R Amrik Singh Gill v Cabinet Office [No.3]
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 06 November 2020 |
| Neutral Citation | [2020] EWHC 2931 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2113/2020 |
| Date | 06 November 2020 |
[2020] EWHC 2931 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Choudhury
Case No: CO/2113/2020
Mr D Wolfe QC and Ms A Christie (instructed by Leigh Day) for the Claimant
Mr J Auburn (instructed by Government Legal Department) for the Defendant
Hearing dates: 20 and 21 October 2020
APPROVED JUDGMENT
Introduction and Summary of Conclusions
Every 10 years since 1801 (except during WWII), there has been a census of the population of the United Kingdom. Since the 1991 census, information as to the ethnicity of respondents has been sought. Responses to the ethnic group question in the census form are provided by means of ticking the appropriate box (“tick-box”). If there is no tick-box considered appropriate, then the respondent can insert the appropriate ethnic group in a box marked, “Other”. Many within the Sikh community have long campaigned for the presence of a Sikh tick-box as a distinct available response to the ethnic group question, claiming, amongst other things, that the absence of such an option leads to significant undercounting of the Sikh population. The Claimant, Mr Amrik Singh Gill, is the Chair of the Sikh Federation UK, which is one of the leading Sikh community groups pursuing a Sikh tick-box option.
For the 2011 Census, the Office for National Statistics (“ONS”) did not recommend the inclusion of a Sikh tick-box and none was included. The same recommendation was made in respect of the forthcoming 2021 Census, and this was reflected in the Census Order 2020 made by Her Majesty in Council on 20 May 2020 (“the Census Order”). The Claimant challenges the failure of the Census Order to include a Sikh tick-box as unlawful and seeks a declaration to that effect and a quashing order.
It is important for the reader to note that this judgment is not concerned with whether or not there should be a Sikh tick-box in the census form or with the respective merits of the arguments for and against such a tick-box. Such matters are not for the Court to determine. This judgment is concerned solely with the question whether, as alleged by the Claimant, the Cabinet Office, which has responsibility for laying the necessary legislation for the 2021 Census, has acted unlawfully in the process leading to the making of the Census Order. This is solely a question of law.
As to that question of law, I have found against the Claimant. In summary:
i) Ground 1 of the claim fails because the ONS did not, as alleged, fail to apply the published policy in respect of assessing tick-boxes and nor did it apply another hidden or secret policy to that exercise. In my judgment, the ONS conducted its assessment in accordance with published criteria.
ii) Ground 2 of the claim fails because the ONS did what it said it would do in that it applied an updated version of a prioritisation tool developed for the 2011 Census.
iii) Ground 3 of the claim fails because the ONS did not apply its criteria inconsistently as between different topics.
iv) Ground 4 of the claim fails because a report on which the ONS placed some reliance did not contain, as alleged, any “legally unsustainable” conclusions.
Background
The ONS is the executive office of the UK Statistics Authority (“UKSA”), which is a non-ministerial department sponsored by the Defendant. The UKSA is empowered to conduct a census in England and Wales (the census being a devolved matter with the Scotland and Northern Ireland governments conducting their own censuses). The UKSA 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 UK's independent National Statistics Institute and is widely recognised as a world leader in the production of official statistics. It publishes statistics in relation to a wide range of matters including the UK's National Accounts (including GDP), prices (including the retail and consumer price indices) and on births, marriages and deaths.
The ONS undertakes the census every 10 years in England and Wales. The census provides valuable data which informs decision-making regarding the distribution of Government funds, the supply of grants and the provision of local services. The information obtained also provides a valuable insight into the social condition and fabric of the population. Such information enables providers of local services and employers to gain a better understanding of the populations with which they deal in respect of issues such as public safety, fair recruitment and the provision of appropriate services.
The ONS draws on its experience and expert technical knowledge and that of external experts in assessing and advising upon the design and content of proposed census questionnaires. The questionnaires seek information under different subject headings (referred to as “topics”). There are numerous topics, including “Housing”, “Ethnicity and National Identity”, “Health”, “Education”, “Religion”, “Language” and “Sexual Identity”. Larger topics are divided into sub-topics. For example, under the “Housing” topic, there is a sub-topic about tenure, which asks questions such as, “ Does your household own or rent this accommodation?” and “ Who is your landlord?”.
There are different methods of capturing answers to questions in the census form: either a list of possible answers set out in separate tick-boxes, a blank space in which the respondent can enter their own answer (“write-in option”), or a combination of tick-boxes and a write-in option. Tick-boxes assist respondents by providing a quick and convenient means of identifying the desired answer, and they promote consistency of response. Most topics are mandatory, that is to say, the respondent must provide a response to the question(s) asked under that topic. Only one topic, namely “religion”, was voluntary in the 2011 Census.
The majority of topics to be covered by the census remain largely the same over time. However, where a need is identified though consultation, research and evidence gathering, new topics may be added. For example, as stated above, the topic of ethnic group was added to the census in 1991. In 2001, “Religion” was added, as were the topics of “Passports held”, “National Identity” and “Language”. The 2021 census adds three new topics, namely, “Veteran Status”, “Sexual Orientation” and “Gender Identity”. It is clear, given the sensitive nature of many of the topics, that care needs to be taken in the design of the question; a badly worded or inappropriate question might cause a respondent not to engage further with the census or produce poorer quality responses. Topics can also be discarded if no longer required or other sources of information are available. For example, the census ceased asking about outdoor WCs in 2001.
For each census, the ONS undertakes a formal non-statutory consultation exercise on which topics to include. It does not undertake a formal consultation on the response options, but it engages with stakeholders about the questions to be asked and the response options that are to be made available for those questions.
The 2011 Census
The last census conducted in the UK took place in March 2011. It was the first census that could be completed online. For the topic of “Religion”, the answers available to respondents included a “Sikh” tick-box. A total of 423,158 respondents ticked the Sikh tick-box for religion.
For the topic of “Ethnic Group”, respondents were asked the question, “ What is your ethnic group?”. The respondent could choose from one of five sections, “A” to “E”: A – White; B – Mixed/multiple ethnic groups; C – Asian/Asian British; D – Black / African / Caribbean / Black British; and E – Other ethnic group. For sections A to D, respondents were asked to “ tick one box to best describe your ethnic group”, from a list of tick-box response options. The options available under C – Asian / Asian British were: Indian; Pakistani; Bangladeshi, Chinese; and then a write-in option for “Any other Asian background”. Selecting E – Other ethnic group, enabled the respondent to write in their ethnic group.
Whilst there was no Sikh tick-box, “Sikh” could be entered as a write-in response under either “C – Asian / Asian British” or “E – Other ethnic group”. In the 2011 census, a total of 83,362 respondents identified their ethnicity as Sikh, 76,500 of whom also identified their religion as Sikh. The number of respondents choosing to identify only as ethnically Sikh was therefore 6,862.
The Claimant considers that the absence of a Sikh tick-box option leads to substantial undercounting of the Sikh population, estimated by the Sikh Federation to be in the region of 7–800,000. That figure is said to be based on the Sikh Federation's “engagement with the community”, although the statistical basis for the estimate is unclear. That undercounting, according to the Claimant, has serious adverse consequences in that decisions affecting the Sikh population are being taken by central and local government, educational establishments and health authorities on the basis of inaccurate data. The Claimant notes that over 4m respondents chose not to answer the “religion” question at all in the 2011 census and that 14.1m specified “no religion”. It is said to be “likely that a large proportion of Sikhs who did not answer the voluntary religion question, or chose “no religion”, would not have gone to the effort of using...
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