A History of the Registration of Births, Deaths and Marriages
The Civil Registration Act 2004
The National Archives Act 1986
Are the GRO records ‘archives’?
A History of the Registration of Births, Deaths and Marriages
The Ombudsman considered the history of the registering of births, deaths and marriages leading up to the Civil Registration Act 2004. In 1845, legislation came into force which provided for the registration of civil marriages in the island of Ireland and for the regulation of all non-Catholic marriages. The Act also created the Office of the Registrar General. The Registrar General is responsible for the collation and custody of all birth, death and marriage records. Further legislation, which became operative in 1864, provided for the inclusion of Catholic marriages, together with all births and deaths, at which stage a comprehensive registration system was in place.
Throughout the latter part of the nineteenth century and the early twentieth century additional legislation was introduced which had implications for the registration system. For example, the Marriage Law (Ireland) Amendment Act 1863 dispensed with the need for registrars to attend marriages in Protestant Dissenting Churches and other Christian denominations and provided for the registration of such marriages by the celebrant. It also introduced the present notice procedure for marriage in the office of the registrar.
The law relating to births and deaths also underwent a number of changes. For example, an Act in 1879 provided for the registration of births and deaths outside the United Kingdom in respect of Irish born officers and soldiers of the Crown on foreign service and their dependants. The pre-1921 records are held by the General Register Office.
The main outcome of the establishment of the Irish Free State in 1922, as regards the registration system, was the restructuring of the system to provide separate and independent registration systems for the Irish Free State and Northern Ireland. The establishment of the office of the Registrar General, Belfast provided a separate administration for Northern Ireland. At the same time the Adaptation of Enactments Act 1922 ensured the continuance of the legislative basis for the registration system for the rest of the country. The responsibility hitherto exercised by the Lord Lieutenant was transferred to the Minister for Local Government and Public Health by the Ministers and Secretaries Act 1924 and later to the Minister for Health, when the Department of Health was established as a separate entity in 1947.
The Births, Deaths and Marriages Registration Act 1972 allowed for changes in the structure of the registration system by assigning to the eight regional health boards, created by the Health Act 1970, the responsibility for making appointments of Registrars of Births, Deaths and Marriages.
The possibilities offered by modern technology provided an impetus for change and the GRO is in the process of moving from the use of paper based systems to electronic systems. The Government decision of 1992 to move the GRO to Roscommon and to provide access to certified copies of the records of the Office directly through local registration offices required the conversion of the GRO records to an electronic medium. The GRO says that work on this project has been largely completed and it is now possible to obtain certified copies of all birth entries (1864 to date), death entries from 1924 to date and marriage entries from 1920 to date from any local registration office, irrespective of the District in which the event occurred. The Headquarters of the GRO relocated to Roscommon in April 2005.
In addition to the conversion of the archival records to an electronic medium, the capture of all new registration records on an online computer system commenced in August 2003. This provided for a significant improvement in the timescale in which the record, and its associated index, is available in the GRO and to all local registration offices. The electronic capture of the archive material and the development of an on line registration system required significant changes in legislation to facilitate the introduction of the new systems. The legislative changes concerned are contained in the Social Welfare (Miscellaneous Provisions) Act 2002 and in the Civil Registration Act 2004.
The Civil Registration Act 2004
The Civil Registration Act 2004 was enacted as part of the Civil Registration Modernisation Programme. According to the then Minster for Social and Family Affairs, the main objectives of the Act were to:
- Rationalise and modernise the procedures for registering births, stillbirths and deaths
- Give the Registrar General responsibility for the overall policy for the Civil Registration Service including maintaining standards of service
- Assign responsibility for the management of the Civil Registration Service at local level to the Health Service Executive
- Streamline the procedures for the registration of adoptions
- Establish new registers of divorce and civil nullity
- Reform the procedures governing the registration of marriages, and
- Facilitate the linking of life events.
In its correspondence with the Ombudsman, the GRO had referred to section 61 of the Civil Registration Act in refusing direct access to the registers of births, deaths and marriages. Section 61 states:
“(1) Subject to sub-sections (3) and (4), a person, following an application in writing, in a form standing approved by An tArd-Chláraitheoir [Registrar General] or a form to like effect, in that behalf to An tArd-Chláraitheoir, a Superintendent Registrar, a registrar or an authorised officer and–
(a) on payment to him or her of the prescribed fee, may, subject to such conditions (if any) as may stand determined by An tArd-Chláraitheoir, search an index to a register maintained under section 13,
(b) on payment to him or her of the prescribed fee, be given by him or her-
(i) A copy, certified by him or her to be a true copy, or
(ii) A copy,
of an entry specified by the person in such a register.
(2) Subject to sub-sections (3) and (4), An tArd–Chláraitheoir, a superintendent registrar, a registrar or an authorised officer shall, on application by a person to him or her in that behalf in writing and –
(a) on payment to him or her of the prescribed fee, search such of the registers maintained under Section 13, and the indexes thereto, as are specified in the application, or
(b) on payment to him or her of the prescribed fee, give to the person-
(i) A copy, certified by him or her to be a true copy, or
(ii) A copy,
of an entry specified by the person in any such register.”
Section 61 draws a distinction between a search of the indexes which may be carried out by a member of the public directly, and a search of the registers which may only be carried out by the Registrar General or a member of his staff. Section 61 provides that an individual may, after applying in writing and paying a fee, search an index to a register. If the individual wants a copy of the entry in the register, he/she must pay a further fee. An individual may also apply in writing to the Registrar General or certain members of his staff and they will search registers, and indexes to the registers, specified in the application. A copy of an entry to the register may then be obtained on payment of a further fee.
Prior to the 2004 Act direct access to the registers was available. The question arising for the Ombudsman is whether section 61 provides the only mechanism for access to indexes and registers, or whether some other right of access exists, either in the 2004 Act or elsewhere. In considering this, the Ombudsman examined other provisions in the 2004 Act, Oireachtas Debates, and the Explanatory Memorandum published with the Civil Registration Bill when it was being progressed through the Oireachtas.
In relation to the Act itself the Ombudsman notes that it contains no explicit prohibition on direct access to the registers. Furthermore, it might be argued that section 8(1) of the Act allows the Registrar General discretion to change the GRO arrangements to allow direct access to the registers. Section 8(1) sets out the principal functions of the Registrar General including:
“(c) Where appropriate, to modify and adapt the Civil Registration Service so as to provide for changing needs and circumstances (including the use of electronic or other information technology) in relation to the Service”.
In the course of contacts with the GRO while examining the complaint from Mr Johnson, the Ombudsman's Office suggested that, in the absence of a specific prohibition on granting direct access to the registers, it was open to the GRO to apply the 2004 Act flexibly. On this approach, the provisions of section 61 might be seen as providing for one specific access mechanism while leaving it open to the Registrar General to facilitate other forms of access to historical or archival records within the discretion provided for at section 8(1) of the 2004 Act.
The Ombudsman's Office set out its preliminary position in the following terms:
"The GRO position appears to be that, under the relevant legislation, all that is provided for in terms of public access to the Death Registers is a right of access to the indexes and a right to be provided with a copy of any specific Register entry identified (whether through the indexes or otherwise); the GRO appears to be taking the position that, in the absence of a specific statutory right to view the actual Register books, it should not provide such access.
The consequence of this GRO position ... is that access to valuable public records is being restricted and legitimate historical and social research is being hindered. Furthermore, based on the enquiries we have made, it would seem that the GRO position is at odds with the practice of equivalent bodies internationally and at odds with actual practice in Ireland both in the past and, in several instances, in the present.
Our research to date suggests the following:
- The standard archival approach is that records are deemed "historical" and are available to researchers and others following the passage of time: in the case of birth records after 100 years, marriage records after 75 years and death records after 50 years. This is the practice followed, for example, in Scotland.
- The practice in many other countries appears to be that life event records, of the type and age sought by Mr Johnson, are made available not only to legitimate researchers but often to the public generally; in some instances this is done by way of online services.
- In Ireland, ... the 1911 Census returns (for Dublin initially but for the entire country eventually) are available online and free of charge - the content of the Census returns is much more sensitive than the content of the Death Registers, for example, giving information on literacy levels.
- In the past some Death, Birth and Marriage Registers from Ireland have been made available to the Church of Jesus Christ of Latter Day Saints who were apparently allowed microfilm these registers and make them available through their Family Search Centres; they also operate a website on which some such material is available (www.familysearch.org).
- The Death and Marriage Registers for Co. Waterford for the period 1864 - early 1900s have been copied by the County Library and are accessible through the library service as well as online at www.waterfordcountylibrary.ie (under Family History tab).
- It is also relevant to bear in mind the practice of other public bodies which are the holders of important public records. I would draw your attention, for example, to the practice of the Department of Education and Science which gave access to researchers to its archive of records relating to reformatories and industrial schools which resulted in the publication of the book "Suffer the Little Children" and the related television series "States of Fear". The records to which access were given by the Department were much more recent, and far more sensitive, than those sought by Mr Johnson."
In pursuing these issues with the GRO, the Ombudsman was conscious that the Civil Registration Act 2004 was developed and enacted with the specific intention, amongst other things, to modernise the civil registration process. The legislation was preceded by a consultation paper in 2001 (see Note 1 below). While the consultation paper covers many issues, it is very clear that under the modernisation programme service to all users of the registration service will be enhanced and improved. The consultation paper specifically recognises that one of the benefits of registration records is that they "[enrich] our cultural identity by providing a key source of information for genealogists and family historians and for future generations to explore and use". [Para. 1.7]. The consultation paper also "recognises that there is a need to preserve, maintain and provide access to [registration] records for legal, historical and family research purposes". [Para. 3.78]. Furthermore, the consultation paper notes the importance of efficient access to registration records and, in that context, comments that "(g)enealogists, family historians and historical societies have lobbied for greater access to historical registration records". [Para. 4.2] It is very clear from the consultation paper that the modernisation programme should result in greater and easier access to historical and archival records rather than, as has been the case in practice, a reduced level of access.
The Civil Registration Act 2004 was enacted in the context of this modernisation programme. It appears to be the case that the intention of the sponsoring Minister was that, at a minimum, the existing level of access to records for researchers would be maintained. For example during the Seanad discussion on section 61 of the Civil Registration Bill both Senator Mary Henry and Senator Brian Hayes expressed concern that the construction of section 61 restricted the public’s right to search indexes and registers. The then Minister for Social and Family Affairs replied that:
- “It was not and is not my intention to restrict access to searches in any way...
- The idea is that access will be greater... In no way does it [section 61] restrict anyone from gaining access to what is, of course, a public record.
- 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”
(See Note 2 below).
Nevertheless, the position of the GRO is that it has no legal authority to provide access to the registers other than by way of the restricted process provided for at section 61 of the 2004 Act. In effect, the GRO is saying that the effect of the 2004 Act has been to restrict the right of access rather than, as envisaged in the consultation paper, to enhance the right of access.
In order to clarify the position, the Ombudsman sought legal advice. The question put to the legal adviser (along with a question regarding access under the National Archives Act 1986 - see below) was whether the specific access arrangements provided for at section 61 - involving access to the indexes and the provision of a copy of a specified entry - have the consequence that other access arrangements are prohibited. The Ombudsman's legal adviser concluded that, while there is no clear cut answer and there is a credible alternate position, it was her view that the 2004 Act does not give the Registrar General the discretion to allow direct access to the registers and that the limited form of access under section 61 is the only form of access permitted under the 2004 Act. The Ombudsman has decided to accept this advice and she acknowledges that it supports the position adopted by the GRO in the context of the specific complaint from Mr Johnson. What this means is that, whether intentionally or by default, the Oireachtas in enacting the Civil Registration Act 2004 restricted the then existing arrangements for access to the registers.
In the light of this, the Ombudsman decided to look at whether there might be a right of access to historical and archival registration records under some other access regime outside of the 2004 Act. Neither the Data Protection Acts nor the Freedom of Information Acts seem particularly relevant. However, the National Archives Act 1986 may well be relevant.
The National Archives Act 1986
Under the National Archives Act 1986 “Departmental records” which are more than 30 years old must be transferred to the National Archives to be made available for public inspection. “Departmental records” includes records of public bodies such as Government Departments, the courts and the General Register Office. The Ombudsman considered whether those registers of births, deaths and marriages which were more than 30 years old ought to have been transferred to the National Archives and so made available to the public.
On 11 December 2009, the Ombudsman wrote to the Director of the National Archives for his opinion. The Director informed the Ombudsman that the records of the GRO were Departmental records and would, in the normal course of events, be transferred to the National Archives. However, the records of the GRO along with records of a number of other bodies were covered by a direction issued by the Taoiseach (see Note 3 below) in 1992 under section 8(8) of the National Archives Act 1986.
Section 8(8) provides that the Taoiseach (see Note 4 below), with the agreement of the Director, may direct that the transfer to the National Archives of any group of Departmental records be “not proceeded with until he is satisfied that arrangements for such transfer are adequate”. The Director informed the Ombudsman that the National Archives has never had the storage space required to enable it to accept all Departmental records. The records of the GRO are among those records that have never been transferred to the National Archives. The Director told the Ombudsman that until there was sufficient space in the Archives he would not be in a position to advise the Minister for Arts, Heritage and the Gaeltacht to amend or revoke the direction made in 1992.
The Director also pointed out that even if the National Archives had the accommodation available, and the direction of 1992 was revoked or amended, it would be open to the Registrar General to issue a certificate under section 8(2) of the National Archives Act. Under section 8(2) the Registrar General could certify that registers of births, deaths and marriages which are more than 30 years old are in regular use in the GRO or are required in connection with its administration, and that their transfer to the Archives would interfere seriously with the administration of the General Register Office. Unlike certificates under section 8(4) of the Act, certificates made under section 8(2) do not require the consent from the Department of the Taoiseach. While section 8(2) can prevent the transfer of records to the National Archives, it does not withhold them from public inspection. Furthermore, the Taoiseach retains the power under section 11 of the Act to direct that Departmental records, which are more than 30 years old and continue to be retained in a Department, be transferred to the National Archives to be made available for public inspection.
The Ombudsman then considered whether the registers are available for public inspection despite the fact that they have not been transferred to the National Archives. Section 10 of the National Archives Act provides that:
"all archives in the custody of the National Archives or held elsewhere in accordance with this Act shall ... be available for public inspection,...".
Clearly the records of the GRO are not “in the custody of the National Archives”. However, if the records are "archives" and "held elsewhere in accordance with the Act" they should be available for public inspection as provided for by section 10, irrespective of the direction by the Taoiseach which is concerned with adequate storage of the records, not inspection.
Are the GRO records ‘archives’?
Archives are defined in section 2 of the National Archives Act 1986:
"(1) For the purposes of this Act, “archives” includes-
(a) such records and documents (and copies of them) as are, at the commencement of this Act, held in the Public Record Office of Ireland or the State Paper Office,
(b) Departmental records transferred to and accepted for preservation by the National Archives under this Act,
(c) other records or documents (and copies of them) acquired permanently or on loan by the National Archives from public service organisations, institutions or private individuals,
(d) all public records held at the commencement of this section elsewhere than in the Public Record Office of Ireland under an Act repealed by this Act."
The GRO indexes and registers do not fall within any of the four categories set out in section 2. However, given that the definition is not exhaustive there are clearly other classes of records which the Act envisages as falling within the definition of “archives”. The indexes and registers of births, deaths and marriages (or at least those more than, say, 100 years old) would arguably, constitute archives in the dictionary definition, or ordinary use of the word.
Even if the records were “archives” they would also have to be “held elsewhere in accordance with this Act" for them to be available for public inspection. The indexes and registers are not held by the National Archives but by the General Register Office. It might be argued that the records are held elsewhere in accordance with the Act as, but for the section 8(8) direction, they would have been transferred to the National Archives.
Interestingly, during the course of the Dáil debates on the introduction of the Civil Registration Act 2004, reference was made to the possibility of the legislation including a reference to “historical records” (i.e. more than 70 years old) which could then be transferred to the National Archives to facilitate localised searches for research purposes (see Note 5 below).
Given the importance of the issue and in view of the position expressed by the Director of the National Archives, the Ombudsman decided to seek legal advice. The legal advice (see Appendix 5) concluded that the GRO records which are more than 30 years old should be available for public inspection notwithstanding that they have not been transferred to the National Archives. The records may be regarded as archives for a number of reasons, not because of the usual definition of archives, but because they are Departmental records which are of a type which is envisaged to be governed by the Act. The legal advice also concluded that the records are archives “held elsewhere in accordance with the Act” as, but for the direction under section 8(8), they would have been transferred to the National Archives.
Taking the legal advice into account the Ombudsman considers that the GRO records, which are more than 30 years old, are ‘available for public inspection’ under the National Archives Act 1986. The Ombudsman considers that this availability for public inspection is in the same sense that other records transferred to the National Archives are available for public inspection. For example, it could not be said that the availability of records through the mechanism set out in section 61 of the Civil Registration Act 2004, which involves identification of specific records and payment of fees, amounts to records being ‘available for public inspection’.
Note 1:
Bringing Civil Registration into the 21st Century’, May 2001 (available at www.groireland.ie)
Note 2:
Seanad Eireann, Vol. 175 No.11, Civil Registration Bill 2003: Committee Stage, 18 February 2004.
Note 3:
When the Ombudsman requested a copy of the direction issued by the Taoiseach she was informed by the National Archives that it did not have a copy. The National Archives produced documents suggesting that a direction had been drafted by its Director and that the direction had been signed by the Taoiseach.
Note 4:
The power for making directions under section 8(8) now rests with the Minister for Arts, Heritage and the Gaeltacht.
Note 5:
See Deputy Neville 28 January 2004. A number of speakers mentioned the Genealogical Society of Ireland which seems to have made submissions to various Deputies on the 2004 Act with a view to securing this change. This suggests that the research problem was fairly widespread and that the Society may have been advised that legislative change would be necessary.