Many within the Sikh community have long campaigned for the inclusion of a Sikh tick-box response to the ethnic group question in the ten-yearly Census, claiming that its absence in the past has led to a significant undercounting of the Sikh population.  The Office for National Statistics did not recommend the inclusion of a Sikh ethnic tick-box for the 2011 Census and maintained that position for the forthcoming 2021 Census – and that decision was reflected in the Census (England and Wales) Order 2020. In R (Gill) v Cabinet Office [No.3] [2020] EWHC 2931 (Admin), Mr Amrik Singh Gill, Chair of the Sikh Federation UK, challenged that decision. This was his third judicial review challenge to the absence of an ethnic tick-box for Sikhs: see also R (Gill) v UK Statistics Authority [2019] EWHC 3407 (Admin).

The 2011 Census had included a Sikh tick-box in the voluntary question on “religious affiliation” [12]; however, there was no Sikh tick-box under the “ethnic group” question, though there was a write-in option [13], and 6,862 chose to identify themselves as ethnically Sikh [14]. Mr Gill contended that the absence of a Sikh tick-box option had led to substantial undercounting of the Sikh population, estimated by the Sikh Federation to be about 7-800,000. He noted that over 4 million respondents had chosen not to answer the “religion” question at all in the 2011 Census and that 14.1 million specified “no religion”, and suggested that a large proportion of Sikhs who had not answered the voluntary religion question or chose “no religion” would not have gone to the effort of using the write-in option to record their Sikh ethnicity [15].

The grounds of challenge

Mr Gill contended that the Census Order was unlawful because it was based on recommendations made by the ONS that had been reached following an unlawful evaluation process and which were based on unlawful reasoning. He relied on four specific grounds:

1. that the ONS failed to apply its published “public acceptability” evaluation criterion (the PA Criterion) to the assessment of whether to include a Sikh ethnic group tick-box option in the 2021 Census;
2. alternatively, that even if, contrary to its published statements, the policy to be applied had been that set out in the “prioritisation tool” for evaluating possible questions,  (updated in light of the Equality Act 2010), the ONS unlawfully applied a materially different one which remained unpublished until June 2019 – long after the publication of the White Paper ‘Help Shape Our Future – The 2021 Census of Population and Housing in England and Wales‘ (Cm 9745), which did not recommend including a Sikh tick-box under the ethnic group question;
3. that the ONS had failed to apply the criterion of “(impact on) public acceptability” consistently across questions/response options considered for inclusion under various topics and sub-topics in the 2021 Census; and
4. that the ONS’s reliance on the report by Kantar Public (the consultancy which it had commissioned to conduct a qualitative study of the four remaining ethnic group response options) was unlawful because it applied different evaluation criteria from those previously promised by the ONS and because the Kantar Report contained material internal inconsistencies and inaccuracies [84].

The judgment

In giving his judgment, Choudhury J stressed that he was not concerned with the merits or otherwise of a Sikh tick-box in the census form, but solely with whether or not – as alleged by Mr Gill – the Cabinet Office had acted unlawfully in the process leading to the making of the Census Order [3]. Choudhury J found as follows.

As to Ground 1, the ONS had conducted its assessment in accordance with its own published criteria: “That assessment may not be to the Claimant’s liking, and it may even be thought that the outcome is in some respects surprising, given the apparent (though not universal) strength of feeling in support of a Sikh tick box. However, the challenge was not that the outcome was surprising (which would fall well short of ‘irrationality’ and would not give rise to any sustainable grounds for judicial review in any event) but that the Defendant applied unpublished policies. That challenge is not made out” [100].

As to Ground 2, the ONS had not given any assurance that the prioritisation tool (PT) for the 2021 Census would be identical to that used in 2011 [107]. The 2011 PT had undergone an expert review in 2017 and updated versions of the PT had been shared with various governmental and non-governmental bodies. “That review process was hardly secret, albeit that the final updated PT was not published until June 2019” [108]; furthermore, there was unchallenged evidence from the ONS that the changes to the 2011 PT had been minor [109]. The changes to the PT were not material ones in the sense that Mr Gill would not have been materially disadvantaged in knowing what representations to make [110] and there had been no failure to apply a published policy or the application of an unpublished policy: “The ONS had at all times stated its intent to apply an updated version of the 2011 PT, and that is what it did” [111].

As to Ground 3, the ONS’s approach to the negative views expressed by some Sikh respondents in the focus groups had not been inconsistent. The exercise was about “assessing acceptability across a particular subset of respondents in respect of whom a particular tick-box response option might be relevant” and Mr Gill’s submissions were also flawed in so far as they sought to adopt a quantitative approach to research that was clearly qualitative [117].

As to Ground 4, Mr Gill’s claim that, in light of the House of Lords judgment in Mandla v Dowell Lee [1983] 2 AC 548, Kantar’s conclusion that a Sikh tick-box was not acceptable was “based upon the legally erroneous view that Sikh is not an ethnic group” [134] was without merit:

“It is based on a misunderstanding of the way in which the Census operates … ‘Respondents are asked to complete their census form based on their own self-identification, not legal definitions.’ The fact that the House of Lords in Mandla v Dowell Lee held that Sikh is an ethnic group for the purposes of a claim under the 1976 Act (which did not apply to discrimination on the grounds of religious belief) does not mean that respondents in the focus groups were compelled to self-identify as ethnically Sikh or to have regard to that decision in completing the form” [135].

Claim dismissed [137].