Judicial review on the Sikh census tick-box; lots for consultation specialists to consider
Does it matter if the number of Sikhs in the UK is 430,000?
Or over 700,000?
The Sikh Federation believes it does and has pursued the matter for years, trying to persuade the Office of National Statistics (ONS) that its 2021 census should offer people the chance to declare themselves as Sikh in terms of ethnicity rather than just in terms of religion. That, in essence, is the background to R (Gill) v The Cabinet Office  EWHC 2931 (Admin), upon which Mr Justice Choudhury handed down his judgment earlier this month.
It describes the lengthy and complex process undertaken by the ONS to address the issue – which was not exclusive to Sikhs; other groups such as Roma, Jewish and Somali were also under consideration. At one stage, in 2015, there was a formal consultation on the topics that should be covered in the 2021 census, but the ONS maintains that the criteria for agreeing which topics are to be the subject of questions in the census is different from the choice of response mechanisms, so that the issue of whether or not to offer the Sikhs their own tick-box as it were, needed to be subject to entirely different criteria. The claimant in this case that argued that the ONS had failed to observe its own processes and that there were other aspects that made their rejection of the tick-box unlawful. The Judge rejected all these arguments but had to concede that the ONS process had been confusing, to say the least. At one point there is reference to ‘infelicitous wording in a document’, and the ONS itself seems to admit that, at one point, an acceptability test had been confused with public acceptability; they are quite different of course.
The case does not change the law of consultation – but it does illustrate where and how a consultation fits into a complex decision-making process. Here are some nuggets that should interest those involved with planning and implementing public consultations.
- Consultation documents are of evidentiary value in trying to work out what consultees may have understood and what, in response, they may have said. The Judge quotes the 2019 Stephenson case where the Government lost because when applying the ‘reasonable reader’ test, it was clear that consultees understood a meaning different from what civil servants had probably intended. In this case, the Sikhs argued that the criteria being consulted upon were the same for both topics and responses; the ONS denied this, and the Judge agreed with it. The argument was finely balanced. Even the defence barrister came close to admitting that ‘the ONS did not communicate its policies as clearly as it might have done.’ To avoid misleading consultees, or just to avoid confusion, consultations of this kind need ultra-careful wording, need double-checking and should not be rushed out in a hurry. The Institute’s Quality Assurance is placing increasing focus on this aspect.
- Like the ONS, many organisations undertaking consultations have an interest in asking questions about the respondent profile, particularly in relation to Equality characteristics. There may therefore be significant interest in the complexities of untangling people’s self-identities in sensitive matters like religion and ethnicity. At the heart of the Sikh tick-box case is the awkward fact that whereas approx 430,000 volunteered that fact that their religion was Sikh, there are others who only see themselves as Sikh by ethnicity, and many others who have been happy to tick the box saying ‘Indian’. There are different views within the Sikh community, and although 112 of the country’s 249 Gurdwaras had supported the separate tick-box proposal, there was evidence that others of a Sikh background may have held the opposing view. What the ONS had to do was engage with this community and agree a logical way to settle the debate. It found trying to agree universally acceptable criteria most difficult, and a similar fate may await Consultation Managers in the NHS, local Councils or other public services if they also have to work with such groups and make them feel comfortable about consultations or other documentation.
- A side-issue, in this case, was the suggestion that the ONS may have compromised itself by commissioning Focus Groups which used a slightly different methodology by which to understand individual Sikh’s reactions to potential new questions by using a Red/Amber/Green rating system. It did this by asking participants to compare with the 2011 Census with the obvious flaw that, as there was no Sikh tick-box in that census, then making the comparison would be impossible. Counsel recalled that in the important Law Society v Lord Chancellor case in 2019, the Government lost because it had failed to disclose that consultation proposals were based upon an obviously flawed statistical methodology. This time around, the Court found that even if flawed, the Focus Groups did not invalidate the ONS’ conclusion. Maybe the significance here is that, to the author’s knowledge, this is the first time that a judicial review has been required to rule upon the relative merits of a Focus Group methodology. Those planning a serious qualitative data-gathering exercise as part of a decision-making or consultation process should ensure that the methodology is robust enough to withstand external scrutiny. Only in the most contentious cases – like Gill – may it be necessary to expose the internal mechanics of such methods to the High Court, but it may be a sobering thought for many in the consultation business.
My colleague, Barry Creasy, a long-standing Fellow of the Consultation Institute has agreed to look at the detail of this case to see if we can glean from it, advice that we can offer members and supporters who may find themselves involved with complex consultations of this kind.
In the meantime, the law of consultation continues to throw up cases where the task of listening to stakeholders can arouse strong sentiments and allegations of unfairness. We see this case at a time when there are threats to the continued availability of judicial reviews, and is yet another example of the need to submit dialogue processes – whether engagement or consultation – to a rigorous process of scrutiny so that decision-makers are truly accountable not just for those decisions – but also for the processes by which they took them.
With COVID-19 restrictions and many other top-down measures visible day-by-day, the climate of scrutiny and the demand for consultation continues unabated.