Official Report: Minutes of Evidence

The Chairperson (Mr O'Toole): I welcome to the meeting again — you have been with us a lot lately — Philip Wales, Registrar General and chief executive of the Northern Ireland Statistics and Research Agency (NISRA), and Aoife Rooney, who is Deputy Registrar General. Thank you very much, both. Philip, please make your opening statement. Members, should you wish to ask a question, please indicate.

Dr Philip Wales (Northern Ireland Statistics and Research Agency): It is good to be with you to speak to the detail of the Bill. As you say, we have been here a number of times recently, so I propose to do three things in my opening statement. First, I want to make a few general remarks about the Bill. I want to touch briefly on its aims and objectives, how it is drafted and the organising philosophy of its provisions. Clearly, we have discussed those provisions in general before, so, secondly, I will speak to the detail of the Bill as it has been drafted and is front of you. Thirdly, I want to say a few things about the timetable to which we are working more generally. That will conclude my remarks.

I should say at the beginning that our role today is slightly different from that of previous occasions when we have appeared before you. On those occasions, we have had fruitful discussions about the policy position and how we could draft the legislation. Today, our role is slightly narrower, as we are setting out how the Bill has been drafted, answering your questions and explaining the effect of its provisions. Where your questions are technical, we will take them away and consult our drafters. I am grateful to Paul Frew for asking some of those already at Second Stage. Where you have specific feedback or suggested amendments, we will, obviously, take careful note, but I know that the Committee will understand that amendments to the Bill are now a matter for the Minister, the Executive and, ultimately, the Assembly.

I turn to the detail of the Bill. As the Committee knows, it was drafted to achieve three broad policy aims. First, the Bill puts the temporary Coronavirus Act 2020 powers that relate to the registration services on to a permanent footing. Clauses 2 to 7 deal with those matters. Secondly, the Bill resolves disparities in the birth and stillbirth registration processes for some couples who are neither married nor in a civil partnership. Clause 8 and the accompanying schedule to the Bill deal with those changes. Thirdly, clause 11 contains an enabling power for the Department to make a baby loss certificate scheme through regulations. In addition, the repeal of the Coronavirus Act powers is in clause 10. The commencement and title of the Bill are considered in clauses 12 and 13 respectively.

Three general matters are worth noting. First, this is an amending Bill, which means that it needs to be read alongside the legislation that it amends. In this case, the Bill makes changes to the Births and Deaths Registration (Northern Ireland) Order 1976 and the Civil Registration Regulations (Northern Ireland) 2012. As per a question that Mr Frew asked at Second Stage, that could be a cause of confusion. The legislation that we will amend through the Bill is not the version of the 1976 Order that is presently in effect; it is the version of the 1976 Order in its permanent form, stripped of the Coronavirus Act amendments that are temporary in nature. That could cause confusion as you read through the Bill, and I am grateful to Mr Frew for asking that question, as it has allowed me to address it today.

Secondly, while the Bill is not overly long, the Committee will have noticed that it is a good deal longer than the provisions that were in the Coronavirus Act. Those provisions were, of course, written quickly and with a very specific and narrow intent. They did the minimum necessary to enable the registration service to continue to operate in the context of a pandemic. To make those powers permanent, our remit has had to be wider. Rather than simply making permanent the COVID-era changes, we needed to consider how best to operationalise the powers in today's context. We needed to consider all the different death and stillbirth circumstances provided for in the 1976 Order, to think about how those powers would work in practice and to pay attention to the coherence of the Order as a whole. That means that we have had to revisit references to things such as written notices, signatures rather than names and documents that are said to pass under a hand. Such language does not sit easily alongside provisions that are designed to enable remote and electronic practice.

Thirdly, it is worth recalling that the Bill is framed as narrowly as possible in order to put existing registration practices on a permanent legal footing. Notwithstanding baby loss certificates and the fixes to registration options that I discussed earlier, the aim of our work has been to put our current practice on a permanent legal footing in order to end the need to depend continually on Coronavirus Act extension orders. I know that there will be matters that members of the Committee and other Members of the Assembly will want to consider as part of the Bill, perhaps as amendments. The Bill's narrow scope, however, does not indicate an narrowness in our ambition, a disinterest in reform or a dislike of change; rather, it is about fixing the foundations of the registration system before we get brave and ambitious about a new extension or, indeed, a new storey on top of our existing registration house. To attend to those greater ambitions, when the Bill's scope was finalised in January 2025, we received ministerial approval to begin work on a further registration Bill once the legislative objectives that we have at the moment are met. We hope that that future Bill can be a vehicle for the wider changes that members of the Committee and Members elsewhere may seek to make. We look forward to working with the Committee on those matters.

I will now turn to the detailed provisions of the Bill, Clauses 2 to 7 set out the provisions that relate to the Coronavirus Act powers. Those have to do with the electronic transmission, the flow of paperwork between different parties in the registration system and remote registration. Specifically, clause 2 deals with electronic means of signing and communication. It inserts an explicit power into the 1976 Order that enables the definition of approved electronic means for the delivery of documents in the registration system and for the signing of those documents. That framing future-proofs our registration system against any changes in communication methods. Clause 3 —.

The Chairperson (Mr O'Toole): Sorry, just a second. For the record, I just want to be clear about what clause 2 does. It elaborates on the power that was created via regulations to the Coronavirus Act to enable you or your successors in the role to create electronic means to register deaths.

Dr Wales: Not so much to create electronic means to register deaths as to specify electronic means that are acceptable in the registration context. For example, clause 2 deals with how a document might get passed or how it might be signed.

The Chairperson (Mr O'Toole): Part of that is to future-proof the legislation against any technological changes.

Dr Wales: Yes.

The Chairperson (Mr O'Toole): OK. It is worth saying that, because I am aware that one or two funeral directors were a bit concerned about some of the provisions lapsing. It is not their job to raise concerns, as they have businesses to attend to. I am not sure from where that information came, but there has been no lapsing of provisions, and there will not be any lapsing of provisions while we consider the legislation. I think we can say fairly definitively that the regulations will continue to be in place until such times as the Bill is passed into law. I just wanted to clarify that.

Dr Wales: Thank you, Matthew. That is helpful. It may be useful for me to say that I believe that that correspondence arose because, in advance of debates on the Coronavirus Act extension orders, we have had to tell the registration service that there is a chance that powers would fall, if the Assembly did not approve the extension order. It is out of that that, I think, the correspondence emerged. Yesterday's debate confirmed the powers, as you say.

The Chairperson (Mr O'Toole): There is a theoretical chance, but, in reality, it is vanishingly unlikely to happen politically.

Dr Wales: That is correct, but we are not taking the Assembly for granted.

The Chairperson (Mr O'Toole): OK.

Dr Wales: That is the situation.

Thank you. I will proceed. Clause 3 concerns the passage of documents between parties in the stillbirth registration process. In particular, clause 3 amends article 15 of the 1976 Order in several places. The effect of clauses 3(1) to 3(4) is to remove the onus on the informant to pass the certificate of a stillbirth from the registered medical professional to the registrar and instead place a duty on the medical professional first to sign the certificate and then to pass it to the registrar, without needing to burden the informant with the change.

Clauses 3(5) to 3(7) mean something similar for the certificate of registration. The registrar can now send the certificate of registration directly to the undertaker without the informant having to carry that document between the two parties. There, we remove references to "written notice" that may previously have been provided in the context of a delayed registration. For both certificates, the legislation makes it clear that the next of kin or the informant must be given a copy of those certificates on request. We are therefore not writing them out of the process: nothing of the sort. Indeed, on some readings, we are strengthening their role.

We make a similar set of changes to death registrations in clause 4. Clause 4 amends article —.

Mr Frew: Sorry, Chair, but do you want us to ask questions on a clause-by-clause basis or wait until the end?

The Chairperson (Mr O'Toole): I would rather that we go through the Bill, unless there are specific questions about a clause. Where doing so is relevant, I will try to summarise. I therefore ask that members hold their questions until the end, when members with specific questions can indicate.

Mr Frew: Sure.

Dr Wales: That is helpful.

The Chairperson (Mr O'Toole): It might hold us up a bit too much if we were to take questions clause by clause. Go ahead.

Dr Wales: Clause 4 amends article 22 of the 1976 Order to ensure that the medical certificate of cause of death (MCCD) can now travel from the registered medical professional to the registrar without the informant's being involved. Again, that can happen in electronic form, with an electronic signature. The clause also makes provision for delayed registrations and for referrals to the coroner.

Clause 5 does the same for the certificate of registration by amending article 29 of the 1976 Order to enable the registrar to send the certificate of registration to the undertaker without burdening the informant. As is the case with stillbirths, the informant is empowered to receive a copy of both certificates on request. That is in clauses 4(6) and 5(2). A further reference to "written notice" is removed.

At that point in the Bill, we have made provision for electronic transfer of documents and for signing, and we have changed how paperwork flows through the registration system. You will recall that that was the stumbling block that prevented us from making secondary legislation. What remains is for us to make provision for remote registrations alongside in-person registrations. That is effected by clauses 6 and 7. Those clauses amend the 2012 regulations to make provision for the ways in which births and deaths respectively can be registered. The amendments to the 1976 Order make provision for remote registration over the telephone and for in-person registration. They make provision for electronic transmission and allow for the possibility that someone may sign the registration document with a pen if they attend in person or have their name entered if they attend remotely. In the case of stillbirths, as Mr Frew also highlighted at Second Stage, the drafters have adopted what is considered to be legislative best practice in clause 6 by removing a reference to form 1 in regulation 12(4) of the 2012 regulations, which is used in the registration of births, and entering the same requirements explicitly in the clause in the Bill that deals with the registration of stillbirth particulars.

As the discussion has made apparent, the changes required to enable the remote registration of deaths, the electronic transfer of documents and the shifting of the burden of transfer from the informant to the other parties in the registration process are fairly considerable and range across the circumstances envisioned by the 1976 Order. They make up the bulk of the Bill and are designed to ensure that those processes are fully integrated into our enabling legislation and not in a light-touch way, as was the case with the Coronavirus Act. To complete the effect, clause 10 repeals the Coronavirus Act provisions.

I should perhaps pause there, Chair, to see whether there are any questions before I proceed to the other powers that the Bill introduces.

The Chairperson (Mr O'Toole): Yes, why do we not do that now? I will bring in the Deputy Chair, Diane Forsythe. Sorry, Paul Frew wants to come in first.

Mr Frew: So that you know, clause 10 is probably my favourite clause in the whole Bill

, as it repeals provisions in the Coronavirus Act.

Thank you very much for your clarification on the first question that I asked at Second Stage, Philip. You answered it by saying that, through the Bill, you are amending existing legislation with the temporary text from the Coronavirus Act lifted out.

To be consistent, however, if you read what you are amending under clause 3(6)(a), you will see that it states:

The words, "and a copy of such a certificate" have to be added to the end of that text. You say that you do not need that because that related to the Coronavirus Act, but let me read it again:

The text "accompanied by such a certificate" is also added in by the Coronavirus Act. If you therefore do not need to add the text "and a copy of such a certificate", it could be argued that it is consistent to say that you do not need to add the text "accompanied by such a certificate", which is in the Bill. Really, clause 3(6)(a) should read, "for 'written notice of a still-birth as is mentioned in paragraph (3)'".

I again ask for clarification. I do not ask for that to be given now, because I know that it is very technical. I get the argument that, if it is a temporary piece, we do not need to amend it or substitute it in the Bill, but it is not consistent, because both passages of text are temporary wording.

My other question on that temporary wording is this: how temporary is it? We know that some of the Coronavirus Act provisions will remain in place until they are actively removed. It is not the case that they will fall simply because they have not been renewed. Rather, there may well have to be a physical move to remove them.

I am grateful for the answer that you have given, but the wording is not consistent, if you include the text, which I will quote again, "accompanied by such a certificate". Again, it is too technical to answer here and now, but I ask that you take that specific question away and ask it of the drafters. To make it right, either the text "and a copy of such a certificate" needs to be added or the wording that is in the clause, which is, "accompanied by such a certificate" needs to be removed, because that is also a temporary phrase derived from the Coronavirus Act.

Dr Wales: We posed that question to the drafters, and a response is on its way to you, Paul. I am sorry that it has not reached you yet. My understanding, from their answer, is that the provisions are in order, but I will leave it to them to explain it in their language, because you are quite right that it would be difficult for me to do your question justice here and now.

Mr Frew: It is more of an issue for the drafters, because it will not change the Bill's provisions. For me, it is more about the accuracy of what we replace and substitute. Thank you.

Dr Wales: No problem. On the question of Coronavirus Act powers subsisting, clause 10 should remove all those powers, so they should disappear from the 1976 Order and the 2012 regulations. There should not be Coronavirus Act powers in the Bill.

Mr Frew: Clause 10 will repeal only section 18(3) of the Coronavirus Act.

Dr Wales: That is correct.

Mr Frew: Just as long as there is nothing else in the Coronavirus Act that breaches the 1976 Order and the 2012 regulations. I would worry about that as well, because one of the questions that I will be asking is whether we are sure that we have swept all the Coronavirus Act provisions cleanly away from those two legislative instruments.

Dr Wales: My understanding is that section 18(3) is the only subsection that has an operative impact on the 1976 Order, but I will take that question away and make sure by correspondence that that is the case. It is a good question.

Mr Frew: Before we get to clause 11, I have an issue with clause 6(2)(a) on page 4 of the Bill. We are removing regulation 12(4) from the 2012 regulations. It seems that we are taking out forms 1, 1A and 1B. The wording that was in regulation 12(4)is now in the Bill, midway down that page, under clause 6(4).

Dr Wales: Yes.

Mr Frew: I do not understand why we need to do that when the 2012 regulations are in print anyway. Again, that is a question for the drafters. Why is it necessary to remove regulation 12(4), which relates to the forms? It is also a provision that covers who checks the forms for error. Are we therefore leaving something out about how we check forms? Perhaps that is included, because clause 6(4) states that a new regulation 16(4)(b) will be inserted, which reads:

This is about error and checking of forms. I do not understand why we have removed birth registration forms 1, 1A and 1B. The stillbirth forms are forms 2, 2A and 2B. I may be in danger of answering my own question, but I will leave it to you to answer.

Dr Wales: We will leave it to the drafters to answer. Again, I am sorry that we have not given you the answer already. I will leave it to them to get the language exactly right. You are exactly right to say that, where we remove a reference to regulation 12(4), the equivalent language is to be entered later. The drafters have ended the practice of application by modification. Rather than taking a birth form, in the context of a stillbirth, and saying, "We'll apply it with modification", we will explicitly enter the same information about checking to which you refer. That will appear in the stillbirth clause of the Bill, so the 1976 Order — this goes back to the coherence point — will then read as a single, coherent piece. It is very difficult to read that from our Bill, because it is an amending piece of legislation. I hope that your mind will be put at ease on that point when you see the response. It is a point well made, however.

Mr Frew: I have a question about clause 8, "Minor amendments relating to births and still-births", which states:

My question is simply this: why? In the clauses up until clause 8, the text has been in the Bill, so why have we put it a schedule when it comes to amendments that relate to the registration of births and stillbirths for same-sex couples?

Dr Wales: I have not come to that yet in my remarks. How exactly the drafters want to frame those things is a question for them. They felt that the changes could be separated and put in one place together, rather than have them run through the Bill's narrative. It was not a policy decision but a drafting one. Again, the answers that we have had from the drafters, which are on their way to you, will make that point. I am happy to take any other questions that you have about that clause in correspondence.

Mr Frew: It has just come into my head that there is no difference between amending text in the Bill and amending text in the schedule at Consideration Stage. As far as I am aware, there is no difference.

Dr Wales: I am not aware of any difference, but we can take that away and check for you.

Mr Carroll: I have two questions. There is some suggestion about delaying the Bill, or certainly about extending the Committee Stage. What is the Department's assessment of the impact that doing that would have?

Dr Wales: I can answer your question now, but I was going to address that at the end.

The Chairperson (Mr O'Toole): It is a question about Committee Stage.

Dr Wales: It is a question of the timetable to which we are working.

The Chairperson (Mr O'Toole): What is your specific question, Gerry?

Mr Carroll: It is about the impact that the Department thinks that there will be if the Committee Stage is extended.

The Chairperson (Mr O'Toole): You can answer the question now, if you want.

Dr Wales: The Minister has been very clear that he would like to see the scheme operational by the end of the year. That is also very much our ambition. Indeed, that is the timetable to which we are working. To enable that timetable, we are working on holding a public consultation, in concert with the Department of Health. We expect that to begin in June. We hope that the consultation will run for 12 weeks, after which we will consider the responses. The Department will then look at the volume and complexity of the responses, and we will then put together a response and draft regulations, which will be brought to the Assembly for consideration.

We are hopeful that we can do that in October. Should the Committee seek to extend the Committee Stage period to be in proximity to that, we will have a real challenge, as we will then have regulations that we want to bring to Committee for consideration that depend on a Bill that has not yet received Royal Assent. It therefore really depends on how long of an extension you seek.

If an extension runs to the other side of the summer recess, it becomes increasingly difficult to see how we can get the scheme in place this year. I am not trying to minimise the Committee's scrutiny role here. You have a duty to perform and scrutiny to undertake, but we are working towards the objective of having it in place by the end of the year, based on the hope that you will be able to consider the Bill quickly.

Mr Carroll: That is a concern. The pace of change is slow at the best of times at Stormont, but, given the severity of the issue, many people will view the delay of the scheme for a very serious and heartfelt issue as a bit of a concern, to put it mildly.

Will you or the drafters clarify the statutory rule (SR) powers? The timescale that you have set for people to have input to the consultation seems to be quite extensive. With any legislation, things can be missed, but will there be a power in the SR for the Minister to amend things subsequently? That is not contained in the Bill, is it?

Dr Wales: The Bill as it stands includes an enabling power for us to make regulations for a baby loss certificate scheme. It is those regulations that we want to be able to bring to the Assembly for consideration in October.

In parallel with the legislative timetable and the consultation, we are also starting work on logistical aspects and practical aspects, such as the IT systems and the human resources that need to be in place in order to be able to deliver the scheme. The Department is therefore working to a timetable of the end of the year. It is for you to determine what your timetable requires.

The Chairperson (Mr O'Toole): The Department delayed introducing the Bill in the first place. Before the Committee is reprimanded for a delay that has not happened yet, it is important to put on the record that we are not the people who delayed introducing the Bill in the first place.

Mr Brett: To pick up on that point, when you talk about an extension, do you mean beyond the normal four-week period for a Committee Stage? Let me rephrase that: it is not normal. A Committee Stage is in Standing Orders as being four weeks, but I cannot recall the last time that a Committee Stage was done in four weeks. Is that what you mean?

Dr Wales: The plan that we had internally and the hope and expectation was that you would have completed your scrutiny and that we would be moving through the rest of the legislative stages before the summer recess hits. I do not think that precludes an extension to your four-week or 30-day time frame, but, clearly, an extension beyond that makes it harder for us to achieve the ambition of having the scheme in place by the end of the year.

Mr Brett: It is not for you to speak for the Department, but, as the Chair has outlined, the delay in having the Bill come before the Committee is not the Committee's doing. In fact, if it had not been for the tenacity of one of our Members, the Bill may have been delayed even further. The Committee considered it as soon as it arrived with us. If anyone looks at the Assembly's record of considering Bills at Committee Stage, the 30-day time frame is rarely met. It will, however, be up to the Committee to decide when it progresses to the next legislative stage.

The Chairperson (Mr O'Toole): We will be having a discussion on that. This is not solely a discussion about Committee Stage but about our scrutiny of the Bill overall, so I am keen that members scrutinise, which is the whole point of a Committee Stage.

Mr Frew: We have not yet covered clause 11. Philip, you may have commentary to give on that clause, but, on the point about time pressures, in England, Wales and Scotland, interestingly, their baby loss certificates are non-statutory, so no legislation of any kind is required for them to be introduced there.

The Chairperson (Mr O'Toole): In England and Wales.

Mr Frew: In England and Wales. They have not needed any legislation. There is therefore absolutely nothing to stop you and the wider Department from commencing work on a baby loss certificate now.

Dr Wales: My understanding, Paul, is that, in Scotland, there are enabling powers that enable the Registrar General to do a range of things, encompassing, on one reading of it, issuing baby loss certificates. My understanding is that specific provision has not had to be sought, because there is a general power that can be used there. I think that a similar situation is in place in England. In Northern Ireland, as I understand it, Departments are required to seek approval for things that they do rather than be constrained from things that they cannot do. That may be a pidgin reading of the legal position. It means, however, that we have had to seek explicit statutory provision to be able to deliver the scheme. We can certainly work on the practicalities in the background. We can go on drafting, we can consult and we can make as much progress as we can. Indeed, we will do that if the Committee chooses to extend the Committee Stage, and to extend it beyond the summer recess. That is the position.

Mr Frew: Has that been tested by legal advice?

Dr Wales: It was our legal advice that said that we should add a statutory power to the Bill for us to be able to create the scheme.

Perhaps I should move on to the next set of changes, as we are deep into the Bill and are not talking about the Coronavirus Act powers any more. Let me pick up from where I left off. Clause 10, as I said, completes the Coronavirus Act provisions. It takes on the powers but repeals the Coronavirus Act itself.

I will turn briefly to the other matters. Clause 8, as you said, adopts a single schedule to the Bill, which contains changes that are required to resolve the registration option disparities that I referred to earlier. That schedule amends the 1976 Order to enable a second female parent to register the stillbirth of a baby or, indeed, the birth of a baby without the mother present. It also enables re-registration by the mother should the details provided by the second female parent at the original registration be disputed, and it enables separate attendance by a female same-sex couple to conclude a joint registration. Together, those changes align the birth and stillbirth registration options of same-sex and heterosexual couples who are neither married nor in a civil partnership. The changes do not impact on the certificates that are being issued. They impact only on the legislative process by which someone will come in and register a birth or a stillbirth.

On baby loss certificates, clause 11 of the Bill introduces an enabling power for the Department to introduce a certificate scheme by regulation for losses other than stillbirths during pregnancy. Rather than adopting a very broad power to achieve that end, the Committee will see that clause 11 sets out specific details for inclusion in the regulations, including the conditions of issue, the information that the certificate is to contain and who is eligible, among other details. Clause 11 also makes it clear that the Department must seek approval from the Assembly, as per our earlier point, to make regulations under the Bill. Once we have concluded our consultation exercise, have the detail of the scheme and have drafted the regulations that are required, it is our intention to bring the scheme back to the Assembly for debate, discussion and, we hope, approval. The clause is also a helpful reminder of the bounds of the legislation that you are considering today. The Department is not seeking ratification of or agreement on the detail of the baby loss certificate scheme. We are seeking only an enabling power so that we can provide that detail though a consultation and then through regulations. The Assembly and, indeed, the Committee will have an opportunity to scrutinise the regulations at a future point. That completes my commentary on the substantive changes in the Bill.

The Chairperson (Mr O'Toole): Clause 11 is effectively the entirety, effectively, of the baby loss certificate component of the Bill. To summarise what it does, is it fair to call it a Henry VIII power? Perhaps that is not your speciality.

Dr Wales: It is not my speciality, I am afraid.

The Chairperson (Mr O'Toole): It creates a power for the Department and for you as Registrar General to design a baby loss certificate scheme. The detail of that scheme needs to be passed by affirmatory resolution by the Assembly and the regulations would therefore come to the Committee. Theoretically speaking, if a scheme were designed that the Assembly or this Committee did not approve of, it would not go live.

Dr Wales: If you look at clause 11 —.

The Chairperson (Mr O'Toole): Yes. It is clause 11(5).

Dr Wales: Clause 11(5) is the operative bit:

The Chairperson (Mr O'Toole): I want to go back to the question of sequencing. We will have a further conversation on that in closed session. Would you have those regulations drafted? Say, for example, the Committee Stage concluded on 4 June. It is worth bearing in mind, members, that — without putting my finger on the scale, because we are going to have an open discussion about this that I will have to chair — 4 June is one or two Committee sessions away. We are doing our evidence-gathering at the Balmoral show next week. There will be two Committee meetings before the end of the Committee Stage. Say, for the sake of argument, that we did not extend the Committee Stage. During the summer, you would be consulting on designing the scheme and the regulations. You are saying that, first, you would have everything consulted on and designed and would have Royal Assent for the Bill in time to bring the regulations under clause 11(5) before this Committee and the Assembly before the end of the year. Is that what you are promising? I would not be so facetious as to comment on previous pledges that we have had on legislation. Anyway, is that your intention, should we stick to your preferred legislative schedule?

Dr Wales: Setting aside for a moment what the Committee does, it is our intention to launch a consultation on the detail of the scheme to run over the summer, beginning in June. We hope that there will be a good response to that.

The Chairperson (Mr O'Toole): I want to test that. This may be a stupid question on my part. Do you definitely need us to have finished our Committee Stage before you consult on that? Even if we finished the Committee Stage, it probably will not have passed all its stages in the Assembly. I am not sure.

Dr Wales: We do not need to have achieved Royal Assent to consult on the detail of the scheme. We can consult on the scheme separately from the legislative position.

The Chairperson (Mr O'Toole): You can consult on it now then, while we are in the Committee Stage.

Dr Wales: That is correct. We will launch the consultation in June to run over the summer. How quickly we can get the response document prepared and the relevant regulations drawn up depends, to some extent, on the nature and number of the responses that we get. If we get a very large number of responses that are very complex in nature, it will take us longer. We can begin to make some preparations over the course of the summer on the way that the regulations would be drafted, while the consultation is running. We will establish a framework, if you like, into which the outcomes of that consultation can be written so that, then, we will be at an advanced stage when the Assembly returns after the summer recess.

The Chairperson (Mr O'Toole): I understand that the Minister's preference is for us not to extend the Committee Stage, but even if we do, you can still do the consultation.

Dr Wales: That is correct. I will add a postscript to that —.

The Chairperson (Mr O'Toole): I understand that that might have an impact on the time that it takes for you to bring in regulations.

Dr Wales: That is the point that I was going to make. If the Bill has not achieved Royal Assent, I cannot, except in draft form, bring regulations to the Committee that are made under it.

The Chairperson (Mr O'Toole): Say, for the sake of argument, that we extend it to August or September or something — I am not predicting that we will; I am testing the theory — and then have a few weeks for Consideration Stage, Further Consideration Stage and Final Stage. Could you bring us the regulations in draft form so that we can scrutinise them before we have a final meeting at which we approve them or discuss them after the Bill has passed all its Assembly stages? Theoretically, would that be possible?

Dr Wales: My understanding is that that is correct. We can bring you a piece of paper that has on the top of it, "Regulations for a baby loss certificate scheme", but we cannot call that an SL1 with a set of regulations for your formal consideration.

The Chairperson (Mr O'Toole): OK. That is helpful.

Mr Tennyson: Thank you, Philip for your evidence. I have just two questions about the enabling power in clause 11. I understand that the Department's intention not to charge for the certificates, but there is provision for regulations to deal with charging. Why is that provided for in the Bill? If you are confident that this can be turned around relatively quickly after Royal Assent, why is there no timeline in the Bill to set the Department a statutory target date for delivery?

The Chairperson (Mr O'Toole): We have a date for that.

Dr Wales: Those are good questions. Our expectation and that of the Minister is that we will not charge for the certificates. In the course of putting the Bill together, however, it was recommended that we include such a provision, even if we do not use it, so that, depending on future circumstances, we can charge if we choose to do so. Some current certificates are issued without charge; others are paid for. In the registration service, you have to be mindful of the practicalities. It may be clear that, if someone applies for a certificate, we should not charge for it. If they apply for a copy of the certificate, should we charge for that second one? What about the tenth one? What about the 150th one? We do not envisage that scenario happening, but it could, and the provision is there for us to make sure that the system does not fall into disrepute. As I said, it is not our intention to charge. We do not charge for stillbirth certificates, as is set out elsewhere in the Bill, so we would not expect to do so in the future, but, in some instances, you might want to, and, absent a primary legislation power for that, we would not be able to.

At the time of drafting the Bill, we did not have enough certainty, even about the conversation that we are having here on the next stage, to be able to commit to a legally binding time frame. The timetable that we have set out is ambitious, and I hope that you recognise it as such. If we do not hit that, I expect in due course to be sitting in this chair, hearing you telling me that I have been slow; those are our respective roles in the process, and that is fine. We are making the provisions and arrangements with the best intentions of having this done by the end of the year. I hope that you will recognise that as being ambitious and reflective of an honest desire to deliver as quickly as possible for people here.

Mr Tennyson: That is helpful.

Mr Frew: In clause 11, on certificates of baby loss, you give yourself the provision to charge and the Henry VIII power within which you could probably make such a provision. You are giving yourself plenty of wriggle room — probably multiplied by two.

Dr Wales: When you say "the Henry VIII power" —

Mr Frew: You give yourself the power to amend:

Dr Wales: That is at clause 11(4), is it?

Mr Frew: It is on page 6.

Dr Wales: Clause 11(4)(a).

Mr Frew: At clause 11(4)(b), you give yourself the power to amend:

Dr Wales: That is correct.

Mr Frew: That means that you can amend:

of any Parliament — the Assembly in this case —

That is the sweeping power; Henry VIII is its nickname. Under the provision at clause 11(4)(b), with that power, you could decide, in three years' time, to charge a fee. As far as I am aware, you do not need to make specific provision for charging in the Bill. I could be wrong, but I think that you have doubled your wriggle room. It is not an important point — I would not like to see a charge put on this, and you raise valid points about occasions on which you might need to charge — but, I think, you put in the Henry VIII clause to give you that wriggle room at a later date without having to come back to the Committee or the Assembly.

Dr Wales: I will have to take that one away.

Ms Aoife Rooney (Department of Finance): You often need, because of the nature of a charge, a specific power for fees. They are closely —.

Mr Frew: Is it a bit like a Budget Bill? Does it fall under the guise of —

Ms Rooney: I cannot speak to the Budget Bill, but, very often —

Mr Frew: — any sort of remuneration Bill?

Ms Rooney: — you need it to be in the Bill so that people are clear that, for all the reasons that you outlined, a charge is proposed.

The Chairperson (Mr O'Toole): This is a sensitive and serious subject, but is it the Department's position that somebody could say, "I would like multiple copies of this" or "I would like it printed in a different language", and so, in certain circumstances and within reason, it has to be able to apply an additional charge? Is that the reason? I want to clarify that, because people want to address the concern that, all of a sudden, there will be a charge. If the clear policy intent is for there to be no charge, which everybody would agree with and is the case across the water, it would be helpful to clarify even some of the theoretical reasons for the power. Presumably, someone has thought that you need to take that power for a potential or hypothetical scenario. It would be helpful if someone could just —.

Dr Wales: That is a matter for the consultation, and I would not pre-empt that. The Minister has been very clear that it is not his intention to charge for those certificates. I suspect that the circumstances in which we would charge for them are vanishingly small. As I said, however, it was in our advice that we should include an explicit provision for the possibility of charging —.

The Chairperson (Mr O'Toole): I understand. It is obvious that the Minister does not think that they should be charged for, but my question is this: why was the advice given? Presumably, the advice was given because, in some circumstances, you need to have that power. It would be helpful for us to know why that advice was given, if the drafters are able to provide that information.

Dr Wales: We can take that away for you.

Mr Frew: I only have one other question. During the Second Stage debate, I raised the substitution of the word "father" with "other parent".

Dr Wales: Yes.

Mr Frew: Have you done any work on that? This is not a drafting question; it is about policy direction. I worry that by substituting "father" with "other parent", you are removing the rights of a father. However, it is not just about the rights of a father; it is also about the information that the child might need to obtain, even in later life. What I mean by that is this: if, at some point in the future, it becomes known that the father had a heart complaint that the child really needs to know about but there is no way of letting them know about it through the various documentation that is available, they will go throughout their life without knowing about it. Therefore, I have a concern about the health implications of that.

This is a policy issue for me rather than a drafter's issue, and I might be looking at this in the next couple of weeks, but would it not be best to include the words "other parent" and leave "father" in. Does that happen somewhere else in any form of relationships? We are tackling the restrictions on lesbian couples, and I would not want to do anything that diminished your policy intent on that, but I worry that if we leave the word "father" out, there could be unintended consequences for the father's rights and the child's health in later life. Is there any other sphere in which we have missed that because the provision in itself is repairing an anomaly? Maybe my concern is undue. Maybe it just about a birth certificate and the child will be able to obtain the information about their father in other ways. I worry, however, that if this is the only way of them doing so, we are creating a health issue for infants in later life.

Dr Wales: An answer to the question that you asked at Second Stage is on its way to you. To be clear, the scope of what we are looking to do here is narrower than what you are discussing, but we will confirm that via correspondence.

The policy intent is basic: all unmarried, non-civil-partnered couples should follow the same registration process for births and stillbirths. We are not changing the certificates, and we are not changing anything about what appears on the certificates or the information that is available to individuals. Instead, we are remedying inconsistencies.

There are three particular inconsistencies that we have in mind. First, a heterosexual couple who are unmarried and not in a civil partnership can attend a registration office separately to register a birth and a stillbirth: one partner can go in, the other partner can go in and they can conclude a joint registration. That option is not available to a same-sex female couple. We want to make it possible for the mother and the second female parent to go separately to the registration office, which is a very small change. Secondly, for a heterosexual couple, a father who is not married or in a civil partnership with the mother can register a birth or a stillbirth without the mum being there. The man can go into a registration office and say, "I am sorry, but my partner/girlfriend cannot come to the registration office. Can I do the registration on her behalf?". The registrar will say, "Yes, there is a legal provision for you to do that", and they will register the birth or stillbirth. That option is not available to the second female parent, so we want to remedy that. Thirdly, we have re-registration. For a heterosexual couple, if the man registers the birth or stillbirth, the mother is able to go back in and say, "No, I am sorry, those details were incorrect. Can we correct them, please?", and re-register the birth or stillbirth. That option is not available to same-sex female couples, because they are not able to conduct a separate registration in the first place. That is the extent of the changes that we are talking about here. It is to do with when you come to the office, who you come with and how you can register.

The Chairperson (Mr O'Toole): That does not change anything that is on the birth certificate. It does not change the text of a birth certificate so —

Dr Wales: Not at all.

The Chairperson (Mr O'Toole): — it is hard to see how it could have an impact on getting information.

Dr Wales: That is right. At the moment, some birth certificates specify the father and mother, which goes to your point. Others, under the Human Fertilisation and Embryology Act 2008, have the mother and the second female parent recorded on them.

Mr Frew: That is the point that I am making.

Dr Wales: That is the point.

Mr Frew: Are we missing a trick and have we stumbled upon an anomaly? That child will get their birth certificate and see both their parents on it, which is fine, because it is "parent 1" and "other parent" or "mother " and "other parent", but should they not also have the right to know their biological father?

Dr Wales: I cannot speak to those circumstances, Paul, as they sit outside the scope of the legislation that we are talking about and relate to the HFE Act. We can take away that question, but the HFE Act determines the nature and character of the certificates that we issue, and it is UK legislation. That is my understanding, at any rate.

Mr Frew: Set aside that piece of legislation, which you have told us is out of our scope. Imagine every other arrangement through which a same-sex couple — a lesbian couple — obtains a baby. Excuse my language. There will be a biological mother, but there will also be a biological father. In that scenario, should there be provision for the biological father to be included on the birth certificate, along with the mother and the other parent? That is my concern.

Dr Wales: I understand the question that you are asking. It will be helpful for you to get clarification on the issues that you raised at Second Stage. We will come back to you by correspondence directly because the draft response to you that I have seen partly addresses that question. The issue of whether a child should have three parents recorded on their birth certificate is explicitly included in the HFE Act. Forgive me: let me take that question away and correspond with you on it.

Mr Frew: Back on the issue of baby loss certificates, you can produce a piece of paper that, although it will not have "SL1" on it, will basically be the secondary legislation, and show us it as we are going through this process. There is absolutely nothing stopping you, the Department, from bringing forward proposed amendments that ensure that the provision on baby loss certificates is in the Bill. Instead of having an enabling clause, you could have the provision in the Bill.

We will not, but imagine that we took the same stance as the Justice Committee and said, "We want a two-year window".

There are good reasons why the Justice Committee wanted that, including the fact that it only had half a Bill to scrutinise. Imagine, however, that we came up with the ridiculous suggestion of a two-year window for this Committee Stage, saying that we would try to do it as quickly as possible and that type of thing. During that time, you could do your consultation, speak to the drafters about the regulations and be at the point where you are able to insert them in the Bill. You could, therefore, bring guidance to us that includes possible amendments that removes the enabling clause and include the provision of certificates of baby loss in the Bill.

Dr Wales: In the context of the Committee taking a two-year extension —.

Mr Frew: That is me using hyperbole.

Dr Wales: Yes, I recognise that.

Mr Frew: It is not to scare you in any way, Philip.

Dr Wales: I recognise that. In that context, we would have no choice but to proceed in the manner that you described. Far be it from me to tell the Committee what good government and good legislation look like, but the Bill that is before the Committee for scrutiny will enable us to do this in an ordered way.

When I look at the Bill, I think about its three Parts and the areas that you would want to scrutinise. When we looked at the situation as a Department, we considered whether we should consult users on the Bill. Our feeling was that that would be quite a strange consultation for us to undertake, particularly on the provisions in the Coronavirus Act 2020, as we would be going out to stakeholders to ask, "Are you broadly content with the way that we do things at the moment, or would you like to revert to how things were in 2019 and do things on paper?". We were not sure that that would be a good use of public time or money. We also considered consulting on the provision covering baby loss certificates but felt that the enabling power was sufficiently uncontroversial for us to proceed, because we would be consulting and coming back to Assembly with the regulations. For those reasons, we did not feel that consulting on that provision was necessary.

In relation to the amendments that we have just discussed, notwithstanding questions about parentage and health matters, the three changes that we are making are relatively slight. They are to do with the internal workings of the registration service and when someone comes to the office. I am not sure how we would consult on the question of whether we want to maintain or resolve an inequality in our registration service. I am not sure that we can ask that question in all good conscience. For those reasons, we did not see a need for a big engagement exercise, which is why we brought forward the Bill as it is.

I recognise that you have a role to carry out. I will not trample on that in any way, but I hope that proportionality can win out and that we can follow a sensible legislative process from beginning to end, rather than having the multi-year extension that you mentioned.

Mr Frew: I hear you.

The Chairperson (Mr O'Toole): No members have indicated that they wish to ask further questions.

Dr Wales: I have just two further comments to make. I have talked through most of the clauses of the Bill, but I want to speak briefly about the commencement. As set out at clause 12, it is our intention to bring the baby loss certificate scheme and the changes in the schedule to the Bill into operation at the point of Royal Assent. We think that it is appropriate to do that in most circumstances. In contrast, we plan to bring clauses 2 through 7 and clause 10 into effect by order of the Department on a specific date. The reason for that distinction is to provide clarity for the registration staff who provide the service so that we can make the change from one legal basis to another in a planned and orderly manner without there being any surprises at the point of Royal Assent.

The Chairperson (Mr O'Toole): OK. To be clear, did you say clauses 2, 3 and 7?

Dr Wales: No, I said, "clauses 2 through 7". It is clauses 2 to 7 and clause 10.

The Chairperson (Mr O'Toole): Sorry, excuse me. Those are all the bits that relate to the rollover provisions from the Coronavirus Act. Effectively, you are saying that you will not commence those on the day after Royal Assent, because you want to plan your communications to stakeholders — everyone from undertakers to funeral directors, the coronial service and whoever else — so that they know that the legal basis is changing on a particular date, rather than it simply being the day after Royal Assent, which can happen in a fairly haphazard and unpredictable way.

Dr Wales: That is exactly the principle, and it is the reason why, ahead of yesterday's debate, we wrote to registrars to say that it is possible that we might have to make a change if the Assembly does not approve the extension order. We would like to be able to write to them to say that the powers will come into effect on a particular date and that little else will change but it is worth them knowing that the change has happened.

The Chairperson (Mr O'Toole): It is important to reiterate to any funeral directors who are watching that the likelihood of that happening is infinitesimal, so they do not need to worry about it.

Mr Frew: If it is after the Bill receives Royal Assent, it will be a later date.

Dr Wales: I assure you, Paul, that it will not be a much later date. It is our intention to do this as quickly as possible but with a plan in place and in a managed way, rather than writing to registrars and saying, "Can you keep an eye out to see when we receive Royal Assent", because, as you say, there is a view that that can happen at short notice. We want to make sure that people have got —.

The Chairperson (Mr O'Toole): That means that, in theory, different bits will commence at different times. The baby loss component will, effectively, commence immediately or the day after Royal Assent. That will enable you to lay the regulations. Separately, you will name a date on which all of the other provisions — the stuff that has been happening since COVID, such as the electronic notification of deaths — will commence.

No members have indicated that they want to ask further questions. Thank you, Philip and Aoife.