Tuesday 4 June 2019
Census (Return Particulars and Removal of Penalties) Bill [HL]
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
1: Clause 1, page 1, line 6, at end insert—
“( ) In section 3 (regulations with respect to proceedings for taking census), after subsection (1)(f) insert —“(fa) providing guidance on how the particulars relating to sex and gender identity should be answered, including —(i) whether this should be on the basis of self-identification;(ii) how intersex and non-binary people are expected to address these questions; and(iii) whether gender confirmation surgery or a legal gender recognition process is required.””
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.
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?
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.
Over the summer, the Office for National Statistics will also be testing the draft guidance with members of the public to ensure that it is clear and comprehensible and works well for anyone answering the questions. The guidance will be published in September, alongside the census questions, ahead of the census order and regulations being laid before Parliament. There is scope for further refinement, throughout the autumn and beyond. In particular, the ONS will be carrying out a census rehearsal in October, which may yield additional insights into how the guidance may be further improved.
I am grateful to noble Lords who spoke today and at Second Reading, for the support of the House for this measure, and for the interest shown in ensuring that the guidance for these questions works for all those answering them. My noble friend Lady Barran and I will make ourselves available to noble Lords who wish to discuss the matter further.
I hope that, in sharing the proposed guidance in draft and setting out the process for further developing and refining this guidance, I have reassured both noble Baronesses, who will now feel able to withdraw or not press their amendments.
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.
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.
Amendment 1 withdrawn.
2: Clause 1, page 1, line 8, at end insert—
“( ) In section 8 (penalties), after subsection (1A) insert—“(1B) A person does not commit an offence if that person does not state any particulars with respect to sexual orientation or gender identity.””
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 is 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.
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.
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.
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?
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.
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.
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; col. 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 amendment.
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.
Amendment 2 withdrawn.
Clause 1 agreed.
Clause 2: Amendment of the Census Act (Northern Ireland) 1969
Amendment 3 not moved.
Clause 2 agreed.
Amendment 4 not moved.
Clause 3 agreed.
Bill reported without amendment.
Committee adjourned at 4.11 pm.