Sikh Federation UK challenge to Census Order 2020 dismissed


Re: R (on the application of Gill) v Cabinet Office [No.3] [2020] EWHC 2931 (Admin)

Usually, there is a census of the population of the UK every decade. 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”).

The claimant is the Chair of the Sikh Federation UK, one of the UK’s leading Sikh community groups. The Federation is pursuing a Sikh tick-box option because, amongst other things, the absence of such an option apparently leads to significant undercounting of the Sikh population.

For the 2021 Census, the Office for National Statistics (“ONS”) did not recommend the inclusion of a Sikh tick-box and none was included, and this was reflected in the Census Order 2020 made by Her Majesty in Council on 20 May 2020 (“the Census Order”).

In the High Court the claimant challenged the failure of the Census Order to include a Sikh tick-box as unlawful and sought a declaration to that effect and a quashing order.

Importantly, this case did not concern the merits of having such an option. It concerned only whether, as alleged by the claimant, the Cabinet Office, which has responsibility for laying the necessary legislation for the 2021 Census, acted unlawfully in the process leading to the making of the Census Order.

HELD: Claim dismissed. In sum, the ONS had not failed to apply its published “public acceptability” evaluation criterion to the assessment of whether to include a Sikh ethnic group tick-box option. There was no failure to apply a published policy or the application of an unpublished policy. The “public acceptability” criterion was applied consistently in relation to questions and response options considered for inclusion in the 2021 Census.

Ayesha Christie and David Wolfe QC were involved in this case.