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Census (Amendment) Bill [Lords]
As amended in the Standing Committee, considered.
Clause 1
4.52 pm
Mr. Richard Ottaway (Croydon, South): I beg to move amendment No. 1, in page 1, line 12, after "religion", insert--
'or for giving a false answer to that question'.
The Bill seeks to amend the Census Act 1920, and it is anticipated that the census will take place in April next year. The Bill would permit a question on religion in the next census, and we have said that we would support it if answering the question was voluntary. The 1920 Act does not give the Minister the power to ask such a question, hence the private Member's Bill that is being introduced by my hon. Friend the Member for Mid-Bedfordshire (Mr. Sayeed) and adopted in Government time.
Having said that we would support the Bill if answering the question was voluntary, we have our doubts about whether it will be voluntary. The long title of the Bill is to
- Amend the Census Act 1920 to enable particulars to be required in respect of religion.
I have taken the liberty of seeking a legal opinion from Mr. Leolin Price QC, the head of chambers at 10 Old square. He has considered the Bill, this amendment, and the amendment tabled in Committee, and has said:
- Not doing something which statute requires you to do is unlawful.
In Committee, my hon. Friend the Member for Chichester (Mr. Tyrie) ably argued that the question should be voluntary. For one reason or another, however, the Government chose to reject what I considered to be a well drafted amendment. We disagree with their decision.
The Minister may say that the question is voluntary. Perhaps removing the penalty gives the impression that it is. However, she will encounter a difficulty, in that the inclusion of a statement on the census paper that the question is voluntary is probably not in her gift, and would mean that she was acting ultra vires. The rejection of the amendment in Committee may well expose the Government to the possibility of a judicial review in the courts.
There will be people out there who, for some reason, will not want the question to be asked. Opinion is far from unanimous; indeed, there is a wide variety of opinion.
Many groups have expressed their support for the question, but some consider it inappropriate, and I think it likely that it will be challenged in the courts.The Bill amends section 8 of the Census Act 1920. Section 8(1)(d) states that it is an offence attracting a penalty of £10 to refuse to answer a question. The Bill removes that £10 penalty. However, section 8(1)(d) also states that it is an offence for any person to give a false answer to a question. The Bill does not remove the penalty for giving a false answer. If I, a member of the Church of England, write "None" in answer to the question on the paper, under the words "This question is voluntary", I am liable. I am committing an offence, because I have given a false answer to the question.
Mr. John Bercow (Buckingham): I note what my hon. Friend says about the answer "None", but if an individual answered "Not applicable", how would that be interpreted?
Mr. Ottaway: I must answer that on my feet, as it were, but I think that that would constitute a refusal to answer the question, and would therefore not attract a penalty. If, however, a Sikh wrote "Church of England", that would attract a penalty.
This is the difficulty in which the Government find themselves. Let us leave aside our argument that the question is not voluntary, although the Minister believes that it is. The fact is that those who answer it inaccurately will incur a penalty. I cannot understand the logic of a Bill that, while purporting to make a question voluntary, imposes a fine for giving an inaccurate answer to that question. Is that really what the Minister intended? I shall be more than happy to give way if she wants to elaborate on that--but it appears that she does not.
That is a legitimate question for me to ask. I hope that the Minister will address it when she responds. Is that what is intended? If it is what is intended, in something important such as a national census, it is opening a can of worms and a Pandora's box of litigation.
5 pm
The Minister may say that I am nit-picking, and ask who in their right mind would prosecute someone for putting an inaccurate answer down. Indeed, who would know whether someone had answered inaccurately? That is not the point. What is the point of deeming something an offence if there is unlikely to be a prosecution?
There is a second point. The question again gives strength to someone who seeks to challenge the Bill--or, more to the point, the order--by way of judicial review. I return to the opinion of Mr. Leolin Price QC. In his legal opinion to me, he says:
- The Bill in its present form is in my view unconstitutional. Parliament cannot, without flouting constitutional principle, adopt the Bill in its present form.
But if it does, and if the Courts . . . have to recognise it as an Act of Parliament, that will not be the end of the matter. Apart from any possible effect of the Human Rights Act from October onwards, the draft Census Order, when available (prescribing the Census questions, including the religious questions) will be challengeable by judicial review--preferably by challenge to the decision to prescribe the questions, and preferably before any approving resolution of either House of Parliament.
Mr. Michael Fallon (Sevenoaks): I have some sympathy with the amendment. The description that my hon. Friend the Member for Croydon, South (Mr. Ottaway) has given, and the opinion that he has quoted, seem to reveal a fairly fatal flaw in the Bill. What we will have under the proposed statute is an event for which no penalty applies, but which in itself remains unlawful. That does not seem at first sight to be good legislation. I should be grateful if the Minister reassured us that that is not the interpretation that should be made of clause 1(2), because it seems unsatisfactory.
I have two questions for my hon. Friend about the amendment. First, the amendment might in some sense be said to encourage people to give a false answer. I know that that was in the original statute, but I am not so sure that we should write in further encouragement to people to supply false answers with impunity as they move down the census form.
Secondly, I am not wholly persuaded that the amendment cures the flaw at the heart of the Bill. We are dealing with something that remains unlawful by removing only the penalty. The amendment does not seem to tackle that. What we should be doing, surely, is dealing with the unlawful nature of the offence itself.
Mr. Andrew Tyrie (Chichester): I am sure that my hon. Friend is right that amendment No. 1 does not fully cure the Bill's inadequacies. An amendment that I tabled in Committee, which was rejected by the Government, would have made the question genuinely voluntary. Unfortunately, however, hon. Members cannot table the same amendment twice. In amendment No. 1, therefore, we are trying as best we can to highlight the Bill's flaws, while acknowledging that it is the second-best route to remedying weaknesses that will be put on the statute book if the Bill is passed.
Mr. Fallon: The House will be indebted to my hon. Friend not only for the information that he has just supplied but for his efforts to improve the Bill's drafting in Committee. I am only sorry that I myself was not selected to share in that work.
It seems that we are in danger of enacting highly unsatisfactory legislation. Parliament either imposes a requirement or it does not, in which case the matter should be voluntary. I do not know how we can say that although it is unlawful to give false particulars or to answer a question improperly, no penalty can apply to those who do so. I do not see the point of passing such a provision.
My hon. Friends are right to highlight the problem and to tackle it. If amendment No. 1 is the only way of tackling it, so be it, and I shall have to bow to my hon. Friends and to their overqualified legal advisers. However, perhaps my hon. Friend the Member for Croydon, South (Mr. Ottaway)--much later this evening,
when he sums up the debate--will tell me how one deals with the point that the proposal may encourage the practice of supplying false information, and whether there is any other way of dealing with the problem that lies at the heart of clause 1.
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