APPENDIX F
Response from the General Register Office to the
Committee Specialist
Proposal for the Regulatory Reform (Registration
of Births and Deaths) (England and Wales) Order 2004: response
to request for information
Q6. Please explain what authorises the inclusion
of article 52 in the proposed order.
Section 1(6) of the Regulatory Reform Act 2001 (the
2001 Act) allows inclusion of provisions that are incidental or
supplemental. \in our view, article 52 is incidental or supplemental
to provision amending the Schedule to the Population Statistics
Act 1938
Q7. Please explain what authorises setting
at 12 months the maximum term of imprisonment on summary conviction
in article 53(2)(a).
The Criminal Justice Act 2003 section 282. This section
is not yet in force, but it was considered wise to take account
of it here.
Q8. 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?
At present there is no obligation either upon an
informant to produce evidence of identity or on a registration
officer to check identity. Our proposal to link each notification
from the NHS with a single entry in the Register provides a more
secure and robust means of ensuring that duplicate or fictitious
registrations are not made.
The issue of identity is particularly important for
birth registration where the parents are not married as the basic
principle of mutual acknowledgement of paternity needs to be maintained.
In practice this involves both parents giving the information
for the birth to be registered either together to the registrar
or for one to attend in person and the other to complete a statutory
declaration for production to the registrar. Though no identity
checks are carried out on informants currently, it is accepted
that the ability to register by remote means, such as via the
Internet, may increase the risk of a person being recorded as
the child's father without the element of mutual consent e.g.
the mother logs-on twice, first as herself then as the alleged
father.
The intention is to introduce registration by remote
means once the authentication framework currently being developed
within central Government to enable access to services becomes
available. Should this prove inappropriate for one-off transactions
such as registering a birth it may be necessary to provide an
alternative.
Q9. What criteria does the GRO expect to apply
in determining whether it would be appropriate to grant a given
organisation Authorised User status?
When developing criteria for appointing Authorised
Users, the overall aim would be to safeguard the privacy of individuals
and protect the security of registration information and of the
registration system. It would also aim to ensure the rights and
freedoms of individuals to obtain the services and benefits to
which they are entitled were maintained.
The following represent some of the criteria GRO
would expect to apply:
Demonstrable need to access the restricted
information in order to process applications/services that are
of benefit to the public,
Access required on a frequent, on-going basis,
Clear, robust and auditable process in place
for obtaining consent,
Secure IT systems in place.
In addition GRO would require an organisation wanting
to become an Authorised User to sign a contract or service level
agreement. This agreement is likely to include:
a confidentiality statement,
an agreement to abide by the legislative requirements
such as obtaining consent,
a commitment to keep an up-to-date list of
operators and to ensure their adherence to the terms of the contract,
an undertaking to allow inspections/audits
aimed at ensuring compliance with the legislation and/or service
level agreement,
a statement agreeing to ensure the security
of any technical facilities allowing them access to the restricted
data.
These arrangements apply only to Authorised Users
and not, for example, to those persons authorised to conduct ethically
approved research.
Q10. 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?
It is intended to issue Authorised Users with technical
facilities to allow them to access the restricted information
directly on the database. Those technical facilities are likely
to include a log-on identity/username and a password. Individual
operators within an organisation would have their own usernames
to provide additional security. Approved Authorised Users would
obtain access to the full entry as captured on the database, but
that access would be on a 'read only' basis. The system would
provide further reassurance (via an audit trail) that an Authorised
User had accessed only restricted information for those records
for which the necessary consent has been obtained.
Q11. 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?
The intention of the proposed discretionary power
is to give the Registrar General some flexibility to update a
person's birth record in the absence of the more common forms
of evidence specified in Schedule 7. It is expected that the person
requesting the update would present evidence to confirm that the
change they wish to record had taken place. These powers would
allow social inclusion and prevent those who, for one reason or
another, cannot present a deed poll, statutory declaration, etc
from being prevented from updating their birth record. The Registrar
General would have to be satisfied as to the circumstances of
the change before authorising the update, thus providing a safeguard
to the integrity of the records.
Q12. 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?
The proposals would provide a consistent minimum
level of service while allowing local authorities discretion to
provide enhanced services if they wish to.
Transferring responsibility for face to face services
to local authorities is designed to allow better management and
'joining up' with other local authority services subject to compliance
with National Minimum Standards (NMS).
Opening hours and other NMS will need to reflect
guidance provided by the Registrar General. This guidance would
state that registration services should be available for times
that the Council has determined that its main services will be
available.
The philosophy behind the proposed RRO is one of
minimum prescription and this is a good example of the application
of that principle. NMS have been designed to allow local registration
services flexibility to tailor services to their own requirements.
Nonetheless the local authority is required to publish, for example,
the opening hours and places where the service will be available.
A local Registration Authority would be required
to consult with the public on accessibility issues and to take
the views of the public into account when setting access times.
It is also proposed that an authority should be able to evidence
that they have done so.
Q13. 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?
The point about including a person's nephews and
nieces on the list of those entitled to access the restricted
information is a valid one and worthy of further consideration.
Q14. 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?
The main concern of those affected by adoption who
responded to 'Civil Registration: Delivering Vital Change' was
that restricting access to certain registration information would
significantly impact upon the ability of adopted people and birth
relatives to trace each other and establish contact. This right
is encompassed in the Adoption and Children Act 2002 (the 2002
Act) and other legislation. Specifically, section 98 of the 2002
Act provides birth relatives with a statutory right to ask a registered
Adoption Support Agency (ASA) to provide an intermediary service,
ie to trace and contact an adopted adult and seek their consent
to renewed contact/communication with a birth relative.
Responses received from adoption groups stated that
if a registered ASA was unable to have access to full registration
records relating to an adopted person (i.e. birth, marriage and
death records), it would seriously disadvantage the work the ASA
can do in seeking to trace the adopted person. Therefore, it would
infringe the birth relative's right to a service under section
98 of the 2002 Act. The intention of the 2002 Act is that registered
ASAs should be able to access a wide range of information from
the Registrar General, adoption agencies and the courts in order
to be able to effectively trace and facilitate contact between
adopted persons and their birth relatives.
Paragraph 4(2) of Part 1 of Schedule 10 provides
for registered ASAs to access the restricted information where
they have been asked to act as intermediaries. It is envisaged
that ASAs would be required to present to GRO some confirmation
or evidence that they were searching for a specific person before
being given access to the restricted information. They may also
be asked to sign an agreement along the lines of Authorised Users
stating that they would only access records directly relating
to the person they were tracing.
GRO may also consider asking applicants purporting
to be adopted and wishing to access the restricted information
to verify the fact of their adoption. One way to do this might
be to verify the record directly on the Adopted Children Register.
Following this verification, adopted people would be able to access
the restricted information on records to allow them to trace birth
relatives.
Q15. 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.
GRO would have to consider the development of its
own authentication framework if the proposed pan-Government arrangements
are not in place when the proposed Order is brought into effect.
It is intended to use existing models as the basis for developing
this framework. Representatives from the local registration authorities
would be involved in the development and quality assurance of
any verification or authentication protocol.
Any framework for establishing an applicant's entitlement
to access the restricted information might involve the presentation
of a package of documents or the provision of another personal
identifier that can be verified. The 'package' of documentation
would deliver both some flexibility to those proving their entitlement
and assurance to those confirming the entitlement. A 'package'
of documentation would be better at maintaining the necessary
protection and people's rights and freedoms that the reliance
on one specific document.
It is expected that the entitlement framework would
be fully in place before the proposed Order is brought into effect.
Q16. 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?
No. Paragraph 3(g) of part 1 of Schedule 10 allows
a properly appointed representative to have access to the restricted
information. Paragraph 4 of part 2 of that same Schedule allows
a properly appointed representative to give consent to others
to access the restricted information. If the deceased left a will,
the executor could be considered as a properly appointed representative
and would be able to give consent as necessary. In cases of intestacy,
a solicitor may be able to act as a properly appointed representative
and therefore give consent.
Q17. 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?
It is recognised that the administration of estates
can be difficult in some circumstance even now, such as for example,
where the deceased was intestate. In these cases, it is not always
possible to trace living relatives. GRO accepts that that difficulty
could persist in a small number of cases under the new system
and with it, the implications for the administration of those
estates.
It should be borne in mind, however, that the information
that it is proposed to restrict would only be addresses on birth
records and addresses and cause of death on death records. The
proposed system would allow, and indeed make it easier, to search
for the records of the living relatives of the deceased. Addresses
in registration records are not current or kept up-to-date. Other
sources of address information could be used to help trace individuals
who have been identified as possible relatives.
Q18. Why is it considered necessary to make
the provision of postcode and occupational details mandatory?
When existing legislation was introduced, postcode
was not considered part of the address. As its use became more
common, it was recorded on a voluntary basis to help avoid confusion
between similar addresses. However, it is now a key component
of all address referencing systems. Together with house number
or a comparable dwelling identifier it provides a unique and precise
geographic location for the address. This is needed for most modern
electronic systems. In particular, for statistical systems it
is essential to ensure accuracy in assigning registered events
to specific geographic locations. This is used for public health
purposes in small area mapping and more generally in correctly
assigning events to administrative areas that may change over
time. This is important in correctly calculating birth and death
rates and population estimates for planning, monitoring and resource
allocation purposes.
Under current legislation recording of occupation
is mandatory, principally requiring the recording of job title.
For statistical purposes, in classifying jobs and persons by reference
to their economic activity, further distinct concepts are generally
recognised to require separate measurement (see Standard Occupational
Classification 2000). The use of status in employment and
industry are currently voluntary items at event registration,
but are required in collections such as the Census of Population.
It is only with occupation and employment status, together
with establishment size, that a National Statistics Socio-Economic
Classification code can be fully assigned. This is necessary
to ensure comparability across statistical sources, so as to adequately
ensure the quality of statistics used in monitoring public health
(e.g. health inequalities and the proper separation of occupational
and social determinants of mortality) and social exclusion (e.g.
deprivation indices).
Q19. 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?
As indicated in answer to Q18, information is currently
collected on a mandatory basis on occupation and on a voluntary
basis on industry and status in employment. All these will in
future be mandatory. As indicated, establishment size is needed
to fully assign National Statistics Socio-Economic Classification
in a form that is comparable with sources such as the Census of
Population. It is equally recognised that the circumstances in
which registration takes place means that more limited information
is available on employer than can be obtained in other circumstances.
For this reason, it is proposed that the recording will be introduced
initially on a pilot basis, to ensure that the form of question
used is acceptable and provides meaningful information. Subject
to successful piloting, it is proposed to introduce the item by
means of a subordinate provisions order.
Q20. 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?
The Office for National Statistics is a non-ministerial
government department created in 1996. Functions may be conferred
on it by legislation or by an exercise of the Royal prerogative.
The limitations that apply in conferring those functions are the
limitations common to the exercise of such powers generally.
Q21. Please define the meaning of "any
person or body having functions of a public nature".
This has been left undefined since it may need to
cover a number of authorities in a number of jurisdictions. The
phrase was adapted from the s.6(3) of the Human Rights Act 1998.
Q22. 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?
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.
In addition, article 40 provides for the issue of
paper copies of entries in the national database. These paper
copies would not have any evidential value but could be of use
for purposes not covered by Schedule 11, for example for genealogical
research.
Q23. 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.
In the past concerns have been expressed about the
Registrar General's power to collect statistical information voluntarily,
given that he already has express powers in the Population Statistics
Act 1938 to require it.
There are certain risks in collecting information
voluntarily (most obviously a low response rate) but the Registrar
General is happy to accept these risks and continue to collect
certain information volutarily (for example as a pilot for later
mandatory, national collection), provided he is satisfied he is
not acting outside his powers in doing so.
It was originally considered that a pilot scheme
of the type envisaged by article 52 would provide the Registrar
General with the power that he needed to regularise the collection
of information that had previously been collected voluntarily.
The Registrar General will give immediate attention to whether
he has the powers to do what he wants to be able to and whether
it can be achieved by an amended provision.
Q24. In paragraphs (5) and (6) of Article
1 should not the references to paragraph (2) be to paragraph
(3)?
Agreed.
Q25. Explain the meaning and effect of "in
any such case" at the beginning of paragraph (6)(b) of Article
1.
These words are intended to put beyond doubt that
the power in paragraph (b) may be exercised in conjunction with
any power in paragraph (a).
Q26. In paragraph (2) of Article 6 should
the reference to article 1(2) be to article 1(4)?
Agreed.
Q27. Paragraph (3)(b) of Article 16 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)?
Agreed.
Q28. Should paragraph (9) of Article 16 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))?
The GRO agrees that the proposals in articles 16(9)
and 19(8) should be consistent. As the manner of registration
is contained in schedule 3 these articles will be amended to provide
for the removal the words "…and in such manner and"
from subsection (1) of section 7 and subsection (1) of section
21 of the Births and Deaths Registration Act 1953. The power of
the Registrar General to prescribe conditions for the registration
of a birth or death more than twelve months from the date of the
event would be retained.
Q29. In new paragraph (ba) of section 16(3)
of the Births and Deaths Registration Act 1953 inserted by paragraph
(3)(b)(i) of Article 19 should the reference to "paragraph
(a)" be to paragraph (ba)?
Agreed.
Q30. In paragraph (3)(b)(iii) of Article 19
verify the reference to paragraph (g).
The reference to paragraph (g) needs to be removed.
Q31. 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) of Article 20
(compare the substitution made by paragraph (4)).
It would be appropriate for Article 20 paragraph
(4) to also introduce the wording "as the case may be".
It is envisaged that coroners' forms will continue to be sent
locally until such time as these can be transmitted electronically
to the central database. It is not proposed that a coroner may
choose to send his notification either to a local registration
authority or the Registrar General.
Q32. In paragraph (2) of Article 24 should
the reference to article 27 be to article 26?
No. Article 26 follows on from article 25(b)(ii)
and specifies the evidence that is required to support a correction
of the identity of the father in an entry.
Q33. Why does paragraph (1) of Article 27
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))?
The new section 10(1AB)(a) of the Births and Deaths
Registration Act 1953 (the 1953 Act), as inserted by article 16(11)(a)
of the draft Order, relates to the initial registration of a birth
of a child whose parents were not married. It provides for the
inclusion of the father's details in some circumstances. Article
27 of the draft Order relates to the amending or updating of a
still-birth record where the parents of the still-born child are
not married. In this respect, it reflects the new provision 10A(b)
of the 1953 Act as inserted by article 16(13)(a) of the draft
Order.
Section 10A(b) does not apply to still-birth. The
provision in article 27 was introduced to give the unmarried parents
of a still-born child the same rights as the unmarried parents
of a child born alive to update the birth record to include the
father's details.
Although article 27 does not specifically provide
for the unmarried parents of the still-born child to request jointly
an amendment to a still-birth record, it does not preclude them
from doing so. Article 27(a) provides for each parent to request
the amendment. These requests could be made jointly. The provision
was drafted to allow maximum flexibility to the parents of a still-born
child and recognises that still-births are particularly sensitive
Q34. In paragraph (1)(a), (b) and (c) of Article
27 should "the registration authority" read "any
[a] registration authority" (compare new section 10(1AB)(b),
(c) and (d))?
The references in (a)(b) and (c) are to "The
registration authority" because of the previous reference
(line 3) to "a registration authority". This is not
quite the same as in the new section 10(1AB)(b),(c) and (d), because
in section 10(1AB) there had not been a previous reference to
"a registration authority".
Q35. In Article 46 should the reference to
article 41 be to article 40?
Agreed.
Q36. Paragraph (2)(a) of Article 51 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)?
No. The reference should be to article 18.
Q37. Explain the relationship between article
54 and article 6 and how each is intended to operate.
The policy intention behind these provisions is to
repeal employment-related provisions in local schemes as soon
as registration officers become local authority employees. Other
parts of the scheme will remain in force. Thus, the provisions
of the scheme relating to births and deaths will need to remain
in force until such time as a local authority is able to discharge
its new functions by using the new computer database.
The provisions of the scheme relating to marriages
will need to remain in force until such time as the corresponding
Regulatory Reform Order relating to marriage is introduced and
in force.
It is accepted that Articles 6 and 54 may not have
properly captured the policy intention. It is believed that could
be done by amending article 6(2) so that it says "...........shall
cease to have effect as regards births and deaths, when, and to
the extent that........".
It will be necessary to keep in force sections 13
and 14 of the Registration Service Act 1953 until such time as
the new provisions relating to marriages are in force. That would
be done by not bringing the repeal of those two sections into
force until such time as the Marriages Order was in force.
Q38. In paragraph 18(1) of Schedule 3 should
not the reference to paragraph 16 be to paragraph 17?
Agreed.
Q39. In paragraph 18(4) of Schedule 3 should
not "Regulation" read "paragraph"?
Agreed.
Q40. In paragraph 20(5) of Schedule 3 should
not "Regulation 16,17…or 18" read "paragraph
"17, 18….or 19"?
Agreed.
Q41. In paragraph 21 of Schedule 3 -
(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?
(1) The wording is taken from the Births and Deaths
Registration Act 1926 in which the term "burial ground"
is used in reference to a still-birth but not in respect of a
death. In the case of a still-birth the burial may take place
other than in a burial ground. If the burial is to take place
other than in a burial ground no certificate for disposal is issuable.
No distinction is made for deaths as all burials in respect of
deaths must be in a burial ground.
(2) Paragraph 15(a) uses the term "case"
as "still-birth" would be inappropriate due to the fact
that coroners have no jurisdiction in regard to still-births.
Alleged still-births are reported to the coroner only where there
is reason to suspect that the child may have been born alive.
With regard to paragraph 15(b), again the term "case"
is used as this refers to a purported still-birth but which may
have been a birth and death. Reference to an inquest in paragraph
15(2) would be inappropriate as an inquest may be held in respect
of a death only.
(3) The department agrees that paragraph (b) is not
drafted in plain English. This paragraph uses the current wording
in Regulation 49(2)(b) of the Registration of Births and Deaths
Regulations 1987 (SI 1987/2088). The opportunity will be taken
to re-word this paragraph.
Q42. In the paragraph in Schedule 4 headed
"Consultation and Planning" should delivery of modes"
read "modes of delivery"?
Agreed.
Q43. In the paragraph in Schedule 4 headed
"IT" why are the initials "GRO" not explained?
This is an oversight - it will be amended.
The paragraph might better read:-
'A registration authority must provide appropriate
hardware, software and communications links to allow reliable
access to the central national database through the use of applications
software provided by the Registrar General and an appropriate
level of technical support to ensure a high standard of local
systems availability.'
Q44. In Part 2 of Schedule 9 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?
The references should be to 23, 24 or 28.
Q45. 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.
The various expressions are those used in the different
legislation to which references are made.
Q47. Are the words in brackets in the titles
to Parts 1 and 2 of Schedule 10 intended to limit the entitlement
otherwise arising under article 35(1)? If so, should those limitations
not appear in article 35 itself?
We did not take the view that this was necessary
but the matter can be put beyond doubt by re-drafting.
Q48. In paragraphs 1, 2 and 3 of Part 1 and
in each paragraph of Part 2 of Schedule 10 should not "an
entry" read "the entry"?
In our view, it would be simpler to say "The
subject of the entry" in paragraph 1 and to make appropriate
alternation in the following paragraphs.
Q49. Explain the meaning of "properly
appointed representative" in paragraph 3 (g) of Part 1 and
paragraph 4 of Part 2 of Schedule 10.
This has been left undefined since it may need to
cover a number of methods of appointment from a number of countries.
Any decision that a person was or was not a properly appointed
representative would be subject to general administrative law
principles, that is, it would have to be a reasonable decision
and would be challengeable. A "properly appointed representative"
could include, amongst others, a solicitor or an executor.
Q50. In paragraph 3 of Part 3 of Schedule
10 should the words "another, identified entry in the register"
read "the entry"?
No. This provision is intended to cover situation
where a person giving information concerning a death confirms
information concerning the birth of the deceased so that the two
records can be linked. Under this provision, that person would
subsequently have access to the linking information or annotation.
Q51. 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 of Schedule 12.
There is no need for these words. They will be deleted.
Q52. In paragraph 10 of Part 1 of Schedule
12 should not "death of death" read "date of death"?
Agreed.
Q53. In paragraph 2 of Part 2 of Schedule
12 should the words "under functions" be omitted?
Agreed.
Q54. Please explain why the GRO has laid before
the House a proposed Order which contains so many defects.
It is accepted that the draft Order contains a number
of incorrect cross-references for which the Registrar General
apologises. These came about through changes late in the development
of the draft Order and ought to have been picked up at the time
the changes were made.
The intention of other aspects of the drafting the
Committee has questioned has been explained and consideration
will of course be given to any further comments received.
Not all the matters described in questions 24-53
can properly be described as "defects". Many reflect
deliberate drafting, though the Committee's comments on the clarity
of the drafting are most welcome.
Q55. 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?
The Audit Commission is an independent body and would
determine itself the scope and nature of routine inspections of
Registration services. It is proposed to develop a framework for
self certification (by the local registration authority) and system
based checks that would identify problems with services in particular
authorities. Problems would be handled within the framework of
a relationship protocol agreed with the Registrar General, the
Audit Commission and local authority representatives. This will
be established under administrative arrangements. No additional
statutory arrangements are proposed.
Under the Audit Commission Act 1998, the Audit Commission
appoints auditors to audit the accounts of local authorities.
This Act, together with the Accounts and Audit Regulations 2003,
provide the legislative basis for the audit framework in relation
to these bodies.
Under section 10 of the Local Government Act 1999,
the Commission has a power to carry out the inspection of a "best
value" authority's compliance with Part 1 of that Act.
Under section 3 of that Act, best value authorities are under
a general duty to make arrangements to secure continuous improvement
in the way in which their functions are exercised, having regard
to economy, efficiency and effectiveness. In circumstances where
a local authority assumes the responsibility for the discharge
of certain functions - in this case those relating to civil registration
- such functions will fall within section 10.
This is consistent with the current government policy
framework for Inspection regimes.
Q56. 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?
Ministerial responsibility for the registration service
rests with the Financial Secretary to the Treasury (FST). The
Registrar General would bring to the attention of the FST or where
appropriate, the National Assembly for Wales, any problems that
emerge within the framework outlined above. There would be ongoing
monitoring of each authority by the Registrar General primarily
from system provided management and performance information.
It is important to ensure that the Registrar General
is consulted in any case involving registration matters that the
Audit Commission (or Audit Commission in Wales) wish to raise
with a local authority. Where intervention under s.15 of the
Local Government Act 1999 was required this would be precipitated
by the Audit Commission.
Q57. 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.
The Cabinet Office's Statement of Practice on Staff
Transfers within the Public Sector (the Statement) has provided
the framework for taking forward the proposal to transfer these
statutory post holders to local authority employment and for designing
the legislative mechanisms for implementing that transfer.
The Registrar General does not have a remit to override
the provisions set out in the Statement. The Statement provides
guidance to local authorities but is not prescriptive. Local authorities
are for instance required to have regard to their Best Value responsibility
in determining the extent to which they would comply with its
provisions.
The Statement says that 'the Personnel and Human
Resources Panel of the Local Government Association (LGA) has
recommended adoption of the principles expounded therein to all
member authorities.'
The Registrar General has been monitoring the preparedness
of local registration authorities and, to date, there has been
no formal indication of any unwillingness of an authority to accept
the principles set out in the Statement or reluctance to consult
with staff representative bodies.
LACORS (the Local Authority Co-ordinators of Regulatory
Services) work closely with the registration service on behalf
of local authorities and would follow the LGA's given commitment
to the principles set out in the Statement.
It would not be appropriate for the Registrar General
to make agreements for the transferred staff - he does not employ
or represent them.
Q58. 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.
The Statement states 'The Government expects...
other public body organisations to follow this Statement of Practice'.
It stipulates that local authorities must have regard to their
Best Value duties. All of this leads to the conclusion that it
was not appropriate to attempt to institute compulsory arrangements
(on consultation) where it was Government policy that in relation
to local authorities that the obligation should not be a statutory
one.
Nonetheless it is intended that local authorities
should follow the available guidance and proceed as if TUPE did
apply to this transfer. TUPE requires consultation, and thus the
Registrar General considers that local authorities should consult
with staff representatives on the transfer.
Both the Office of the Deputy Prime Minister and
the Employers' Organisation were consulted about these proposals.
The Registrar General has initiated consultation with staff representative
bodies and LACORS, a subsidiary organisation of the Local Government
Association and the Employers Organisation. For example the planning
milestones issued by the Registrar General to advise local authorities
on preparing for the proposed changes include 'prepare for
transfer of registration officers from statutory officer status
to local authority employees ( in consultation with UNISON as
appropriate. )'
Q59. 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.
Prior to the transfer the post holders will be paid
by the local authority that will also have determined the numbers,
grades and other employment conditions. In reality therefore article
4 is not a transfer but a normalisation of the employment condition
for the post holders that will bring benefits for those transferred
and the local authority.
A local authority will be under a legal obligation
to take into employment the existing post holders and those post-holders
will take with them the continuity of employment for the purposes
of unfair dismissal given by article 4(2)(b). In these circumstances,
it is believed that the risk of a local authority dismissing someone
for no reason other than the transfer is very low. It was concluded
that additional statutory provision would not be needed.
Moreover, given that Government policy is that local
authorities should be guided in these matters rather than legislated
upon(see the references to the Cabinet Office's Statement of Practice
on Staff Transfers in the Public Sector above), it was not felt
to be appropriate to provide specific provisions on this issue.
Q60. 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.
Currently, registers of births and deaths are required
to be paper documents. 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. There are two examples from recent legislation of other
registers maintained by the Registrar general - the Adopted Children
Register (s.82(2) of the Adoption and Children Act 2002 and the
Gender Recognition Register (paragraph 2(3) of Part I of Schedule
3 to the Gender Recognition Act 2004).
Q61. 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.
Section 7 of the Births and Deaths Registration Act
1953 provides that the Registrar General may authorise the registration
of a birth after twelve months. The conditions that apply to such
registrations are prescribed in regulations (the Registration
of Births and Deaths Regulations 1987). Thus, the proposal to
authorise a late registration without the need for a qualified
informant will be dealt with by amending regulations.
Q62. 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.
Article 16 paragraph (14)(a) provides for the removal
of the facility for a still-birth to be registered on the basis
of a declaration made by a parent by the removal of subsection
11(1)(b) of the Births and Deaths Registration Act 1953.
Q63. 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.
The powers of the Registrar General in section 21
of the Births and Deaths Registration Act 1953 are sufficient
to authorise the late registration of a death in the absence of
a qualified informant. As with the late registration of births
(see Q61), the conditions that apply to such registrations are
prescribed in regulations. It is acknowledged however that these
powers will be rarely used as it would be very unusual for a body
to be discovered more than a year after its death without the
death being referred to the coroner for investigation.
Q64. 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.
No. A person who is the subject of an entry in the
Parental Order Register would be able to access their own original
birth record if they were able to identify it in an index.
In addition, the Parental Order (Human Fertilisation
and Embryology) Regulations 1994 apply the provisions of adoption
legislation to parental orders. In paragraph 4(b) of Schedule
1 there is provision for the Registrar General to provide to a
person who is the subject of a parental order and who has attained
the age of 18 years, the information necessary for that person
to obtain a copy of their original birth record.
Q65. 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.
A person would not be informed that the information
supplied was an entry in the Parental Order Register (POR) and
not the original birth record.
The original birth entry contains a marginal note
stating that the entry was re-registered on the authority of the
Registrar General. There is nothing on a record from the POR to
indicate that it is a copy of an entry from that Register. An
entry in the POR is made following a court order and contains
no information about an informant.
Q66. 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.
The following is a synopsis of the plans in Scotland
and Northern Ireland for reform of their civil registration services
in respect of births and deaths. No information is included about
marriage law reform.
Scotland has a draft Registration Services (Scotland)
Bill on which it is hoped to go out to consultation next month.
The provisions contained in the draft Bill include:-
· Align
registration-district boundaries to those of local authorities.
· Allow
a birth or death occurring anywhere in Scotland to be registered
at any registration office in Scotland.
· Supply
automatically and electronically (for an appropriate charge) birth
and death details already visible publicly on the registers to
all other relevant government bodies, central and local.
· Allow
informants (for a fee) to be able to ask for wider notification
of births or deaths to nominated bodies outside the government
sector.
· Enable
third parties (for a fee) to ask GROS to notify them of the death
of a person if and when it occurs in Scotland.
· Allow
for the issue of an abbreviated certificate of death, excluding
cause-of-death information, if requested.
· Once
a no-longer-current register entry is available from GROS as on-line
image, to allow local registrars to issue an authenticated formal
extract on security paper (as distinct from an informal 'information'
copy of the imaged entry).
· GROS
to supply a change-of-name service at an earlier stage, with widespread
notifications.
· Allow
persons with Scots connections to record in Scotland's registers
births and deaths already properly registered in other countries
including England.
· When
sufficient protection against fraud can be given, to enable registration
on-line of births and deaths as an additional option to face-to-face
registration of births and deaths.
· Enable
the Registrar General to "register afresh" an existing
register entry to correct any information contained in the registers
which is proved to be false, such as following a decree by a court.
· In cases
where paternity has already been acknowledged, to devolve to local
registrars the existing power held by GROS to re-register a birth
to include the details of the child's parents' subsequent marriage.
· Allow
a person who held parental responsibilities and rights for a child
immediately prior to the death of a child to apply to re-register
that child's birth to include either the father's details or the
marriage of the parents. In the latter case, where paternity
had already been acknowledged, the power would be devolved also
to local registrars.
· Enable
the parents of a still-born child to apply to re-register the
child's still-birth entry to include either the father's details
or the parents' subsequent marriage. Applications would be made
either to the local registrar or to GROS.
· Amend
existing legislation for recording a forename or a change of forename
of a child under the age of 12 months so that only a person holding
parental responsibilities and rights in relation to the child
would be qualified to apply to do so.
· Insert
in legislation a new offence of giving false information to the
Registrar General or any person acting on his behalf. There is
an existing offence of giving false information to a district
registrar.
Northern Ireland has been taking forward work on
reviewing the whole scope of civil registration. This is broadly
in line with proposals for England and Wales, except that there
are no current plans to change the arrangement with local authorities
for the delivery of the service. A public consultation document
'Civil Registration in the 21st Century, Modernising a Vital Service'
was issued last year, seeking views on a wide range of service
issues and radical proposals. The responses were used to develop
proposals which officials are currently in the process of drawing
up for Ministerial consideration. It is currently expected that
final proposals will be brought forward in November 2004.
Identifying the differences (and similarities) between
proposals in the draft Order and those in Scotland and Northern
Ireland is difficult given that each jurisdiction has its own
legislation. If the Committee could indicate topics in which it
had a particular interest then the Registrar General will try
to make that information available.
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