In recent correspondence, the Scottish Government implied that previous parliamentary discussion on the Census (Amendment) (Scotland) Act has lent weight to its decision to issue guidance for the sex question in Scotland’s 2022 census which advised respondents they may answer based on their self-declared gender identity. In this blog we argue that invoking the progress of the census legislation through the Scottish Parliament does not help the Scottish Government build a case that its plans are lawful.
On 31 August 2021 the Scottish Government announced how it planned to gather data on sex in Scotland’s 2022 census. This confirmed that the Scottish Government intends to issue guidance advising that sex question may be answered based on a person’s self-declared gender identity, despite the fact that there is a new, separate question on transgender status which has been widely welcomed.
The announcement was surprising because plans for similar guidance had been successfully challenged as unlawful under the Census Act 1920, in a court case against the Office of National Statistics (ONS) for the census in England and Wales earlier this year. A consent order signed by ONS and feminist campaign group Fair Play For Women confirmed that for the purposes of the census ‘sex’ means sex as recorded on a birth certificate or a Gender Recognition Certificate.
Against this background, in October, we wrote to the Cabinet Secretary for Constitution, External Affairs and Culture, asking if there were plans to legislate to amend the Census Act 1920, to provide legal cover for their approach.
The National Records of Scotland (NRS) responded earlier this month, on the Minister’s behalf, and stated that there was no plan to legislate. The NRS also invoked the role of the Scottish Parliament in its response, stating “this guidance is the same as that discussed with the Scottish Parliament when the Census legislation was agreed“. The implication appeared to be that parliamentary involvement gave the decision some legitimacy.
We asked NRS to confirm that the Scottish Parliament had not had any role in approving the guidance. In a further letter to us, the NRS acknowledged this, conceding that the guidance is a government decision and has not been subject to parliamentary approval.
The particulars to be sought and the text of the questions for the 2022 Census were scrutinised by the Scottish Parliament during its consideration of the Census (Scotland) Order 2020 and the Census (Scotland) Regulations 2020. The issuing of guidance in respect of each census is a matter for the Registrar General to determine, subject to the power of the Scottish Ministers to direct the Registrar General as to the carrying out of that function. (emphasis added)National Records of Scotland 19 November 2021
“The particulars to be sought and text of the questions” are simply references to “sex” being agreed as one of the categories of data collected and the wording of the question on the face of the census form offering ‘male’ or ‘female’ as the response options.
The letter also noted, presumably seeking to imply this was relevant to the question of lawfulness, that the then Cabinet Secretary Fiona Hyslop MSP had notified Parliament of her intention to issue guidance that would allow respondents to self-identify their sex before the provisions that required parliamentary approval were agreed.
The then-Cabinet Secretary for Economy, Fair Work and Culture wrote to the Culture, Tourism, Europe and External Affairs Committee on 26 February 2020, during its scrutiny of the draft Census (Scotland) Order 2020 and before the Census (Scotland) Regulations were laid, to confirm that the Registrar General intended to issue guidance to the effect that the census sex question would allow for a self-identification basis of response, for the small number of respondents who require guidance. Our ‘Sex Question Recommendation Report’, published in December 2019, contains some information about how guidance was accessed in testing.National Records of Scotland 19 November 2021
This comment prompted us to revisit what discussion there had been of the guidance around the time the Census Order was approved.
Discussing the guidance
The guidance for the sex question was discussed with the minister at two meetings of the Culture, Tourism, Europe and External Affairs (CTEEA) Committee in early 2020. The first discussion was an evidence-taking session on the draft Census (Scotland) Order 2020 in the Committee on 30 January 2020. At a further meeting on 27 February, the Order was formally debated and agreed. Discussion of the issue was more extensive at the first meeting. The letter providing notice of the Minister’s intention was received between the two meetings.
30 January: a proposal or a decision?
At the January meeting, the Minister sought to focus discussion on the elements of census preparation that needed direct parliamentary approval, rather than the guidance:
As I said, the guidance is separate from the order. Particularly at this point, because of the timings for the build of the online questionnaire, I want to concentrate on ensuring that the order is accurate and correct and reflects what people have said, and there are changes within that…
The guidance is completely separate from the legal processes that we are considering. There is always some flexibility and movement in finalising guidance. From an information technology point of view, it is the content of the actual bits for completion—the questions—that are imperative for the build, which is what I think that you are referring to. Officials may wish to add to this, but the guidance is the text that goes round that, which is less of an imperative from an IT point of view and a build point of view. The imperative absolutely must be our having the questions ready.Fiona Hyslop (Cabinet Secretary for Culture, Tourism and External Affairs)
The Official Record shows several committee members raising concerns about the proposed guidance and the basis for it. Against that background, much of the discussion was taken up with discussing whether a decision had yet been taken, on which point members found the government to be unclear.
At a relatively early point in the meeting the decision was discussed as still subject to consultation and not yet decided; in response to questions from Annabelle Ewing MSP, the Minister said “I will have a decision to make on that”.
The Committee also noted that it had been shown an option that was not self-identification.
I understand that you said in your letter to the committee of yesterday that the final version of the guidance would be “agreed by the end of summer this year.”
The last time that your officials were before us, we had a discussion about seeing a copy of the latest draft text. As I said, an option A and an option B are given on page 28 of the document that your officials have provided. Option A is effectively self-ID; option B is not.Annabelle Ewing ,SNP MSP
Committee members continued to draw attention to confusion in the government’s presentation as to whether or not they were being presented with a decision that had already been made. The government described its position both as “a proposal” but also “our proposed guidance”. After a lengthy exchange, Claire Baker MSP commented:
I understand why it has been described as proposed guidance, because the final decision will not be made until later this year. However, to the committee, having the word “proposed” in front of it suggested that it was still up for discussion. This morning, you say that it is no longer up for discussion—you have done the testing and the evidence directs you towards that decision. Although the guidance is called “proposed”, the debate about it is over. You will not consult or test different options—that is the decision. It would be helpful to get some clarity on that.Claire Baker, Scottish Labour MSP
Confusion about the status of what was being shared with the Committee continued.
In light of the previous discussion, things are a little unclear. The committee has before it the text of the guidance on self-ID for the mandatory sex question, to which you have now signed up. Is that the final text? Alternatively, is it part of the overall guidance that will be subject to further change?
Fiona Hyslop: The answer is the latter.
Annabelle Ewing: What changes will be made to the guidance?
Pete Whitehouse: It is our proposed—
Annabelle Ewing: I will rephrase my question so that you can better understand why I am asking it. You say that you have made the decision and produced the guidance on the basis of the evidence; the convener suggests that maybe some other evidence has been given less weight. You have made your decision, so presumably there will be no further testing. Is that correct?
Fiona Hyslop: The testing that we did was exceptional and would not necessarily have happened, but it has been helpful.
Annabelle Ewing: Okay—there was testing but not a note of guidance or heads of test. In any event, there is no further testing, so what would cause you to change what you have in front of you? I am just not following the process.
Fiona Hyslop: Well—
Pete Whitehouse: We have done that engagement.
Annabelle Ewing: I am just asking whether it is the final text now.
Pete Whitehouse: From our perspective, yes. For that sex question—
Annabelle Ewing: What does “From our perspective” mean? Who would change it?
The Minister sought to bring the discussion to a close by reiterating that the committee was meeting to consider the order, not the guidance.
Fiona Hyslop: The guidance is separate, as I said right at the beginning. The committee’s legal responsibilities relate to the order, which sets out the subjects to be included, and then the regulations, which will set out the questions. That is the main focus. There has been a strength and an openness in discussion because, as the convener has said, it is such a live issue. I know that the committee has become heavily involved in the guidance issue, but its legal responsibility relates to the order.
Annabelle Ewing: That is the case but, as I said, Mr Matheson highlighted quite rightly that the guidance sets the legislative context for the question. However, I will not go over old ground again.
Fiona Hyslop: That statement relates to a different session.
The Convener: Thank you very much.
The Committee evidently still felt it had not been clearly briefed about the point at which a “proposal” had become a “decision”, even after this.
Claire Baker: I am looking for clarification, because this morning Pete Whitehouse—and the cabinet secretary, I think—suggested that the committee was already informed and aware that a decision had been made on the guidance for the sex question. However, the letter that Pete Whitehouse sent us on 18 December, which was prior to his appearance before the committee on 9 January, says:
“The current sex question testing, which NRS commissioned ScotCen Social Research to carry out, is progressing well. I will share the results of that work with the Committee as soon as possible. I understand a session has been set with the Committee for 9 January 2020 to consider this work”.
The letter did not tell us that a decision had been made on what guidance to include for the sex question. I would have to look back at the Official Report, but I cannot remember that being said.
Fiona Hyslop: I am quite happy to look at what the correspondence said or did not say. However, in January, I was under the impression that the committee had been informed of the decision, which was taken as a result of the research that had taken place at the end of last year.
Claire Baker: That is helpful, but the letter did not state that a decision had been made and my memory of the session on 9 January is not that the committee engaged with it as an issue for discussion. I do not think that it has been made clear to us that a decision had been taken.
Fiona Hyslop: That is obviously a misunderstanding.
Claire Baker: I accept that. Thank you.
27 February: a decision and a promise
At the meeting on 27 February, the discussion on the guidance was briefer. The Cabinet Secretary had by then written to the Committee, confirming the government had taken a firm decision:
Finally, my letter to the convener this week in response to the letter from the committee confirmed that, subject to the census legislation being in force, the registrar general will conduct a census that includes a binary sex question, supported by guidance on self-identification, and that I support that approach for Scotland’s 2021 census.Fiona Hyslop (Cabinet Secretary for Culture, Tourism and External Affairs)
The Cabinet Secretary emphasised that any further parliamentary process would relate to the regulations, but not to the guidance, although the Minister would consider further points the Committee had raised in a letter about “clarification and the legal status of the guidance”.
The Convener: Thank you very much, cabinet secretary.
A number of outside organisations have issued statements about the committee’s deliberations and today’s meeting that conflate the order that we are discussing with future regulations, which you have said will be clarified at a later date. Obviously, that guidance will relate to the sex question as well as to every other question. As you have made clear, the guidance is not contained in the census order and will not be put before the committee and the Parliament until later. Nevertheless, I would like to ask you a few questions about that guidance.
When you came to the committee previously, we talked about the letter from Alice Sullivan and 80 senior academics, who raised concerns about the guidance. Ten of those academics were members of the British Academy, and all of them were social scientists who gathered population data. What consideration have you given to their letter?
Fiona Hyslop: I will clarify what I said to ensure that people understand. It is the regulations that will come later. They are separate from the order, and the guidance is separate from the order and the regulations. As I indicated in my letter, I will consider the points that the committee made in its most recent letter to me about clarification and the legal status of guidance. I want to actively consider that. I said in my response this week that that is my commitment to the committee.
There was some discussion about the Committee being sent a further draft of the guidance promised in a letter from the Minister. Such correspondence would not however have affected the question of the use of self-identification guidance, which at this point the government was presenting to the Parliament as a fait accompli.
Commitment to the principle of harmonisation
The Committee also asked about harmonisation with other parts of the UK (this discussion took place before ONS abandoned guidance based on self-identification, after legal action in March 2021). The NRS Head of Census explained it and the other UK statistical bodies were committed to outputs that were comparable across the UK.
The emphasis for the three census bodies across the United Kingdom is to ensure the harmonisation of outputs. On how we gather data, there is a lot of discussion and we share a lot of knowledge and methodology. Our commitment is to ensure that the census is accessible to the populations that we are conducting the census with and enabling them to take part in it. As statistical bodies, we commit to the outputs being comparable and harmonised in the best way, so that users who want to look at and compare statistics in the UK can do so.Pete Whitehouse, National Records of Scotland
As discussed with the Scottish Parliament …
When the NRS invoked the idea that “this guidance is the same as that discussed with the Scottish Parliament when the Census legislation was agreed”, it appeared to imply that the parliamentary process provided some justification for its position on the guidance to the sex question.
In the same vein, in a letter to two senior academics at the University of Edinburgh in July 2020, NRS Chief Executive Paul Lowe also appeared to claim that there had been parliamentary approval of the guidance.
As set out in Ms Hyslop’s letter to the CTEEA on the 26th February the agreement by the Scottish Parliament to the Census Order (12th March 2020) and Census Regulations (16th June 2020) confirms that the sex question and associated guidance has been agreed.Cited in Paterson and McVie, 26 June 2020
The CTEEA Committee Convener replied to Professors McVie and Paterson to clarify that the Committee did not have the authority to approve the guidance nor had they been provided with a final version of the complete set of guidance that would accompany the census. (Mr Lowe was challenged on this at an oral evidence session on 17 September 2020 when he apologised for this “error in my original letter”.)
The most recent letter from NRS has conceded that the decision on the guidance for the sex question was taken entirely within government. The most that can be said is that the government’s decision was notified to the Committee, before they were asked to make a decision on the Census Order, which the government was at pains to stress at the time was distinct.
Revisiting the parliamentary discussion on the guidance moreover brings out that the Committee’s questioning was challenging, and that it did not find the government’s account of its decision-making process to have been clearly explained. There was further substantial questioning on the principle from various members that we have not included in the summary here.
In practice, the Committee’s power to do more to express concern was severely limited. Its only way of expressing disagreement with the government’s planned guidance on the sex question would have been to refuse to let the census proceed at all. This would have been a nuclear option; more so because the guidance was not included in the legislation it was being asked to approve, and the legislation was urgent. At this point, the census was still expected to take place in Scotland in the spring of 2021.
Departing from the principle of harmonisation
The parliamentary debates also usefully highlight that, at the time, the Scottish Parliament was advised that the government saw harmonisation with the approach taken in England and Wales as important. This is underscored in an agreement between UK census authorities which in reference to harmonisation, states that ‘Common definitions and classifications, typically based on international standards, should be agreed, used and published’. A statement by the ONS further explained that, where possible, the census authorities intended to harmonise ‘definitions of concepts’. In choosing not to revisit its position on the guidance in the light of the ONS abandoning guidance for the sex question based on self-identification, it appears that the Scottish Government has now departed from this principle.
Overall, then, the parliamentary record does not help the government build a case for the legitimacy of its approach to the guidance for sex question.
It does however raise a question about what happened to the Scottish Government commitment to the principle of harmonisation.