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Sikh Federation UK launches new legal challenge to the draft Census Order

A second judicial review challenge has been brought by Amrik Singh Gill, on behalf of the Sikh Federation UK, against the Cabinet Office in response to the draft Census (England and Wales) Order 2020 that was laid before Parliament on 2 March.

Posted on 23 April 2020

In particular, the Federation are concerned with the decision not to include a tick-box response option for ‘Sikh’ in the ethnicity section of the 2021 Census, for England and Wales. 

The Sikh Federation UK represents members of the Sikh community in the UK and is backed by over 150 Gurdwaras and Sikh organisations in bringing this challenge.
The Federation previously brought judicial review proceedings in 2019 against the Cabinet Office in anticipation of the laying of the draft Census Order on the basis that it would be unlawful for the Cabinet Office to lay before Parliament a Census Order based on proposals set out by the Office of National Statistics (ONS) in their December 2018 White Paper. 
On 12 December 2019 Mrs Justice Lang ruled that the first claim was premature because the draft Census Order had not yet been laid. The High Court did not rule on the substantive issues of the claim.
The Federation argues that the recommendation from the ONS not to include a Sikh ethnicity category was based on unlawful reasoning by the ONS. In their legal case they claim that the ONS failed to apply its published evaluation criterion on “public acceptability” to its assessment and failed to apply it consistently across the questions/response options considered for inclusion in the 2021 Census. In addition, the group argue that the ONS unlawfully relied on a report by external research agency Kantar, which applied a different evaluation criteria to that promised by the ONS, and which the group say displays inconsistencies and inaccuracies. 
In 2011, the UK-wide Census recorded approximately 430,000 Sikhs based on a non-mandatory question about religion. However, not all people who would identify as ethnically Sikh identify as religiously Sikh. The Sikh Federation’s own estimate based on engagement with their community is that there are approximately 700-800,000 ethnic Sikhs in the UK. 
Census data, and the specific ethnic group categories which are used in the Census, are used by public and other bodies to inform decision-making including about the fair allocation of public resources. The Government itself has recognised that there is evidence to suggest that Sikhs are experiencing significant disadvantage in several areas of life including employing, housing, health and education, and that having Census data on the ethnically Sikh population would allow improvements to planning to better meet the needs of the Sikh community. 
Although the 2018 White Paper indicated the draft Order would be laid before Parliament in Autumn 2019, this process was delayed, with the draft Order not laid until early March this year. It is yet uncertain whether the disruptions to Parliament caused by Covid-19 will impact upon the progress of the draft Order. However, the Cabinet Office maintain that the UK-wide Census will take place on 21 March 2021 despite the disruption of Covid-19.    
Bhai Amrik Singh, Chair of the Sikh Federation UK, said:

“The stakes have been raised and Cabinet Office Ministers must now decide without input from Office for National Statistics (ONS) officials whether it would be better to agree to the inclusion of a Sikh ethnic tick box response option and get on with the census or continue the battle with the Sikh community in the courts.”
Rosa Curling, from law firm Leigh Day who represents the Sikh Federation, along with Erin Alcock, added:
“Our client’s concerns about the lack of an ethnic Sikh tick-box on the 2021 Census have not changed. The concerns they raised over flaws identified within the process for determining whether or not to include a Sikh ethnic tick-box have not been addressed by the courts to date. Our clients continue to argue that without a Sikh ethnicity tick-box on the next census, the Sikh community will continue to be at a disadvantage in relation to the allocation of public resources.”
Ayesha Christie and David Wolfe QC of Matrix Chambers are counsel instructed in this case.