Official Report: Minutes of Evidence

The Chairperson (Mr O'Toole): We have General Register Office (GRO) officials here today to answer all members' questions. I expect that we will have a few. We welcome to the meeting Dr Philip Wales, Registrar General, Department of Finance; and Aoife Rooney, who is Deputy Registrar General. We have a lot of the context, and we will turn over to members. Unfortunately, I have to take my leave for a few minutes, but I will come back. The Deputy Chair will step in in my stead. Before I leave, I invite members to ask questions. I might ask the first one, if that is OK.

With the greatest possible respect to you, Dr Wales, why was the anomaly not spotted first time around? We were assured that the previous legislation would enable us to make the change. Why did that mistake happen? You will forgive me, because I have to take my leave now, but I will read the answer in Hansard. I will be back in a few moments.

Dr Philip Wales (Northern Ireland Statistics and Research Agency): Thank you, Chair. Good afternoon. It is good to be here to have the opportunity to provide you with an update. I had prepared some opening remarks, but I am happy to set those aside, as I understand that the Committee is running on a tight timetable.

It was our understanding that we could make the changes that we needed to in order to enact these pieces of legislation permanently. As the Committee has just covered very quickly, the provisions were enacted in the Coronavirus Act 2020. First, they adjusted and changed the way in which we register deaths and stillbirths in Northern Ireland, enabling registrations to take place remotely, which is to say that informants do not have to come to a registration office in person. Secondly, they enable the transfer of documents between parties to the registration process electronically, which is to say that, rather than the family of the deceased bringing papers from the doctor to the registrar and then from the registrar to the undertaker, that happens in the background.

The reason that we have come off our timetable and do not have the legislation to which we were committed is that there was a problem with our enabling powers. As the Committee saw in the briefing that was provided to you on 9 August, the issue was first raised and spotted by the drafter, who was externally engaged by the Departmental Solicitor's Office (DSO). That question was asked and answered at the beginning of June. It was answered in our favour — that we could make the enabling powers — but it was reopened at the end of June and settled against us. That is a matter of disappointment for me, the team and officials. It certainly was not our intent to mislead the Committee. We provided the previous information in good faith. The fact that we were unable to proceed is therefore a matter of regret.

Since that development on 14 June, we have worked extremely hard to remedy the situation. We have made considerable progress, as the briefing note sets out, on the primary legislation that we need to enact the powers. On top of that, we have done a good deal of work in the background to produce the supporting documentation that will be needed for a Bill of that nature. Although it is unfortunate that that happened — it is the nature of things that we have to depend on legal advice and expertise — we have responded in the two months and 29 days since that point as quickly and positively as we can.

The Deputy Chairperson (Ms Forsythe): Thank you very much. It is disappointing that we again face an extension of coronavirus legislation from September through to March. What is the anticipated timeline for the new legislation to be enacted?

Dr Wales: The briefing note sets out that the drafting instructions were provided from GRO and DSO to the Office of the Legislative Counsel (OLC) on 28 June. We commenced the work on the legislation at that stage. The draft Bill has been through a number of iterations back and forth between ourselves and OLC, as is normal for a Bill of this nature. GRO is not drafting it; that is not how it works with primary legislation. OLC leads on the drafting of all primary legislation, so the timetable is determined very much by our capacity to specify instructions and to answer questions and by OLC's capacity to take it forward.

Right now, we have a draft Bill that we are just seeking authority from the Executive to finalise with OLC; indeed, the item was placed on the agenda for the Executive meeting Thursday gone. As we did not get to that item on the agenda, we issued an urgent decision memo, so we have sought permission from the Executive to finalise the Bill. Once we have done that, we will finalise the Bill with OLC and then seek permission to introduce it. It is at that stage that I expect the Committee to see it. We are keen for you to be able to scrutinise it and to provide whatever input, you feel, is appropriate.

The Deputy Chairperson (Ms Forsythe): It is a good example of bringing forward legislation that is needed across a number of Departments to put into place procedures that came into play under coronavirus regulations that are sensible.

Obviously, the registration of deaths and stillbirths is not new. It is the electronic registration of them that is new, and it will be great to get that set up here. Has consideration been given to widening the scope of that? When that comes into place, will you allow electronic registration of deaths and stillbirths for babies born after a point in pregnancy?

In Westminster, my colleague Carla Lockhart MP has lobbied hard for the extension of the baby loss certificate scheme. While Westminster legislation may not be able to be extended to here, we very much have the buy-in of our Finance Minister and Health Minister to put it in place. Is this Bill a vehicle by which we can be strategic and sensible in joining the lot together and, potentially, putting this into place for the many parents who have lost babies and do not have a record of that in Northern Ireland?

Dr Wales: I am grateful for the question because it is a really good one, and it is great to be able to test that here in Committee. You are exactly right: there is cross-party support for the baby loss certificate suggestion. We are keen in GRO to take it forward. It has been a priority for the Minister since she was appointed.

Hypothetically, it is absolutely possible that we could make statutory provision for a baby loss certificate through a legislative vehicle such as this. We could put into the Bill that we will have a baby loss certificate scheme. As I say, it is a ministerial priority and has widespread support.

If we introduce those powers here, there is a balancing act. The parameters for the legislation that we have been preparing with OLC to date have been drawn narrowly. They have been drawn narrowly around the specific provisions that are in the Coronavirus Act, which enable electronic communications and remote registration. It is a tightly defined legislative package, and our intent is to put our existing process onto a permanent footing. That has been the extent of our work to date. At this point, I am as confident as I can be that we will have that done by the end of March at the point when our hoped-for extension order comes to conclusion.

If we reopen the scope of the Bill and work with OLC to incorporate a baby loss certificate scheme, which everyone is in favour of, we can get the provisions for that but it may introduce a threat to the timescales. If we need to have a detailed, worked-up baby loss certificate scheme that goes into primary legislation, that may take some time to spec through officials, and it may take some degree of consultation.

It is a brilliant question. I suppose I would reflect it back to you, as the timetable for the Bill is very much determined by those Coronavirus Act extension orders. My question back to you would be that this is something, subject to a ministerial decision, that we could do, but it could threaten the timescale for delivery. If you are happy to reopen the scope of the legislation, it is something that we can look at. If the Committee feels that the imperative to get off the Coronavirus Act is the overriding thing, that would be informative to the ministerial decision about whether to widen the scope of the Bill. I hope that that makes sense. It is certainly something that we could do.

The Deputy Chairperson (Ms Forsythe): No, absolutely. Thanks for your considered response. I would not want to see a missed opportunity where we had potential to set up a vehicle, even to come in a second phase, to bring it into Northern Ireland if Westminster legislation cannot be extended here.

Mr Frew: On that question about baby loss certificates, you will have six months because of the nature of the extension from September 2024. Just to be clear, you are saying that if you insert a clause with regard to the baby loss certificate scheme, that could delay things beyond March, which means that you would then have to apply for a further extension to the Coronavirus Act.

Dr Wales: It depends how you go about doing it. If we are required, before we put something into the Bill, to specify the scheme, go out to consultation on it, run the consultation, respond to the consultation and then offer the legislation, six month sounds like a long time, but that will disappear very quickly.

If it is the Committee's interest and will that we should make provision for baby loss certificates in this Bill, rather than bringing it through a separate legislative vehicle, which we could do, that is something that we can take away and think about how we would deliver it.

I have not come to talk specifically today about what we will do on baby loss certificates, but I want to flag to the Committee that there are two objectives here. One is to get off the Coronavirus Act as quickly as is humanly possible, for which I think there is broad-based consensus. The second is to have a baby loss certificate scheme, around which there is also consensus, but there may be tension between those two objectives. I welcome the input from the Committee today on how we would resolve those.

Mr Frew: I do not know the answer to this question, but would it be possible to put an enabling clause into the narrow legislation so that the work could be done after March on the baby loss certificate scheme, yet there would still be the vires to complete that work?

Dr Wales: That is exactly the question that I asked of OLC yesterday. We have a draft answer, but I am not absolutely certain, and I do not really want to mislead you. I think that it is possible, but we do not want to take a very broad power for ourselves through this legislation, which is at the end of what you are suggesting. If we just say that GRO will develop a baby loss certificate scheme, that is quite a broad power enabling us to define that appropriately, but is that appropriate? To some extent, that is your decision to make.

Mr Frew: When the permanent secretary came to the Committee in July, I pushed him on the use of accelerated passage. He was inclined to agree that he thought that it should go through accelerated passage because it was such a bespoke and universally supported cause, if you like. I am still of that mind myself. I have very little fear or concern about using accelerated passage in that way, given the circumstances and the sensitive nature of the provisions and given the fact that we have had extension after extension, and we know exactly what it does. Are you minded to advise the Minister and the Department to ask for accelerated passage?

Dr Wales: The conversation that we have just had is material to that question. If the scope of the legislation remains tight and narrow, it is a possibility and is on the table. If we widen it to include baby loss certificates, I suggest that it would be better that this place scrutinises it to the fullest extent. Accelerated passage enables us to pass urgently needed legislation, but it limits the opportunity for scrutiny. If baby loss certificates come into scope, we would not want to take it through accelerated passage.

On the narrow Bill that is being prepared at present, we are focused on finalising the legislation right now to make sure it does what we intend. Given our experience at the end of the last session, it is imperative that we get it right rather than do it fast at this point. The decision, ultimately, will be ministerial. The conversations we have had on the matter have suggested that if the Committee is satisfied with the legislation that we bring forward, there may not be a lot to gain from using accelerated passage, and it may pass as fast by not using it as it would be if we were to take it down that route. For me, the most important objective is to prepare the Bill as specified at present and put it before the Committee for scrutiny so that we can work out the appropriate next step. That is not cast iron and specific, but it is as clear as we can be at this stage in the process.

Mr Frew: There will be a clause in the Bill, no matter what provisions it brings in, other than the tight coronavirus powers, that will end or guillotine the extension of the Coronavirus Act no matter what part or extension we are in, whether it be in September or beyond March.

Dr Wales: That is exactly right. The Bill makes provision for repeal of the Coronavirus Act 2020 (Registration of Deaths and Still-Births) (Extension) (No. 2) Order (Northern Ireland) 2024 and for the commencement of the new Bill. We are likely to do that by departmental order, and little will practically change under the Coronavirus Act between the Coronavirus Act extension order and the new proposed Bill. However, we must be able to prepare the registration service as a whole and tell them what the statutory footing is for the service they are dispensing. If we arrange for commencement by order, we can tell them the definitive date that the statutory basis will switch from a Coronavirus Act extension order to the new Act. You are exactly right: as soon as the new Bill commences, the Coronavirus Act extension order will fall.

Mr Frew: I want to ask about the timeline. Around 12 June, according to the chronological table, DSO discussed the proposed statutory rules with OLC. An agreement was reached that the enabling powers are not sufficiently wide enough to cover the matter through secondary legislation. The drafter first raised the issue about the vires of the legislation on 3 June. That was three weeks after the drafter had been appointed, but the 12 June date, when DSO discussed it with OLC, was eleven and a half weeks after the GRO sought DSO's advice and support to take forward the legislation.

The timescale alarms me, and also the fact that on 16 April, when DSO responded to the GRO about securing a drafter for the legislative amendments to make the Coronavirus Act provisions permanent, a list of possible drafters was provided. What does that process look like? Are there self-employed drafters floating about in the ether who can be called on? Are those drafters experienced in special fields or specialisms; I note that the wording talks about an "appropriate" drafter. Can you give me an insight into the relationship between the GRO and DSO? How do you select a drafter? How many drafters were on the list? How does it take eleven and a half weeks to cement your knowledge of the fact that we have taken a wrong step?

Dr Wales: I cannot speak directly to the DSO process. Aoife may have a contribution to make. From our side, just to speak to the timeline that you talk about, you are right that it took a long time. The name of the drafter here implies that they were writing for legislation. In practice, in this instance, work was going on in the legislation in GRO in advance of the drafter being appointed. The drafter, if you like, looked at the draft that we had produced, because that scales back the amount of time for which you have to employ a specialist lawyer to look at these things. Work was going on in GRO over that period. It is not that work commenced only when the drafter was appointed. We were presented with the list of drafters — not me directly, I should say. They have specialisms, and it is through that route that we ended up with somebody whom we understood to have expertise and experience.

Aoife, is there anything that you want to add on this question?

Ms Aoife Rooney (Department of Finance): Because drafting is such a specialist skill, there may be different numbers of drafters across Departments. I have come from DSO. When Departments come to DSO, we set about looking at the capability of the drafting being done in-house. Generally, there is capability, but sometimes there is a need for external expertise, and there are external drafting consultants available.

Mr Frew: I understand that this is not necessarily a GRO issue. I ask these questions of you because you are the ones who have suffered this misstep. I understand that there are different factions in play here. I suppose that what I am trying to get at and what I am concerned about is that, for me, this has now moved off the provision and even the timescales to this point. We are where we are, and there will be a six-month extension no matter what, and I understand the reasons for that.

It is the capacity within DSO that now concerns me. For other legislation there could be much bigger or greater scope and, maybe, more sensitive and controversial provisions than those we are looking at here. For me it is a bigger issue. I have used this phraseology with the permanent secretary: this could well be a canary-in-a-coal mine scenario, where we have spotted something early that we need to pay attention to. It is not necessarily GRO's problem, but it could well be DSO's, and of course the wider governance piece. That is what alarms me more than anything here at this point. Whilst I have been applying pressure, as it is my job and duty to do, this really concerns me.

I leave it there.

Dr Wales: Do you mind if I respond to Paul?

The Chairperson (Mr O'Toole): Go ahead.

Dr Wales: They are good questions to ask. I think that DSO and OLC would need to answer those questions directly. We could not speak to them ourselves.

On the GRO side, it is not a big team, and there are two elements here. On the one side, you need the legal expertise to do the appropriate drafting. You also need Departments to have the capacity to bring forward instructions on legislation and then to answer questions. GRO is a 23-person team, which, over the three months of the summer, June, July and August, issued more than 29,000 life event certificates, had more than 750 casework orders, almost 200 people in the public search room and 1,500 people come in to the customer counter. We do not have a big team ready to do lots and lots of legislative work all the time. We are talking about baby loss certificates here. We have talked about the extension orders. There is a reasonable question about capacity. I do not think it is peculiar to GRO: it is a wider issue. That is certainly a part of the picture here.

Mr Frew: How have GRO's figures and establishment fluctuated over the years? What was GRO's establishment 10 years ago?

Dr Wales: I do not have that information in front of me.

Mr Frew: Is it down?

Dr Wales: That is my understanding, but I would have to come back to you and correspond. Over the past couple of years, with the Assembly being away, there has been less need for us to have a standing team to look at legislative matters. We are building back up in that area. It is something that we need to look at.

Mr Frew: That will not be GRO on its own. I suspect that agencies and Departments all over the place have shrunk their legislative teams.

Dr Wales: I cannot speak to that, but it is certainly our experience. Given the interest in the area and the volume of work that we want to do — the things that we have talked about here today — we need to start to build up a bit more in that area. I accept the premise that you are stating. It is something that we are working on.

Mr Frew: Thank you.

The Chairperson (Mr O'Toole): I thank the Deputy Chair for stepping in for a few minutes.

Mr Carroll: Obviously, the motive for the legislation has been taken from the emergency COVID legislation, but it is also to improve and make easier the difficult process for families and individuals. That is my reading of it. In light of some of the issues raised already or, generally, in the day-to-day workings of the office, has consideration been given in the drafting to how people who do not have English as their first language are supported in the process? I ask that because I imagine that the last thing that anybody would want to do in the situation of stillbirth or loss of a child would be to complicate or misreport, for want of a better word, what happened. That is something that came to me in the light of your presentation. I am guessing that there is terminology that does not cross over from English to other languages. Is that something that comes up as an issue in the day-to-day running of the services, or has it been considered in the legislation?

Dr Wales: We have not considered it in the course of drafting the legislation explicitly. We are in the process of drafting equality impact assessments: it may have been considered in that context. The legislation that we are bringing forward will enable more direct contact or enable the continuance of direct contact between a doctor and the registrar and the registrar and an undertaker. To some extent, that releases the pressure on the informant who, as you say, might not have English as their first language.

Perhaps I can come back to you in writing on the specifics of how we manage in the office. I am sure that it is an instance that arises.

Mr Carroll: Yes, I am keen for you to do that. If it is not a major issue, that is good — in terrible circumstances — but I imagine that it would be an issue. As I said, we are aiming to simplify a difficult process. You would rather do it all at the one time, for want of a better way of describing it. I am keen for you to report back on whether there have been issues.

Dr Wales: I am certainly happy to do that. In principle, not putting people in a position in which they are given instructions by a doctor to take a piece of paper somewhere else, then to go from there to a third place, would be helpful. I will take that away.

Mr Carroll: Finally, I would like clarity on the phone reporting process. The family who have lost a loved one is making that call, so, presumably, there would have to be some support services, if not translation, so that people can not only talk about the emotional side of the tragedy, but make sure that what is reported is reflected in the recording, if that makes sense.

Dr Wales: We will take that question away and come back to you.

The Chairperson (Mr O'Toole): There are no further questions. I thank members, and I thank Philip Wales and Aoife Rooney for coming to brief us.

I had to pop out for part of the conversation. I know that there was a conversation about the potential inclusion of baby loss certificates. I suspect that we will have to have a further conversation about that and about the practicality and whether the Department feels willing to look at broadening the scope of the Bill and the practicalities of that. I understand that that has come up. We may take forward that conversation.

The matter at hand is extending the current statutory rule, notwithstanding the in-principle frustration with it as a vehicle. Are members content with the proposed statutory rule to extend the expiry date of the temporary provisions in relation to death and stillbirth registration, unless anyone wishes to make further comment?

The Chairperson (Mr O'Toole): Thank you.