R (Gill) v Cabinet Office

The claimant brought a pre-emptive judicial review seeking a declaration that it would be unlawful for Her Majesty to make an Order in Council under section 1(1) of the Census Act 1920 if the Order followed the White Paper recommendation not to include a Sikh ethnic group tick box in the 2021 census. The claimant relied on alleged unlawful departures from published ONS criteria (including the public acceptability test), inconsistent application of that criterion across topics, and defects in the independent research (Kantar) relied upon by ONS. The defendant argued the claim was premature and that any such pre-emptive declaration would breach parliamentary privilege and the constitutional separation of powers. The court held that the claim was premature and that the relief sought would impermissibly interfere with Parliamentary and Crown functions; accordingly the claim was dismissed. The court considered and applied authorities on separation of powers and prematurity (including Smedley, Wheeler, Yalland and related authorities) and concluded the exceptional Smedley pathway to pre-emptive relief was not engaged in this case.

Background and parties:

• The claim was brought by Amrik Singh Gill on behalf of the Sikh Federation UK against the Cabinet Office (defendant) with the UK Statistics Authority as an interested party. The dispute concerned the ONS/UKSA recommendation, published in the 2018 White Paper, not to add a Sikh ethnic group tick box to the ethnic group question for the 2021 census.
• The ONS had carried out prior work including the 2011 prioritisation tool, a 2016 topic consultation, stakeholder engagement, qualitative testing by Kantar Public and other quantitative and qualitative research. The 2019 prioritisation tool and an Information Paper were published during the development process.

Nature of claim and relief sought:

• The claimant sought a declaration that it would be unlawful for Her Majesty to make an Order in Council implementing a census questionnaire that did not include a Sikh ethnic tick box, on the basis that the ONS had applied unlawful reasoning in reaching its recommendation.

Issues framed by the court:

1. Whether the ONS had unlawfully departed from published evaluation criteria (including the public acceptability test) in assessing a Sikh tick box.
2. Whether the ONS had applied the public acceptability criterion inconsistently across different topics/response options.
3. Whether reliance on Kantar’s qualitative research was unlawful, including any improper regard to views that Sikh identity is religious rather than ethnic.
4. Whether the claim was premature and/or would breach parliamentary privilege or the separation of powers by seeking a pre-emptive declaration which would constrain the Minister, Parliament or the Queen in Council.

Court’s reasoning and outcome:

The court treated the claim as a pre-emptive challenge to an exercise of powers under the Census Act 1920. It reviewed the statutory process (section 1(1) and section 1(2) of the 1920 Act, the requirement for draft Orders to be laid before Parliament, and the role of the Minister, UKSA and ONS) and the consultation and research carried out by ONS. The court concluded that no ministerial decision had been taken, no draft Order or regulations had been laid before Parliament, and no Order in Council had been made. Granting the declaratory relief sought would, in effect, prevent the Minister from laying draft legislation in the form recommended by the White Paper, would prevent Parliamentary scrutiny and vote on that draft, and would prevent the Queen in Council from exercising the statutory discretion; such a declaration would therefore trespass impermissibly on Parliamentary proceedings and the Crown’s legislative function. The court surveyed authorities on parliamentary privilege and the separation of powers (including Smedley, Wheeler, Unison, Yalland) and concluded that, except in rare and exceptional cases, anticipatory judicial review of the kind sought should not be permitted. The court found this was not an exceptional case warranting departure from the general rule and accordingly dismissed the claim as premature and contrary to parliamentary privilege.

The court made no substantive determination on the merits of the claimant’s criticisms of ONS methodology because the challenge was dismissed on grounds of prematurity and separation of powers.

This is a first instance Administrative Court judgment: the claim is dismissed. The court dismissed the pre-emptive challenge on the grounds that it was premature and that granting the declaratory relief sought would impermissibly interfere with Parliamentary proceedings and the exercise of the Queen in Council’s statutory discretion under the Census Act 1920. The court considered authorities permitting exceptional early intervention (notably Smedley) but concluded this case did not justify departure from the ordinary rule of restraint.

Permission for judicial review was granted on the papers by Thornton J. on 6 September 2019. This judgment is a first instance decision of the Administrative Court, delivered by Mrs Justice Lang on 12 December 2019.