Lord Young of Cookham

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That the Bill be now read a second time.

Lord Young of Cookham (Con)

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My Lords, I am delighted to present this Bill today. This may be some noble Lords’ first encounter with the census legislative process. I have an advantage, in that I was responsible for taking through the legislation in another place to enable the taking of the 1981 census. I now have the pleasure to present a Bill that paves the way for new questions in the 2021 census, 40 years later.

The purpose of the Bill is very simple: it will remove the penalty for not responding to new census questions on sexual orientation and gender identity. This means that the questions will be voluntary. Given the sensitive nature of these questions, they will be asked only in respect of those aged 16 and over in the 2021 census.

This delivers on the proposals set out in December 2018 by the White Paper Help Shape our Future. The Office for National Statistics undertook an extensive three-year programme of research and evidence-gathering, including a large public consultation on the 2021 census, and the White Paper sets out its recommendations. This includes new questions on sexual orientation and gender identity to help decision-makers monitor their services and provision. The White Paper also recommends that nobody should have to disclose their sexual orientation or gender identity if they do not want to.

To make these questions voluntary, the Bill amends the Census Act 1920 to remove the penalty for not responding to them. As some noble Lords will recall, this reflects the approach taken in the Census (Amendment) Act 2000, which removed the penalty attaching to a failure to answer a question on religious affiliation in future censuses.

The Bill also extends to Northern Ireland by amending the Census Act (Northern Ireland) 1969 to ensure that there is a consistent statutory basis across the UK for asking voluntary questions on sexual orientation and gender identity. The Bill does not direct either question to be asked in Northern Ireland but extends the voluntary nature of both questions, should it be decided to include these questions in this or a future Northern Ireland census. Without an amendment to the census primary legislation for Northern Ireland, questions on these topics would remain subject to a penalty for non-response. Following consultations with the Northern Ireland Office and the Northern Ireland Statistics and Research Agency, we are therefore extending this Bill to Northern Ireland. Noble Lords may wish to note that the Scottish Parliament has separately introduced a Bill to make new questions on sexual orientation and transgender status and history voluntary by removing the penalty for failing to answer these questions.

The census provides an opportunity, once every 10 years, to build a detailed and comprehensive picture of the nation. The 2021 census will be a primarily online census for the first time. This will help to improve data quality and pursue the Government’s aim of increasing the provision of public services online.

Confidentiality remains paramount. All personal data collected by the census will be stored confidentially and will not be released for 100 years. In 2021, respondents will be provided with a unique access code and anyone aged 16 years and over will be able to request a code, or individual paper form, if they wish to respond privately. This will enable people to answer these questions without having to tell the householder that they have done so. This is vital, given the clear need for this data.

The research and consultation conducted by the Office for National Statistics to inform the recommendations for the 2021 census showed a clear need to collect data on sexual orientation and gender identity. National and local organisations have confirmed that need, including the Government Equalities Office, the Department for Health and Social Care and Sport England. There has also been significant consultation with stakeholders in the voluntary sector, which I know the ONS values, and which will continue throughout the census.

The Office for National Statistics recommends new questions or changes to questions only where its consultations and research has shown a compelling case to do so. Data on sexual orientation, down to local authority level, is not currently available and there is no official data at all in this country on gender identity. This has a direct impact on the provision of public services. The NHS has highlighted that the absence of reliable gender identity information is a challenge for its provision of gender dysphoria services, and local authorities have sought the information to tackle homophobic incidents in the night-time economy. Without robust data on the size of the LGBT population at a national and local level, decision-makers are operating in something of a vacuum. They are unaware of the extent and nature of the disadvantages LGBT people may experience and, critically, they are unable to design and monitor the effectiveness of policies to address these issues.

I have written to my noble friend Lord Blencathra, of the Delegated Powers and Regulatory Reform Committee, to set out the delegated powers memorandum accompanying the Bill. The Bill includes no new delegated powers but will have an effect on existing ones as they operate in England and Wales. Copies of the memorandum have been made available.

The Bill ensures that, in delivering on the White Paper’s proposals, the Office for National Statistics can arrange to include new questions on sexual orientation and gender identity in the 2021 census on a voluntary basis, ensuring that the penalty for not responding to these questions is removed. It ensures that robust data can be collected to inform policymakers in the planning and provision of vital public services to support citizens across the UK. I therefore urge noble Lords to join me in supporting this simple, worthwhile legislation. I beg to move.

Baroness Hayter of Kentish Town (Lab)

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I thank the Minister for introducing the Bill and for repeating his 1981 gig. I do not know whether he will do this every 10 years from now on. I also congratulate the Government on using our spare Chamber time on a useful piece of legislation, for once. Perhaps we could also now have the public service ombudsman Bill, the Grocott hereditaries Bill or some Law Commission Bill to put our otherwise rather idle hands to good use.

We on this side of the House welcome and support the Bill for the very reasons the Minister articulated. We believe that the timing is right to include the two new questions, not only to ensure that services and policies are appropriate but to help with the development of rights and the removal of discrimination. I say this particularly as an old campaigner—first and foremost, one needs good evidence to measure problems and monitor progress in order to formulate responses and make a strong case.

However, I confess that my enthusiasm for the census comes also from speaking as an historian. A plethora of data going back more than 200 years provides us historians with a rich treasure trove. Along with other noble Lords, I am delighted that the Government still believe in the census given that, in July 2010, the then Cabinet Office Minister, Francis Maude, called it,

“an expensive and inaccurate way of measuring the number of people in Britain”,

and planned to replace it with existing public and private databases, including credit reference agencies. That would have been awful for historians and today’s users of data, since those sources are neither as comprehensive as the census nor as rich in detail and depth. We are delighted that the Government did not follow that idea.

Planners clearly need extensive data, including on children, if they are to cater for future needs. The census is the only time when everybody in the country is counted; it is therefore used by the Government to determine spending priorities and track population movements. Without accurate data, it is nigh on impossible to distribute resources effectively or target them where they are most needed. As the Minister reflected on, it is similarly important for those monitoring the impact of legislative, demographic or policy changes. Whether for campaigners, historians, faith leaders, planners or politicians, the census must be comprehensive, consistent and credible, and provide confidence that it will be used correctly, that personal data will be kept private and that its oversight will be thorough and in the public interest. To achieve accuracy, we need very high compliance. That requires confidence in the process and a willingness to participate, so the questions must have public acceptance. Their wording therefore needs extensive consultation and testing, as well as explaining nearer the time to build trust in the process.

We on these Benches consider that the White Paper and the Bill have correctly judged that the moment is right to add these two questions and to ensure they can be voluntarily answered. We might discuss some details in Committee and seek assurance on the degree of consultation, but we are very supportive of the proposals. However, I will ask a couple of wider questions about the 2021 census.

The first is about the homeless. For the census to be complete—that is, a picture of everyone in the UK on that Sunday in March two years hence—it needs to count those who are homeless as well as those who are housed. This is important both to measure the impact of demographic or policy changes and to plan services for this vulnerable group—to say nothing of the future needs of historians—but, as we know, this group is currently underrepresented on the returns. Last year Shelter met the relevant ONS team and made suggestions to improve the situation. In particular, it argued that the key to achieving an accurate count by including homeless people is really just trying harder to reach them. That might mean providing extra reassurance to the homeless about dealing with officials and stressing to every local authority the importance of that. Without accurate numbers, there is little chance that services to help those experiencing homelessness will be fairly and adequately delivered. This issue is particularly important and relevant to the debate today, given that the Bill is about groups that we know have a higher propensity to homelessness. Particularly given the broader move to an online approach, what discussions has the Minister’s department had with the ONS on ensuring that the census captures those experiencing homelessness?

Secondly, I want to ask the Minister about the Royal British Legion’s “Count Them In” campaign, which seeks the inclusion of a question to make good the patchy data on the Armed Forces community, which leaves statutory and voluntary service providers unable fully to meet the needs of that cohort at the moment. Parliament would need to approve such an addition. At the moment, nobody knows the size or demographics of the Armed Forces community resident in the UK. The legion estimates it to be about one in 10 of the population: some 2.8 million veterans, perhaps 2.1 million dependants, another 1 million dependent children and perhaps up to 250,000 hidden ex-service personnel in care homes. In 2007 the MoD estimated that there were 2.4 million veterans. These are large numbers to be left so vague, especially five years after the Armed Forces covenant was enshrined in legislation. That covenant recognises the sacrifices that the Armed Forces community makes and pledges that no one should face disadvantage as a result of their service. Local authorities have promised to deliver the principles of the covenant, but they need data to do that.

Of course, the other recommendation in the White Paper was that there should be such a question. I know the Government have agreed to add something about past UK service. While the wording has yet to be decided, it would be helpful if the Minister could update the House on this. If I have understood it, it would not be in the voluntary section and that is why it is not included in this Bill. What thought was given to not excluding it and dropping it into the voluntary section?

I will just check with the Minister whether a couple of things that appear to be from a previous era remain. Is the approach taken in the census still that there is a “head of household”, which sounds a little not of our time? I hope the question on “issue born in marriage” is no longer there. Maybe the Minister can just update us, to make sure that the language and questions are appropriate for the 21st century. For the moment, though, we very much support the Bill and look forward to its helping to produce useful and relevant data on important human rights issues in due course.

Baroness Barker (LD)

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My Lords, I thank the Minister for introducing the Bill and thank him and his team for the briefing they gave Peers the other day. He is right: this is the first time I have been involved in census legislation. My previous experience of considering the census in great detail was in 1971, when my mum was an enumerator. Most enumerators were women because it was short-term work that working mums could do. She was an enumerator in a working-class area of the west of Scotland. I guess in those days we did not bother to ask about people’s religion because everyone knew what everyone else’s religion was, and if in doubt asked which school they went to.

I am pleased with the provisions of the Bill, which I hope will command general agreement. It is high time our data gathering became more inclusive. The LGBT community has suffered over time, particularly in the provision of public services, because there has been no basic data from which service planners have been able to work. All the information we get these days—patchy though it is—about LGBT people’s use of the NHS is not population data but data about our use of the NHS. That is all there is to go on, whereas for the rest of the population there is basic data from which projections can and should be made.

It is right that the Bill will ensure that it is not compulsory to answer that question—it is voluntary—and that there should be no penalty for not doing so. For many people it is still a matter that they wish to remain private. Other people cannot divulge their sexual orientation because they fear for their safety in the communities in which they live. It is therefore right that we should do this in the way that we will.

I was pleased to read the White Paper and about the great care that has gone into the preparation of the whole census and many of the questions. However, it is not what the Bill is trying to do that is important but what is not said in it. It is not clear what the questions will be and how they will be framed, and that is crucial. My understanding is that while the sexual orientation question has been subject to consultation, the gender identity one has not. I hope there will be extensive consultation with people likely to have to answer that question.

I understood from our briefing the other day that the sex question is likely to be, “What is your sex? Male or female?”—to be answered by everyone over 16—but the gender identity question is likely to be, “Is your gender the same as the sex you were registered under at birth? Yes/No. Please write in the gender or ‘Prefer not to say’”. Working from that, the assumption would be that a transgender woman would tick “Female” for the sex question and tick “No” and write in “Female” for the gender identity question. A non-binary person would tick the sex that they most closely identify with in the sex question and then tick “No” and write “Non-binary” in the gender identity question. A cis person like me would tick the sex assigned at birth in the sex question and “Yes” in the gender identity question. That is the basis on which I am working.

The standard sex question being left as it has been since 1801 causes a problem for people from three different groups: trans people, non-binary people and intersex people. First, trans people have for many years been filling in the census and have done so in their lived-in identity. Is it anticipated that that will happen from now on and that a trans person will respond in their lived-in identity? We have to bear in mind that the Government are currently consulting on a review of the Gender Recognition Act and these two proposals may come in at the same time. Let us remember that gender recognition is a legal process, not a medical process.

Secondly, what do the Government expect non-binary people to do? Whatever the Government expect them to do will have to be written into the guidance that goes along with the question. How are the Government going to consult on that?

The most difficult question, however, is about the smallest group of people: intersex people born with the characteristics of both sexes. As a result of the current way of not legislating properly for intersex people, they are currently assigned a sex at birth to have their birth recorded. Subsequently their sex may be changed. What are those people supposed to do? I know this all sounds horrendously complicated but I have talked to a number of people involved and they are aware that they are filling in a legal document. They want to do it properly. They do not want to deceive; they just want to know what to do, so it is critical that we get the guidance on this right.

That leads me to my next point, which will perhaps be raised by others, and is about privacy. I understand from the briefing the other day that the data will not be released for up to 100 years. As the Minister will know from our meeting, there is a fear, particularly among the trans community, that while at the moment our society is broadly well disposed towards its members, it may not always be. We are in the middle of a very vicious anti-trans campaign, orchestrated by one or two of our main media outlets. It may be that in 100 years’ time, people may not wish this information about their family to be released. Will the Minister say what might be done with this information in future? It needs to be handled with as much sensitivity as that afforded to religion.

I have two final points. First, this will only ever give us a minimum number because there will be all sorts of reasons why people do not respond to the question. When the statistics are released and show that there are far fewer people than we thought, let us not be surprised about that and let us not base public service provision on what will inevitably be a small number. I took the point made by officials that the census is kept as simple as possible to obtain information that cannot be obtained from other sources. That is why we do not ask every question that people would like to ask.

Secondly, I return to the point I made to the Minister the other day. There is another group of people—men who have never had children—about whom it is extremely difficult to find data. It is possible to work out which women have not had children through their medical records. Why is it important? Currently, 1 million people over the age of 65 do not have children, and we have a health and social care system predicated on the fact that your kids will look after you. It is estimated that by 2030 there will be 2 million people with no children. The trouble is that, because we cannot count them with any degree of accuracy, this significant emerging public policy issue is being ignored. I realise that this matter does not come within this Bill, and I realise, from questions, that the Minister will instantly go away and appoint a working group to look at what I have said. I thought I would throw it in on the off-chance, because I believe it is a significantly overlooked point of public policy. With that, I welcome the Bill very much.

Baroness Finn (Con)

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My Lords, I thank the Minister for introducing the Bill. He and the Government, in their 2018 White Paper, have laid out a clear case for the introduction of these questions to the census, as well as the rationale for them being optional. Historically, there has always been pressure to include more questions and response options in the census than can be accommodated without putting an unacceptable burden on members of the public in completing the form. However, I think that the Government have the balance right in introducing these two questions.

The surveys by the Office for National Statistics indicate that a large majority of the public—over 70%—find it acceptable to ask the questions, and only very low percentages would elect not to answer them. Although—again, according to ONS data—1% of the population claim that they would refuse to complete any aspect of the census questionnaire if the questions were to be included, this consideration is, I believe, outweighed by the utility that these questions will provide to the Government in fulfilling their obligations under the Equality Act 2010 and the Well-being of Future Generations (Wales) Act 2015. The fact that there is currently no official data about the size of the transgender population, for example, speaks volumes. The time is right for these questions to be included in the census.

In debating the 2021 census, I pay tribute to the Government’s work and to their success in acting on the recommendations endorsed by my noble friend Lord Maude when he was Minister for the Cabinet Office. During the coalition, we called for modernisation of the census. The Government recognised its value but believed that it was outdated in its current form and could be more effectively and more cheaply delivered. This is the first census to be predominately online, with an ambition for 75% of responses to be online. This will not only save a great deal of money but allow for the data to be processed faster and put to use while it is still fresh, rather than no less than 16 months old, as was the case after 2011.

I note also that steps are being taken both to help people complete the survey online and to provide offline materials for those for whom that is not possible. I hope that these efforts to get people online will also enable them to unlock the tertiary benefits of access to online governmental resources other than just census forms. Are the Government confident that they will meet their 75% online target or even exceed it? Can the Minister also confirm whether there are plans to offer help to people to get online that go beyond simply completing the census?

During the coalition, we encouraged government use of complementary data, and I am pleased to see that this is being undertaken. The ONS is working with tax data from HMRC and benefits data from the Department for Work and Pensions to develop census-type income data that can be integrated with the data collected on the 2021 census. The Office for National Statistics is also developing approaches to integrate 2021 census data with health and social care data, government surveys and administrative sources such as benefits data. This, in turn, will produce new research which will help to describe the health of the population in innovative ways and with greater depth and precision.

If the 2011 census was calculated to provide £500 million per year to the economy, I trust that the benefits of the 2021 census, with a more modern rollout, asking more useful questions and capable of being processed much faster, will be far greater. I commend the work of the Government and the ONS in their efforts to improve the 2021 census and their collaborative and open approach when conducting the work.

On a final note, however, I also ask the Minister to confirm that the 2021 census will be the last traditional census. During the coalition, we agreed with the ONS that it would run the next-generation census based on continuous use of administrative data for a couple of years before 2021 to ensure that the two processes were aligned. I look forward to receiving his response.

Lord Lipsey (Non-Afl)

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My Lords, I am a facts geek. I chair the All-Party Parliamentary Group on Statistics with Kelvin Hopkins in the Commons and am vice-chair of Full Fact, the fact-checking charity, so naturally I welcome the Bill because it is going to provide more facts.

I also welcome something that is slightly more unusual to welcome: that there is such a short speakers’ list. I think that, if we had been debating this 30 years ago, there would have been a large number of noble Lords deploring the normalising of homosexual orientation through this kind of action. Indeed, not much more than 30 years ago the Prime Minister of the day cancelled the NatCen sexual survey, then very important in the combating of AIDS, out of just such prejudices. One thing that gives me comfort in the difficult world that we live in has been the huge advance in the acceptance that people’s sexual orientation is a matter for them and no one else.

There is, however, a question about the use of the census for this purpose. Many of the facts that we have at our disposal do not come from the census, which asks the questions of everyone; they come from various forms of sample survey. Obviously, that is less intrusive and requires less work, so could we not do it for sexual orientation? Well, I do not think you get very good numbers that way. Just over 10 years ago, in 2008, the ONS did an analysis of all the sample surveys that had been done into sexual orientation, and it found that the proportion of homosexual people in the community varied from 0.3% to 3% depending on the survey—a factor of 10. So they do not mean much.

Surveys are not very good for very small numbers. I came across another survey on the prevalence of out-of-control gambling; it was a big sample, but I would not trust the figures further than I could throw them since they jerk about all over the place. The reason for that is that sample surveys do not work well when you are trying to identify small groups of people. That is even truer of much smaller groups such as transsexuals, so I would not much trust the accuracy.

There are yet other estimates. An opinion poll recently found a figure for homosexuals of 4%, while the ONS’s latest estimate is 2%. These figures are all over the place. Some people think that the census figures will be all over the place too because many will refuse to answer but, for the reasons that I have already given regarding the change in society, they will probably turn out accurate enough. The ONS itself is testing its questions really thoroughly in an attempt to ensure accuracy.

The census is the only thing that tells you facts regarding a relatively small geographical area. Samples can give you national figures and sometimes regional ones but very rarely constituency-wide figures, let alone local authority-wide figures or figures for wards. There are areas in this country where the gay population happens to be very concentrated and, as the noble Baroness, Lady Barker, said, those areas may require something quite different from other areas by way of services. I would not push this too far, but they probably do not need quite as many schools for primary-age children, for obvious reasons. So it is going to be of extraordinary value to local authorities and others in the planning business to have this definitive statement of what percentage are gay in particular areas instead of having to rely on national figures and trying to interpret from there.

Culturally, this move represents an important step forward in the recognition that homosexuality is a perfectly natural human condition and accepting that condition with complete equanimity. I therefore welcome the Bill with unusual warmth.

Lord Wallace of Saltaire (LD)

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My Lords, as my noble friend Lady Barker has made clear, we on these Benches also welcome this Bill and the proposed new census questions. This takes us into a broader debate on the 2021 census which we will undertake over the course of the next year. I recognise that this is barely the soup course of that—it is certainly not the main course—so perhaps the Minister could start by telling us, either now or during further consideration, when we may expect publication of the census order and the full consideration provided by taking it through the House. It is very tempting to ask about wider issues at this point, such as the integration of census data with other government data—household surveys and the like—and the discussions within government since the passing of the Digital Economy Act on how one begins to provide for administrative data replacing the survey data of the census in the next 10 years, as chapter 9 of the White Paper suggests. Clearly, when we discuss the census order, we will need to include debate about the future of the census and government management of public debate post 2021.

I cannot resist pointing out in passing that there seem to be some limits on UK sovereignty in the census process. Paragraph 1.29 of the White Paper notes that,

“the census in England and Wales aims to align with international standards set at global and regional level”.

I think that is code suggesting that we are aligning our national census with European standards. I am sure that many on the Conservative Benches think that is entirely improper and that we should move as far away from them as possible.

I have some specific questions. I also received a note from the British Legion about the Armed Forces questions. If I understand the difference between its note and what is in the White Paper, the question is about how far one includes the dependents of members of the armed services, and veterans and their families, in the survey one undertakes? I very much hope that the Minister will tell us more about that, either now or in Committee.

I noted with interest the discussion on questions of national identity from paragraph 3.115 of the White Paper on. In particular, it spends some time on whether or not one should allow Cornish identity to be written in. I give notice to declare that we would of course wish to insist that Yorkshire identity is also allowed to be written in under those circumstances. I was a little puzzled that it appears not to allow for multiple identities. As we know from the rather complex discussion we have had about different identities—English, Scottish, English and Scottish, British, European—these are out there in the public and it may be time to take some of them on board.

I also noticed the delicate discussion on whether or not one allows the Somali community, which has very particular needs, as discussed in the White Paper, to be identified separately from other African communities. It seems that, in public policy terms, there are some quite important questions about identifying particular communities. I once happened to canvass in a part of London which had a remarkably strong Congolese community. They were very surprised to know that I understood that some of them spoke Lingala and other languages; they did not expect a white person to understand anything about the Congo at all. There are good public policy reasons for wanting to identify certain communities, and I was puzzled about why that had been left out.

I was also slightly puzzled that there was no question on digital skills, given that we are moving towards a digital census. I am aware from discussions with the social housing association and other authorities in Bradford that there are some pockets where there are a remarkably large number of people who lack digital skills. Again, perhaps we might return to that in Committee.

As far as the new questions are concerned, I recognise their sensitivity but also their great utility. As a Liberal, I am in favour of open information as far as possible in an open and tolerant society and with the maximum transparency. We are, after all, talking about our preference for evidence-based policy, as against the myth-based policy that has unfortunately taken hold in British government in recent years. Perhaps the Minister could remind us, either now or in Committee, which other questions on the census are voluntary. I noted in the White Paper that the question about religion is voluntary. I am not sure whether there are others. It would be helpful if that was provided to be sure that we understand the categorisation taking place.

I also noted the question on heads of household filling in questionnaires. I wonder whether that is still appropriate and, although very convenient, whether it still provides something of a problem in some parts of the United Kingdom when it comes to sensitive questions such as sexual orientation and gender identity, thus discouraging full returns. I wonder whether there is a particular problem with heads of household in Northern Ireland.

I am torn on the question of privacy. I know that some within the LGBT community are concerned, as my noble friend Lady Barker suggested, about allowing this information to become public even 100 years after it was provided. Again, as a Liberal, I am in favour of making as much information public as soon as possible. I remember the exchange we had in this House when I was in government about the information in the Denning report and Lord Denning’s promise to those whom he interviewed that their answers would never be made public. The position I took as a junior member of the coalition Government was that, at the point when all of those who had been involved in that particular scandal were dead, it would be time to release those answers. I am in favour of limiting the length of privacy, but we should hear the concerns of those worried about it and do what we regard as necessary to allay them.

I welcome the Bill and the proposals. I look forward to further detailed examination in Committee and on Report.

Lord Kennedy of Southwark (Lab Co-op)

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My Lords, as my noble friend Lady Hayter of Kentish Town said in her opening remarks, the Opposition welcome and support the Bill before the House. There are, however, other pressing needs that require parliamentary time, and I hope we will see a few Bills to address those matters as well.

We have had a census in a form we recognise, providing useful data for Governments, local authorities and a whole range of other organisations, for the past 200 years, collected every 10 years, except in 1941, for very understandable reasons. I understand that the 2021 census will largely be conducted online, as the noble Baroness, Lady Finn, referenced. That is a sensible move, but where people are unable to complete the form online, then a paper-based option should remain available for use since there are still a number of people in this country who are digitally excluded. I am sure that that is an issue of concern to the Government and I very much support the suggestion from the noble Baroness, Lady Finn, that the Government should look into how we can get more people to complete the form online.

The census provides a whole range of data that would be almost impossible to collect in such a comprehensive form through any other method. As my noble friend Lady Hayter of Kentish Town said, it must be accurate, complete, comprehensive, consistent, credible and provide confidence that it will be used correctly.

I very much welcome the two new categories that the Bill allows to be asked on the census. I agree with the noble Lord, Lord Lipsey, that it is very welcome that we have made such strides in the acceptance of people’s sexual orientation. There is always more to do, but I think we have made tremendous progress in recent years.

I am also very pleased that the Government have, through this Bill, ensured that there will be no financial penalty for respondents who do not complete these questions. It is regrettable that we still have no functioning Executive or Assembly in Northern Ireland. In the absence of such institutions, it is right that the Government have legislated to ensure that the same questions are asked in Northern Ireland, and that there will be no penalty there either for anyone who does not respond.

The noble Baroness, Lady Barker, raised several points that I wish to support her on. I hope that the noble Lord, Lord Young of Cookham, will be able to give satisfactory replies when he responds to the debate shortly. In respect of the sex question, where an individual is asked to pick either “male” or “female”, can the noble Lord tell the House how trans people should answer that question? Is it their sex at birth, their sex now, or should they respond in a way outlined by the noble Baroness, Lady Barker?

Can the noble Lord say something about the guidance that will accompany the gender identity question? Can he say something about how intersex births are to be recorded? On the question of publishing de-anonymised data in 100 years’ time, I understand that there is the ability, through an instrument, to extend that period further, if it is thought necessary or desirable. Can it be extended only once, or can it be done many times? Has the noble Lord's department looked at this question, and can he provide information on this matter?

It is important that we get the same data for the United Kingdom, so I am pleased that the Scottish Government are also legislating on these matters, and that a legislative consent Motion is being sought from the Welsh Assembly.

Like many other noble Lords, I received the excellent briefing from the Royal British Legion, and while the issues raised are not directly the subject of this three-clause Bill, I will refer to them—as others have done—and hope that the Minister can provide the House with some information. First, I pay tribute to the work that the Royal British Legion does generally, supporting veterans and their families. Data is invaluable for the Legion in its campaigns—as it is for the Government and for local authorities. The Armed Forces Covenant is enshrined in statute, and has also been adopted by many local authorities in the United Kingdom. The Legion calls and campaigns, and the Government have an obligation that no member of the Armed Forces is left disadvantaged because of their service. To deliver that objective, the Legion is reliant on uniform data.

I very much support the Legion’s campaign for a new topic to be included in the 2021 census that concerns military service and membership of the Armed Forces community. I look forward to the final details of the question that will form part of the census coming forward for approval in 2020, but anything that the Minister can say now is most welcome.

My noble friend Lady Hayter of Kentish Town also raised the issue of homelessness. In terms of the census, how do we reach these people and get as accurate a picture as possible? Again, it would be welcome if the Minister could say a little about what he expects the Government will say to encourage local authorities to do everything possible to collect data from this important group who are difficult to communicate with. There are several voluntary projects that could help. In Lewisham, where I live, the 999 club could certainly help the local authority. We must find ways to get to these people. For all local authorities to go the extra mile, they have to feel that the Government really want this data to be collected and will support them in doing so.

In conclusion, I confirm that the Opposition support this Bill and will work constructively with the Government to enable its passage through this House and on to the statute book.

Lord Young of Cookham

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My Lords, I am grateful to all those who have taken part in this relatively short debate, and particularly welcome the broad support for the legislation we have brought forward. I will try to answer the questions that have been raised, but if I do not, I will ensure that noble Lords have the answers before the Committee stage.

I am grateful to the noble Baroness, Lady Hayter, for her support. The business managers will have noted her suggestions that there are other pieces of legislation—some of them controversial—that should be introduced. She set out why we need firm data in order for the public services to be effectively targeted. The census will be trialled later this year in a number of places, including Tower Hamlets, and there will be further consultation on the detailed questions.

The noble Baroness and the noble Lord, Lord Kennedy, asked a key question about how homeless people will be counted. I agree that it is vital that those who face severe challenges in their lives are reached when we assess how public services are to be delivered. Since 2011, further research and engagement with charities have been undertaken to understand how people without a fixed place of abode can make a census response, so the ONS is planning to make forms available in night shelters and day centres, with practical help for filling them in. The ONS continues to work with these centres and other groups to ensure that people who may attend them only on a given day will also be able to take part.

The noble Baroness, Lady Hayter, and the noble Lord, Lord Kennedy, also asked about the Armed Forces and veterans. We will consult the Royal British Legion and others on the detailed question or questions, which will be determined by secondary legislation later this year. There was a question about whether the veterans’ questions should be voluntary. I do not think they raise quite the same sensitivities as the two questions that will be voluntary, so they will be part of the compulsory section. In response to the noble Lord, Lord Wallace, the only voluntary question is the one introduced in 2001 on religion and the two questions being dealt with today. All the others are voluntary.

Noble Lords

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Oh!

Lord Young of Cookham

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Sorry, did I misspeak? All the questions are compulsory, apart from the religious question and the two questions before us today—corrigendum.

The new question on past service in the Armed Forces is proposed for the 2021 census to identify those who are 16 and over and who are veterans. This will enable us to serve those who have served their country and keep the commitment which we made to them when they joined the Armed Forces. As I said, the detailed question will be determined later in the year.

The term “head of household” has not been used since 1991, so the argument that some noble Lords on the Cross Benches have with their wives as to who is the head of household is unnecessary. It has gone to a more neutral form, either “householder” or “joint householder”.

On the 100-year rule, there is such a rule but of course Parliament could always change that if it wanted to. It has 100 years in which to come to that decision if some of the concerns voiced by the noble Baroness, Lady Barker, took place. The noble Baroness asked a number of questions and I will do my best to answer them. One was about what intersex people do. The ONS is recommending that there be a note on the sex question, to advise that a gender question follows and include guidance that those who wish to can use the free-text box on gender identity to write “intersex” or another identity. Engagement by the ONS with the intersex community has not shown any objection to this proposed approach. She asked what we will do with this data and how it will be protected. Public confidence in the security and confidentiality of all information given in the census is paramount, including in particular on the questions that we have referred to today.

The noble Baronesses, Lady Barker and Lady Hayter, asked whether we were going to consult on the guidance. The guidance for the online and paper versions of the census is in development and being informed by research and testing with members of the public, and by input from stakeholders. On an additional point raised by the noble Baroness, Lady Hayter, we do not use “issue born in marriage” in the census. Just to clarify, responsibility for completion now falls to the householder or joint householder, as I said, which is defined as the person who owns or rents the property, or is financially responsible for day-to-day expenses.

A homeless person would use the address of the establishment—the day or night shelter—where they fill the form in. I am grateful to my noble friend Lady Finn, who worked in the Cabinet Office and helped to move a number of public services online, as that has made the forms much more convenient for the citizen to fill in.

Yes, we have an objective of 75%, which I will come on to in a moment. My noble friend also referred to the value of cross-referencing census data to other data to build a more granular picture of society as a whole.

The 2021 census is part of a wider modernisation programme to transform ONS data collection to provide improved population statistics. As part of this programme and by using data-sharing provisions in the Digital Economy Act, the ONS is exploring how administrative data could replace the need for a decennial census after 2021. As to whether this is the last census, the UK Statistics Authority will make its recommendations on the future of the census in 2023. The ambition remains as set out in 2014: censuses, after 2021, will be conducted using other sources of data and by providing more timely statistical information. How will we hit the 75% target? ONS will provide assistance, including in-person support sessions, for example in schools and libraries. There will be a dedicated census contact centre working with community groups, and also work by census field staff on the doorstep.

Along with the noble Lord, Lord Kennedy, and me, the noble Lord, Lord Lipsey, welcomed this being a non-controversial debate. I suspect that, had I introduced this provision in 1981 in another place, the debate would have lasted slightly longer than it lasted today. I welcome the support of the noble Lord, Lord Lipsey, as a statistician, particularly for his reference to the value of data at a ward level.

The noble Lord, Lord Wallace, asked when we will get the order. We hope to debate it towards the end of the year, around October. “Later in the year”, my briefing tells me—that is perhaps a broader definition than the one I just used.

A person can tick as many national identity boxes as they like and write another. The noble Lord, if he wants to, can identify himself as English and Yorkshire. I think I have addressed most of the issues raised in the debate.

Baroness Barker

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On exactly that point, I put two questions to the Minister to which he has not responded. How do the Government expect non-binary people to respond? Are trans people expected, as they do now, to reply to questions going by their lived-in experience? Perhaps the Minister will write to me about the interrelationship between this and the Gender Recognition Act.

Lord Young of Cookham

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In so far as the compulsory question is concerned—the binary question of male/female—the guidance is minded to say, “Fill in what was on your birth certificate”. If you have changed your gender and have a gender certificate, you would put in that gender. The noble Baroness’s question underlines the importance of the guidance being right, and we propose to consult on it. If she agrees, I will write to her on the other question. Having said all that, I beg to move.

The Deputy Chairman of Committees (Lord Geddes) (Con)

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My Lords, as my script says—although I shall go off script in a minute—if there is a Division in the Chamber while we are sitting, which I venture to say is extremely unlikely, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 1: Amendment of the Census Act 1920

Amendment 1

Baroness Barker (LD)

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My Lords, it is good to be back on this small but none the less important Bill. After Second Reading, I found myself reflecting on the importance of the census. I listened carefully to what the noble Baroness, Lady Finn, said about the fact that these days there are many more sources of data that the Government can call on to establish various aspects of citizens’ identities. She, largely I think on economic grounds, questioned whether there needed to be a census at all. That is a legitimate debate to have, and no doubt we will have it at some later stage. However, from talking to people who watched our debate, there is agreement that the simple process of the Government engaging in an exercise to establish information about their citizens is in itself important. It is an aspect and example of citizenship that has quite a lot of meaning for individuals. However we may come to do this in future, and in whatever mode, for the moment it is important to recognise that, for all citizens, having the right to engage in a meaningful exercise of registering the details of one’s existence with the state is important. That is why, for the very small group of people we are talking about today, it is important to take great care.

In the Bill we are primarily talking about making whether one registers one’s gender identity voluntary and making sure that anyone who wishes not to do so will not face a penalty, as they would for failing to answer mandatory parts of the census. However, we are going into this new area for the census of questioning people about their gender identity, which is a sensitive matter, so we need to do so with great care.

The purpose of the amendment in my name and that of my noble friend Lord Wallace of Saltaire is, in essence, to get to the heart of what is important about the Bill—not the legislation but the guidance that will accompany it and will inform or assist people when they make their return. I should tell the Minister at this stage that I have no intention of pressing my amendment, the purpose of which is to enable us to clarify one or two points on which there may not have been sufficient understanding from our debate at Second Reading.

The first thing I want to establish is whether the question asking a person to say what their sex is will remain binary, as it has been since 1801, and whether it will be the case in 2021—as it has been for the two censuses in the past 20 years, if not before—that people answer on the basis of their lived identity: that which they present to the world. I have to say that I hope that is the case. If not, and we go for a far more limited definition, we run the risk of requiring people to give answers that would contradict those given in good faith in the censuses of 10 or 20 years ago because they have changed their gender and recognise their new gender. If we were to require them to go back to an earlier iteration of their existence, we would confuse the matter. Can the Minister confirm these things?

As I have just demonstrated that these are enormously complicated matters in practice, the second thing to ask is whether the officials testing the questions on sex and gender identity—who have, I believe, consulted civil servants in Scotland engaged in a parallel exercise—might engage quite widely with a number of different groups who have been working on these sorts of issues for some considerable time. There are questions for officials about what they have discovered during the extensive testing already done, and perhaps about the further testing that will need to be done leading up to 2021. That is the basis of my amendment; I hope the Minister will be able to clarify. I beg to move.

Baroness Hayter of Kentish Town (Lab)

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I have very little to add. I concur absolutely and reinforce the importance of the census, not just as a purely numerical thing but as rather more. I am sure the Minister will not have heeded too much the pleas of one of his predecessors, the noble Lord, Lord Maude, or the noble Baroness, Lady Finn. We should question whether we have this.

As was clear at Second Reading, we support the census and the initiative in this Bill. However, everyone agrees—this is not new—that it will be key for it to be done correctly with everyone’s confidence, particularly the populations who will now be able to answer questions deeply relevant to them. I also think it means that there should be no surprises when the census appears, either for the relevant groups, for whom this will be a welcome move forward, or for the rest of the form-fillers. There should be no surprise—or, if you like, antagonism—and I do not think there will be from the non-involved groups when these questions appear.

While we need to have the questions tested on those with a particular interest in answering them, we also need to test that they are understandable to those to whom they do not particularly apply. I am sure that the consultation on the questions will take account of this so that even those not interested in answering these questions will understand why they are there. We should not confuse people so we need to test the questions with all those who will fill in the forms.

My second point goes beyond my amendment in this group. We need to make sure that we see a very high completion rate of the census as a whole as well as on these additional questions. A lot of good PR will be needed to achieve that. Explanations and preparations need to be made well before the census form arrives, whether online or through people’s letterboxes. While I realise that this is beyond the scope of the amendment before the Committee, it would be useful if the Minister could say a little about the publicity covering the questions once they have been agreed.

I want to raise only one other point, perhaps a little cheekily because again it is not part of the amendment. At Second Reading we asked about the additional question on military service. Is there any update on how the consultation on that issue is taking place?

Lord Young of Cookham (Con)

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My Lords, I begin by thanking the noble Baronesses, Lady Barker and Lady Hayter, for their amendments. I agree with what the noble Baroness, Lady Barker, said about the census. It is an important civic event and we recognise it as exactly that. The amendments relate to the guidance on how census questions on sex, sexual orientation and gender identity should be answered. I agree entirely with the noble Baroness, Lady Barker, that we need to approach this matter with sensitivity, and I think we have done so.

Before we turn to the detail of the amendments, perhaps I may clarify a point regarding the questions for Armed Forces veterans, a point just raised by the noble Baroness, Lady Hayter. At Second Reading, the noble Lord, Lord Wallace of Saltaire, pointed out the difference between a note circulated by the Royal British Legion and the proposal in the White Paper on the Armed Forces question. I said that the ONS will consult the Royal British Legion and others on the detailed question or questions. I can confirm that they have indeed been consulted during the preparation of the ONS proposals for the Armed Forces question. The RBL has confirmed that it is content with the question and the guidance proposed. It accepts that as the census is a household questionnaire, it can capture only dependants who actually live with a veteran.

Perhaps I may also take the opportunity to clarify a point raised by the noble Baroness, Lady Barker, at Second Reading on the guidance to accompany completing the sex question in the next census, an issue that she has raised again today. The guidance accompanying the 2021 census is already in development. I can confirm that draft guidance for the sex question makes it clear that people do not need to answer according to the sex on their birth certificate, and that that is case whether or not they have a gender recognition certificate. This is consistent with the guidance that accompanied the 2011 census. The draft guidance for 2021 states that you can fill in whatever you prefer. I hope that gives the noble Baroness, Lady Barker, the reassurance she seeks on the question she posed. I have written to her to clarify the point and copies of the letter are available in the Library. I have also had the pleasure of meeting the noble Baroness and the noble Lord, Lord Stevenson, to discuss the issues. The proposed guidance for the sex, sexual orientation and gender identity questions has been shared with those noble Lords who spoke at Second Reading.

The noble Baroness, Lady Hayter, raised the importance of intelligibility. These questions must be understood by everyone. There are four key guiding factors in the terminology that the ONS is using. First, the census form must be understood by the whole of the usual resident population. Secondly, it must be inclusive of the whole of the population of interest; that is, those whose gender is different from the sex they were registered with at birth. Thirdly, it should be publicly acceptable to the whole of the usual resident population. Finally, it should allow individuals to identify as they wish and should not be limited by overarching terminology.

I turn to the probing amendments tabled by the noble Baronesses, Lady Barker and Lady Hayter. As I have just set out, the proposed guidance is already in development. This House need not wait for the Act to be passed to consider this guidance, and it can be assured that we are consulting on it. I can confirm that the ONS is in the process of sharing the proposed guidance for the sex, sexual orientation and gender identity questions with interested parties, including LGBT, equality and women’s groups. These include Stonewall, the Equality and Diversity Forum, and the Equality and Human Rights Commission. In all, the ONS is consulting with over 50 organisations. The Scottish Trans Alliance is among these organisations and I can confirm, further to my meeting with the noble Baroness, Lady Barker, and the noble Lord, Lord Stevenson, that officials from the ONS have held a constructive meeting with it to discuss the research informing the questions, design and guidance. I know that officials will be happy to continue that dialogue to answer any further questions they may have. Of course, the views of noble Lords as the Bill passes through this House will also be taken on board. The ONS has offered to host dedicated sessions for noble Lords to discuss the guidance.

Baroness Barker

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My Lords, I thank the Minister very much for that—does he wish to add a further point?

Lord Young of Cookham

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I have received some in-flight refuelling about the pertinent question the noble Baroness asked about the campaign and publicity. She is absolutely right that we have to inform people about what is happening. The ONS will undertake a national campaign as well as local campaigns. It has been working closely with the GEO on the campaigns and it will also work closely with local authorities and the third sector to reach out to all communities to help them fill in the census and to identify as they like.

Baroness Barker

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I thank the Minister for that; it is extremely helpful. It reflects, albeit in a condensed form, a longer and rather more detailed conversation that we had about these matters.

I stress that this is not only an important matter of civic engagement. As officials from the ONS have been at pains to point out to us in briefings, this is an opportunity to gather data not otherwise available. Therefore, it is extremely important that the data gathered is as true, full and inclusive as possible. Apart from anything else, this data will inform public policy for decades to come. It is therefore important that we enable people. The people I have talked to often struggle to know how to fill in a form. They wish to fill in forms honestly but they struggle to do so, because it is not always clear. Therefore the more that can be done to include people, the better. I agree with the noble Baroness, Lady Hayter, that it is important that, in seeking to make this as good as it can possibly be for a minority population, we do not end up confusing everyone else as well. That is not the intention. I welcome the offer to look at this in greater detail over the summer and the autumn as the census rehearsal happens—what an exciting prospect that is.

This is an important matter for us all. I thank the Minister very much and beg leave to withdraw the amendment.

Lord Judge (CB)

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My Lords, these are simple amendments directed to an issue of principle. The issue is very simple. It is a criminal offence to fail or refuse or neglect to complete the census form—note “to complete it”: that is, to answer every question. Over the years, it has come to be accepted that some of the answers should not be matters of obligation—in particular, in 2000, providing answers to a question relating to matters of conscience such as religion; or, now, in the current Bill, sexual orientation and gender identity, matters which are obviously intensely personal. The reasons are obvious and I support them.

It is plainly the intention of the legislation that each individual responding to the census will have a choice on these questions: you may choose to answer or you may not. If you choose not to answer, you will, in the words of the legislation, not,

“be liable to a penalty”.

Even if you are prosecuted, no penalty could be imposed: you would get an absolute discharge.

What, then, is the problem? Why am I making a fuss? I am making it in the company of the Constitution Committee, of which I have the privilege to be a member, which expressed its concerns in one of those very short, simple letters. In summary, it comes to this: because no legislative provision expressly decriminalises the choice not to answer, the Bill should be amended explicitly to state that such a failure is not a crime.

By letter dated 31 May, the Minister gave a very considered, lengthy reply to a very short letter. My experience is that, on the whole, those with the best points write short letters. However, ignoring that general experience, which may not be true here, I have discovered from the letter that, based on a starting point for the legislation in 2000 relating to religion—dare I point out, before we had a Constitution Committee?—the promoters of the Bill confused, conflated or perhaps simply failed to understand that the removal of the risk of a penalty meant that answering or not those questions was voluntary, and therefore there was no criminalisation. They confused crime and penalty. They are distinct concepts. Normally, the conviction comes and the penalty follows. What we have done—what is proposed here and was proposed and carried in 2000—is to wipe out the penalty but leave the crime. At the very least, it is arguable—I would say strongly arguable—that what we have now, and will continue to have without the amendments, is a crime of not answering the question but no penalty for choosing not to do so. That does not seem very sensible.

It is obvious that the Bill’s objective to decriminalise any such failure. That is the point of it and why it is supported. Why is conduct that carries no penalty and is not intended to represent even minute contravention of the criminal law allowed to disfigure it by remaining on the statute book? I respectfully suggest that that is wrong in principle. The Bill should be amended expressly to decriminalise any such conduct and any necessary amendments in relation to questions about religion in the 2000 Act made subject to identical amendments within the Bill. That is the purpose of the amendments.

It is not an answer that the Crown Prosecution Service would not prosecute. It is not an answer that if the Crown Prosecution Service prosecuted and someone were convicted, no penalty would be imposed by the court. I mention that in this context. We hear rather a lot about private prosecutions these days. If there were a private prosecution—I know that this is hyperbole; there would not be, but let us examine this as a matter of principle—the court would no doubt have in mind that on conviction there would inevitably have to be an order for absolute discharge. Of course it would. The court might rage in the way that old judges did but do not any more because they are much more polite than they used to be. It might rage against the absurdity of any such prosecution, but I respectfully suggest that it could not as a matter of certain law say that the failure to answer the question did not constitute a criminal offence. We really cannot have that situation; there must be certain law about this. We must do better and decriminalise a failure to answer such questions. I beg to move.

Lord Beith (LD)

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My Lords, I support the noble and learned Lord’s amendment. I apologise to the Committee that I was not able to speak at Second Reading, but the discussions in the Constitution Committee, of which I am also a member, have brought to light the seriousness of this problem within what is otherwise a highly commendable and necessary Bill. I am afraid that I have form on this subject: on 25 March 1975, I moved an amendment to the census order—it was possible to move amendments to those statutory instruments unlike to almost all others—precisely to assert the principle that, so far as the procedure allowed in that case, the state should not turn people into criminals because they had some good conscientious reason for declining to answer questions in such areas as were not fundamental to the state knowing where its population was, how many people there were and in what kind of properties they lived.

I remain of the view that it is undesirable for the state to extend its reach by way of criminal offences that put people in that position. As my noble friend did in the context of the previous debate, I hope that the guidance and what is said to people by those who hand out and collect census forms will assist in reassuring them, but, like the noble and learned Lord, Lord Judge, and the Constitution Committee, I believe we are legislating unsatisfactorily. The primary reason for doing so given by the Minister in his careful and lengthy letter was that, unless we made certain further provisions to tidy up other legislation, we might create a degree of ambiguity. I found that unconvincing; I do not think any court would be in any doubt as to what Parliament had intended if it phrased this part of the legislation so as to make it quite clear that it was not creating or continuing a criminal offence of failing to answer questions relating to sexual identity and gender.

Everybody seems to agree with what we are trying to do. Let us for heaven’s sake do it in a way that makes our legislation both sensible and not threatening to individuals who perhaps do not view these matters in the detail that we have been required to do today.

Lord Lipsey (Non-Afl)

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My Lords, as one would expect, the noble and learned Lord, Lord Judge, has made an extraordinarily powerful case. I really think that the Minister, as well as restating his case, which is wide of these amendments, is obliged to expand on “why not”, preferably in words a normal person could understand and that are not deep in a complicated letter.

All sorts of people may come to us during the census period and ask, “What’s my legal position if I don’t want to fill this in?” Does everybody feel confident, having heard the noble and learned Lord, Lord Judge, that they could readily explain the situation to those who came in and saw them? Can they readily show that those people would understand immediately that, although they may be committing a criminal offence—though not one to which any penalty attaches—it would be perfectly all right and no future employer would ever hear about it? I am not trying here to construct a legal case, because I am not a lawyer; I am trying to reflect the reality that may exist if the Bill goes through without the amendments tabled by the noble and learned Lord, Lord Judge.

Lord Scriven (LD)

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My Lords, I support the amendments in the name of the noble and learned Lord, Lord Judge, and apologise for being unable to speak at Second Reading. As we have said, this is a very sensitive issue. This is about people making very sensitive decisions about whether to put something on an official form that will be used by the Government. When people come to express their sexuality or gender identity, the threat of it being a potential criminal act could sway people on whether they answer that question.

I want to talk about the context of how the census will be filled in. As the noble Lord, Lord Lipsey, says, if there is ambiguity—if people do not understand the difference between a criminal offence and a penalty—there could be a social media campaign, maybe by a group that, for genuine reasons, does not want people of a particular gender identity or sexual orientation to be seen to be breaking the law. There could be a social media campaign to prevent people openly and honestly answering this question because it is perceived to be breaking the law, and people do not wish to break the law. I totally agree with the noble Lord, Lord Lipsey. I am not a lawyer, but I am somebody who understands the sensitivity of this particular question and the questions that will be posed. Any ambiguity or overarching threat that this is breaking the law, even though there is no penalty, will be counterproductive. Therefore when the Minister answers, could he do so in a way that is very clear to the ordinary man or woman in the street who will be filling in the form? Will he clearly state why it does not create ambiguity and a potential threat to answering this question openly?

Lord Tyler (LD)

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My Lords, I have a very simple point to make. On a constitutional principle, something as important as this should be in the Bill. It will not be sufficient for it to appear in guidance, in the autumn or thereafter. If it is not in the Bill, any explanation or qualification that may result from the ONS rehearsal if this turns out to be an important issue will not be satisfactory. Something as important as this should be in the Bill. I therefore strongly support the amendments in the name of the noble and learned Lord, Lord Judge.

Baroness Hayter of Kentish Town

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I heard the noble and learned Lord, Lord Judge, talk of crime and penalty; I expected him to talk about crime and punishment—the more commonly used word.

I have two points. The secondary one is that, hearing this, I have a slight worry about the issue I raised before, about military service. Albeit that it is not in here, it is nagging at me. It is possible that some people would not want to declare that they had served in the military. I know we have not exempted that in the Bill. It does not come under the voluntary category. It will be added, and will be a compulsory question. There is something vaguely nagging at me. Maybe this is not the point at which to raise it, but perhaps a letter could be sent about what consideration was given to why that was not an area where people could choose not to declare. It is not just about old cases from Northern Ireland; there may be other reasons. I have a slight nag about that distinction, which I raised at Second Reading.

I hope that if the noble and learned Lord, Lord Judge, does not get a satisfactory answer on this issue, he will bring it back on Report. It is something we would want to support. When I walked into the room, I thought this would take just a second and assumed that the Government would accept this. Not having seen the letter, I was absolutely astonished to hear that they were not. I hope there will be a change of heart by the Government and, if not, that the amendment will be brought back on Report.

Lord Young of Cookham

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My Lords, let me try to deal with the very serious issues raised by the amendment moved by the noble and learned Lord, Lord Judge. The noble Lord, Lord Beith, has trumped my Second Reading story of having moved the 1981 census order by going back to 1975.

I take very seriously any amendment moved by the noble and learned Lord, Lord Judge. He will not remember this, but two years ago we crossed swords on the Higher Education and Research Bill, when he tabled an amendment which it fell to me to answer. It was on a legal matter, so it was a home game for him and an away game for me. I gave what I thought was a very considered, detailed and lengthy response to his amendment. I just looked up what he said in response:

“My Lords, we have just heard an utterly reasonable argument but, with great respect, it is wrong”.—[Official Report, 8/3/17; col. 1419.]


With a judicial flick of the wrist, in a few sentences, my argument was disposed of; a Division was called and the Government lost. Therefore, I take this amendment very seriously and I hope to set out the reasons why we have real difficulty in accepting it.

The two amendments insert two new subsections after Clauses 1(3) and 2(3), seeking to clarify that omitting to provide particulars concerning sexual orientation or gender identity is not an offence. Amendment 2 applies to England and Wales and Amendment 3 to Northern Ireland. A similar amendment was debated in another place during the passage of the Census (Amendment) Act 2000, which noble Lords may recall added the possibility of asking a question on religion to the census Act in England and Wales, and removed the penalty for non-response. That amendment was rejected, following reassurances from the promoters of the Bill, and I hope to provide similar reassurances to noble Lords today.

The short point is that the current drafting already achieves what these amendments aim to do. Unlike the amendments, they do so in a way consistent with the existing law. By removing the penalty attached to a failure to answer, the clear parliamentary intention is to remove the criminal offence. This reassurance was given in 2000, and I give it again today. “No person shall be liable to a penalty” is tried-and-tested legislative language. It was used in the National Insurance Act 1911 and the National Health Insurance Acts 1924 and 1936. It was used in the Census Act (Northern Ireland) 1969 in respect of religion. Most recently, it was used by this Parliament and the Scottish Parliament in the Census (Amendment) Act 2000. Its meaning is clear.

I shall quote what is in the letter, which some noble Lords may not have seen. It is an extract from Hansard by the then Economic Secretary to the Treasury, speaking on behalf of the Government against the amendment similar to the one we are debating now. It says:

“I can assure the House that the legal opinion that my officials have taken on this matter confirms the view … that the removal of the penalty for anyone failing to provide particulars on religion makes the census question on religion voluntary, as only the criminal sanction in section 8 of the 1920 Act makes it statutory to comply with the census in the first place”.—[Official Report, Commons, 26/7/00; cols. 1150.]


On the point from the noble Lord, Lord Scriven, I am not aware that there is any doubt in the public’s mind at the moment, since the 2001 or 2011 census, about the status of the voluntary nature of answering those questions.

I will go on to some other reasons why we have real difficulty with the amendments. They would—inadvertently—land a pebble in what we regard as clear water. They are limited to the questions on gender identity and sexual orientation, as required by the scope of the Bill. However, the effects would go far and wide. They would imply that where the law removes the penalty alone, the intention is to leave in place the offence. That would cast doubt on what was previously clear. In this way, they would risk the voluntary nature of the religion question being called into question, both now and historically. They would entail the same risk for the Scottish census. This risk would extend to other law, historical and current, which uses the same language.

I am grateful for the close and proper attention to and scrutiny of this measure by the House, particularly the Constitution Committee. It is right that we ensure that the law is clear and coherent, and that the public are clear, as the noble Baroness said, that in refusing or neglecting to answer questions on sexual orientation or gender identity they will not be committing an offence. The Bill, consistent with the Northern Ireland Parliament’s approach in 1969, and the approach of this Parliament and the Scottish Parliament in 2000, achieves that.

If the noble and learned Lord has doubts, I am more than happy to arrange a meeting with relevant officials and other noble Lords between now and Report, to see if we can find a way through, given the narrow scope of the Bill and therefore the limitation in impact of any amendment such as the one we are debating. Against that background, and in good faith, I hope the noble and learned Lord feels able to withdraw his amendments.

Lord Judge

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I am very grateful to everyone who has spoken, and to the Minister—I sometimes think of him as a sort of ministerial Hercules. Getting this right is not a Herculean task, and I should certainly welcome the opportunity to talk to him about it. I shall withdraw the amendment for the time being, on a wait-and-see basis.

Lord Judge (CB)

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My Lords, I see many people are leaving. This is not riveting stuff so I do not recommend that your Lordships all stay.

In Committee in June I moved an amendment to the Bill that is rather difficult to follow unless you have the original 1920 Act before you, and I shall not bother the House with it. In summary, it required that there be an express provision in the Bill that if you elected not to answer questions to do with sexual orientation or gender, you would suffer no penalty. My amendment wanted to make it express that that would be no offence. We had a very interesting argument, to which I listened. I was told that the Commons had rejected such an amendment when it was considering the same provision in relation to religion in 2000, and that it would certainly complicate proceedings if the problem were dealt with in one way in relation to religion but differently in relation to sexual orientation and so on. I understood. Actually, there should have been a Bill covering the whole proceedings.

Then I was told that it might put us in England and Wales out of step with Scotland, then I understood that it worked perfectly well and then I was told that I was wrong as a matter of law. I did not agree that I was wrong as a matter of law, but the Minister had rather a powerful weapon up his sleeve: he asked me in a conversation after the Committee had concluded its discussions whether I would have a word with the noble and learned Lord, Lord Mackay. Everyone in this House knows that the noble and learned Lord is the oracle. When the noble Lord, Lord Young, suggested I speak to him, I thought, “Well, that’s the oracle”. What the noble Lord did not know, and there is no reason he should, is that the noble and learned Lord is also the Lord Chancellor who appointed me as a judge, so this was a real double whammy.

So of course I spoke to the noble and learned Lord, Lord Mackay. We had a conversation and we did not agree. I saw the force of what he was saying and he understood the point I was making, but our discussion revealed that we are doing a bit of a Don Quixote and tilting at windmills. Who will read the Census (Return Particulars and Removal of Penalties) Bill? No one. The form will simply arrive in your letterbox. What seemed to me—and, if I may say so, to him and, when we spoke to the Minister, to the Minister—to matter was that the form should be clear and unequivocal so that the individual citizen reading it should understand what it meant.

That is the purpose of this amendment: to forget, if I may say so, about esoteric points of law and concentrate on the practicalities. The amendment I have now tabled would deal with the front page of the census form so that it stated in terms that you would not commit any offence if you did not answer any of the questions. Within the census form itself, there would be a headline saying “Voluntary” and an explanation that the question was voluntary. I respectfully suggest that this would be a practical way of dealing with a rather refined legal problem, and I beg to move.

Baroness Hayter of Kentish Town (Lab)

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My Lords, I want to speak at this point because I want to leave another question with the Minister and give him time to respond.

I thank the noble and learned Lord, Lord Judge, for his amendment and his explanation. I remain puzzled by the Government’s view on this, because I have now had the chance to consider their letter of 31 May. It seems to say to the noble and learned Lord, Lord Judge, “Yes, you’re probably right, but as we didn’t do it properly in 2000, it might prejudice that, so we should remain consistently with a less-than-perfect form of words”.

There are two aspects to this, as I think the noble and learned Lord, Lord Judge, said. One is the legal aspect and whether it is absolutely clear in law that “no penalty” means “not criminal”; I will leave the two noble and learned Lords to adjudicate on that. The other aspect, which was just touched on, is whether it will be clear enough to all respondents that, unlike the rest of the form, they do not need to answer these questions. We non-lawyers want absolute clarity on this second point, to ensure that no one should feel compelled to answer these questions, nor to expect to have to answer on behalf of those for whom they are completing the form. They should not even be nudged to ask someone for the answer to these questions. We would want to see some real guarantees on that not to support these amendments.

I turn now to another matter regarding voluntary and compulsory questions: military service. I take this opportunity to thank the Minister for his letter of 10 June, a copy of which he has placed in the Library, in response to my concern that, for whatever reason, somebody may not want to disclose their history of service in the Armed Forces to other members of the household. I am probably not alone in wondering about this. Indeed, only 88% of veterans and their families thought this question was “publicly acceptable”, which is interesting. One-fifth had doubts about whether it was publicly acceptable, which I think is significant. In Northern Ireland, the question was found only “generally acceptable” and the Minister’s letter says that,

“some veterans may be unwilling to disclose this information”.

The Northern Ireland Statistics and Research Agency thought:

“This could be mitigated by providing assurances about privacy and through additional guidance”,


although it said it would look carefully at the 2019 census rehearsal before making a final recommendation for the 2021 census.

Obviously, members of households can request their own individual census form if there is information they do not want to disclose to the person completing the census on behalf of the household. However, by opting out of the household, one might be looked at slightly askance and it could raise questions as to why one is doing that. This is as true for the gender and sexual orientation questions as for the military service one I have in mind. I do not wish to pursue this separate issue now, but I ask the Minister, who I hope will be able to reassure us that, in all the guidance and testing, the sensitivities about military service, as well as those related to the areas that are the subject of this Bill, will be borne in mind.

Lord Mackay of Clashfern (Con)

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My Lords, it is plain in the fundamental Act that you can be punished by a fine only if you fail to answer a question which you are required to answer, or if you give false information in answering such a question. Therefore, if the question is not compulsory, there can be no penalty.

I do not want to discuss further the fine detail of the legal side of this. I leave it on the basis that the noble and learned Lord, Lord Judge, and I agree that what the people getting the form need to know is that the questions addressed by the Bill are voluntary. We want people to understand that, and know that there can therefore be no penalty, or anything else in the way of harm, if they do not answer them. That is the principal point and a matter the Government can undertake in the light of the Office for National Statistics having a point in this—it has to be satisfied with the poll.

Baroness O’Neill of Bengarve (CB)

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My Lords, my noble and learned friend’s amendment goes a long way to protect the public from some of the ambiguities of these questions. If the question is optional and one does not need to answer it, one does not have to resolve the ambiguities, which are considerable on both halves. That is to say, it is not clear to me that every member of the public will understand what is covered by the term “sexual orientation”. I ask myself: is chastity a sexual orientation? Is paedophilia? I could name some nastier things, but that will do.

Equally, the term “gender identity” is not entirely clear for members of the public: do we mean what someone is or what they think they are? Public discussions of notions of identity have shifted a lot in the past 30 years. It seems unfortunate to put into a census form a highly disputed sociological term of art without clarifying what is meant by it. I therefore think it is a splendid thing to make both questions voluntary. I hope many people, such as myself, will be a bit hesitant about answering them.

Baroness Barker (LD)

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My Lords, I beg to differ with the noble and learned Lord, Lord Judge: I think these are riveting matters. This debate has shown exactly why that is so, because they are not easy. I am very glad that he has in effect gone back to what some of us said right at the beginning of Second Reading: that the importance is not what is in the Bill but what is on the form that results from this piece of legislation. That is what we have been driving at, not only in the debates in your Lordships’ House, but also in the discussions we have had with civil servants from different parts of government and from people within the community, over a number of very interesting and informative sessions.

I say to the noble and learned Lord, Lord Mackay, regarding his problems with the DVLA, welcome to the world of some of the minority groups in this country, who are faced with forms that they wish to answer truthfully but find doing so extremely difficult. It is always a joy to listen to the noble Baroness, Lady O’Neill. I wish she could have been present for some of the discussions that we had with the community groups, the ONS and the civil servants, who are in the middle of extensive testing, not just of the understanding of people who are in these groups and who are familiar with these terms, but with people who are not.

This is something which by its nature evolves over time, and the language within it changes over time; I guess that every 10 years there is something new. We should not be critical of that, but simply do our job in Parliament, which is to oversee those changes and make them as good as we possibly can. I have said this before and think it is worth saying again: the taking of a census is an important moment in our civic life. I know there are those who wish to dispense with it, who make an argument that we can get much of the information in other ways. I understand that to an extent, but nevertheless this is one time when the Government engage with all citizens and ask them questions about themselves. I understand that it is flawed—I suspect that it always will be—but the noble and learned Lord, Lord Judge, has got us to the point we said we wanted to be at, where we will get the most data in the easiest and most efficient way from the greatest number of people. If we send the Bill to the Commons in this state, we will have done a good job.

Lord Brown of Eaton-under-Heywood (CB)

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My Lords, I came here this afternoon intending to support my noble and learned friend Lord Judge. However, something said by the noble and learned Lord, Lord Mackay of Clashfern—who also had the sagacity to promote me—has given me a slight worry. I was going to support my noble and learned friend Lord Judge on the basis that clarity is all important, but I now wonder whether his amendments are sufficiently clear.

It is made plain you do not have to answer the question, but what if you answer it untruthfully? I confess that I have not sufficiently explored the overall legislative context in which this happens, but the noble and learned Lord, Lord Mackay, says that it is made plain elsewhere that not only do you not have to answer a question but also, if it is one of those questions that you do not have to answer, whatever answer you give, however misleading or absurd, will not expose you to prosecution. However, the formulation in Amendment 1, and equally in Amendment 2, begs rather than answers the question: if you choose to answer, must it be a truthful answer? That itself could give rise to a difficulty which may not exist absent these amendments.

Lord Young of Cookham (Con)

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My Lords, I thank the noble and learned Lord, Lord Judge, for tabling his amendments, and thank all those who have taken part in this debate. I agree with the noble Baroness, Lady Barker, that the census is an important civic event; we should all discharge our responsibilities and complete it. I will try and deal with the various issues that have been raised during the debate.

We had a useful and informed debate on this in Committee, when the noble and learned Lord did not press his amendments which sought to clarify whether removing the penalty also removed the offence. He did that after an offer to have further discussions before Report to see if there was a way through. I am very grateful to him, and to my noble and learned friend Lord Mackay of Clashfern, who I saw having a discussion outside the Bishops’ Bar last week; I realised that if I joined it I would not understand a word that was exchanged, but I noticed that a cloud of white smoke emerged. They subsequently agreed to come to a meeting with Ministers and officials last week, where I hope we found a way through which satisfied all concerned. I hope that this afternoon we can validate this great meeting of minds.

In Committee, the noble and learned Lord, Lord Judge, raised an important issue on ensuring that there is no ambiguity as to the voluntary nature of certain census questions in the minds of those who will answer them. By removing the penalty attached to a failure to answer, the clear parliamentary intention is to remove the criminal offence. I agree with him that from the point of view of the respondent—the most important person—this must be clear. So far as the guidance on the front of the form is concerned, we have no issue with his proposal. I can confirm that the Office for National Statistics is committed to the inclusion of wording on the front page of the census for England and Wales, as proposed in the amendment. This will make it clear that the census is compulsory, that some questions are voluntary and that not answering these voluntary questions is not an offence. I hope this commitment will meet the shared objective of the noble and learned Lord and others, and of the Government, on ensuring clarity for the public.

I also confirm that the voluntary questions in the form will be clearly marked as “voluntary”, as the amendments would require. This has been the case for the voluntary question on religion since its introduction in the 2001 census for England and Wales, and it has been effective. In each of the last two censuses, 4 million people in England and Wales—over 7% of the population—have chosen not to answer the religion question. This suggests that the public clearly understand this question to be voluntary.

To best fulfil the intent of the noble and learned Lord’s amendments, the wording on the form should be tested with the public to ensure that the messaging is as clear as possible, ahead of finalising the census questions. Stating the precise wording in the Bill would mean that it could not be amended in the light of that testing. The ONS is committed to carrying out this testing, following which the census forms for England and Wales will be put before Parliament and the Welsh Assembly, respectively, in census regulations. While the regulations are not amendable the ONS will engage with interested parties, including noble Lords, as it finalises the form and guidance.

The census is a devolved matter. Decisions on the questions, questionnaire and guidance to be issued in the 2021 censuses in Scotland and Northern Ireland are for the relevant authorities in those Administrations, through a similar secondary legislation process. I hope your Lordships agree that it would be inappropriate to make a decision for Northern Ireland, although we will of course make that Administration aware of the changes we propose for England and Wales through the ONS.

The secondary legislation for the 2021 census in England and Wales will begin to be brought forward later this year. As my noble and learned friend Lord Mackay said, an Order in Council will set out the detail of the questions to be asked in the England and Wales census. That order is in part subject to the unusual amendable affirmative procedure before both Houses. It will be laid in the autumn and the regulations, to which I have already referred, will follow in 2020.

I will try to deal with some of the questions raised during the debate. The noble and learned Lord, Lord Brown, asked about the questions being voluntary and whether the penalty for a false response should be removed. The answer is no: Parliament rejected an amendment to this effect in 2000 and it was right to do so. Not wishing to provide a response and wilfully providing a false response are different issues. Removing the penalty for providing a false response would pose a risk to the quality of census data in a way that allowing people not to provide an answer does not.

The noble Baroness, Lady Hayter, asked about military service—as she said, I wrote to her on it. The Armed Forces question is there to help public services serve those who have served their country and is underpinned by the Armed Forces covenant. No one in the household will know whether an individual fills in their own return; it will overwrite the household return. She was concerned about a lodger who might not wish to disclose their previous service to their landlord or landlady. The landlord would fill in the form for the household, but the lodger could apply for their own census form and fill it in without the knowledge of the householder. That would override the household return. No alternative data source fully meets the data that we need.

I think that I have answered all the questions that were asked. I recognise the concerns expressed by the noble Baroness, Lady O’Neill, and remind all noble Lords that we are happy to do a drop-in session to explore these points in more detail. Finally, I repeat my gratitude to the noble and learned Lord for his help in this matter and express the hope that, as a result of the commitments that I have given, he will not press his amendments.

Lord Judge

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My Lords, I am grateful to everyone who has spoken today. I shall not put down an amendment to an amendment but, when we come to look at this matter again, we could add “or if you give any false answer” after “if you fail to do so”. That should not be a problem. There is time for reflection on these matters. The Order in Council has to be drafted; we can all have an opportunity to look again. In the meantime, I am grateful to the Minister for the assurances that he has given. In those circumstances, I beg leave to withdraw the amendment.