Civil Registration Bill 2003: Committee Stage (Resumed).
Government amendment No. 28a:
In page 43, between lines 36 and 37, to insert the following subsection:
"(9) A declaration specified inparagraph (a) of subsection (4) may be made at any time before the declaration under paragraph (b) of that subsection is made, not being a time earlier than 2 days before the day on which the latter declaration is made.”.
Senators will recall raising an issue during the Second Stage debate on the proposed procedures for the solemnisation of marriage contained in the Bill. In my response I advised Members that my officials were actively engaged in discussions with interested parties with a view to resolving the issue. I also stated that my officials were seeking legal advice from the Office of the Attorney General on the matter. Arising from the advice obtained, I have decided to bring forward this amendment to ensure the substantive requirements for marriage can be met while accommodating the liturgies of different religious bodies.
I am satisfied the amendment will address the issues and concerns raised by Members.
I thank the Minister for tabling the amendment.
I thank the Minister and her officials for finding a resolution to the problem. It was threatening to create difficulty and a bit of embarrassment for one or more religious bodies. I congratulate the Minister on finding a satisfactory solution for all concerned.
Amendment agreed to.
Section 51, as amended, agreed to.
Sections 52 to 55, inclusive, agreed to.
Government amendment No. 28b:
In page 46, subsection (1)(b), line 17, to delete “cancellation” and substitute “refusal”.
This amendment seeks to correct a drafting error in the subsection to allow for persons or bodies to appeal against the refusal of an tArd–Chláraitheoir to register a person nominated by a body in the register of solemnisers.
Amendment agreed to.
Section 56, as amended, agreed to.
Sections 57 and 58 agreed to.
Amendments Nos. 29 and 30 are related and will be discussed together.
I move amendment No. 29:
In page 49, subsection (1), line 40, after "divorce" to insert "or makes an order recognising a foreign decree of divorce as being valid in the State".
The amendment seeks to provide a comprehensive registration of decrees of divorce to cover circumstances where a court recognises a foreign order as being valid in this country.
The section provides for the registration of decrees of divorce and decrees of nullity of marriage granted in the State. Currently, each court holds its own records of decree of divorce and civil nullity of marriage. There is no central database or repository of decrees of divorce and decrees of nullity within the court system. Persons wishing to remarry, following the granting of such decrees, must provide a copy of the decree to the registrar from the relevant court. The Courts Service will act as the registrar and these are considered a vital event as they have serious legal and social implications for the status of individuals. The provision will facilitate persons granted a divorce in the State who wish to remarry.
The civil registration service, except in specific cases of births and deaths, records vital events occurring to the person within the State. It is not the purpose of the civil registration service to record vital events occurring in foreign jurisdictions. The provision to record all decrees of divorce and decrees of nullity granted by the courts will provide a complete record of all such events from a future date. To include a provision that allows parties to such decrees in the past to apply to the Courts Service for the decrees to be entered in the register would mean the register would not be a complete record of these events from a certain date. In the circumstances, it is not appropriate to accept the amendment.
Amendment, by leave, withdrawn.
Amendment No. 30 not moved.
Section 59 agreed to.
I move amendment No. 31:
In page 50, subsection (1), between lines 10 and 11, to insert the following paragraph:
"(a) any dispute arises between a person and a Registrar in relation to matters to which this Act relates, or”.
This amendment would broaden the existing narrow basis for appeals under section 52.
The section provides for the introduction of a new appeals system to enable persons to appeal decisions on the registration of events. It is both desirable and reasonable that an appeals mechanism be formally included in the Bill underpinning the central registration system as fair and open, addressing grievances in a timely, structured and impartial manner and confirming the principle of good customer service.
The functions of the registrar include the registration of births, stillbirths, marriages and deaths, and the correction of errors on the registers. In future the persons registering the event must be notified of the reason for a refusal by a registrar to register an event or to correct an error in an entry in the registers. An appeal may be made where a register fails or refuses to register an event, or where an tArd–Chláraitheoir or an authorised officer fails or refuses to correct an error in a register of births, stillbirths or deaths. The decision of an tArd–Chláraitheoir may be appealed to the High Court so there is adequate provision within the legislation to address the concerns of the appeal. The additional wording suggested in the amendment is unnecessary and would confuse the issue instead of clarifying it.
Amendment, by leave, withdrawn.
I move amendment No. 32:
In page 50, subsection (1), line 23, after "person" to insert "concerned, as the case may be,".
This is a technical amendment to improve the drafting of the Bill.
I disagree. The advice I have obtained from the Attorney General is that this would not add anything to the Bill, which complies with best practice as established.
Amendment, by leave, withdrawn.
Section 60 agreed to.
Amendment No. 34 is an alternative to amendment No. 33 and they will be discussed together by agreement.
I move amendment No. 33:
In page 51, subsection (1)(a), line 40, to delete “may” and substitute “shall be entitled”.
This is the most important amendment I have tabled. I am concerned about the use of the word "may" in the Bill because in sections 50 and 52 of the Births and Deaths Registration Act 1880, which is repealed by this Bill, the public has a right to search all indices, local and national. It is important that "may" now appears in this Bill because it could mean "shall be entitled to" or "may be allowed to" and it grants huge discretion to superintendent registrars or the registrar general as to who can look at sections.
My wording is specifically chosen to accord with section 35 of the Bill, dealing with the privacy of adoption records which states that "no person other than an tArd-Chláraitheoir or a person authorised in that behalf by an tArd-Chláraitheoir shall be entitled to search the register". It is important that in that section the Bill states "shall be entitled", but in this vital section it states "may". That gives huge latitude to controlling access to these registers that did not exist in the past. How does the Minister interpret this? Section 35 looks very tight. Will "may" be interpreted in a tight manner? Will it mean "shall be allowed" or "shall be entitled"?
Senator Henry's amendment is superior to my amendment, which is clumsy. We wanted to delete from "may" until "section 13". It is an important issue and we need clarity on it. As it is currently worded, "may" gives a great deal of latitude to the officials concerned and Senator Henry's much clearer amendment, substituting "may" for "shall", will give a firm view about searches, an issue of paramount importance.
The English language is being misinterpreted because I read this section, as would any court of law, as "may" meaning "has a right to" or "shall be entitled to". I accept that "may" has two meanings but it is clear in this context that "may" means "has a right to" and I cannot conceive of any court interpreting it any other way.
Senator Mansergh has answered the question. The registrar general and his officers have always facilitated those who wish to search the register. That, however, does not include the adoption index, a totally different record. "May" is the normal legislative form and its interpretation is "will be obliged to".
Concerns were raised by the genealogical groups that were unfounded because I gave a commitment that we will retain a genealogical and family research facility in Dublin. The GRO has been transferred to Roscommon but that facility will remain and electronic research equipment will be introduced in the research room in the GRO office in Joyce House in mid-2004. Access to paper or microfilm copies of the index books and registers will continue to be available until all historical data are available electronically in mid-2004.
With the transfer of the GRO to Roscommon, it is envisaged that discussions with the OPW will take place on considering a more suitable location for the research facility, perhaps within a university or in another more appropriate location. As Members will agree, the development of the research facility is most important. We will continue another phase of the civil registration system to incorporate an Internet research facility, which will be beneficial. Consideration will be given to the level and type of access to registration data which will be provided to users of this service. If concerns are expressed about access to such research or data, the consultative groups will be the appropriate people with whom to air them and, accordingly, deal with them.
Having re-read the subsection, I want the Minister to further clarify the matter. The subsection states "on payment to him or her of the prescribed fee, may, subject to such conditions (if any) ..." What possible conditions would there be? In the case of adoption, I am aware there is specific law on this area which requires a great deal of discretion from the officials concerned, but I am not aware of any other legislation concerning any other life event. Will the Minister give some examples of what those conditions may be? This matter has been raised by the organisation to which I referred earlier, Treoir, the unmarried parents association, who have made representations to me about this matter. They are satisfied with the current situation and recognise the work done by all the officials concerned, but they have raised the issue of why any conditions were inserted in this section when the only current conditions which would allow a search not to occur would be in regard to adoption.
I take Senator Mansergh's point about "may" being the word that is usually used in legislation, but I am concerned about the use of the word "shall" in section 35. "May" is the word that is usually inserted, so why has the word "shall" been inserted in section 35?
It must refer to something that has to be done. Section 35 deals with privacy and contains an imperative. It states that "No person other than an tArd-Chláraitheoir or a person authorised in that behalf by an tArd-Chláraitheoir shall be entitled . . ." It is a compulsory requirement that the person shall not have access unless there is a court order or the adoption society advises the Ard-Chláraitheoir otherwise. That is the most definitive way of saying that no one else will have access except the two people alluded to. The word "may" means that people will be facilitated.
The words "if any" in the section refers to the practicalities involved. If some 150 people were standing outside Joyce House, the Ard-Chláraitheoir would have to tell them that they would have to wait or come back tomorrow. On that basis, a person could say that the registrar cannot stop him or her looking up some information, which the registrar could not. However, the practicality of the matter may be that there is no room for the person to do so and the person may be asked to return tomorrow and may be given a time. The words "if any" are included on that basis. Such information is a matter of public record and therefore people are entitled to find out whatever information they want to. The words "if any" are inserted to provide for the practicalities of doing that. It enables a registrar to tell a person to come back to the office another day, that the person will have access to computerisation or whatever.
Any library, archive or office where one consults material, has rules and conditions governing the use of it. Otherwise one might, in theory, have a right to consult such records at midnight or at 3 a.m. When people are consulting records of this kind they normally agree to abide by whatever conditions are in place. Such conditions will not obstruct them from getting access to the record under normal conditions.
I thank the Minister for her interpretation of those words, on which I concede. Will she consider framing the section a little better for Report Stage on the basis that on practical grounds it may be difficult, as Senator Mansergh said, to carry out a search? Will she consider inserting such an explanation to provide some definition in this regard? I am not being overly prescriptive but if there are practical difficulties and those considerations must be considered, that should be stated explicitly rather than a definition being made in this regard. I accept the Minister's word on this and I am not suggesting that anyone would interpret the provision otherwise but we need to be a little prescriptive on this.
We spent a good deal of time earlier talking about the importance of paternity and of a child knowing his or her parents, but section 35 poses a major block to adopted children in trying to find their parents. In these days of much more open adoption, I do not know how in tune that provision is with modern life. I am involved with people whom I would encourage to consider adoption and the Crisis Pregnancy Agency. I know the Minister would have read its report, which deals encouragingly with open adoption. Between that and the block in this section to checking registers, unless one can has a pretty good idea of one's date of birth, one cannot do the types of trawls people were able to do in the past. I am concerned about these two sections.
I do not believe the Minister or her officials are trying to be devious in bringing forward the sections together, it is merely that both seem to make matters difficult for adopted children trying to find their genetic parents. We spent the afternoon discussing how important that could be as between genetic mothers, gestational mothers and so on, and it could be very important especially from a medical point of view. Certainly they are blocked by section 35 and also by this section. Life is made much more difficult for them than under the old registration bills.
I know people of my age who were adopted when nobody went around as a single mother with children. Those people were able to trawl the records of Holles Street, and they may have checked within a month of when they were born in case the registrations were not quite right. That does not seem possible now. I do not believe the Minister is trying to do people down but I am concerned that such people may be blocked at every turn. That is not what we are trying to do here.
Section 35 provides for the transposition of the existing arrangements. As it stands, the Ard-Chláraitheoir can release such information only on the order of the adoption board and of the courts. As Members will be aware, the Minister of State, Deputy Lenihan, is examining a new adoption Bill. If a decision is made arising from that legislation which frees matters up and changes the modus operandi , we will reflect that in these legislative provisions.
This is a sensitive issue because there are two sides to the argument. There is a greater openness in society now and greater comforts and supports to deal with issues that may arise. From a medical perspective, I am aware of an instance where access was provided under a medical portfolio through the adoption society on the basis of a particular disease. On the basis of the public consultation that has taken place, the Minister of State, Deputy Lenihan, has given a guarantee that he will deal with this matter from a legislative point of view when dealing with adoptions. Until such time as that has been completed, I do not consider it appropriate to go beyond what is in existence at present save, in effect, an amalgam of the registers. We have had a foreign and national register of adoptions and now we will have one register. Furthermore, the certificate will be available all over the country.
It was not and is not my intention to restrict access to searches in any way. As I stated, we hope to provide an Internet facility. This would be an excellent and very progressive way of dealing with searches. The registrar would naturally have to set down rules and guidelines on access to and interference with the public record. It would be on this basis — in conjunction with a consideration of the practicalities — that the registrar would decide on any variances with regard to access to searches. The provision will only come into play if something untoward happens.
The idea is that access will be greater. We can now facilitate searches from people's area of residence rather than asking them to travel all the way to Dublin to obtain information. Gaining access will be quicker because the information is now available electronically. The work carried out by those in the GRO in Roscommon in transposing all the historical facts into electronic format has been tiresome, but they have done it brilliantly. The service that will be provided will result in greater additionality and a greater service to anyone who wants to carry out a search. In no way does it restrict anyone from gaining access to what is, of course, a public record.
Is the amendment being pressed?
It is not but I am still worried by the imperative in one section and "may" in this section. I will withdraw the amendment for now because I want to think about it.
Amendment, by leave, withdrawn.
Amendment No. 34 not moved.
Amendments Nos. 35, 36 and 47 are related and may be discussed together by agreement.
I move amendment No. 35:
In page 51, subsection (1), after line 48, to insert the following paragraph:
"(c) on payment to him or her of the prescribed fee (if any) and subject to subsections (3) and (4), shall be entitled to, subject to such conditions (if any) as may stand determined by an tArd-Chláraitheoir (without the need of recourse to any index) search any
(i) register of births (whether in original or other form) currently in the custody of a Superintendent Registrar or registrar and compiled one hundred or more years before the year in which such application is made;
(ii) register of marriages (whether in original or other form) currently in the custody of a Superintendent Registrar or registrar and compiled sixty or more years before the year in which such application is made;
(iii) register of deaths (whether in original or other form) currently in the custody of a Superintendent Registrar or registrar and compiled twenty or more years before the year in which such application is made.".
These three amendments, all of which deal with searches, aim to deal with some concerns raised by people who work in this area. There is a concern that the existing right to search locally and nationally could be taken away because of this section. An idiot-proof note I have received in respect of amendment No. 35 states:
Currently, under sections 50 and 52 of the Births and Deaths Registration (Ireland) Act 1880, searches may be conducted at the index volumes held centrally and in both indexes and register books held locally. If effective searching for both genealogical and legal purposes is to be promoted, then it is imperative that searching actual register books held locally should continue.
There is a concern that if amendment No. 35 is not accepted, the practice currently in place will be discontinued. If the Minister is telling me she believes such a practice will continue and that people will have the absolute right to search locally in all their local offices, I will accept her word. One must question the purpose of the GRO in ending this provision. Does the Minister still insist on bringing forward an amendment to allow all register books currently held locally to be centralised out of public access in Roscommon town?
Amendment No. 36, in my party's name, proposes that a public genealogical search facility be established and maintained in the city of Dublin.
Yes, but as far as I am aware there is no legislative basis for doing so. Would it not be more sensible from a legal perspective to address this in the Bill now, given that we are putting in place a civil registration code for the next 15 to 20 years, as I have said repeatedly this afternoon? I am very happy for the people of Roscommon town because the GRO is now based there. We all welcome it.
It is a great credit to Albert Reynolds.
Civil registration is a long way from former Deputy Reynolds.
At least he was civil, which is more than can be said for Senator Brian Hayes and his colleagues given the underhand manner in which they dealt with the vote this evening.
Will the Senator be civil?
I am grateful to the Cathaoirleach. I am interested in hearing Senator Wilson's views on amendment No. 35 and he will have ample time to air them in a moment.
Senator Brian Hayes without interruption, please.
Obviously there is trouble in the Fianna Fáil camp. It would be sensible to establish and maintain a public genealogical search facility in Dublin. What are the Minister's views on this?
The Senator referred to the older legislation. There were no indices at the time and when they became available it was possible to search them manually. They are now being transferred to an electronic format. Perhaps I am presumptuous in believing that some prefer to be turning pages than checking information on a computer, but the exact same information will be made available in either case. The indices will be available locally, but electronically.
There was some concern about the back-up of the electronic system, but the copies will always be held centrally. If every light in the world went out, for example, we would still have the copies in the registrar's office.
It is not like electronic voting.
We are not going down that road. The existence of the copies should address the concerns of those who raised the issue with Senator Brian Hayes.
There is no legislative framework for moving the GRO to Roscommon. Equally, there is no necessity for it, nor is there any necessity in a legislative framework to have a facility available in Dublin. I have said — I believe the approach adopted is more prudent — that those who use genealogical services on an ongoing basis are usually students and academics. There are also secondary users such as visitors who like to come to Ireland to check records. Moreover, people wish to have records from a practical perspective. The current setting of the facility is certainly not on the main tourist trail or a part of Dublin with which people are familiar.
They are slightly discommoded in trying to find the facility. Once all the information is available, we will have discussions with the OPW to identify a more appropriate location. Institutions such as the National Library, Trinity College and other buildings in Dublin would perhaps be more appropriate. I hope this addresses the concerns raised.
Any information that was available will now be available locally in electronic format.
To clarify a point raised by Senator Brian Hayes, there are obviously certain circumstances in which historians or researchers will want or need to consult the original. I remember a debate 20 years ago about whether the reputed grandfather of President Ronald Reagan was listed as "John Regan" or "John Ryan" in the parish register at Kilbehenny, I believe. Obviously, one needed to look at the original very carefully. Many of these registers were kept in manuscript, at least in days gone by, and therefore there could be instances where one would need to look at the original rather closely.
To support what Senator Mansergh said, it is very important that people should have access to originals. I dread to think of people copying my handwriting on to computer disks and people asking in years to come if my married name was McIntaggart or McEntaggart. Access to original documents is terribly important. I support the——
Only a few would read it.
That is right, if it is needed. In my father's family, at one stage we were given a family tree which showed what had been registered as my grandmother's family and dear Aunt Isabel had been totally written out.
There is obviously a good reason for that.
I would like to assure the House that access to the original manuscripts will continue to be available. An tArd–Chláraitheoir will have jurisdiction over that but access will be made available to people in particular circumstances.
I appreciate what the Minister has said. Presumably all of this material is not currently in electronic format.
This new provision will kick in when it is in electronic format, but to take Senator Mansergh's point, nothing would prevent an historian or indeed anyone else, from getting the original copy. The Minister is giving a commitment on that. On another point as regards genealogical searches, the capital city has huge numbers of people arriving from other parts of the world, North America in particular, who want to find out about their heritage. Given that Dublin is the capital city people will continue to use it above all other centres. However, in future there is nothing to prevent any of this information being made available on the Internet, no matter where people live.
That point has to be kept in mind.
There are many church registers all over the country which still have relevance.
We are trying to marry the old with the new while at the same time ensuring that access to original documents is available in particular circumstances. At the same time, the view is that the Internet facility, as the Senator has said, will be of great benefit to people and give access from a worldwide perspective.
When does the Minister expect this to be rolled out?
We are only at the commencement stage and what is being referred to is the next phase. We want to do this correctly given it is so important and then we will be looking at developing the concept.
Amendment, by leave, withdrawn.
Amendment No. 36 not moved.
Section 61 agreed to.
I move amendment No. 37:
In page 52, subsection (2), line 26, to delete "specified by the applicant".
I would like to speak on section 62. I am somewhat concerned that this section is limited. When I first came into the House, Deputy Mervyn Taylor was Minister for Equality and Law Reform and I tabled a matter on the Adjournment asking for a stillbirths register to be set up. One of the reasons I asked for it to be set up was because of the importance of knowing about stillbirths from a medical viewpoint, for example if there was a dump somewhere around the country and stillbirths were taking place due to toxicity in the area. Unless someone was registering births there and noticing that there was a pocket of stillbirths, say within a 7 km radius of the dump, much important medical data would be lost.
Access to this register has been made so narrow that the same could be happening again. We could miss out on really important issues about increased incidences of stillbirths. This does happen. We know from epidemiological surveys that environmental factors can be important, so I am rather concerned how narrow the access to the register is. It can be important to individual people. I am sure the Minister will have been aware of court cases recently in England regarding cot deaths.
Is the Senator on section 62 or section 61?
We must first dispose of the amendments.
I thought Senator Brian Hayes had withdrawn the amendments.
I am sorry. A woman called Patel who was accused of being implicated in three cot deaths was eventually able to show that her grandmother had a series of stillbirths.
Amendment Nos. 37 and 38 may be taken together, with the House's agreement.
Amendment No. 37 is something I am not hung up about but I am interested in the issue contained in amendment No. 38. I think Senator Henry would agree that what the Minister is doing here as regards the stillbirths register is a welcome development and she is to be congratulated for it. However, an issue was raised with me, and I think it was something Senator Henry touched on. In section 62 the power to search the register of stillbirths is specifically given to fathers and mothers. Is that not right?
What I have suggested in our amendment is that fathers and mothers should be deleted and substituted by "the father, mother, blood relation, or descendant of the parents of the stillborn child". I am not hung up entirely on that, but I want to outline the reason behind it. If the Minister has another way of saying it that is more accurate than what I propose, all the better. People apart from the father and mother who may be blood relations of the stillborn baby may at some point in the future want to search the register for genetic and other reasons suggested by Senator Henry. I do not think it is a good idea to prevent them from doing that. The father and mother would be dead, presumably, in most cases, but there are medical reasons why it would be important for someone, for example, to find out his or her genetic makeup. If the search is limited simply to the parents are we not doing ourselves a disservice for the future? This point has been raised with me and that is why we have put down the amendment.
This is a serious issue. We now know that information obtained as regards stillbirths can be extraordinarily important for future pregnancies. We are totally excluding any medical practitioner from having a look at this data. I would go even further than Senator Brian Hayes's amendment. Perhaps the Minister could consider it before Report Stage. We all want the best for a child and for any subsequent children a family may have. With advances in neo-natal medicine and genetics — this country is in the forefront of these areas — we need to think about this. This could be terribly important for future pregnancies and to diagnose familial conditions.
All this information will be available under vital statistics legislation.
Yes. Equated to that, in section 62, which relates to the search of the register, it will be seen that an tArd–Chláraitheoir has the discretion to give access to that register to others.
It is on page 52 under the reference to searches of registers, paragraph (iii) of which says: "in his or discretion, an tArd Chláraitheoir, so determines,".
Section 73(5) states:
Information referred to in subsection (4) may be disclosed to persons engaged in medical or social research or to medical officers of health boards if the Minister consents in writing to the disclosure and the disclosure complies with such conditions (if any) as are attached to the consent; and the Minister is hereby authorised to attach such conditions as he or she considers appropriate to a consent under this subsection.
What normally happens is that the doctor or researcher applies to the Minister for Health and Children for access to that type of information. It must be done in that way because otherwise any person could seek vital information. Such information, which has always remained confidential, may only be used for research purposes. As far as we are aware, there has never been a break of confidence on issues such as how a person died or a stillbirth. Members who have viewed vital statistics on cancer, heart disease and so on will be aware of that point. The concerns expressed are covered by both sections.
Amendment, by leave, withdrawn.
Amendment No. 38 not moved.
Question proposed: "That section 62 stand part of the Bill."
When this provision was first introduced by former Minister Mervyn Taylor, a parent could apply for a certificate within 42 days. The Minister is now increasing that to one year. Is it possible that the new provision could apply retrospectively to 1995, the year the legislation was introduced? Can parents of a stillborn child who did not realise this provision existed now register that stillbirth under the new provision? I suspect I know what will be the answer. I am not sure many people were aware they could register stillbirths, although I know current figures in that regard are increasing.
The hospital concerned would have registered the stillbirth if the parents did not do so after the four month period. Therefore, the number of unregistered stillbirths would be low.
Is the Minister saying that hospitals registered stillbirths independently of the parent or parents?
This provision was included in the 1994 Act. Perhaps some people are not aware it exists.
I hope the provision is applied as the Minister intends. We now know more about the importance of genetics in such situations. It would be regrettable if people were refused such useful information. However, I do not think that will happen.
Question put and agreed to.
I move amendment No. 39:
In page 52, subsection (2), line 47, to delete "may" and substitute "shall".
This amendment raises the "may" and "shall" argument in relation to the correction of errors at the request of a person having an interest in the matter. I will respond having heard the Minister's reply.
This section provides for the correction of errors at the request of the person having an interest in the matter. The correction of error requires that the superintendent registrar is satisfied that an error exists and that evidence is produced to support the request being made. The proposed amendment would remove any discretion which the registrar would have in the correction of errors. That discretion must be retained in cases where, in the view of the registrar, no error existed. The introduction of the word "shall" would provide that the registrar must make the correction thereby removing his or her discretion.
I will take the Minister's word in that regard.
The legislation provides for an appeals mechanism for those unhappy with decisions made.
Amendment, by leave, withdrawn.
Amendments Nos. 40, 42 and 45 are related and may be discussed together by agreement.
I move amendment No. 40:
In page 53, subsection (2)(a), line 2, after “error” to insert “or omission”.
This amendment also relates to the correction of errors. It is good that people can correct errors. I am sure a percentage of all registrations contain errors. The Minister has not included the word "omission". It would appear sensible that a person who realises there has been an omission can apply at some point to have that omission included. I am interested to hear the Minister's views on this matter. It is good that we are providing for the correction of errors. I am reliably informed by my enormous back up team that there is a 15% error rate on indices. I am concerned in this case about omissions. The inclusion of that word would add to the legislation.
The section provides for the correction of clerical errors and errors of fact in the registers relating to birth, stillbirth and death at the request of the person who has interest in such matters. Decisions on such matters are being vested in the superintendent registrar. In principle, a clerical error is a minor mistake which occurs in the recording of particulars in the registers. An error of fact would encompass any omission of detail in the register. Therefore, the legislation adequately addresses cases of omissions as raised by the Senator.
So the Minister's definition of error covers omissions?
Omission is a subclass of error.
I will take Senator Mansergh's word in that regard.
Amendment, by leave, withdrawn.
Amendments Nos. 41 to 43, inclusive, not moved.
I move amendment No. 44:
In page 53, subsection (3), line 19, after "oath" to insert "or affirmation".
I am interested to hear the Minister's reply to this amendment which refers to affirmation. I will respond having heard the Minister's reply lest she would think I do not know what the amendment is about.
Section 63 provides for the correction of errors in the register of births, stillbirths and deaths following a request by any person having an interest in the matter. The Office of the Parliamentary Counsel advises that the provisions of section 22 of the Interpretation Act 1937 provides that the word "oath" in the case of persons for the time being allowed by law to affirm instead of swearing in includes affirmation. As the provision in that Act allows for affirmation it is not necessary to qualify "oath" any further for civil registration purposes.
The Oaths Act 1888 which allows affirmation applies to administrative matters relating to proceedings. The Minister stated she had received advice on this from the Office of the Parliamentary Counsel. Did she obtain advice on it from the Attorney General's office? How does it impact in terms of the Oaths Act 1888?
It is traditional that affirmation is allowed. The Minister will be obliged to return to the Lower House regarding the issue involving the Church of Ireland. Could she not throw us a bone and allow for affirmation because it is traditional that it is allowed? It would be nice if, when the Minister returns to the Dáil, she could say that she accepted an Opposition amendment.
It may be contrary but the Minister's reply appears to indicate that affirmation is a sub-class of oath, at least for the purposes of the legislation.
We could have this argument over and over.
And we now know who writes these replies.
I have been advised that the Interpretation Act 1937 covers this issue. If Members wish to change that Act, they are welcome to do so. However, the advice given to me by the Attorney General and the Parliamentary Counsel is that this is the usage that is acceptable for affirmation.
I accept that the Minister has received advice to the contrary but no one has explained how the Oaths Act 1888, which may only apply to legal proceedings, applies to administrative matters.
I apologise to the Senator but I did not read the Oaths Act 1888 before coming before the House. I am, therefore, not au fait with its contents. I am of the view that, without a doubt, the interpretation that has been afforded to us is one which is taken from a traditional perspective in the House.
The Minister stated earlier that the Act was superseded.
There is an issue here in terms of administrative matters as opposed to legal proceedings. In any event, I thank the Minister for her reply and I will withdraw the amendment. However, this matter needs to be considered, particularly in terms of future legislation, because it is clear that there is an issue in respect of the interpretation of affirmation via the Oaths Act 1888. I did not expect the Minister to have read that Act before she came before the House.
Amendment, by leave, withdrawn.
Section 63 agreed to.
Amendment No. 45 not moved.
Section 64 agreed to.
I move amendment No. 46:
In page 55, subsection (1), line 5, after "may" to insert "initiate and shall on request by an interested person in writing".
This section is designed to allow the Ard Chláraitheoir to initiate inquiries. The amendment suggests inclusion of the words — they may not be necessary but I would be interested to hear the Minister's reply — "initiate and shall on request by an interested person in writing". Section 65(1) states that the Ard Chláraitheoir "may conduct or cause to be conducted such enquiries as he or she considers necessary to ascertain ..." Would it not be easier to include after the word "may" the phrase "initiate and shall on request by an interested person in writing"? In other words, instead of the Ard–Chláraitheoir doing it willy nilly, an interested party could write to him or her and ask that it be done and a decision could then be taken. Perhaps it is already provided for but I believe the version I have outlined would give people the power to make submissions to the office on the basis of whatever reason they wished to offer. The officer holder could then decide whether to investigate.
Whatever about its merits, the amendment is too strong. It uses the term "shall on request" which removes any discretion. It seems that if somebody makes a request, the registrar should have the right to look at it critically and decide whether to initiate an inquiry.
The Senator is correct. We have spoken about the ability of the Ard Chláraitheoir to institute an inquiry. He or she may do so on his or her own initiative or as a result of information that comes to his or her attention. There is nothing to stop someone writing to the Ard–Chláraitheoir and requesting that an investigation take place on the basis of section 65(1)(a) (i) and (ii). Spurious requests, which would not stand up to scrutiny, could be made to the Ard–Chláraitheoir. If we introduce the word “shall”, the Ard–Chláraitheoir would be compelled to carry out an inquiry if such a request was made whereas that might not be the right thing to do. We are being over-prescriptive to allow the flexibility for the Ard–Chláraitheoir.
One person's irrelevance is another person's relevance.
That is true. The Senator can appeal.
If the registrar decides against an applicant in respect of this matter, can he or she appeal the decision?
The other issue is that if we introduce the term "initiate and shall on request by an interested person in writing", the Ard Chláraitheoir could not, of his or her own volition, carry out an inquiry. The Ard Chláraitheoir may discover, for example, that a double registration of a birth occurred. If he or she is restricted, an investigation can only be done on the request and at the behest of someone else as opposed to being done on the registrar's initiative. We would, therefore, be limiting the registrar to a huge degree. We could have a situation where we would restrict the registrar's initiative or where an investigation would have to take place in respect of a spurious matter. I agree with the Senator that inquiries must be carried out. People will always have recourse to the appeals mechanism.
Is the Minister stating that if the answer is negative the applicant may initiate an appeal?
Amendment, by leave, withdrawn.
Section 65 agreed to.
Sections 66 to 73, inclusive, agreed to.
I move amendment No. 47:
In page 62, before the First Schedule, to insert the following new section:
"74.—An tArd-Chláraitheoir will, in consultation with the Director of the National Archives and the National Archives Advisory Council, formulate and publish a policy document or statement setting out a framework for greater public access to civil registration registers or register books where one hundred or more years have elapsed since the date of creation of the last entry in such register(s) or register book(s).".
This amendment is self-explanatory. It seeks that the registrar, in consultation with the director of the National Archives and the National Archives advisory council, formulate a policy concerning records over 100 years old. This is a novel amendment which suggests the insertion of a new section which would, in effect, force the bringing about of joined-up Government. However, I believe that the latter would be a good development. In the Lower House, the Minister stated that the National Archives already have access to the GRO's information.
Amendment put and declared lost.
I move amendment No. 48:
In page 63, Part 1, line 14, to delete "Marital status of mother" and substitute "marital status of parents of child".
Fine Gael's proposed wording is more appropriate.
Amendment No. 49 is proposed because it is offensive to persons to require them to produce in the future a birth certificate which, not for the first time, states whether or not their mother and father married. It is inappropriate to say the least.
Parts 1 and 2 of the First Schedule set out the required particulars to be entered in the register of births and stillbirths. The Civil Registration Service is required under the Vital Statistics Act 1952 to collect information concerning life events including births. The service is required under the Act to record the marital status of the child's mother when registering a birth. It is used to determine if the presumption of paternity of the husband applies and also to determine whether section 22 of the Bill, which addresses instances in which the parents are not married, applies. To address Senator McCarthy's concerns, marital status does not appear on the birth certificate as that would be inappropriate. It is only recorded for statistical purposes.
During the extensive Committee Stage debate in the Dáil, it was stated that in the interests of equality, the marital status of the father should be included. I agreed to that proposal and provided for the requested amendment on Report Stage. Therefore, the provision the Senator seeks has been made.
Amendment, by leave, withdrawn.
Amendment No. 49 not moved.
If necessary, Committee Stage of the Bill can be extended to 9 p.m.
Is that agreed? Agreed. Amendments Nos. 50 and 54 are related and may be discussed together, by agreement.
I move amendment No. 50:
In page 63, Part 1, between lines 14 and 15, to insert "Place of birth of mother.".
Amendments Nos. 50 and 54 represent an attempt to place more information on the register by seeking to include the places of birth of the mother and father of a child. The inclusion of this information would be of great assistance to genealogists and would help to ensure that people knew where their mother and father were born. The information would represent a useful addition to the register of births.
Part 1 sets out the required particulars which shall be registered in respect of a birth. Additional information will be required to be registered including the personal public service numbers of the child and his or her parents, the dates of birth of the father and mother and their marital status. It will also be necessary to record the birth surnames of the father's mother and the mother's mother. The particulars required to be registered for a birth were first set out in 1863 and remained unchanged until updated by the Registration of Births Act 1996. The 1996 Act provided for the registration of a surname for a child, the mother's address and the occupation and former surname of the father. Those particulars were further amended by the Social Welfare (Miscellaneous Provisions) Act 2002 which provided for the registration of the personal public service number in respect of each of the parents and the assignment of a personal number to the child. These changes were required to facilitate the introduction of the new electronic civil registration system.
Part 1 of the First Schedule includes other changes among which is the recording of the marital status of the mother and the father, the surname at birth and any other surnames of each of the parents of the child and the details of each parent's mother's birth surname. This additional information is required for the allocation of the child's personal public service number, the verification of the parent's personal public service number, the creation of family relationships between the child and the parents, the administration of a person's public service identity set and the auto-triggering of a child benefit claim. The additional information to be captured by this amendment is not required for the purposes of registration, vital statistics or the allocation of a personal public service number. The amount of information and the cross-tabulation in place are more than adequate.
I have some sympathy with this amendment. While everything the Minister has said is absolutely accurate, genealogical family research constitutes another side of this albeit a secondary one. If the information could be recorded where available without overloading the system, it would be helpful to genealogists. It is difficult to think of instances in which the information might not be available, although it could be the case with migrant parents who might be a little vague about where they were born. Genealogy is a significant industry. A great many tourists come here in search of their roots. They do not just come to Dublin or, for that matter, Roscommon, they go all over the country. I ask the Minister to examine the proposal. If she cannot accept the amendment tonight, she should at least consider it before Report Stage.
To facilitate the Bill's progress, I would be happy to return to the matter on Report Stage. There are other matters to discuss and I gave the Minister a commitment to conclude Committee Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 51, 55, 60 and 62 are related and may be discussed together, by agreement.
I move amendment No. 51:
In page 63, Part 1, line 16, to delete "surname of mother's mother" and substitute "surname(s) of mother's parents".
The Bill introduces further gender discrimination in the particulars required to be registered on a birth certificate. For the first time, the birth certificate will record the surname of the mother's mother, but not the surname of her father. In a minority of cases, the surname of the father would be different but this information will go unrecorded.
The Senator is requesting the recording of the surnames of maternal grandfathers. The birth registration will include the personal public service number allocated to the child and the parents' personal public service numbers. The system has been designed to capture information in the event of a birth or stillbirth using standard naming conventions. These include one's forename and the surname in common usage across Departments and agencies. The combination of the date of birth and the mother's birth surname uniquely identifies a person in the vast majority of cases. The mother's birth surname is therefore vital in the validation of the personal public service number. As part of the registration process a personal public service number is allocated to the child, the parents' personal public service numbers are validated or traced, a relationship is created between the child and the parents and a claim for child benefit is automatically triggered to the Department. There is no requirement to collect the mother's father's or the father's father's birth surname from the registration or personal public service number validation perspective.
The Bill is drafted to provide that a birth may be registered by the parents, surviving parent or other specified qualified informant. Part 1 of the First Schedule allows for the assignment of a combination of both parents' surnames or either parent's surname to the child. The parents, or a parent if one is deceased or cannot be traced can, if they so wish, apply to assign a surname other than their own name or a combination of their names to the child.
It is not proposed to extend this provision to any person other than the parents. The Deputy is trying to circumvent some of the searches and insist on having grandparents' information on the birth certificate. That is not necessary because the PPS number will be established, as will a link between the child and the parents, as a consequence of the number being there.
Will the PPS number lead to that kind of information?
Yes. It will form a link.
Amendment, by leave, withdrawn.
Amendments Nos. 52 to 56, inclusive, not moved.
I move amendment No. 57:
In page 63, Part 1, line 31, after “either” to insert “or both”
The existing law under the 1986 Act allows a child to be given a double-barrelled surname consisting of the surnames of both parents. I presume that is the intention of the Bill.
Yet the reference to both surnames in the 1986 Act is being deleted. For the avoidance of doubt, I wish to reinstate the provision by means of this amendment.
Part 1 of the First Schedule sets out the required particulars to be entered in the register of births. The provision in paragraphs (a) and (b) of Part 1 of the First Schedule allows the parents or a parent if one is deceased or cannot be traced to assign a surname other than their own name, or alternatively a combination of their names for the child, which is what the Senator mentioned. As the existing provisions cater for the objective of this amendment, I do not see the necessity of having another. We cater for what the Senator wishes to provide.
It is in Part 1 of the First Schedule.
I want to be clear, and I believe the Minister made it clear earlier, that there will be cross-indexation so that a child would be registered as "Murphy Lawlor" and "Lawlor Murphy".
Yes. The name is traced back.
Amendment, by leave, withdrawn.
I move amendment No. 58:
In page 63, Part 1, line 37, after “contacted” to insert “or by the informant if both parents are dead or cannot be contacted after reasonable efforts to do so have been made”.
This amendment is designed to rectify an omission in the Bill. The 1986 Act allowed an informant to propose a surname for the child in the event of the parents being dead or uncontactable, but this provision has been omitted in the Bill.
The parents or parent can apply to assign a surname other than their own name, or a combination of their names. It is not proposed to extend this provision to any person other than the parents. When a child is born it naturally has parents. The Senator is asking that another person be allowed the right. Paragraph (b) of the First Schedule refers to:
such other name as may be requested by both of the parents or by one of them if the other is dead or, after reasonable efforts to do so have been made, cannot be contacted (if an tArd–Cláraitheor or an officer of an tArd–Cláraitheor duly authorised by him or her in that behalf or a Superintendent Registrar is satisfied that the circumstances warrant it and he or she agrees to the request).
A father could be devious and include a surname that would be outside the ambit of the Act and it is on that basis that one must reserve the right for parents only. One cannot expand that role. It comes under the Status of Children Act. Accordingly, we must ensure that a child's name could not be changed.
By an act of mischief or deviousness, as the case may be.
Yes. It is on that basis that we are keeping it tight.
It is a safeguard as such.
It is a safeguard to ensure that this would not befall a child.
Amendment, by leave, withdrawn.
Amendments Nos. 59 to 62, inclusive, not moved.
I move amendment No. 63:
In page 65, Part 5, between lines 36 and 37, to insert the following:
"Forename(s) and birth surname of father of deceased.
"Forename(s) and birth surname of mother of deceased.".
The purpose of this amendment is to change the death certificate to include the forename or names and birth surname of the father and mother of the deceased. As I understand it, this data is currently recorded in both the birth and marriage certificates. I am proposing to extend to the death certificate the data already in place in two other certificates. For the sake of consistency it should be included in the death certificate.
I know the Minister advanced this issue some time ago in agreeing to the place of birth being inserted. That was a very welcome change which we appreciate, but it would be useful to go the full circle, so to speak, and extend it further, given the connection we have in this country with names, places, history and genealogy, which is important not just as an industry, but in terms of who we are, where we come from and who are our relations and forefathers. I ask the Minister to consider this issue. She has already conceded one new section in the death certificate. We are very much out of line with other countries when it comes to information contained in the death certificate. We should try to upgrade it and include as much information as possible, for all the reasons stated earlier.
There is considerable force in this amendment for the reasons stated by Senator Hayes. It can be argued that the place of birth allows one to make the connection, but to do so imposes more work on the researcher. In the case of certain very common names, such as "John Ryan" in Tipperary, for example, this could lend itself to confusions of identity. I urge the Minister to look sympathetically at the amendment. Obviously, it is almost entirely for the benefit of genealogists as opposed to its more general mainstream function, but if the Minister was to accept any amendment arising from this evening's discussion, this is the one I would recommend to her.
This is also very important for generations in 50, 60, 70 or 80 years' time, who will not have known their grandparents and want to develop a family tree. Those people — amateur genealogists perhaps — could then find the information on the death certificate. People need to know where they are from and who their forbears were, and having this information on the death certificate would be a great advantage to people who want to know that type of information.
Part 5 of the First Schedule sets out the required particulars to be registered in respect of a death. The following additional information will be required to be registered: The date and place of birth; birth surname, address and PPS number of the deceased person; the date of certificate of cause of death; forename, surname, registered qualification, daytime telephone number and the business address of the registered medical practitioner; the date of certificate of cause of death; forename, surname, registered qualifications, daytime telephone number and business address of the coroner; and the forename, surname, office of the coroner and date of inquest or post mortem, as appropriate.
One of the concerns expressed to me, particularly by the genealogical people, is that this is an opportunity to lessen their need to look back over records but that view is reflected in terms of a paper based society whereas the inter-linking from an electronic point of view will now be almost instantaneous. One will not have to physically go through all of the information. One keys in the information available and that link will be made. I appreciate that people are sincere in their view but having discussed this issue with an tArd-Chláraitheoir and staff in his office, they are of the view that they will be able to facilitate as quickly as possible any information that may be requested from a genealogical point of view through the electronically based system which will now be provided.
Why is there an inconsistency between the marriage certificate and the birth certificate in respect of this information? Why is it not contained in the death certificate as well?
My officials are looking for a marriage certificate; it is a while since I saw my own, and we had to go before the judge to change it. A birth certificate only shows the names of the parents, not the grandparents, which is what this is trying to do. The Senator is going back another generation. The next linkage can be done through the information made available to the person.
We are only talking about the father and mother of the deceased, not the grandparents of the deceased.
We refer to the birth surname of the father of the deceased and the birth surname of the mother of the deceased. We will come back to this on Report Stage. I do not want to unduly delay the House on it.
If I may make one other point, there may be a good deal of validity in what the Minister says about electronic researching but these things are used for many purposes, including family purposes. We do not have a fully electronic society. There is a good deal of validity in what the Minister said about the register but it is a mistake to think that 60 year old Australians or 70 year old Americans are completely computer literate.
I would emphasise that this is a very important economic branch. In the late 1980s, Charles Haughey established a sort of family plans office to encourage this type of activity as an aid to tourism. It is a bit like all airlines deciding that one can only book over the Internet. We are still some considerable distance from that. Perhaps some tolerance should be allowed for the fact that we are not a totally electronic society in terms of these type of paper records instantly flying from one computer to another.
The PPS issue is a future issue.
It will not affect the past. These changes will be physical changes to the record, if this amendment is accepted, from now into the future. It will be 60 or 70 years before the PPS issue will have any effect in terms of any genealogical benefit.
If God spares us, none of us will be dead.
People are interested in who went before them.
Prior to all this legislative change, genealogists involved themselves in performing these searches. What they are expecting is that we will now do that for them. We have accepted two amendments on behalf of the Genealogical Society of Ireland, one to do with the date, place of birth and the birth surname of the mother in order that people would have greater access.
With regard to computerisation, I appreciate what the Senator is saying. Many people are afraid of computers, and older people certainly do not want to know about them. I have been advised that assistance will be made available to such people in the office where the searches will take place.
Just like in a polling station.
No. That independent evaluation will be a separate issue and will not be a matter for me.
I gather the paper records will be kept.
Yes, we are keeping the paper records.
The Government does not trust the electronic system.
No, that is not the reason. It is just that we do not trust the rest of them.
That is another way of saying the same thing.
The Senator asked me to consider an amendment. There would be an additional cost to an tArd–Chláraitheoir's office to provide the additional information, given that we have accepted two further amendments following consultation with the Genealogical Society of Ireland on access to records.
I will withdraw the amendment and the Minister might consider this issue between now and Report Stage when I will table it again. It appears Senator Mansergh wants to help me out.
What the Minister says makes perfect bureaucratic sense but our Civil Service and public service agencies should think commercially as well as bureaucratically. The answer makes a lot more bureaucratic sense than commercial sense.
Amendment, by leave, withdrawn.
I move amendment No. 64:
In page 66, Part 5, line 2, after "the" to insert "name,".
Part 5 states: "If deceased was married, the profession or occupation of spouse,". It is a little strange that on a married person's death certificate the Bill requires only that the profession or occupation of the spouse is recorded and not his or her name. Perhaps the Minister might explain the reasoning behind that.
The Minister and I travel under different names than those of our spouses. This provision is vital, otherwise we might get left out on the certificate which will just refer to distinguished Members of Dáil Éireann and Seanad Éireann. It is important that the name of the spouse should appear on the death certificate.
When David dies he will not care whether my name is on the death certificate.
I suspect he will worry about the Minister's PPS number on the death certificate when she is dead.
He will be looking for the pension.
Part 5 of the First Schedule of the Bill provides for the particulars of death to be entered. It is not considered necessary for registration purposes to collect the name of the spouse of the deceased person. Such proposal could lead to distress or confusion for the deceased's family in certain circumstances, for example, where the parents are separated or divorced. An issue could arise in that case.
The reason we will not include the details in terms of his or her name is because of circumstances where the marriage has broken down, separation or divorce.
Yes. A problem could arise in such cases, although sometimes it is not a legal issue. One cannot expect the Ard–Chláraitheoir to go around searching, when a person dies, to see whether they were divorced or separated or had a judicial separation. If that information is introduced, in some instances it could cause angst among families.
Is marital breakdown the chief consideration?
It also takes account that where the spouse was divorced, it may lead to distress among family members.
I just think it is inappropriate. I appreciate the Minister's response.
Amendment, by leave, withdrawn.
Question proposed: "That the First Schedule be the First Schedule to the Bill."
In the First Schedule, Part 1 deals with registration of births, Part 2 deals with registration of stillbirths, Part 3 deals with the registration of adoptions within the State, Part 4 deals with the registration of foreign adoptions, Part 5 deals with registration of deaths, Part 6 deals with the registration of decrees of divorce, and Part 7 deals with the registration of decrees of nullity.
Where is the issue of marriage?
It is contained in sections 51 to 58, inclusive.
Why is it not set out in the First Schedule? Normally the First Schedule is where all the particulars on each of the certificates would be held. All of these life events are usually mentioned in the First Schedule but marriage is not mentioned. What is the reason for that?
To be perfectly frank, I have absolutely no idea.
It would be useful to know what exactly has to be on a marriage certificate.
I, Mary Browne, take you, John Browne——
The new certificate looks shorter. Senator McCarthy might need one when he is getting married. On it will be the names of the man and woman, their respective surnames, any other surnames; their dates of birth; their current addresses, their future address; their respective occupations; their marital status; the mothers' birth name of both; the fathers' name of both; the date of marriage; the signature of the witnesses; the solemniser as well as the name of the registrar, the district of the registrar, their superintendents' district, the county, the date of registration and the registration number. It will contain quite an amount of information.
Any changes we try to effect are normally held within the First Schedule because it sets out exactly what needs to be done. I accept that the Minister said it was contained in the sections but why is it not contained in the First Schedule? The 1952 Act concerning marriage certificates was the last legislation in this area, if we are changing it why is marriage not included in the First Schedule?
We have to specify it by regulation. It takes into consideration a number of other issues, in particular, section 46 which states:
A marriage solemnised in the State, after the commencement of this section, between persons of any age shall not be valid . . . unless the persons concerned—
(a) (i) notify any registrar in writing in a form for the time being standing approved by an tArd–Chláraitheoir of their intention to marry not less than less 3 months prior to the date on which the marriage is to be solemnised, or
(ii) are granted an exemption from the application of sub-paragraph (i) under section 47 and give a copy of the court order granting the exemption to any registrar before the date aforesaid.
The approval of an tArd-Chláraitheoir must be given. The issue is that there may be a necessity to introduce a regulation.
Why is it not in the First Schedule?
I cannot answer the question because I do not know. I have absolutely no idea why it is not in the First Schedule. I am sure it is technically and legally possible. I assure Members I will find out and when I return next week, I will let them know.
Question put and agreed to.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Report Stage ordered for Tuesday, 24 February 2004.
When is it proposed to sit again?