Oxfordshire CC Jan 20 Head of Legal 600

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​Sikh Federation to seek permission to appeal after High Court dismisses challenge over absence of ethnic tick box in Census 2021 proposals

The Sikh Federation UK is seeking permission to appeal a High Court judgment which dismissed its judicial review challenge of the Government’s decision not to include a tick box for ethnic Sikhs in the Census 2021 proposals.

According to the Federation, failing to have a tick box for ethnic Sikhs alongside religious Sikhs would give an inaccurate picture of the number of ethnic Sikhs in the UK.

As a result of this, the group says that approximately 700 - 800,000 ethnic Sikhs could be left out of government decisions on funding and provisions of public services made on the basis of the census.

In Gill, R (on the application of) v UK Statistics Authority [2019]EWHC 3407 (Admin) (12 December 2019) the claimant, on behalf of the Sikh Federation, challenged the Government’s decision on three grounds:

  1. Unlawful failure by the Office for National Statistics (ONS), the executive office of the UK Statistics Authority, to apply the evaluation criteria it published and said it would apply (and until that final point had applied), including its published "public acceptability" test, when recommending not to include a Sikh tick box in the 2021 Census.
  2. Unlawful failure by the ONS to apply its "public acceptability" criterion consistently across the questions and response options considered for inclusion under various topics/sub-topics in the 2021 Census.
  3. Unlawful reliance by the ONS, when recommending not to include the option of a Sikh tick box, on a report by Kantar, a research agency commissioned to conduct focus groups to assess the inclusion of additional ethnic group tick boxes.

Mrs Justice Lang dismissed the Sikh Federation’s claim, concluding that:

  • The claim was “plainly premature” as no ministerial decision or Order in Council had yet been made. “A ministerial decision has not yet been made; no draft Order in Council has been published or approved by Parliament; and the Queen in Council has not made an Order under the 1920 Act. As Lloyd-Jones LJ said in Yalland, at [23], it is the long-established practice of this Court not to entertain anticipatory claims for judicial reviews in respect of events that have not yet occurred. There are sound practical and principled reasons for the Court's practice in this regard. I do not consider that there is any justification for making an exception in this case….”
  • The claim breached parliamentary privilege since the terms sought by the claimant would not respect the separation of powers between the legislature and the judiciary. “It is well-established that a declaration which has the effect of requiring a minister to introduce, or prohibiting a minister from introducing, draft legislation to Parliament, other than on the terms laid down by the court, is an impermissible interference with the proceedings of Parliament: see Sir John Donaldson MR in Smedley at 666E; Richards LJ in Wheeler, at [49]; Mitting J. in Unison, at [11]; and Lang J. in H-S, at [51]-[52].”

Bhai Amrik Singh, Chair of the Sikh Federation UK, announced it would be appealing to the Court of Appeal within the next 21 days.

He 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.”

The Federation’s solicitor, Rosa Curling 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.”

Adam Carey

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