R Amrik Singh Gill (on Behalf of the Sikh Federation UK) v Cabinet Office
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] EWHC 3407 (Admin) |
| Date | 12 December 2019 |
| Docket Number | Case No: CO/2895/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3407 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/2895/2019
David Wolfe QC and Ayesha Christie (instructed by Leigh Day) for the Claimant
Neil Sheldon QC and Jonathan Auburn (instructed by the Government Legal Department) for the Defendant and the Interested Party
Hearing dates: 12 & 13 November 2019
Approved Judgment
The Claimant applies for judicial review of “the contemplated exercise of Her Majesty's discretion to direct a census, based on [an] Order in Council made on the basis of a draft which does not include a Sikh ethnic tick box on the basis of the reasoning detailed in the White Paper” (section 3 of the Claim Form).
By way of relief, the Claimant seeks a declaration from the Court that “it would be unlawful for Her Majesty to make an Order in Council which follows the reasoning of the White Paper so as not to include the Sikh ethnic group tick box in the “particulars to be stated in returns” section of the Order” (section 7 of the Claim Form).
The Claimant brings the claim on behalf of the Sikh Federation UK, in his capacity as Chair of the Federation. The Sikh Federation is a prominent and influential organisation which has campaigned for the inclusion of a Sikh ethnic group tick box response in the census, in the hope that funding and public services will then be more effectively focused on meeting the needs of the Sikh community.
The UK Statistics Authority's (“UKSA”) proposal not to include a Sikh ethnic group tick box response in the census was set out in the White Paper “ Help Shape Our Future The 2021 Census of Population and Housing in England and Wales” Cm 9745, published by the Cabinet Office in December 2018, and presented to Parliament by the Minister for the Constitution, on behalf of the Minister for the Cabinet Office.
In summary, the Claimant's claim is that the Office for National Statistics (“ONS”), which is the executive office of the UKSA, adopted an unlawful approach in assessing whether or not the 2021 census questions about membership of ethnic groups should include a specific tick box response option for Sikhs, in addition to the option of entering “Sikh” in the space marked “other”.
Responsibility for making a final decision on the content of the proposed census questionnaire rests with the Minister for the Cabinet Office. Once a decision has been made, a draft Order in Council, and supporting regulations, will be laid before Parliament. Once approved by Parliament, the Queen, if so advised by the Privy Council, may direct that a census shall take place by means of an Order in Council, made in pursuance of powers conferred by section 1(1) of the Census Act 1920 (“the 1920 Act”).
Thus, this claim is a pre-emptive challenge to the exercise of the Queen's powers under section 1(1) of the 1920 Act, before the Minister has made a final decision on the form of the census questionnaire, or laid the draft delegated legislation before Parliament, and before Parliament and the Queen in Council have had an opportunity to consider it. The Defendant submits that the claim is premature, and in breach of Parliamentary privilege, as a declaration in the terms sought would not respect the separation of powers between the legislature and the judiciary.
Permission to apply for judicial review was granted by Thornton J. on the papers on 6 September 2019.
Facts
The UKSA is a non-ministerial Department sponsored by the Cabinet Office. It has statutory responsibility for conducting a census. It makes recommendations to the Minister and the Cabinet Office about the content of a proposed census and how it should operate.
The ONS is the executive office of the UKSA. It is the recognised national statistical institute of the United Kingdom (“UK”) and has responsibility for collecting and publishing a wide range of statistics, including the UK's National Accounts (including GDP), price statistics (including the retail and consumer price indices) and vital events (births, marriages, and deaths).
The ONS undertakes the census every ten years in England and Wales. The census provides valuable data which informs the provision of funding and services by central and local government. It affords insight into the social condition and fabric of the population, which is used for many different purposes, in both the private and public sector.
The ONS draws on its experience and expert technical knowledge in assessing and advising upon the content of proposed census questionnaires. The subject matter of the census is divided into topics, under which questions are asked. Large topics are divided into sub-topics. There are different methods of capturing responses in the census form: either a list of possible answers from which respondents may choose the answer which applies to them by ticking the box, or a blank space for respondents to write in their own answer, in their own words. Tick boxes assist respondents by providing quick and convenient means of identifying the desired answer, and they promote consistency of responses.
The majority of topics to be covered by the census remain largely the same over time. However, where a need is identified through consultation, research and evidence-gathering, new topics may be added. For example, ethnic group was added as a topic in 1991, and religion and health were added as topics in 2001. In 2011, topics were added relating to passports held, national identity and language. For the forthcoming census, ONS has proposed three new topics covering veteran status, sexual orientation and gender identity.
For each census, the ONS undertakes a formal non-statutory consultation exercise on which new census topics to include. It does not undertake a formal consultation on the response options, but it engages with stakeholders, community groups and members of the public in meetings, correspondence and website publications, where inter alia response options are discussed.
The 2011 census
The last census was held in 2011. Under the topic of religion, the questionnaire asked “what is your religion?” and there was a list of tick box response options, including one for “Sikh”. 423,158 respondents ticked the Sikh response option.
Under the topic of ethnic group, respondents were asked the question “what is your ethnic group?” by selecting one section from A to E: A: White; B: Mixed/multiple ethnic groups; C: Asian/Asian British; D: Black/African/Caribbean/Black British; E: Other Ethnic Group. Then respondents were asked to “tick one box to best describe your ethnic group”, from a list of tick box response options and a write-in option. The relevant section for Sikhs was most likely C: Asian/Asian British. The tick box response options were: Indian; Pakistani; Bangladeshi; Chinese; and then a write-in option for “Any other Asian background”, where Sikh could be written, if desired.
In the 2011 census, 4,225,179 respondents ticked an ‘other specify’ box in response to the ethnic group question in 2011, of whom 83,362 respondents wrote in ‘Sikh’ (of these 76,500 had also identified as Sikh under the religion question).
According to Mr Iain Bell, Deputy National Statistician and Director General of Population and Public Policy at the ONS, prior to the 2011 census there was some demand for a Sikh tick box response option, mainly from Sikh community organisations, including the Sikh Federation. Other views were expressed by organisations and individuals. The ONS also considered that a different picture emerged from the cognitive testing by Ipsos MORI, commissioned for the Scottish census, in which most of the seven Sikh respondents ticked the Indian response option, and were uncomfortable at having to choose between ‘Indian’ and ‘Sikh’. Some felt that Sikhism was a religion and were confused about its inclusion as an ethnic group.
In March 2009 the ONS published an Information Paper ‘ Deciding which tick-boxes to add to the ethnic group question in the 2011 England and Wales census’ (“the March 2009 Information Paper”) containing its recommendation that only ‘Gypsy or Irish Traveller’ and ‘Arab’ be added as tick box responses. It summarised its evaluation of the case for and against a Sikh tick box response, along with numerous other similar requests.
Importantly for the purposes of this challenge, the Information Paper described in some detail the “prioritisation tool” used in the evaluation (following an independent Equality Impact Assessment), which assessed the ethnic groups against “principles”, grouped into “themes”. One of the themes was “Clarity and quality of the information collected and acceptability to respondents”. Paragraph 3.2 at page 3 referred to acceptability as follows:
“The addition of the tick-box and/or revised terminology is clear and acceptable to respondents (both in wording and in the context of the question, for example providing mutually exclusive categories) and provides the required information to an acceptable level of quality.”
In January 2010, the Sikh Federation published a 28 page critique of the ONS's Information Paper, commenting on the prioritisation tool and its application to Sikhs. It concluded that “[w]hile the principles of the tool appear to be well reasoned and coherent the evidence base for Sikh scores and the scoring process applied are inconsistent, contradictory and not transparent.”.
The 2021 census
The ONS conducted a consultation on the topics to be included in the 2021 census between June and August 2015.
In its “Response to Consultation” dated...
To continue reading
Request your trial
-
R the Police Superintendents' Association v HM Treasury
...Bill. To do so would be just as much an interference with Parliamentary proceedings…” 155 The claimant in R (Gill) v Cabinet Office [2019] EWHC 3407 (Admin) (“ Gill”) was concerned about the absence of a Sikh ethnic tick box on a forthcoming census. A declaration was sought that “ it would......
-
R Amrik Singh Gill v Cabinet Office [No.3]
...in the 2021 Census. The first judicial review application (“JR1”), Gill (on behalf of the Sikh Federation UK) v Cabinet Office [2019] EWHC 3407 (Admin), was made in July 2019 before the draft Census Order was laid before Parliament. The Claimant proceeded at that stage because of his view,......