In Case Study

The Census – an invidious choice, obey the law or be true to your conscience

Birmingham Law Centre granted permission to seek Judicial Review challenging compatibility of UK Census with Human Rights and European Union law

On 16 May a client of Birmingham Law Centre was granted permission for a Judicial Review in the High Court seeking a declaration that section 39(4)(f) of the Statistics and Registration Service Act 2007 (SRSA 2007) is incompatible with the European Convention of Human Rights (ECHR) and European Union law. It is a test case which raises important points of law of significant wider public interest concerning the protection of fundamental rights. Michael Bates from Birmingham Law Centre said:

This case has the potential to significantly impact on the future of public contracts between the UK government and US companies.

The Law Centre’s client, a longstanding privacy campaigner, refused to take part in the 2011 Census. Our client describes himself as, “an anti-database campaigner and someone who does regard himself as an activist in ensuring the preservation of liberty and privacy.” He has completed the census in the past but believes that the 2011 census was materially different because of the potential for his personal information to be disclosed to third parties without adequate safeguards being in place.

In August 2008 Lockheed Martin was awarded the contact to run the census. The company is an American organisation with global aerospace, defence and security concerns and is one of the world’s largest defence contractors. The company has statutory obligations under the USA Patriot Act 2001 which permits the US administration to obtain personal information on the grounds that there is a potential risk to US national security.

Lockheed Martin is heavily involved in surveillance and ‘cyber security’. It provides surveillance/data processing for the CIA and FBI. A new ‘Security Intelligence Centre’ at Farnborough was opened at the beginning of December 2011. Lockheed Martin Corporation is the lead company behind the current US government Next Generation Identification (NGI) initiative in which $1.6 billion is being spent on biometric developments that will allow many aspects of an individual’s private characteristics to be gathered and stored.

The vice-president Lockheed Martin is quoted as having said, “We want to know what’s going on any time, any place on the planet.”

Our client is concerned that there are no safeguards in place to prevent his information being disclosed and used for purposes other than those intended. The SRSA 2007 prohibits the disclosure of personal information collected during the census exercise unless one of the exemptions in section 39(4) applies. Section 39 (4)(f) exempts disclosure which is made for the purposes of a criminal investigation or criminal proceedings (whether or not in the United Kingdom). Our client’s argument is that this part of the act is incompatible with Article 8 ECHR. If that is the case, then the section of the Census Act that compels people to complete the census does so in a way that breaches their Article 8 rights.

By refusing to complete and return his census form our client faces the real possibility of being prosecuted under section 8 of the Census Act 1920 (CA 1920). Since 2012 some 369 cases have been referred to the CPS for prosecution of which at least 120 are reported to have been convicted for failing to complete and return their census form. Section 8 of the CA 1920 contains no defence and is a strict liability offence. A declaration is also being sought that a prosecution, in our client’s circumstances, under the CA 1920 is an abuse of process.

We will provide updates as the case progresses in future articles. Please contact Trevor Allsopp or Michael Bates at the Law Centre if you would like to know more about the case

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