APPENDIX J
Response from the General Register Office to the
Committee Specialist dated 25 November 2004
Proposal for the Regulatory Reform (Registration
of Births and Deaths) (England and Wales) Order 2004: response
to request for information
Q109. The GRO states in its answer that "it
was considered wise to take account of" the amendment in
the proposal. This seems to assume that the maximum permissible
term should automatically be specified. Please indicate:-
a. what consideration was given to the setting
of an appropriate maximum penalty for the offences created by
article 53(1) and what consultation was undertaken about that
issue;
b. why it is considered that each of the offences
should carry the same maximum penalty;
c. whether it would be possible for a person unintentionally
to contravene paragraph (a) or (c) of article 53(1) and, if so,
why such a contravention should be made an offence and why it
should be subject to the same maximum penalty as an intentional
contravention.
"a. There was no specific consultation on
the level of penalties. The level of maximum penalty proposed
was set in the light of existing penalties such as those in the
Census Act 1920, the Computer Misuse Act 1990 and the Data Protection
Act 1998. In addition it reflects the specific nature of births
and deaths data and the particular need to protect it because
of the compulsory and universal input, public access to it and
its potential use. However, in paragraph 6.4.47 of Civil Registration:
Delivering Vital Change it was stated that there would be
a new offence associated with tampering with or damaging records
on the central database.
b. The nature of the data and the minimal risk
of unintentional access or modification suggest that all proposed
offences should be treated equally.
c. Our intention is that the system should prevent
the risk of unintentional access or modification. The offence
was not intended to be absolute and subject to the comment below,
consideration will be given to putting this beyond doubt in the
description of the offences.
Q110. Please explain what are "the limitations
common to the exercise of such powers generally"?
The phrase "common to the exercise of such powers
generally" was used to indicate that the same restrictions
apply to conferring additional functions on the Office for National
Statistics as apply to the conferring of additional functions
on government departments generally.
The re-allocation of existing functions by the Prime
Minister as part of his responsibility for the overall organisation
of the executive could result in additional functions being conferred
on the ONS. But this mechanism could only be used to confer functions
which already exist and are at the time functions of another government
department.
The Ministers of the Crown Act 1975, section 1, would
allow additional functions to be conferred on the ONS by a negative
resolution Order in Council (affirmative if the Order provides
for the dissolution of another government department). But again,
this mechanism could only be used to confer functions which already
exist and are at the time functions of another department.
Entirely new functions could be conferred on the
ONS by primary or secondary legislation. Those two mechanisms
would be subject to the usual Parliamentary processes.
Q111. As regards paragraph 3(g) of Part 1
of Schedule 10, since the appointment of a representative for
this purpose would seem to involve giving that person consent
to having access to the information which would be covered by
paragraph 1 of Part 2, would it be sufficient to confine paragraph
3(g) of Part 1 to persons legally authorised to act for a person
who has died or who lacks capacity to act? How much wider than
this does the GRO consider it is necessary to go for the purposes
of Part 2? Would it reduce the present uncertainty if paragraph
4 of Part 2 additionally referred to a person authorised by the
subject entry in writing?
With regard to paragraph 3(g) of Part 1 of Schedule
10, it would not be sufficient to confine the definition to persons
legally authorised to act for a person who has died or who lacks
capacity to act. The intention is that paragraph 3(g) would also
apply to a properly appointed representative of a living person
with the capacity to act. For example, it could be someone who
had been given power of attorney by the subject of the record.
Those representatives should have the authority to do the same
as the person who appointed them. As stated in the answer to Q49,
the term has been left undefined so as not to restrict its application
to persons appointed so to act under the law of other jurisdictions.
Given that it would be expected that a properly appointed
representative should be able to carry out the same functions
as the subject of the record, the extent of the powers given to
the subject and the representative should be the same in parts
1 and 2 of Schedule 10. GRO would envisage that a properly appointed
representative should be able to both access the restricted information
on behalf of the subject and give consent to others to so do.
It is expected that in the vast majority of cases,
there would be a written authority appointing the representative.
However, as mentioned before, it is the intention that the provisions
should encompass legal practices in other jurisdictions. For this
reason, the need for the authority to be in writing has not been
included.
Q112. In each case, please explain the reasons
for proposing that the Schedule be amendable by Order to be approved
under negative rather than affirmative resolution procedures.
The main reason for the proposed use of negative
resolution procedures is that it is consistent with the existing
powers for the making of subordinate legislation in the Births
and Deaths Registration Act 1953 (BDRA) and the Registration Service
Act 1953 (RSA). Both s.39 of BDRA and s.20 of RSA provides for
the Registrar General to make regulations subject to the approval
of the Chancellor of the Exchequer.
During his evidence on 2 November Stephen Timms agreed
that, given the importance of the introduction of the facilities
for on-line and telephone registration, it would be preferable
for anything specified in Schedule 1 of the draft Order to be
subject to affirmative resolution procedures.
Q113. Does the GRO consider the proposal is
compatible with the UK's obligations under European law on data
protection?
Yes, the GRO does consider the proposal is compatible
with the UK's obligations under European law on data protection
as well as with the Data Protection Act 1998.
Q114. Please indicate how the GRO considers
the quality of local service delivery will be maintained in the
absence of ring-faced grants once budgetary and managerial control
of local services is transferred to local authorities.
GRO acknowledges the importance of a properly funded
local service. In this respect the regime proposed allows local
authorities greater freedom to raise charges and to make efficiencies
( eg better deployment of staff and resources such as accommodation
). GRO is supporting local authorities in this by providing tools
to aid funding decisions and working proactively with them on
preparedness and implementation as has been reported elsewhere
in responses provided to the Committee.
It is implicit in the philosophy that underpins the
proposed changes that authorities would have discretion on funding
the service. Quality of service provided however would be underwritten
by the statutory requirement to meet national minimum standards.
Any failure to do so would be managed within the proposed compliance
and Best Value frameworks. In fact many respondents to the consultation
exercise felt that local authorities would be enabled to develop
the quality of local registration services to a greater extent
than previously. GRO expects the quality of local service delivery
will be at least maintained, and more generally improved as the
service becomes more tailored to meet local needs.
Q115. Please indicate whether the GRO has
considered ensuring an appropriate level of local service through
the inspection regime and, if so, what discussions have taken
place about this.
The prime external mechanism for ensuring an appropriate
level of local service will be the national minimum standards.
These are intended to provide a less prescriptive approach to
compliance that operates at the primary level within the authority
itself. Each authority is required to have governance and scrutiny
processes designed to monitor service performance against accepted
criteria, under existing legislative requirements.
Nonetheless, compliance with these national minimum
standards will be reinforced by monitoring of reports available
both from the management information provided by the database
system on each local authority and reports provided by every local
authority to the General Register Office.
Taken together with the Inspection processes described
previously in answer to question number 54, the proposals present
a rigorous and comprehensive response to the 'compliance challenge'
that reconciles Government policy to reduce the burden of Inspection
on local authorities with the legitimate need for the Registrar
General to be assured of satisfactory registration service provision
within each local authority.
GRO has held discussions with the Audit Commission
and with local authority representative bodies, on this approach
and will continue to do so.
Q116. Please indicate what sensitivity analysis
the GRO performed on figures supplied in answer to question 75,
what the excluded costs might amount to and whether the specification
will be finalized before contracts are let.
The figures supplied in answer to question 75 were
calculated following a ten week business scoping exercise led
by Xansa (one of ONS' strategic partners for the development of
information technology services). This was based on developing
the system from scratch and allowed us to factor in considerations
such as:
software development of the functional requirements
outlined in the Output Based Specification (OBS)
project management
data load of clean, correct data from identified
sources
the load of Welsh language translations provided
in appropriate formats
business involvement in the project
public access
access by private organisations.
We looked at development tolerances including contingency
to arrive at a figure of 7,500 man-days, which included a break-down
of all levels of staff, including programmers, system designers,
analysts, project managers and business managers.
Following extensive market research we believe that
we will achieve greater economies of scale by selecting a Commercial
off-the-shelf (COTS) package which is currently in use in the
Australia, Canada, USA, New Zealand or other territories. As it
is now intended to buy a COTS package we will not require the
cost of Rational hardware/software or the cost of ONS management
of Xansa. We will also not have to purchase additional desktop
equipment for Xansa development staff.
We anticipate technical testing, scaleability testing,
penetration testing and disaster recovery to cost in the order
of £250k. We are currently undertaking scaleability testing
in conjunction with the National Computer Centre (NCC) with the
three short-listed suppliers at a cost of approx £90k.
The OBS will be agreed and finalised with the selected
supplier and form part of the overall contract schedules i.e.
the supplier will be contractually committed to providing the
specification as agreed.
Q117. Please indicate what degree of criticality
the GRO attaches to the proposed on-line registration facilities,
what specific business continuity arrangements it is intended
to have in place and how much these arrangements are expected
to cost.
GRO considers the proposed on-line registration service
as critical and will ensure the robustness of the software application
and supporting technical infrastructure. We have specified performance
and response time criteria in the OBS and will include availability
and performance targets in the contract with the supplier. Availability
will be 24/7 and include full system back-up and disaster recovery.
Suppliers will face a service credit regime for failure to meet
availability and performance targets. Suppliers will also be responsible
for carrying out maintenance and upgrades to the system within
specified planned down-time.
On the rare occasion that a registration authority
is unable to access the database when an informant has come to
register a birth or death, it is proposed to rely on a fall-back
business continuity arrangement whereby details of the event can
be recorded on forms provided by the Registrar General. The record
would then be entered into the central register as soon as access
to the system is restored. Such an arrangement is provided for
at article 9(4) of the draft Order. The associated cost would
be minimal and the informant would not be inconvenienced.
When a member of the public is able to use the proposed
on-line registration service and the system is not available,
it is intended that the alternatives - personal attendance at
a registration authority or telephone - will be made clear. If
he/she prefers to wait for restoration of the service then he/she
can do so at their convenience.
25 November 2004
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