3 Assessment of the draft Order
9. Our role is to assess whether the proposals meet
the statutory conditions required of an order under the Legislative
and Regulatory Reform Act 2006 (the "2006 Act"), and
to examine the proposals against a number of tests. Standing Order
No.141 sets out the criteria under which the Committee makes that
assessment. In this section we assess the draft Order against
those criteria.
A: APPEARS TO MAKE AN INAPPROPRIATE
USE OF DELEGATED LEGISLATION
10. The draft Order does not make an inappropriate
use of delegated legislation and therefore does not raise any
issues in respect of this test.
B: SERVES THE PURPOSE OF REMOVING
OR REDUCING A BURDEN, OR THE OVERALL BURDENS, RESULTING DIRECTLY
OR INDIRECTLY FOR ANY PERSON FROM ANY LEGISLATION (IN RESPECT
OF A DRAFT ORDER UNDER SECTION 1 OF THE ACT)
11. A burden is defined in s1(3) of the 2006 Act
as any of the following: a financial cost; an administrative inconvenience;
an obstacle to efficiency, productivity or profitability; or a
sanction, criminal or otherwise, which affects the carrying on
of any lawful activity. By virtue of s1(4), this does not apply
to a burden which affects only a Minister of the Crown or government
department.
12. The FCO states that establishing a central unit
with appropriately trained staff handling all applications for
consular registration of a birth or death of British Nationals
overseas would remove obstacles to efficiency by enabling the
FCO to:
- provide a more coherent and consistent service
to people making registrations;
- establish an online application and payment system;
- maintain a central record of consular birth and
death registrations in a single, secure location; and
- make it simpler for searches to be made for overseas
births and deaths.[5]
13. The FCO also argues that the draft Order would
remove an administrative burden. Registering births and deaths
overseas is currently, according to the FCO, "a labour intensive
process", under which designated staff must make "complicated
nationality determinations" and maintain relevant ledgers
"in manuscript", with certified copies of registrations
for customers being either "handwritten or typed".[6]
The Explanatory Document provides:
FCO consular staff overseas will not be required
to undertake complex and important nationality decisions which
is not their area of expertise; such decisions will be taken by
specially trained staff, thereby reducing the risk of mistakes
being made.[7]
14. The Explanatory Document states that applications
to the FCO for consular birth or death registrations of British
Nationals will no longer be sent overseas to be dealt with which
will reduce obstacles to efficiency. British Nationals residing
overseas will no longer have to seek out their nearest British
Embassy or High Commission for consular birth or death registration,
rather the application will be dealt with centrally, which should,
according to the FCO, improve efficiency.[8]
15. We agree that the draft Order would reduce a
burden.
C: SERVES THE PURPOSE OF SECURING
THAT REGULATORY FUNCTIONS ARE EXERCISED SO AS TO COMPLY WITH THE
REGULATORY PRINCIPLES, AS SET OUT IN SECTION 2(3) OF THE ACT (IN
RESPECT OF A DRAFT ORDER UNDER SECTION 2 OF THE ACT)
16. The draft Order does not raise any issues in
respect of this test.
D: SECURES A POLICY OBJECTIVE WHICH
COULD NOT BE SATISFACTORILY SECURED BY NON-LEGISLATIVE MEANS
17. The proposed reforms are only possible through
legislation.
E: HAS AN EFFECT WHICH IS PROPORTIONATE
TO THE POLICY OBJECTIVE
18. We agree that the effect is proportionate to
the policy objective.
F: STRIKES A FAIR BALANCE BETWEEN
THE PUBLIC INTEREST AND THE INTERESTS OF ANY PERSON ADVERSELY
AFFECTED BY IT
19. The Explanatory Memorandum states that any costs
incurred in setting up the proposed new centralised unit will
be borne by the FCO with "no increased funding consequences
or burdens on Government". The FCO states that centralisation
of the registration system in the UK "would allow the FCO
to investigate adjusting the cost of the service in future years,
with the aim of reducing the cost to customers".[9]
20. We agree that this requirement is satisfied.
G: DOES NOT REMOVE ANY NECESSARY
PROTECTION
21. The FCO does not consider that it is removing
any necessary protection since the service for consular registration
of overseas births and deaths will continue to be available under
the proposed new centralised system. Consular registration of
an overseas birth or death will remain an entirely optional service
under the proposals.[10]
22. Although the subject of an application for consular
registration of an overseas birth or death must qualify for British
nationality, consular registration of an overseas birth or death
itself does not confer nationality, and that will remain the case
under the proposals.[11]
The FCO confirms that a consular birth registration does not confer
British nationality and does not substitute any checks that Her
Majesty's Passport Office conducts when determining nationality
for a UK passport application.[12]
23. In the Explanatory Memorandum the FCO states
that assessment of qualification for British nationality is becoming
more difficult and complex:
In order to determine whether to process a consular
birth application, staff need to establish … that the applicant
does qualify for British nationality. […] With the centralisation
of the overseas passport issuing service from the consular network
around the globe to the UK, FCO staff are losing experience in
determining whether someone qualifies for British nationality,
and there is an increasing risk that an incorrect decision will
be made.[13]
24. The FCO argues that dealing with applications
for consular registration of an overseas birth or death through
a centralised system would "reduce this risk" because
"suitably trained staff" would handle all applications
in a centralised and standardised system.[14]
Under the proposals, staff in the central Overseas Registration
Unit would, where necessary, work with overseas posts to verify
documents submitted with applications.[15]
25. Currently, there is no legal requirement for
personal attendance at the relevant overseas Post to register
a birth or death of a British National, and so in that respect
the proposed move to a centralised online registration system
would not remove any existing protection. The FCO confirms that
more documentation is required in support of an application overseas
than for a registration within the UK, and this will remain the
case under the proposals. [16]
26. The FCO identifies that some people may not be
able to access the proposed centralised online system because
they do not have internet access. To address this, the FCO states
that it will continue to allow registrations to be made at the
relevant overseas Post, which the consular staff would then forward
to the centralised Overseas Registration Unit for processing.[17]
27. We are satisfied that the draft Order would not
remove any necessary protection.
H: DOES NOT PREVENT ANY PERSON FROM
CONTINUING TO EXERCISE ANY RIGHT OR FREEDOM WHICH THAT PERSON
MIGHT REASONABLY EXPECT TO CONTINUE TO EXERCISE
28. The draft Order does not raise any issues in
respect of this test.
I: IS NOT OF CONSTITUTIONAL SIGNIFICANCE
29. The Department confirms that the proposals are
not of constitutional significance.
J: MAKES THE LAW MORE ACCESSIBLE
OR MORE EASILY UNDERSTOOD (IN THE CASE OF PROVISIONS RESTATING
ENACTMENTS)
30. The draft Order does not raise any issues in
respect of this test.
K: HAS BEEN THE SUBJECT OF, AND
TAKES APPROPRIATE ACCOUNT OF, ADEQUATE CONSULTATION
31. The Government published an online consultation
paper which was open to responses for 12 weeks between 19 July
2013 and 11 October 2013. The FCO explains that it also sent weekly
tweets and contacted 18 expatriate organisations, some of which
expressly drew the attention of their members to the consultation.
The FCO received seven responses from individual members of the
public. We are satisfied that the consultation requirement has
been met.[18]
L: GIVES RISE TO AN ISSUE UNDER
SUCH CRITERIA FOR CONSIDERATION OF STATUTORY INSTRUMENTS LAID
DOWN IN PARAGRAPH (1) OF STANDING ORDER NO. 151 (STATUTORY INSTRUMENTS
(JOINT COMMITTEE)) AS ARE RELEVANT
32. The draft Order does not raise any issues in
respect of this test.
M: APPEARS TO BE INCOMPATIBLE WITH
ANY OBLIGATION RESULTING FROM MEMBERSHIP OF THE EUROPEAN UNION.
33. The draft Order does not raise any issues in
respect of this test.
34. We conclude that the draft Order meets the
required preconditions and tests.
5 Explanatory Memorandum paras 15 and 27-31 Back
6
Explanatory Memorandum para 27 Back
7
Explanatory Memorandum para 15 Back
8
ibid Back
9
Explanatory Memorandum para 23 Back
10
Explanatory Memorandum para 24 Back
11
Annex Q2, Q10, Q11 Back
12
Annex Q12 Back
13
Explanatory Memorandum para 28 Back
14
Explanatory Memorandum para 29, see also Annex Q15 Back
15
Annex Q16, Q17 Back
16
Annex Q13 Back
17
Annex Q9 Back
18
Explanatory Memorandum paras 38-40 Back
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