Select Committee on Deregulation Fourth Report




10. The Births and Deaths Registration Act 1953 ("the 1953 Act") provides that corrections may be made by the registry officer to registers of births or deaths upon production to him of a statutory declaration which sets out the error and the true facts of the matter. The statutory declaration must be made by two qualified informants.[14] In default of two qualified informants, the declaration may be made by two 'credible persons' who have knowledge of the true facts of the case.

11. The Registration of Births, Deaths and Marriages (Special Provisions) Act 1957 ("the 1957 Act") contains similar provisions to the 1953 Act. The 1957 Act is mainly concerned with the registration of births, deaths and marriages outside the United Kingdom involving members of the armed forces or specific related organisations, or occurring on board certain ships or aircraft.[15] Corrections to such registers may be made upon production to the specified officer of a statutory declaration made by two credible persons "having knowledge of the truth" of the matter.

12. On 26 March 2001 the Government laid before Parliament the proposal for the Deregulation (Correction of Birth and Death Entries in Registers or Other Records) Order 2001 in the form of a draft of the Order and an Explanatory Memorandum by HM Treasury.[16]

13. The purpose of the proposed Deregulation Order is to amend section 29(3) of the 1953 Act and section 3(3) of the 1957 Act to introduce an alternative procedure for certain corrections in registers of births and deaths. The proposal would allow registers of births and deaths to be corrected upon production of a single statutory declaration supported by documentary evidence of a finding made in judicial proceedings, in place of the current requirement for declarations by two separate individuals.

14. Although the relevant provision of the 1957 Act also concerns marriages, the proposal will provide an alternative procedure only in respect of corrections to entries of births and deaths. Amendments to marriage registers will continue to be governed by the present provisions under section 3(3) of the 1957 Act.

15. The House has instructed us to examine the proposal against nine criteria and then, in the light of that examination, to report whether the Government should proceed, whether amendments should be made, or whether the order-making power should not be used.[17]

We now report on the proposal against the criteria in Standing Order No. 141(5)(A) as follows:

Does the proposal appear to make an inappropriate use of delegated legislation?

16. We conclude that the proposal may be proceeded with as delegated legislation.

Does the proposal remove or reduce a burden or the authorisation or requirement of a burden?

17. Factual errors or errors of substance on the registers usually concern identity and lineage. Whilst applications for amendments may be made at any time after the registration of the birth or death, it is often several years before the procedure is initiated. The Office for National Statistics ("the ONS") suggests that the requirement under the 1953 Act for two qualified informants (or in default two "credible persons"), and under the 1957 Act for two credible persons, has resulted in difficulties in the past. The ONS states that cases have arisen in the past when those seeking to amend the register have been unable to do so since such cases tend to involve a dispute between the stated father and the alleged father. In such situations, there has been a tendency to use the correction to the register as another tool in the bigger fight between the two parties.

18. The ONS gave examples of potential disputes[18] including those relating to maintenance provisions for a child, or a situation where the mother fears that the named father, being a foreign national, may obtain a passport for the child in order to take the child out of the country. Another example given by the department concerns matters of inheritance.

19. The proposal would prevent any injustice in the situation where one of the qualified informants or credible person is deceased, refusing to co-operate or is unable to make a statutory declaration, for example for reasons of inaccessibility.

20. The Notaries' Society, in their response to the consultation paper, suggested the addition of statutory declarations made before a notary public who has judicial obligations beyond those normally accorded to a solicitor or commissioner for oaths, to be sufficient to effect a correction to the register. The Society argued that this would be a more simple procedure which would have the added benefit of being less costly than an application to the Court for an order. This recommendation was rejected by the Government on the grounds that any necessary protection would be weakened. The proposal did not envisage that separate procedures would be instituted for courts to consider applications for corrections independent of other proceedings. Any court order would arise out of the main proceedings between the parties.

21. The financial implications of the proposal are not significant. The court finding in the form of a court order is likely to arise as an ancillary aspect to pre-existing judicial proceedings, for example, divorce or maintenance proceedings. Since corrections to registers are free, no burdensome financial implications are expected.

22. The Committee questioned the scope of the proposal and why the Department did not seek to broaden the proposed Order to include the correction of other matters such as incorrect gender registration at birth. The ONS gave a detailed response to the Committee which stated that courts do not issue orders determining the gender of a person. Currently this is done by means of a statutory declaration from a doctor and the parent or other qualified informant. The ONS also drew attention to an interdepartmental working group report on gender reassignment submitted to the Home Secretary in the summer of last year. That report recognised that gender reassignment was a complex issue which involved matters beyond the simple correction of a birth certificate. Other legal matters concerned pensions, insurance, criminal law, succession, marriage etc. One of the options recommended by the report was the correction of registers to reflect a change in gender and for courts to be allowed to deal with gender changes during their consideration of other matters, for example, the status of an existing marriage[19].

23. The requirements of the 1953 Act and the 1957 Act clearly place a burden on persons, in particular fathers who wish the register to accurately reflect the paternity of a child. We conclude that the proposal meets this criterion.

Does the proposal continue any necessary protection?

24. The Department asserts that no necessary protection is removed. Any statutory declaration would need to be supported by a court finding in the form of a court order. Before such an order is made, the court would need to be satisfied of the true facts. The Department also points out that under the Perjury Act 1991 it is an offence wilfully or knowingly to make a false statement in court,[20] an offence which carries penalties.[21]

25. We find this argument persuasive. We believe that the proposal will not remove any necessary protection.

Has the proposal been the subject of, and does it take appropriate account of, adequate consultation?

26. A consultation paper setting out the Government's proposal was issued on 23 March 1998. A General Register Office circular[22] was also issued to all registration offices in England and Wales. Responses were sought by 15 May 1998. The consultation paper concerned the amendment of the 1953 Act.

27. Subsequently, and as a result of this consultation, the 1957 Act was identified as containing similar provisions to the 1953 Act. The 1957 Act was therefore deemed to be suitable for inclusion in the proposal and a second consultation document was issued on 12 March 1999. New organisations and individuals were added to the list of original consultees and responses were sought by 7 May 1999.

28. Twelve bodies as well as registration officers and certain government agencies were consulted in respect of the 1953 Act. Four organisations replied as well as an individual. Three supported the proposal, two were neutral and one suggested a further amendment. In respect of the 1957 Act 17 bodies were consulted in addition to registration officers and government agencies of which three responded. Two were in favour of the proposal and one was neutral.

29. We were concerned to note that the Department did not initially consult more widely, especially among law firms and agencies dealing with family law, divorce, the fostering of children and more generally amongst those organisations dealing with paternity disputes and we drew the Department's attention to a consultation paper[23] published by the Lord Chancellor's Department in a similar area. We are pleased to note that the Department has now taken account of our concerns and has broadened its consultation to include these bodies. We are therefore now satisfied with the range of organisations consulted, initially and in response to our concerns: although we do reach conclusions in this Report, we will not hesitate to reconsider the proposal if the second round of consultations casts a significantly different light on the issues.

30. Subject to the qualifications in the previous paragraph, we accept that the scope of the consultation has been adequate (although no more than adequate) and appropriate to the issue, and that the Department has taken appropriate account of the representations received.

Does the proposal impose a charge on the public revenues or contain provisions requiring payments to be made to the Exchequer or any government department or to any local or public authority in consideration of any licence or consent or of any services to be rendered, or prescribe the amount of any such charge or payment?

Does the proposal purport to have retrospective effect?

31. We have no issues to raise under the above headings.

Does the proposal give rise to doubts whether it is ultra vires?

32. Section 1(1)(a) of the 1994 Act defines the burdens which may be lifted by a deregulation Order as "affecting any person in the carrying on of any trade, business or profession or otherwise" [our italics]. It is clear that the principal beneficiaries of the present proposal will be individuals in their private capacity, and not in relation to any trade, business etc.

33. That raises, once more, the question of the breadth of the expression "or otherwise". Its interpretation was a key issue in persuading both this Committee and its Lords counterpart to reject the proposal for the Deregulation (Civil Aviation Act 1982) Order 1987. In that case, the concern was whether the expression "or otherwise" allowed the Order-making power to apply to a burden solely affecting a public body; and in the end both committees concluded that it could not be so applied[24]. The question remains whether the expression may nonetheless be interpreted to cover burdens solely affecting individuals in their private capacity, and we therefore asked the Department for clarification. Their initial response[25] cited two earlier examples of Orders relieving burdens exclusively from private individuals which both parliamentary committees in the previous Parliament accepted, but did not adduce any argument on the point, which was supplied, after prompting, in a subsequent letter[26].

34. We now understand that the Government justifies inclusion of persons not acting in the course of any trade, business or profession or anything of that sort, but in their purely private capacities, within the scope of section 1 by reference to section 5 of the 1994 Act (which deals with enforcement procedures and appeals). Section 5(1) enables Ministers to make statutory instruments improving enforcement procedures in the case of provisions which impose restrictions affecting persons in the carrying on of any trade, business or profession or otherwise. Section 5(2) disapplies that power where the persons concerned are solely or mainly affected in their private capacities. The Government argues that if the expression or otherwise did not include persons acting in a private capacity that limitation would be otiose.

35. That it was intended that the expression should cover individuals is made clear by the debate in Standing Committee F on 17 February 1994 in which the then Minister, Mr Sainsbury, opposing an amendment to delete it, argued, on the basis of Notes on Clauses, that deletion of the expression would exclude individuals from the benefit of lifted burdens[27].

36. We accept these arguments, and do not intend to pursue the matter further, particularly since this infelicitous wording is not reproduced in the new Regulatory Reform Act. We accordingly have no further concerns to raise under this heading. We nonetheless expect the Government to be alert to the limits on its powers imposed by that Act and to be able, readily and in writing, to justify any exercise of them which our successor Committee may question.

Does the proposal require elucidation or appear to be defectively drafted?

37. We were concerned by the drafting of the Order and the uncertainty as to how the procedure would work in practice. The Order defines the judicial finding as "a finding, made expressly or by implication, in judicial proceedings in the United Kingdom or elsewhere". It was not clear how in practice such a finding by implication can be proved by documentary evidence sufficient for the purposes of the registrar. We were therefore concerned that this would impose new and difficult obligations on the registry staff to interpret the words of the judge.

38. In their response[28] the ONS state that the current procedure is for registrars to refer all applications for corrections to the Registrar General's Office. The Department argue that this ensures a consistent approach to corrections as well as permitting a core of expertise to be built up. However, they also indicate that Court documents, which are currently not admissible for this purpose, often contain a clear statement on paternity, albeit one which is incidental to the granting of a residence order, an order for parental responsibility, or similar.

39. We are not persuaded that, where court orders contain a clear statement of paternity, there should be any need for registry officers to interpret judicial findings. The issues of identity and paternity are of such importance that the scope for interpretation should be as limited as possible. Accordingly, we are inclined to the view that the correction of registers should be demonstrably fair, and should be possible only where there is a clear judicial finding: we therefore conclude that the draft Order should be amended to remove the words "or by implication" in subsection (4) of the proposed new paragraph 29A of the Births and Deaths Registration Act 1953.

Does the proposal appear to be incompatible with any obligation arising from membership of the European Union?

40. We have no concerns to raise under this heading.


41. The proposed Order would apply to England and Wales only.

Report under Standing Order No.141

42. We have concluded that the proposal for the Deregulation (Correction of Birth and Death Entries in Registers or Other Records) Order 2001 should be amended as indicated in paragraph 39 of this Report before a draft Order is laid before the House.

14   Qualified informants are defined as persons required or stated to be qualified to give information concerning the birth or death. Section 1 (2) of the 1953 Act contains a list of persons considered to be qualified informants for birth and includes:

"(a) the father and mother of the child; (b) the occupier of the house in which the child was to the knowledge of that occupier born; (c) any person present at the birth; (d) any person having charge of the child; (e) in the case of a still-born child found exposed, the person who found the child." A similar list for deaths is contained at sections 16 and 17 of the 1953 Act. Back

15   The provisions of the 1957 Act relate to (i) the registration of births, deaths and marriages outside the United Kingdom involving the armed forces: (ii) the registration of births, deaths and marriages outside the United Kingdom involving specified welfare organisations who accompany the forces abroad; (iii) births, deaths and marriages on board certain ships and aircraft; and (iv) the death of a traveller on an HM aircraft who is accidentally killed.  Back

16   The proposal originates from the Office for National Statistics, but this Department does not have the power to lay documents before Parliament. Copies of the proposed Order and Explanatory Memorandum are available to Members from the Vote Office and to members of the public from the Office for National Statistics. Back

17  Standing Order No. 141 (the text of which is set out at the front of this volume). Back

18   At paragraph 17 of the Explanatory Memorandum. Back

19   Appendix 1 (exchange of letters between the Clerk of the Committee and the ONS). Back

20   Section 5. Back

21   Section 4. Back

22   GRO 2/98. Back

23  The consultation paper entitled "Procedures for The Determination of Paternity and on The Law on Parental Responsibility for Unmarried Fathers" is available on the Lord Chancellor's Department's web site on Back

24   Eg. Deregulation Committee, Twelfth Report, Session 1996-97 (HC387), paras 6-21. Back

25   Appendix 1 Back

26   Appendix 2 Back

27   See Official Report, Standing Committee F, 17th February 1994, col. 35. Back

28   Appendix 1 Back

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