Census (Return Particulars and Removal of Penalties) Bill [HL]

Report stage (Hansard): House of Lords
Tuesday 18th June 2019 Lords Chamber

Report

15:34

Clause 1: Amendment of the Census Act 1920

Amendment 1

Moved by

[Lord Judge]

1: Clause 1, page 1, line 8, at end insert—
“( ) The front page of the Census Form must state, “Completing the census is compulsory and you are liable to be fined if you fail to do so. There are three questions marked “This question is voluntary” and you do not commit any offence if you do not answer any of these questions.”( ) Within the Census Form each of the questions relating to religion, sexual orientation and gender identity must be headed “VOLUNTARY: This question is voluntary”.”

[Lord Judge (CB)]

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)]

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)]

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.

15:45

The other thing is that the statute does not come into effect as a new census until there is an Order in Council, which last time was signed by no less a person than our distinguished friend the Leader of the Opposition when she was a Minister. We are very sad that she had to be absent recently due to acute personal problems, but we are delighted that she is back again and in time to pay a most distinguished tribute to our late friend Lady Hollis of Heigham. That is simply to emphasise the point that an Order in Council is required and, at that time, the census form is available in draft. Therefore, we shall have a chance to make sure the draft is in accordance with what the noble and learned Lord, Lord Judge, just said, with which I entirely agree.

We have had a lot of forms over the years and some are clearer than others. For example, I had some difficulty with the driver’s licence form over whether I had changed my name, which is an interesting question. Forms are not all equally plain. We are determined that the census form should be plain on this point: when a question is optional, it really is optional. That should be made very plain to the people who get the form.

To come to the second point the noble Baroness raised, one has to remember that, in all of this, there is no question of prosecution without the authority of the prosecuting authorities. Therefore, there is room for discretion in any particular case. I can see that sensitivities in the area the noble Baroness referred to might well be a considerable reason for difficulty. Therefore, the answer to that, so far as I am aware of any possible answer, is that if there was a real problem of that kind relating to a particular case, I would not expect the authorities to take any action in pursuance of punishment or anything of that sort.

[Baroness O’Neill of Bengarve (CB)]

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)]

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)]

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)]

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]

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.

Amendment 1 withdrawn.

Clause 2: Amendment of the Census Act (Northern Ireland) 1969

Amendment 2 not moved.