Deaths, Still-Births and Baby Loss Bill
Explanatory and Financial Memorandum
Introduction
1. This Explanatory and Financial Memorandum has been prepared by the Department of Finance in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So, where a clause or part of a clause does not seem to require an explanation or comment, none is given.
Background and policy objectives
3. The aim of the Bill is to amend the law relating to the manner of notification of deaths and still-births and the manner of giving particulars relating to them. It will also provide a legislative basis for the introduction of a baby loss scheme and will address differences in registration processes for births and still-births between some same-sex female couples and opposite-sex couples.
Notification of Deaths and Still-Births
4. The framework for the registration of deaths and still-births in Northern Ireland is defined within the Births and Deaths Registration (Northern Ireland) Order 1976 (“the 1976 Order”) and the Civil Registration Regulations (Northern Ireland) 2012 (“the 2012 Regulations”).
5. The General Register Office for Northern Ireland is responsible for administering the registration of deaths and still-births in Northern Ireland. The local district councils are responsible for the provision of the registration service through 11 registration districts. There are on average 17,000 deaths and 75 still-births each year in Northern Ireland.
6. As required by the 1976 Order, all deaths in Northern Ireland must be registered, in any district in Northern Ireland, within 5 days of the date of death; and still-births must be registered within 42 days of the date of still-birth, also in any district in Northern Ireland.
7. The Coronavirus Act 2020 (“the 2020 Act”) made modifications to the 1976 Order and the 2012 Regulations. These modifications enabled documentation required for a death or still-birth registration to be transmitted electronically and enabled a death or still-birth registration to be carried out by telephone without the signature of an informant as opposed to attending in person and signing the entry. The relaxation of the existing requirements on the death and still-birth registration process has proved successful for the local registration service, the public and other stakeholders.
8. Section 90(2) of the 2020 Act enables devolved administrations to bring forward extensions to the provisions on a six-monthly basis. To enable the electronic transfer of documents between stakeholders for deaths and still-births and the registration of deaths and still-births without the attendance of an informant or signature to continue, changes to the 1976 Order and the 2012 Regulations are required and these are taken forward through this legislation.
9. Before the modifications made by the 2020 Act, the relevant procedure was that when a person dies, a medical practitioner will verify the cause of death and complete and sign a Medical Certificate of Cause of Death (MCCD) as required by Article 25 of the 1976 Order. The MCCD is given to the informant who takes it to the registrar to register the death. The registrar records the details of the death from the MCCD alongside other relevant details provided by the informant and the informant signs the registration entry. Once the registration is complete, the registrar issues the informant with a certificate of registration form which enables the burial/cremation to proceed. The informant takes the form to the funeral director as required by Article 29 of the 1976 Order.
10. In the case of a still-birth, a medical practitioner or registered midwife, who was present at the still-birth or examined the body of the still-born child, will complete and sign a Certificate of Still-Birth as required by Article 15(5) of the 1976 Order. The Certificate of Still-Birth is given to the informant who takes it to the registrar to register the still-birth. The registrar records the details of the still-birth from the certificate alongside other details provided by the informant and the informant signs the registration entry. Once the registration is complete, the registrar issues the informant with a certificate of registration form which enables the burial/cremation to proceed. The informant takes the form to the funeral director as required by Article 15(6) of the 1976 Order.
11. COVID-19 had a significant impact on the local registration service and has highlighted a need to move away from a paper-based process to digital methods of transmitting the required documentation when registering deaths or still-births. It has also demonstrated the need for a means to register deaths and still-births without the attendance of an informant. The electronic transfer of documentation between the relevant stakeholders and the remote registration of deaths and still-births provides for more timely, efficient processes for the registration service, the public and funeral directors. The procedures outlined above remain the permanent provisions for Northern Ireland in the absence of the temporary modifications that the 2020 Act currently provides.
12. The registration service will be able to transmit and receive documentation electronically from the stakeholders when registering deaths and still-births instead of documentation being provided in paper form.
13. The medical practitioner will be able to complete the MCCD and send it electronically to the registrar for the district in which the deceased died as opposed to giving it to the informant to take to the registrar.
14. The registrar will contact the informant by telephone or other electronic means to obtain the information required for the registration as opposed to the informant attending at the registration office in person. Once the death registration has been completed the registrar will be able to send the certificate of registration form to the funeral director instead of giving it to the informant who would then take it to the funeral director.
Legislative Basis for Baby Loss Certificate Scheme
15. A still-birth can be registered for a pregnancy loss after 24 weeks of pregnancy. A certificate of still-birth can be produced following the registration of the event. If an infant dies following a live birth, the birth and loss are recognised in the standard way: separate birth and death registrations are completed with birth and death certificates issued thereafter. There is currently no provision in Northern Ireland to recognise the loss of a baby prior to 24 weeks of pregnancy.
16. The aim of a Baby Loss Certificate Scheme is to provide a certificate which recognises the loss of a baby prior to 24 weeks of pregnancy. It will offer the opportunity to have the loss recorded, and to obtain a certificate. It will be entirely voluntary with no legal requirement to record the loss. The resulting certificates will have no legal standing but will provide a formal means of recognising the loss and its impact.
17. Estimates of how many pregnancies end in loss vary, as there is no standard method of reporting a miscarriage, and many may not be reported at all. It is widely quoted that around 1 in 4 pregnancies end in loss during pregnancy or birth.
18. Baby loss certificates were introduced in England on 22 February 2024 by the Department of Health & Social Care (DHSC), acting on the plans in the Women’s Health Strategy for England and on recommendations from the Pregnancy Loss Review. The baby loss certificate in England is not a legal document and is obtained on a voluntary basis. The applicant must be over 16 years old and have lived in England at the time of the loss. Certificates were originally only offered for losses on or after 1 September 2018 but this has now changed and there is no time limit on when the loss occurred.
19. A similar scheme operates in Scotland. The National Records of Scotland (NRS) holds ‘The Memorial Book of Pregnancy and Baby Loss Prior to 24 weeks’. Once a loss has been recorded in the book, a commemorative certificate of the entry is issued free of charge. A certificate from the Memorial Book has no legal status and cannot be used as evidence of the loss. The loss must have occurred in Scotland at the time the application is made. There is no time limit on making an application for an entry in the Memorial Book. Applications may be submitted for historical or recent losses and also terminations.
20. A baby loss certificate scheme is currently being planned in Wales. No similar scheme is in operation in Ireland.
Differences in Registration Processes for Births and Still-Births Between Same-Sex Female Couples and Opposite-Sex Couples
21. The Civil Registration Act (Northern Ireland) 2011 changed the registration procedures in relation to the birth or still-birth of a child to an unmarried opposite-sex couple but there were no corresponding changes in relation to the birth or still-birth of a child to a same-sex female couple who were not in a civil partnership with each other, because that possibility did not exist when the Act was introduced as a Bill to the Assembly.
22. This has resulted in differences in how births and still-births are registered between same-sex female couples who are not married or in a civil partnership with each other and opposite-sex couples who are not married or in a civil partnership with the mother.
23. As required by the 1976 Order, all births and still-births in Northern Ireland must be registered in any registration office in Northern Ireland within 42 days of the date of the birth/still-birth. Opposite-sex parents, who are not married or in a civil partnership, have a number of options for the registration of the birth or still-birth which are not available to same-sex female parents.
24. An opposite-sex couple who are neither married nor in a civil partnership can attend separately at the registration office to register a birth. However, the same choice is not available to same-sex female couples. If a same-sex female couple wish to carry out a joint registration of a birth (which includes the mother and second female parent’s details) they must attend together at the registration office.
25. A father, who is unmarried and not in a civil partnership, can register a still-birth without the mother being present. However, a second female parent who is neither married nor in a civil partnership cannot avail of this option.
26. In the event that a father registers a still-birth in the absence of the mother, the mother is explicitly enabled to change the registration later if she disputes the particulars of the father. However, as the option for the second female parent to register a still-birth without the mother present is not available for same-sex female couples, it follows that it is not possible to re-register that still-birth if the birth mother disputes the recording.
27. Under the provisions of this Bill, same-sex female parents will be able to register a birth or still-birth in the same manner as opposite-sex parents. They will be able to attend separately at the registration office to register a birth and a second female parent will be able to register a still-birth on their own with the mother being able to re-register the still-birth if necessary.
Consultation
28. No formal consultation has been conducted on this Bill.
Notification of Deaths and Still-Births
29. The provisions which allow for the electronic transfer of documents between the stakeholders and the registration of a death or still-birth without the attendance of an informant and the requirement for their signature have been in operation for almost 5 years and have come to be viewed as the normal registration process. The procedures introduced through the Coronavirus Act 2020 have proved successful and are welcomed by stakeholders, the public and the funeral industry. A formal consultation was not considered necessary to maintain the same procedures as those currently in operation.
30. A targeted stakeholder engagement exercise has been carried out with local councils, registrars, medical practitioners, the public and funeral directors to obtain their views on the remote death and still-birth registration process. The results of the stakeholder engagement have shown that district councils and funeral directors feel that the process is working well and has been highly beneficial to all involved in the death and still-birth registration process. The majority of stakeholders are in favour of the remote registration process being retained and feel that a return to pre-Coronavirus procedures would have a detrimental effect on the registration service.
31. At present there is no Baby Loss Certificate Scheme in Northern Ireland and the Bill will provide the legislative means to bring forward secondary legislation to develop one. As the details of the scheme will be contained in secondary legislation it is deemed that it is more appropriate to consult on the scheme at that time.
32. The changes to the birth and still-birth registration process are a consequence of primary legislation that was previously consulted upon and has been in operation for some years. Therefore it is deemed that further consultation is not required.
Options considered
33. Option 1 - Do nothing –
This option is not feasible as it is not possible to carry out the proposed service provision in relation to births, still-births and deaths without changes to current legislation. The implications of not proceeding would have a significant detrimental impact on the general public, parents, the registration service and the funeral industry. The changes are required to the birth, death and still-birth registration processes to meet the changing needs of society, improve service delivery and maximise the use of technology.
34. Option 2 - Overhaul the Civil Registration Service –
This option is not feasible due to the amount of time it would take to carry out a review of the Registration Service. Action needs to be taken to make the provisions in the Coronavirus Act 2020, in relation to deaths and still-births, permanent as it is inappropriate to continue relying on the powers in the Coronavirus Act 2020. It is not feasible to continue having differences in the registration process for births and still-births between opposite-sex couples and same-sex female couples who are not married or in a civil partnership with the mother.
35. Option 3 - Amend the existing Order -
Introduce provisions to amend the 1976 Order and the 2012 Regulations to make the provisions for deaths and still-births, contained in the Coronavirus Act 2020, permanent, and to enable the same options for registering births and still-births to be available for opposite-sex couples and same-sex female couples. It is also important to include provisions for the introduction of a Baby Loss Certificate Scheme to enable the loss of a baby prior to 24 weeks of pregnancy to be recognised. This option was seen as the preferred option as it would be achievable in a tighter timeframe and would enable the objectives to be met.
Overview
36. The Bill proposes amendments to the 1976 Order and the 2012 Regulations in order to:
· Enable the transfer of death and still-birth forms between the Medical Practitioner/Midwife and the Registrar, and then the Registrar and the funeral director alongside the current provision of providing the forms to the informant;
· Enable an informant of a death or still-birth to give information by telephone or approved electronic means alongside attendance in person at the registration office;
· Remove the requirement to sign the register if the registration has been completed by telephone or electronic means. The signature will be replaced by the name of the person professing to be the informant.
· Introduce the use of approved electronic means for the delivery and signing of documents.
· Introduce an enabling power to make regulations for a Baby Loss Certificate Scheme to recognise losses before 24 weeks of pregnancy.
· Enable a same-sex female couple to attend separately at the registration office to register a birth.
· Enable a second female parent to register a still-birth without the mother being present, and to enable the re-registration of the still-birth if the mother disputes the details recorded by the second female parent.
Commentary on clauses
Clause 2: Power to approve electronic means
This Clause provides for the Registrar General to approve the use of electronic means for the delivery or giving of documents such as the Medical Certificate of Cause of Death between the medical practitioner and the registrar and for the signing of any documents required as part of the registration process.
Clause 3: Giving certificate of still-birth directly
This Clause amends Article 15 of the 1976 Order to impose a duty on the medical practitioner or the registered midwife to sign and deliver a Certificate of Still-Birth to the registrar by electronic means. It also provides for a copy of the certificate to be provided to the qualified informant, if requested.
Article 15 enables the Certificate of Registration to be issued prior to registration when the registrar has received written notice and the Certificate of Still-Birth from the informant. The Clause removes the requirement for notice to the registrar to be in writing and for the person giving notice to provide a copy of the still-birth certificate as the registrar will have received this from the medical practitioner or registered midwife. It enables the certificate of registration to be issued to the funeral director, and also to the informant if they request it.
The Clause also amends Regulation 21 of the 2012 Regulations to remove the requirement for a person to give written notice to the registrar and the provision of the Certificate of Still-Birth when registration of the still-birth is to be delayed. Form 10 of Schedule 1 is also amended in line with amendments to Regulation 21.
Clause 4: Giving certificate of cause of death directly
Article 22 of the 1976 Order enables a person to extend the period for the registration of the death from 5 to 14 days on the provision of written notice to the registrar and the forwarding of the Medical Certificate of Cause of Death along with the written notice. This Clause removes the requirement for the notice to be in writing and for the person giving the notice to provide a copy of the certificate as the registrar will have received this from the medical practitioner.
It also amends Article 25 of the 1976 Order to impose a duty on the medical practitioner to sign and deliver a Medical Certificate of Cause of Death to the registrar by electronic means and provides for a copy of the certificate to be provided to the qualified informant if it is requested.
Clause 5: Giving certificate of registration, or written notice of death, directly
This Clause amends Article 29(1) of the 1976 Order to require the registrar to give the certificate of registration of death form to the funeral director, as well as retaining the obligation to provide the document to the informant, if they request it.
Article 29(2) enables the Certificate of Registration of death to be issued prior to registration when the registrar has received a Medical Certificate of Cause of Death and written notice of the deaths under Article 25. The Clause removes the requirement for notice to the registrar to be in writing and for the person giving notice to provide a copy of the Medical Certificate of Cause of Death as the registrar will have received this from the medical practitioner or registered midwife.
The Clause also amends Regulation 28 of the 2012 Regulations to remove the requirement for a person to give written notice to the registrar and the provision of the Medical Certificate of Cause of Death when registration of the death is to be delayed. Form 13 of Schedule 1 is also amended in line with amendments to Regulation 28.
Clause 6: Registration of particulars of still-birth
This Clause amends Regulation 16 of the 2012 Regulations to update the means by which an informant can provide information to the registrar for the registration of a still-birth. This can be done in person, by telephone or by approved electronic means. It also specifies that a qualified informant, who has attended in person, must sign the registration entry.
Amendments are also made to Forms 2, 2A and 2B in Schedule 1 to the 2012 Regulations to accompany the amendments made to Regulation 16. The Forms are amended at entry 15 to accommodate the signing of the entry by the qualified informant if they attend at the registration office in person or the name of the qualified informant if the registration is completed by telephone or electronic means.
Clause 7: Manner in which particulars of death are required to be given
This Clause amends Regulation 25 of the 2012 Regulations to specify the means by which an informant can provide information to the registrar for the registration of a death. This can be done in person, by telephone or by approved electronic means. It also specifies that a qualified informant, who has attended in person, must sign the registration entry.
Amendments are also made to Forms 3, 3A and 3B in Schedule 1 to the 2012 Regulations to accompany the amendments made to Regulation 25. The forms are amended at entry 16 to accommodate the signing of the entry by the qualified informant if they attend at the registration office in person or the name of the qualified informant if the registration is completed by telephone or electronic means.
Clause 8: Minor amendments relating to births and still-births
The clause introduces the Schedule to the Bill, which makes minor amendments to certain provisions in the 1976 Order and the 2012 Regulations relating to births and still-births.
Clause 9: No restriction on power to amend Regulations
This Clause ensures that any amendments introduced to the 2012 Regulations through the Bill can be amended by a further exercise of the powers under which the 2012 Regulations were made.
Clause 10: Repeal of temporary provisions
This Clause repeals the provisions in section 18(3) of, and Part 3 of Schedule 13 to, the Coronavirus Act 2020.
Clause 11 Certificates of baby loss
This Clause provides the powers for the making of Regulations for the introduction of a Baby Loss Certificate Scheme. It sets out the provisions that maybe included in the Regulations such as the conditions and information on the certificates, who may apply, the form of application and for the charging of fees.
The clause specifies that a draft of the secondary legislation must be laid before and approved by the Assembly before the Regulations can be made.
Clause 12: Commencement
This Clause outlines the commencement arrangements for the Bill.
Clause 13: Short Title
This cites the Bill as the Deaths, Still-Births and Baby Loss Act (Northern Ireland) 2025.
Schedule: Other amendments relating to the registration of births and still-births
The Schedule to the Bill contains a number of minor amendments to the 1976 Order and the 2012 Regulations to enable both parents in same-sex female couples who are not married to or in a civil partnership with each other to register the birth of a child by attending separately at the registration office. It will also enable the second female parent to register a still-birth on her own with the mother being able to re-register the still-birth if she does not agree with the information entered by the second female parent.
Paragraph 2 of the Schedule contain amendments to Article 14ZA of the 1976 Order to enable the means for and the signing of the registration to be prescribed in the 2012 Regulations. Paragraph 3 inserts paragraph (iii) into Article 18(1)(ba) of the 1976 Order which will enable a mother in a same-sex female relationship to re-register a still-birth that has been registered by the second female parent where the mother does not agree with the information relating to the second female parent.
Paragraphs 4 to 6 of the Schedule amend Regulations 12 and 13 of the 2012 Regulations to enable a same-sex female couple, who are not married to or in a civil partnership with each other to attend separately at the registration office to register the birth of their child.
Financial effects of the bill
37. The Department does not consider that the Bill will place any financial burden on the public purse, nor the general public.
Human rights issues
38. The Bill is compatible with the European Convention on Human Rights.
Equality Impact assessment
39. As the registration of births, deaths and still-births and a Baby Loss Certificate Scheme will apply equally to everyone in Northern Ireland, regardless of where they live or whether or not they fall into any of the Section 75 groups, the services have been screened out of the Equality programme.
Summary of the regulatory Impact Assessment
40. The proposed Bill does not impose any provisions that will result in an increased or adverse impact on businesses, charities or the voluntary sector nor does it impact on any other area identified under the integrated Impact Assessment tool. Therefore, no impact assessment is required.
Data Protection Impact Assessment/data Protection by Design
41. No impact on this area.
Rural Needs Impact Assessment
42. The provisions in the Bill apply to all people in Northern Ireland who need to register a birth, death or still-birth or apply for a certificate under the Baby Loss Certificate Scheme. No specific requirements are necessary in relation to rural areas.
Legislative competence
43. At Introduction the Minister of Finance had made the following statement under section 9 of the Northern Ireland Act 1998::
“In my view the Deaths, Still-Births and Baby Loss Bill would be within the legislative competence of the Northern Ireland Assembly.”
