July 20, 2019 | By Gurjeet Singh
by: Gurjeet Singh*
Leigh Day Solicitors and Matrix Chambers acting for the Sikh Federation (UK) and the Sikh community first wrote to the Cabinet Office, UK Statistics Authority and Office for National Statistics (ONS) on 22 May 2019 to begin the pre-action process before applying for judicial review.
It was explained in detail where the public bodies named had acted unlawfully, asked for detailed explanations and threatened with judicial review if these explanations were not forthcoming or were unsatisfactory.
The Cabinet Office were given extended time to provide explanations and provide further information.
A disappointing final reply from government lawyers came last Friday. Leigh Day Solicitors having instructed David Wolfe QC and Ayesha Christie of Matrix Chambers yesterday submitted papers and applied to the High Court for permission to move to a full hearing.
The submission to the High Court sets out why it would be unlawful for the Cabinet Office to lay before Parliament a draft Census Order based on the proposals set out by the ONS in their December 2018 White Paper. The draft Census Order is due to be laid before Parliament in autumn 2019.
The Sikh Federation (UK) is bringing the challenge on behalf of the Sikh community before, rather than after, the draft Census Order is laid in Parliament. This is to avoid the prejudice to good administration which would arise here if the challenge were delayed until after the draft Census Order is laid. The lawyers acting for the Cabinet Office have agreed that the claim should be expedited.
The government has also accepted that “There is evidence to suggest that Sikhs are experiencing significant disadvantage in several areas of life including employment, housing, health and education.” They have also stated: “Having Census data on the Sikh population would allow improvements to service planning and commissioning to better meet the needs of the Sikh population.”
The High Court has been told the lawyers acting for the Cabinet Office failed to engage with the substantive arguments in the pre-action letter.
A witness statement from Bhai Amrik Singh, the Chair of the Sikh Federation (UK) with supporting letters and minutes from December 2018 to May 2019 has been submitted to the High Court disclosing meetings and written exchanges with the Cabinet Office Minister responsible, ONS and the National Statistician.
Bhai Amrik Singh’s witness statement states information has now been released by ONS, which was not previously in the public domain that strongly supports the need for a Sikh ethnic tick box and undermines the evidence publicly quoted by the ONS. For example, the results of the May 2018 quantitative survey that had 2,412 respondents to test acceptability of a revised ethnic group question were withheld at the time of publishing the White Paper. The results show a very high level of public acceptability for the option of a Sikh ethnic tick box and totally undermine the weak qualitative evidence used by ONS from earlier focus groups of only 7-10 Sikhs to justify its final proposal.
This new evidence was shared in a letter from the National Statistician on 13 May 2019.
Similarly, a breakdown by gender and age of the 83,362 Sikhs that ticked other and wrote Sikh in the Census 2011 was also provided for the first time on the 13 May 2019 by the National Statistician. The gender split and support from different age groups for a Sikh ethnic tick box directly contradicts the evidence quoted from small focus groups by ONS to conclude a Sikh ethnic tick was not acceptable to the Sikh population.
This new evidence that has been uncovered shows widespread public support for the option of a Sikh ethnic tick box. This was information that should have been directly relevant to the decision taken in relation to the option of a Sikh ethnic tick box.
ONS has also accepted the possibility that the census data from the optional religious question could significantly under-report the number of Sikhs as around 20 million of the population in the Census 2011 either chose not to answer the religious question or indicated “no religion”. If recent trends continue the 20 million is expected to increase further in 2021 further reducing the usefulness of data from the optional religious question that perversely encourages respondents to select “no religion”.
Conservative estimates suggest over 200,000 Sikhs in the UK may have been under counted in official statistics in 2011.
The Sikh Federation (UK) is concerned that decisions are being taken by local and national decision-making bodies based on inaccurate and incomplete data, and that without public bodies monitoring Sikhs as a distinct ethnic group, they cannot be aware of the specific needs of the Sikh community or the barriers they face.
The ONS is clearly worried about the rigour of its own methodology, whether the evidence that has been quoted by them will support the conclusion reached in the White Paper and if this will stand up to judicial scrutiny. It has therefore retrospectively published in June 2019 an ‘Information Paper’ after the pre-action letter was sent. The Information Paper introduces, for the first time, an “evaluation tool” which contains evaluation criteria that differ from the evaluation criteria on which the recommendations for the inclusion of new ethnic groups in the 2021 Census were based.
The Sikh Federation (UK) believe that the process which preceded the ONS proposal in the December 2018 White Paper that a Sikh ethnicity category not be included in the 2021 census was procedurally flawed and unlawful. The judicial review claim is it would be unlawful to make the draft Census Order based on a recommendation that was reached without the consistent application of published evaluation criteria and the published “public acceptability” test.
Questions have also been raised regarding the legality of the Kantar report. Kantar took a flawed approach to “acceptability” and the conclusions on the option of a Sikh ethnic tick box are legally unsustainable with material internal inconsistencies, inaccuracies, and a failure even to apply its own stated definitions and methodology.
Bhai Amrik Singh, Chair of the Sikh Federation UK, said:
“Given the wider public interest and need to move quickly with the Census we are hopeful the High Court will agree to an early full hearing. We note many cases are “settled” following the decision of the High Court to grant permission.”
“We believe we have a strong case and the Cabinet Office recognise we mean business, but common sense can prevail. As far as we are concerned the matter can be settled by the Cabinet Office simply agreeing to include a Sikh ethnic tick box option in the draft Census Order to be presented to Parliament in the autumn.”
“The Sikh Federation (UK) has been campaigning for and advocating the inclusion of a Sikh ethnicity tick-box in the UK Census for more than 15 years and believe the Sikh community are close to securing a massive victory that will help address institutional racism and discrimination against Sikhs by public bodies.”