centre or internet registration facilities?
Authorised Users
8. The GRO has indicated in its explanatory statement
that those persons or organisations requiring frequent or bulk
access to registration records may be designated 'Authorised Users'
and be provided by the Registrar General with the necessary technical
facilities to access restricted data, where the necessary permissions
are given or access is otherwise permitted. The Committee has
noted that paragraphs 6.9.22 and 23 of the explanatory statement
suggest that bodies such as Government departments and agencies,
financial institutions and insurance companies would be among
those designated 'Authorised Users'.
Q 9 What criteria does the GRO expect to apply
in determining whether it would be appropriate to grant a given
organization Authorised User status?
Q 10 By what mechanism would restricted data
be made available to an Authorised User on the relevant data subject
or another qualified person granting the necessary consent?
Provisions for updating the register to record
changes in Circumstance
9. The Committee notes that Article 29 of the
proposed Order would establish a power for registration authorities
to change the name of a person in birth records where a person
requests this in respect of themselves or a minor for whom they
have parental responsibility and where documentary proof of a
change of circumstances is produced. Schedule 7 specifies such
forms of proof, including evidence of court orders, baptismal
records and of name changes effected by deed or statutory declaration.
The Registrar General would have a wider discretionary power
to amend the register where he is satisfied that it would be appropriate
to do so.
Q 11 In what circumstances does GRO believes
that the Registrar General might wish to make use of his proposed
discretionary powers to amend the birth record of a person in
the absence of any of the forms of evidence specified in Schedule
7?
Whether the proposals prevent any person from
continuing to exercise any right or freedom which he might reasonably
expect to continue to exercise (S.O. No. 141(6)(j))
Access to services
10. The Committee notes that the proposal provides
for the establishment of new facilities for the remote registration
of life events by telephone and internet and that it would require
that registration authorities continue to provide facilities for
face to face registration, with access issues, amongst other matters,
to be subject to the proposed statutory Code of Practice at Schedule
4.
Q 12 How does the GRO consider the proposal
provides for equality and consistency of access for users in all
parts of England and Wales, given that it will be for individual
registration authorities to determine the extent of provision
of registration services in their area and the proposed provisions
of the Code of Practice at Schedule 4 do not appear to make any
independent requirements of such authorities in respect of access?
Access to records
11. The Committee notes that the proposal contains
provisions to limit rights of access to certain information in
registration records unless specific conditions apply.
Q 13 For what reason is it proposed that Schedule
10 to the Order would to permit a person's uncles and aunts to
access that person's restricted data without consent but not to
permit the same rights of access to apply reciprocally in respect
of the same person wishing to examine records of their uncle or
aunt?
Q 14 Does the GRO consider any legal constraints
on access would apply under paragraph 4(2) of Part 1 of Schedule
10 to a person claiming to have been adopted and wishing to access
restricted information with a view to tracing their relatives?
Would such an adopted person have legal rights of free access
to any information in the register?
Q 15 In order to access restricted information,
any person will need either to have permission from a person qualified
to grant access or to prove that they are themselves qualified
under Part 1 of Schedule 10 to the proposed Order. Paragraph 6.9.28
of the explanatory statement says that such a person "will
need to provide proof of their identity and entitlement to that
information. The Government is likely to define what constitutes
acceptable proof of identity as part of its wider policy development".
Please indicate what steps have been taken so far towards the
elaboration of these verification protocols and whether these
would be fully in place before the proposed Order would be brought
into effect.
Q 16 Where death of an individual occurred
less than 25 years previously, and no next of kin could be identified
who could consent to the release of this information, would the
restricted information in the death record have to remain unavailable
to other persons until 25 years had passed?
Q 17 Does the GRO accept that the proposed
restrictions on the availability of registration information may,
in a small number of circumstances, make it impossible to identify
the living relatives of a deceased person and that in some instances
this is likely to have implications for the administration of
estates and if not, why not?
Rights concerning the provision and use of information
collected under the Population Statistics Act 1938
12. The Committee notes that it is proposed to
effect amendments to the Population Statistics Act 1938 which
would for the first time make it mandatory for individuals to
provide details of their postcode (in respect of the mother and
father of a child) and their occupation and industry (as regards
mother and father of a child or of a deceased person). In relation
to occupational information, paragraph 6.14.6 of the explanatory
statement notes that "currently, there is no specific form
of words for collecting this information. The questioning will
be framed so that it provides the full information (including
size of establishment) required for coding of the National Statistics
Socio-Economic Classification".
Q 18 Why is it considered necessary to make
the provision of postcode and occupational details mandatory?
Q 19 Given that the framing of the proposal
would give no legal basis to require information concerning matters
such as the size of establishment in which a person is employed,
on what basis does the GRO propose to require its staff and registration
authorities to seek these details?
Q 20 Under Article 41 of the proposed Order,
the Registrar General may use any information which comes into
his possession in that capacity in furtherance of any function
conferred on him in his capacity as administrative head of the
Office for National Statistics. By what mechanism are functions
so conferred and what limitations if any apply in law as to the
functions which may be conferred?
Rights to obtain certified copies of entries in
the register
13. The Committee notes that Article 39 and Schedule
11 of the proposed Order provide that the Registrar General or
a registration authority may issue certified copies of entries
in the register which record a birth or death where they are satisfied
that this is to be used in proceedings in any court or in "the
applicant's dealings with any person or body having functions
of a public nature".
Q 21 Please define the meaning of "any
person or body having functions of a public nature".
Q 22 Does the GRO consider that the proposed
powers in Schedule 11 give the Registrar General and registration
authorities sufficiently wide powers to issue certified copies
of entries to provide for all the legitimate needs of members
of the public?
Statistics
14. The Committee notes that paragraph 13.13.1
of the explanatory statement refers to the proposed new power
of the Registrar General to establish pilot schemes to test the
collection of new statistical information. It is said that participation
in such schemes would be entirely voluntary. Article 52 does
not appear to introduce a facility for the provision of any information
gathered under the Population Statistics Act 1938 to be voluntary
on the part of informants. Section 4(1) of that Act provides
that persons refusing to furnish information required under the
Act shall be liable to a fine on summary conviction.
Q 23 Please indicate how it would be possible
to run pilot schemes under the proposed Article 52 without there
being any obligation to provide information under the scheme imposed
on those selected for that purpose by the Registrar General.
Does the proposal require elucidation, is it
written in plain English or does it appear to be defectively drafted.
(S.O. No. 141(6)(h))
15 The Committee has noted a number of points
where it appears that the proposed Order may be defectively drafted.
These are identified below. Please indicate whether the GRO
agrees that the drafting is defective and should be amended as
suggested in each case.
Article 1
Q 24 In paragraphs (5) and (6) should not
the references to paragraph (2) be to paragraph (3)?
Q 25 Explain the meaning and effect of "in
any such case" at the beginning of paragraph (6)(b).
Article 6
Q 26 In paragraph (2) should the reference
to article 1(2) be to article 1(4)?
Article 16
Q 27 Paragraph (3)(b) inserts after subsection
(2)(a) of section 1 of the Births and Deaths Registration Act
1953 new paragraph (dd). Should the reference to subsection (2)(a)
be to subsection (2)(d) or should the new paragraph be numbered
(aa)?
Q 28 Should paragraph (9) also provide for
the omission from section 7 of the Births and Deaths Registration
Act 1953 of the words "and in such manner and subject to
such conditions as may be prescribed" (compare article 19(8))?
Article 19
Q 29 In new paragraph (ba) of section 16(3)
of the Births and Deaths Registration Act 1953 inserted by paragraph
(3)(b)(i) should the reference to "paragraph (a)" be
to paragraph (ba)?
Q 30 In paragraph (3)(b)(iii) verify the reference
to paragraph (g).
Article 20
Q 31 Explain the need for the words "as
the case may be" in the words substituted in section 16(4)(5)
and (7) of the Coroners Act 1988 by paragraph (3) (compare the
substitution made by paragraph (4)).
Article 24
Q 32 In paragraph (2) should the reference
to article 27 be to article 26?
Article 27
Q 33 Why does paragraph (1) make no provision
for requests for amendment of the register to be made jointly
by the parents (compare new section 10(1AB)(a) of the Births and
Deaths Registration Act 1953 inserted by article 16(11)(a))?
Q 34 In paragraph (1)(a), (b) and (c) should
"the registration authority" read "any [a] registration
authority" (compare new section 10(1AB)(b), (c) and (d))?
Article 46
Q 35 Should the reference to article 41 be
to article 40?
Article 51
Q 36 Paragraph (2)(a) refers to information
obtained "by virtue of article 17". That article merely
amends section 124 of the National Health Service Act 1977. Should
this paragraph not refer to that section (as amended)?
Article 54
Q 37 Explain the relationship between article
54 and article 6 and how each is intended to operate.
Schedule 3
Q 38 In paragraph 18(1) should not the reference
to paragraph 16 be to paragraph 17?
Q 39 In paragraph 18(4) should not "Regulation"
read "paragraph"?
Q 40 In paragraph 20(5) should not "Regulation
16,17…or 18" read "paragraph "17, 18….or
19"?
Q 41 In paragraph 21 -
(1) why are the words " a burial ground
in" not included before "England" (compare paragraph
15);
(2) why are sub-paragraphs (a) and (b)
differently worded from the corresponding sub-paragraphs in paragraph
15;and
(3) does the department agree that in the
context paragraph (b) is not drafted in plain English ?
Schedule 4
Q 42 In the paragraph headed "Consultation
and Planning" should "delivery of modes" read "modes
of delivery"?
Q 43 In the paragraph headed "IT"
why are the initials "GRO" not explained?
Schedule 9
Q 44 In Part 2 should not the references to
articles 22 and 23 be to articles 23 and 24 and should there not
also be a reference to article 28?
Q 45 The following expressions are variously
used in Schedule 9 -
"normal address"
"usual address"
"usual address or residence"
"usual residence"
"usual place of residence"
"address"
"home address"
"postal address"
"the address of usual residence".
Are some or all of them intended to bear the same
meaning? If so, why are different expressions used? If not, explain
the different meanings.
Schedule 10
Q 46 Article 35(1) requires the Registrar
General to make available for inspection any entry or information
in the register which is otherwise not available if he is satisfied
that the person wishing to inspect the entry or information is
specified in Part 1 or 3 of Schedule 10 or has the consent of
a person specified in Part 2 or 4 of that Schedule.
Q 47 Are the words in brackets in the titles
to Parts 1 and 2 intended to limit the entitlement otherwise arising
under article 35(1)? If so, should those limitations not appear
in article 35 itself?
Q 48 In paragraphs 1, 2 and 3 of Part 1 and
in each paragraph of Part 2 should not "an entry" read
"the entry"?
Q 49 Explain the meaning of "properly
appointed representative" in paragraph 3 (g) of Part 1 and
paragraph 4 of Part 2.
Q 50 In paragraph 3 of Part 3 should the words
"another, identified entry in the register" read "the
entry"?
Schedule 12
Q 51 Given the definition of "the register"
in article 1(7), explain the need for the words "kept under
section 1A of the Registration Service Act 1953" in paragraphs
4(b) and 6 of Part 1 and paragraph 2 of Part 2.
Q 52 In paragraph 10 of Part 1 should not
"death of death" read "date of death"?
Q 53 In paragraph 2 of Part 2 should the words
"under functions" be omitted?
16. In the light of the forgoing drafting points,
the Committee is concerned that the proposed Order has not been
prepared with the degree of care and attention which Parliament
is entitled to expect. Therefore:
Q 54 Please explain why the GRO has laid before
the House a proposed Order which contains so many defects.
General matters
Inspectorates
17. The explanatory statement refers at 10.16.3
to the creation of an independent Inspectorate which will help
ensure that minimum national standards are maintained when responsibility
for providing face to face registration services is passed to
local authorities. Section 6.17 of the statement describes the
present Inspectorate as being an administrative arm of the Registrar
General and states that it has been agreed in principle that this
role will in future be carried out by the Audit Commission and
the Audit Commission in Wales. Paragraph 6.17.6 refers to the
powers of the Secretary of State for the Office of the Deputy
Prime Minister under section 15 of the Local Government Act 1999,
which allow him to give directions to a local authority in circumstances
where it is found to be failing in any of its functions.
Q 55 How will the content of the work to be
carried out by the Audit Commissions as Inspector of registration
authorities be determined? Please specify whether any statutory
framework will apply to the setting of an appropriate audit framework
or whether the scope and form of the inspectorate function is
to be determined under administrative action, and if so, by whom?
Q 56 By what mechanism is it envisaged that
the Secretary of State for the Office of the Deputy Prime Minister
(and, in Wales, the Welsh Assembly Government) would receive notice
of a serious failure in the functioning of a registration authority?
Position of superintendent registrars and registrars
transferred into local authority employment
18. The Committee notes that it is not possible
for the Transfer of Undertakings (Protection of Employment) Regulations
1981 to apply in the case of functions and staff transferred under
Article 4 of the proposed Order because those staff have no legal
employer at present.
Q 57 Please confirm that the implementation
of these elements of the proposal will accord with the Cabinet
Office's Statement of Practice on Staff Transfers in the Public
Sector and indicate what agreements have been made with local
authorities over the application of this Statement of Practice
to office holders to be transferred into their employment under
the proposed Order.
Q 58 Please explain why the proposed Order
does not contain a requirement that each registration authority
consult with trade unions and affected staff on the management
of the transfer process and its expected impact on the delivery
of registration services.
Q 59 Please explain why the proposed Order
does not specifically provide that a member of staff is unfairly
dismissed where the fact of that person becoming an employee of
any registration authority is given as the reason for his dismissal.
Nature of the register
19. Article 9 of the proposed Order provides
that the Registrar General shall establish and maintain a register
in such a form as he may determine.
Q 60 Please explain why the Order has been
drafted so as to leave the form of the register unspecified (and
therefore the exact nature of the burden which its creation and
maintenance will constitute), notwithstanding the settled policy
intention for it to have the form of a computer database.
Issues arising from the explanatory statement
20. Paragraph 6.1.7 of the explanatory statement
says that there is need for the Registrar General to be given
a power to authorize birth registration where no suitably qualified
informant has been identified twelve months after a birth, provided
he believes there is sufficient evidence of the birth in question.
It appears to the Committee that provision is not made for this
in the proposed Order. It further appears that section 7 of the
Births and Deaths Registration Act 1953 already allows for the
Registrar General at his discretion to register such births.
Q 61 Please identify those provisions of the
proposed Order which give effect to the new power it is proposed
to give the Registrar General to authorize a late registration
of birth without the need for a qualified informant.
21. The explanatory statement states
at paragraph 6.2.4 that its proposed Order would remove a current
facility for a still-birth registration to be made on the basis
of a declaration by a parent that a child was still-born and that
such cases would be required to be referred to the coroner.
Q 62 Please identify where the proposed Order
makes provision the effect of which is to require that, in order
for a still-birth which took place without a registered medical
practitioner or midwife being present to be registered, the matter
must have been referred to the coroner.
22. Paragraph 6.3.9 of the explanatory statement
records that it is intended to provide the Registrar General with
a power to authorize the registration of death where a person
died more than 12 months prior to registration and no qualified
informant has come forward during that period. It appears to
the Committee that such a power already exists under section 21of
the Births and Deaths Registration Act 1953.
Q 63 Please indicate why the Registrar General
needs powers in addition to those granted by section 21 of the
Births and Deaths Registration Act 1953 to make registrations
of deaths after twelve months have passed and where no qualified
informant has been found and, if such a need is addressed in the
proposed Order, identify the provisions concerned.
23. The Committee notes that it is proposed that,
where a person is born as the result of a surrogacy arrangement
and is the subject of an entry in the Parental Order Register
maintained under the Human Fertilisation and Embryology Act 1990,
it is proposed that the Registrar General would link their birth
record in the register and POR record.
Q 64 Please indicate whether it is the case
that a person who is the subject of an entry in the Parental Order
Register maintained under the Human Fertilisation and Embryology
Act 1990 is not permitted to have access to their own original
birth record.
Q 65 Please indicate whether such a person
would be informed that information supplied from the register
in the manner of a birth record was drawn from the Parental Order
Register, i.e. was not an original birth record but a record of
a surrogacy arrangement.
Extent of the proposals application
Q 66 Please indicate what plans are currently
under consideration by the counterparts to the GRO in Scotland
and Northern Ireland for the modernisation of the civil registration
services in those jurisdictions and explain what differences,
if any, there are between this RRO proposal and reforms being
developed for Scotland and Northern Ireland.
12 October 2004
| 
