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

Baroness Barker Excerpts

2nd reading (Hansard): House of Lords
Monday 13th May 2019 Lords Chamber

[Baroness Barker (LD)]

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.

--- Later in debate ---

[Lord Young of Cookham]

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]

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]

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.

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

Baroness Barker Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 4th June 2019 Grand Committee

Moved by

[Baroness Barker]

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.””

[Baroness Barker (LD)]

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)]

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?

--- Later in debate ---

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.

[Baroness Barker]

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

[Lord Young of Cookham]

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]

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.

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

Baroness Barker Excerpts

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

[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.