DEREGULATION BILL

Memorandum by the Home Office to the Delegated Powers and Regulatory Reform Committee

INTRODUCTION

  1. This supplementary Memorandum deals with amendments to the Deregulation Bill inserting two new clauses which provide for additional access to birth, marriage, civil partnership and death records (referred to as the “records”) and which confer delegated powers. The amendments were tabled on 3 February 2015 by Baron Stoneham of Droxford and Baroness Scott of Needham Market. The Government supports the amendments. This supplementary Memorandum has been prepared by the Home Office (“the Department”).

BACKGROUND

2. The Births and Deaths Registration Act 1953 and the Marriage Act 1949 provide for the Registrar General (the “RG”), to supply certified copies of entries in the registers held by him to members of the public on request. These are facsimile copies of entries in the register certified as being accurate.

3. These two clauses confer powers that will provide for additional entitlement to access to records held by the RG. Currently the only form of a record available to the public is a certified copy of an entry (a certificate). This is an outmoded and expensive method of providing information. Members of the public, in particular those interested in genealogy or carrying out other forms of research, often only need some of the information held by the RG and would be happy for that information to be provided in formats other than a certified copy. Members of the public would also like the RG to carry out searches of the records on their behalf. This would make researching one’s ancestry cheaper and easier. It is hoped that in the future, the RG may be able to provide print outs from the electronic record more efficiently and more cheaply than he is able to under the current legal provisions. The current registration law dates back to the middle of the last century and is highly prescriptive and restrictive. It takes no account of developments such as computerisation and the internet.

4. The clauses also confer powers that will enable the Secretary of State to allow the RG to carry out searches on behalf of members of the public and to charge a fee for this. This is a service often requested by members of the public but, as a statutory office holder, the RG can only act within his statutory powers so this new flexibility will allow him to provide a new service to the public.

5. The clauses will allow regulations to be made that will enable records to be treated differently, in terms of how information is provided, based on factors such as the age of the record. The provision that allows for different provision to be made for different cases is in section 39A of the Births and Deaths Registration Act 1953 and section 74(3) of the Marriage Act 1949. Treating records differently depending on their age would be in line with Scotland and Northern Ireland where there is a distinction between modern civil registration records, which means for birth records less than 100 years old, for marriage records less than 75 years old and for death records less than 50 years old, and all historical records. In Scotland and Northern Ireland theability to treat different record sets in different ways has allowed forolder records to be viewed more cheaply and easily online. In terms of the modern records, whilst these would not be made generally available in order to protect information relating to living individuals, it would be possible to offer new products such as plain paper extracts to customers who do not require a watermarked certificate, thus reducing the number of certificates in circulation and supporting Government objectives around security and public protection.

6.The new clauses after clause 79 confer the following delegated powers on the Secretary of State:

●Power to make regulations allowing the RG to carry out searches of and provide records of entries in the births and deaths registers (First new clause after clause 79);

●Power to make regulations allowing the RG to carry out searches of and provide records of entries in the marriage register (Second new clause after clause 79);

●Extending existing regulation-making powers to allow for similar provision to be made in relation to information in the conversion register which is the register of civil partnerships that have been converted to marriages pursuant to section 9 of the Marriage (Same Sex Couples) Act 2013 (Second new clause after clause 79).

Additionally the second new clause after clause 79 confers the following delegated power on the RG:

●Extending existing regulation-making powers to allow for similar provision to be made in relation to entries in the civil partnership register (Second new clause after clause 79);

DEVOLUTION

7.The clauses extend to England and Wales only as civil registration is devolved to Scotland and Northern Ireland and the legislation amended by these clauses only extends to England and Wales.

PROVISIONS CONFERRING DELEGATED POWERS

First new clause after clause 79 – information contained in entries of births and deaths

New section 34A of the Births and Deaths Registration Act 1953

Power conferred on: Secretary of State

Power exercised by: Regulations made by statutory instrument

Procedure: Negative Resolution

8.The first new clause after clause 79 inserts a new section 34A into the Births and Deaths Registration Act 1953, which confers power on the Secretary of State to provide for additional services and records to be provided by the RG.

9.Such additional services are in addition to all existing entitlements which remain unaffected by these new clauses.

10.The Department considers that it is appropriate to provide for these additional entitlements to be set out in secondary legislation because such entitlements may be added to or altered over time to cater for public demand and the availability of new products as technology develops. The clauses remove some of the restrictions that currently surround the provision of information from the records and allow the RG for flexibility in the delivery of this service. The fees charged for this new service will be set in accordance with Treasury rules.

11.Subsection (4) adds regulations made under the new section 34A to the list of statutory instruments set out in section 39A of the Act that must be made after consultation with the RG and are subject to the negative resolution procedure.

12.The Department considers that the negative resolution procedure is appropriate here because these new clauses merely confer power to add new entitlements to the existing range of entitlements and are designed to reduce the burden on the RG to enable him to provide a better and more flexible service to the public. The power to make such provision is discretionary and will not be made if there is no demand or if there are any logistical problems that cannot be overcome. No new burdens are imposed and the public and the genealogy industry can only benefit from these provisions becoming law. The regulations made using this power will make only small additions to existing entitlements by allowing for information already available to the public to be made available in different formats. The change will allow important flexibility to the RG but the overall change in provision so far as the public is concerned is minor and full parliamentary debate in both Houses of Parliament is considered unnecessary.

Second new clause after clause 79 – Information contained in entries of marriages and civil partnerships etc

New section 65A of the Marriage Act 1949 and amendments to the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) 2013

Power conferred on: Secretary of State and the RG

Power exercised by: Regulations

Procedure: Negative and no procedure for the RG regulations

13.New section 65A confers power on the Secretary of State to make similar provision to that made in relation to birth and death records in the previous clause, but in relation to the marriage register (in subsection (1)). The clause also amends the Marriage (Same Sex Couples) Act 2013 to make similar provision in relation to the conversion register (in subsection (3)) and amends the Civil Partnership Act 2004 to confer similar powers on the RG in relation to the civil partnership register (in subsection (2)). Regulations may be made providing for searches of the registers, and products, such as electronic print-outs of records or commemorative certificates should there be a public demand for such services or products. It is known that there is a demand for cheaper and simpler records of register entries than the certified copies that are the only available option under the existing law.

14.The Department considers that it is appropriate to make provision about the additional entitlements in relation to the marriage register in subordinate legislation for the same reasons as given above and to ensure consistency across the various records held by the RG. As technology advances and the public seek the provision of public services in different ways the Secretary of State will need the flexibility of making provision by secondary legislation. Such secondary legislation must always be made after consultation with the RG.

15.The Department considers that the negative resolution procedure is appropriate here because these new clauses merely confer power to add new entitlements to existing entitlement and are designed to reduce the burden on the RG and to enable him to provide a better and more flexible service to the public. The power to make such provision is discretionary and will not be made if there is no demand or if there are any logistical problems that cannot be overcome. No new burdens are imposed and the public and the genealogy industry can only benefit from these provisions becoming law. The regulations made using this power will make only small additions to existing entitlements by allowing for information already available to the public to be made available in different formats. The change will allow important flexibility to the RG but the overall change in provision so far as the public is concerned is minor and full parliamentary debate in both Houses of Parliament is considered unnecessary.

16. Subsection (2) of the new clause amends the regulation-making powers in section 36 of the Civil Partnership Act 2004 to confer similar powers on the RG to make regulations in relation to the records held by the RG concerning civil partnerships. Regulations made by the RG are by convention not subject to Parliamentary procedure because the RG is not able to speak to them in Parliament. However, regulations can only be made by the RG with the approval of the Secretary of State.

17. Subsection (3) of the new clause amends section 9 of the Marriage (Same Sex Couples) Act 2013 to make similar provision in relation to the conversion register which is the register of civil partnerships that have been converted into marriages. This provision will allow the Secretary of State to make provision in regulations for the carrying out of searches of and the provision of records of information held by the RG in relation to such conversions. All regulations made pursuant to subsections (4) and (5) of section 9 of this Act are, in accordance with section 18, subject to the negative procedure and for the reasons given above the Department believes that the negative procedure would be most appropriate here.

HOME OFFICE AND CABINET OFFICE

3 February 2015

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