IN THE MATTER OF AND THE NATIONAL CENSUS

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OPINION ______

1. I have been asked to advise upon the proper categorisation of Sikhism for the purposes of the next Census for England and Wales which is scheduled for 2021.

2. In 2011 the Census included an optional question on religious affiliation. Sikhism appeared amongst the named religious groups, which also included Christian, Buddhist, Hindu, Jewish and Muslim.

3. There was a separate question regarding ethnic groups, the data derived from which are contained in Figure 1 (included as an Annexe to this Opinion). It is plain that none of the religious affiliations noted above is duplicated in the range of options for ethnic groups. Indeed there is a patent dissonance between religious affinity and ethnic grouping on the census form, both conceptually and practically.

4. I understand that representations have been made to the Office for National Statistics that for the purposes of the 2021 Census, Sikhism should be added to the list of ethnic groups. It is unclear where it might appear having regard to the other categories in Figure 1. There is no indication as to whether the proposal includes the

removal of the option of Sikhism from the range of options for , or whether the proponents contend that it should appear in both questions, suggesting or implying that Sikhism is both a religion and an ethnicity.

5. In my opinion, as a matter of English law, Sikhism is a religion and not an ethnic categorisation. The Oxford Dictionaries define religion as: “the belief in or worship of a superhuman controlling power, especially a personal God or gods.” In a recent seminal decision in the Supreme Court, R (on the application of Hodkin and another) (Appellants) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77, the late Lord Toulson observed at paragraph [33]: “There has never been a universal legal definition of religion in English law, and experience across the common law world over many years has shown the pitfalls of attempting to attach a narrowly circumscribed meaning to the word.”

6. Nonetheless, after an exhaustive summary of several centuries of jurisprudence, from this country and the Commonwealth, Lord Toulson proceeded to venture the following definition at paragraph [57];

“For the purposes of [Places of Worship Registration Act 1955], I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word “supernatural” to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.”

7. It seems to be incontrovertible that Sikhism constitutes a religion within this expansive meaning and its adherents cannot be limited to a single ethnicity. Nanak, the founder of the Sikh faith, travelled throughout India and to Sri Lanka, Tibet and the Middle East preaching one common humanity and rejecting all notions

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of caste or race. , the 10th Guru, included people from outside in the creation of the .

8. The following, extracted from Wikipedia, whilst not exhaustive or authoritative, provides a helpful summary of the common understanding of Sikhism:

ਖੀ), or Sikhi Sikkhī, pronounced [ˈsɪkːʰiː], from Sikh, meaning aﹱ Sikhism (/ˈsikɪzəm/, Punjabi: ਸ "disciple", or a "learner"), is a religion that originated in the Punjab region of the Indian subcontinent about the end of the 15th century. It is one of the youngest of the major world . The fundamental beliefs of Sikhism, articulated in the sacred scripture , include constant spiritual meditation of God's name, being guided by the Guru instead of yielding to capriciousness of mind or psyche, living a householder's life instead of monasticism, truthful action to dharam (righteousness, moral duty), being of selfless service to others, equality of all human beings, and believing in God's grace. In the early 21st century there were nearly 25 million worldwide, the great majority of them living in the Indian state of Punjab.

Sikhism is based on the spiritual teachings of , the first Guru (1469 – 1539), and the nine Sikh that succeeded him. The Tenth Guru, Guru Gobind Singh, named the Sikh scripture Guru Granth Sahib as his successor, terminating the line of human Gurus and making the scripture the eternal, religious spiritual guide for Sikhs. Sikhism rejects claims that any particular religious tradition has a monopoly on Absolute Truth.

The Sikh scripture opens with (ੴ), its Mul Mantar and fundamental prayer about One Supreme Being (God). Sikhism emphasizes (meditation on the words of the Guru Granth Sahib), that can be expressed musically through or internally through Nam Japo (repeat God's name) as a means to feel God's presence. It teaches followers to transform the "Five Thieves" (lust, rage, greed, attachment, and ego). Hand in hand, secular life is considered to be intertwined with the spiritual life. Guru Nanak taught that living an "active, creative, and practical life" of "truthfulness, fidelity, self-control and purity" is above the metaphysical truth, and that the ideal man is one who "establishes union with God, knows His Will, and carries out that Will". , the sixth Sikh Guru, established the political/temporal (Miri) and spiritual (Piri) realms to be mutually coexistent. Sikhism evolved in times of religious persecution. Two of the Sikh gurus – (14. April 1563 – 25 May 1605) and (12. April 1621 – 19. December 1675 ), after they refused to convert to Islam, were tortured and executed by the Mughal rulers. The persecution of Sikhs triggered the founding of the Khalsa, as an order to protect the freedom of conscience and religion, with qualities of a "-Sipāhī" – a saint-soldier.

9. It is understood that those who have lobbied the Office for National Statistics to include Sikhism amongst the range of ethnic groups (whether as an alternative to on in addition to the religion question) seek to place reliance on the decision of Mandla v Dowell Lee [1983] QB 1 CA; [1983] 2 AC 548 HL. However, this decision, whilst ground-breaking on its time, must be read and applied with caution today because both the social landscape and statutory framework have changed beyond recognition since it was determined.

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10. In short the principal plaintiff was a Sikh boy who wished to wear a turban at school notwithstanding it did not comply with the school’s uniform policy. His claim was brought, with the support of the Commission for Racial Equality, pursuant to the Race Relations Act 1976 which has since been repealed. It was argued that the boy had been the victim of discrimination under the Act. At trial, the judge in Birmingham County Court dismissed the case on the basis that Sikhs were not a racial group. The Court of Appeal upheld that conclusion. On a further appeal to the House of Lords, that decision was reversed and a declaration of unlawful discrimination was made. The focus of the various judgments by the Law Lords turned on the meaning to be ascribed to the term “ethnic origins” within the particular context of the Race Relations Act 1976.

11. As Lord Fraser of Tullybelton observed at page 259F: “The main purpose of the Act of 1976 is to prohibit discrimination against people on racial grounds, and more generally, to make provision with respect to relations between people of different racial groups.”

12. For the purpose of the Race Relations Act 1976 (which is no longer on the statute books), “racial group” means “a group of persons defined by reference to colour, race , nationality or ethnic or national origins”. The case was advanced exclusively on the basis that Sikhs are a group defined by ethnic origins. Lord Fraser took the view that the Act deployed the term “ethnic” not in a strictly racial or biological sense but in “some more popular sense” (561E-F) which is “appreciably wider than the strictly racial or biological” (562C-D). Lord Fraser proceeded to outline certain characteristics, not all essential, which help to distinguish an ethnic group from the surrounding community (562E-G) and to suggest that a group defined by reference to enough of those characteristics would be capable of including converts (562G-H), postulating the concept of persons falling into a particular racial group “either by birth or by adherence” (563A). However, some of the characteristics referred to by Lord Fraser no longer apply. Most Sikhs in the UK at the time of the Mandla case were born in India, spoke Punjabi as their first language and shared a common culture. Today, most Sikhs in the UK were born in this country, speak English as

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their first language and have noticeably different cultural attitudes. The only thing that unites them with earlier Sikhs, and with Sikhs across the globe is a common religion.

13. It is instructive that in his concurring judgment in Mandla, Lord Templeman states at 568G: “And in view of the history of this country since the second world war, I find it impossible to believe that Parliament intended to exclude the Sikhs from the benefit of the Race Relations Act and to allow discrimination to be practised against the Sikhs in those fields of activity where, as the present case illustrates, discrimination is likely to occur.”

14. The legal landscape has changed considerably over the three decades since Mandla was before the Judicial Committee of the House of Lords. There is no longer a Commission for Racial Equality (or Race Relations Board), and the Race Relations Act 1976 has been repealed. So also has the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995. Instead an entirely new regime had been brought into force, animated by various EU Directives, in the form of the Equality Act 2010. No longer are there separate legislative schemes for different types of discrimination. Instead section 4 of the Equality Act 2010 prescribes a list of “protected characteristics”, some of which were previously the subject of discrimination provisions, whilst others were entirely new. They comprise: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

15. Thus it is no longer necessary to consider the judicial discussion of the repealed provisions of the Race Relations Act 1976, or that in the controversial Supreme Court decision in R (on the application of E) v Governing Body of JFS and another [2000] UKSC 15, which similarly concerned the 1976 Act. Since religion is itself now a protected characteristic, there is no need to strain to enlarge the meaning of race so as to achieve substantive justice to a deserving litigant in a liberal democracy. The judgments of the Law Lords in Mandla must be read in context as discussion of

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an obsolete and redundant statutory provision. Whilst section 9 of the Equality Act 2010 furnishes a definition of race which draws on that of the Race Relations Act 1976, it no longer needs to be considered in isolation, but alongside the additional or alternative protected characteristic of “religion or belief” which is itself expansively defined in section 10 of the 2010 Act.

16. Instead one needs to turn to cases concerning Sikh litigants which have been decided since the Equality Act 2010 came into force. In R (On the application of Watkins-Singh) v Aberdare Girls High School [2008] EWHC 1865 (Admin), the issue of the bracelet was addressed as religious and not racial discrimination. Note also the Home Office Detention Services Order 09/2012 makes provision for Sikh ministers to wear the (ceremonial knife) when visiting prisons. See paragraph 55 under the heading, “Visiting Religious Ministers”. In the current regime where religious discrimination is actionable, there is no longer a need for Sikhs to rely on intellectual gymnastics to produce an artificial meaning of racial group in order that the Sikh community be afforded equal treatment in the British Isles.

17. I have no details of the manner in which the Office for National Statistics have been invited to revise the range of ethnic groups from those used in the 2011 Census as appears in the Annex herewith. It is abundantly plain, however, that Sikhism sits more appropriately in the place it occupied in the 2011 Census amongst other religions, rather than being falsely linked with ethnicity.

31 January 2018

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