Sikh Federation UK Announces to take Census case to Court of Appeal After HC Refuses Relief

London: A bid for Sikhs to be included as an ethnic group in the UK census has reportedly been rejected by a High Court judge.  On Thursday (Dec. 12)  morning Mrs Justice Lang DBE in her High Court judgement concluded the judicial review claim by the Sikh Federation (UK) on behalf of the Sikh community was too early.

However, in her ruling Justice Lang has helpfully stated “the Minister has responsibility for deciding upon the final form of the census particulars and the census questionnaires”.

A release issued by the Sikh Federation UK noted that the judge has also stated in her ruling: “I do not consider that this conclusion unduly prejudices the Claimant” and “the Claimant will be able to bring a challenge to the Order in Council once made, if the Sikh tick box response is not included.”

Lawyers acting for the Sikh community had been granted the High Court hearing on 12 and 13 November as they had successfully argued they did not want to prejudice good administration and jeopardise the timing of the Census, the Sikh Federation UK said.

Bhai Amrik Singh, the Chair of the Sikh Federation (UK) said: “This ruling necessitates the Cabinet Office Minister to challenge and take an independent view on the evidence presented in court and decide whether to include the Sikh ethnic group tick box option in the draft Census Order to be presented to Parliament. The Minister now also knows from the High Court ruling that the Order in Council will be open to judicial review challenge.”

“We will in the next 21 days be appealing to the Court of Appeal arguing why we are not too early, so the arguments set out in our judicial review claim and presented to the High Court at the hearing in November concerning the need for a Sikh ethnic tick box can be substantively considered and a judgement given. The Cabinet Office Minister has failed to lay a draft Order in Parliament for almost a year since the publication of the 2018 White Paper.”

We will be arguing in the Court of Appeal the Census White Paper was first expected in Spring 2018, but the Cabinet Office delayed this for around eight months until 14 December 2018. MPs, led by Preet Kaur Gill, the Chair of the All Party Parliamentary Group (APPG) of British Sikhs immediately challenged the Cabinet Office in Parliament.

The Sikh Federation (UK) and MPs met the Cabinet Office Minister and Office for National Statistics (ONS) staff in January 2019 and the Minister wrote to us indicating ONS needed to answer our questions and provide explanations.

The Minister was clear that we needed to continue to engage with ONS to influence their proposals set out in the White Paper as Ministers appeared not to be prepared to challenge or overrule ONS decisions.

The Sikh Federation (UK) and MPs continued to meet and engage with ONS staff until mid-May. It became clear there was a lack of evidence to support the conclusion in the White Paper about not having the option of a Sikh ethnic tick box.

At the final meeting with the National Statistician on 13 May 2019 it was made clear ONS were not prepared to provide further information or accept they may have reached a conclusion that could not be adequately evidenced.

The Cabinet Office draft Census Order was expected in Autumn 2019, 10 years ago it was laid in Parliament on 21 October, but the Cabinet Office has to date failed to present it to Parliament for almost a year. We will be making the point that these delays have made it virtually impossible to get the timing right for a judicial review claim.

Although we have been told in the judgement we are too early, had we done nothing for a year waiting for a draft Census Order to be presented to Parliament we would certainly have been told by the High Court we were too late, and we were jeopardising the Census in 2021.

Justice Lang recognised the lawyers representing the Cabinet Office had also argued in the hearing that Parliament may seek to debate and pass a motion calling for the annulment of the draft Census Order if a Sikh ethnic tick box option is not specified. Alternatively, Parliament may debate and pass a Motion of Regret in respect of the draft Census Order not including the option of a Sikh ethnic tick box.

Justice Lang in her ruling has left it to the Cabinet Office and the UK Statistics Authority to decide whether a legal challenge after the draft Census Order is presented could delay the Census 2021.

On the back of the hearing she has hinted in her ruling that they need to consider if another legal challenge will delay the census and decide if “it would be preferable for the Claimant’s claim (of including a Sikh ethnic tick box) to be determined now, on the merits”.

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A Press Release issued by Sikh Federation UK’s Lawyers Reads:

Sikh Federation UK to seek permission to appeal High Court census ruling

The Sikh Federation UK have announced that they will be seeking permission to appeal the High Court judgment handed down today which dismissed their judicial review of the government’s decision not to include a tick box for ethnic Sikhs on the census due to take place in 2021.

The claim was dismissed by the court on the grounds that it is premature and therefore should have been brought once the Census Order has been made, not before. The Sikh Federation UK argued in their case that they brought the challenge early so as not to delay census.

The Census White Paper was published in December 2018 and was immediately challenged in Parliament by MPs led by the Chair of the All Party Parliamentary Group of British Sikhs. The Sikh Federation UK engaged with the Cabinet Office Minister and Office for National Statistics (ONS) on the issue from January to May 2019. Judicial review proceedings were issued as it became clear to the Federation that the ONS was not willing to accept that their process may have been flawed. Proceedings were issued at this stage so as to avoid delaying the census process.

The draft Census Order was expected in Autumn 2019 but it has not yet been laid before parliament.

In their legal claim the Federation argued that the government’s proposals for the Census 2021, in particular the decision not to include the option of a tick-box for the Sikh ethnic group, were unlawful.

The decision not to include a tick-box for the Sikh ethnic group was made following a recommendation by the Office of National Statistic (ONS). The Federation argued in their case that the process that led to this decision was unlawful because the ONS relied on results from an external company called Kantar who used different criteria in their analysis to that which the ONS had said they would use. This issue was not determined by the High Court.

The Sikh Federation UK believe that it is of great importance to have the Sikh ethnic tick-box included in the 2021 census as not all people who would identify as ethnically Sikh, identify as religiously Sikh. The census would therefore not give an accurate picture on the number of ethnic Sikhs in the UK and this would lead that group to be left out of government decisions on funding and provisions of public services which are made based on the census data. The Federation estimates that there are approximately 700-800,000 ethnic Sikhs in the UK.

Bhai Amrik Singh, Chair of the Sikh Federation UK, said:

“This ruling necessitates the Cabinet Office Minister to challenge and take an independent view on the evidence presented in court and decide whether to include the Sikh ethnic group tick box option in the draft Census Order to be presented to Parliament. The Minister now also knows from the High Court ruling that the Order in Council will be open to judicial review challenge.”

“We will in the next 21 days be appealing to the Court of Appeal arguing why we are not too early, so the arguments set out in our judicial review claim and presented to the High Court at the hearing in November concerning the need for a Sikh ethnic tick box can be substantively considered and a judgment given. The Cabinet Office Minister has failed to lay a draft Order in Parliament for almost a year since the publication of the 2018 White Paper.”

Rosa Curling, solicitor from Leigh Day, added:

“Our client believes that it is of great importance that ethnic Sikhs are given the opportunity to mark their ethnicity on the census in 2021 so that an accurate picture of ethnic Sikhs in the UK can be established to inform government decisions and meet community needs. We will now be working with them on their application to appeal.”

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