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5th Report, 2009 (Session 3)

Subordinate Legislation

Report on Subordinate Legislation - the draft Census (Scotland) Order 2010


To consider and report on the Scottish economy, enterprise, energy, tourism and all other matters falling within the responsibility of the Cabinet Secretary for Finance and Sustainable Growth apart from those covered by the remits of the Transport, Infrastructure and Climate Change and the Local Government and Communities Committees.


Ms Wendy Alexander
Gavin Brown
Rob Gibson (Deputy Convener)
Christopher Harvie
Marilyn Livingstone
Lewis Macdonald
Stuart McMillan
Iain Smith (Convener)

Committee Clerking Team:

Clerk to the Committee
Stephen Imrie

Senior Assistant Clerk
Joanna Hardy

Assistant Clerk
Gail Grant

Report on Subordinate Legislation - the draft Census (Scotland) Order 2010

The Committee reports to the Parliament as follows—


1. At its meetings on 10 March and 14 April 2010, the Economy, Energy and Tourism Committee (“the Committee”) considered the following instrument—

the draft Census (Scotland) Order 2010

2. At the conclusion of the Committee’s meeting on 10 March, the Minister for Enterprise, Energy and Tourism (“the Minister”) withdrew the draft Census (Scotland) Order (“the Order”), which was then revised, re-introduced and subsequently re-considered by the Committee at is meeting on 14 April. The details of the revised draft Order and the explanatory notes can be found on the website of the Office of Public Sector Information.1

3. The draft Census (Scotland) Order 2010 is a highly unusual instrument in a number of ways in that it contains provisions that are subject to both negative and affirmative procedures. Additionally, certain parts of the draft Order can be amended by Parliament during the passage of the statutory instrument. This process is permissible as a result of powers contained in the parent Act; the Census Act 1920.

Changes introduced in the revised Order

4. As indicated above, during the Committee’s consideration of a previous version of the Order at its meeting on 10 March 20102, the Minister withdrew the instrument and agreed to consider various changes to the provisions that had been suggested by Committee members.

5. In his opening remarks on 14 April, the Minister outlined the changes that had been made to the draft Order, in particular to:

  • Part 15: Ethnic Group;

  • Part 16: Language;

  • Part 18: Health Conditions;

  • Part 29: Central Heating;

  • The proposed estimated household income question that had been removed from the revised Order.

6. Full details of the changes made by the Minister are set out in his submission to the Committee, see annexe to this document.

7. During the discussions on 14 April, Committee members raised a series of points. One member sought clarification on whether any parts of the draft Order currently subject to affirmative procedure (those in italicised text) would, upon the Scottish Parliament’s approval of the Order, subsequently be subject to negative procedures during any parliamentary consideration of subsequent versions of the draft Census Order. Duncan Macniven of the General Register Office for Scotland stated that—

“The answer is that they will have no special status in the next census. The purpose of the italicisation and the affirmative resolution procedure that the italicisation attracts is to mark not those questions that are new but those questions that are not strictly about demographics—in other words, the size and nature of the population—but relate more to socioeconomic information about the population. That distinction is made in the Census Act 1920, which we still use to guide our drafting of such orders.”3

8. Other members welcomed the changes that had been made by the Minister, particularly the withdrawal of the proposed question on household income and the changes made to the proposed census questions on health conditions, particularly regarding the recording of data on autistic spectrum disorder/Asperger’s syndrome. These two issues formed a substantial element of the consideration by the Committee.

9. In relation to autistic spectrum disorder/Asperger’s syndrome, the Minister agreed that he would ensure that the Scottish Government’s Health Department recognised that the term “development disorder” is wider than autism and that there is a need for measurement in that area. He also agreed to advise the department to pursue commitments previously made in 2001 in parallel with the important progress that will be made in the 2011 census.

10. The Minister also outlined why he was not able to accommodate the proposed changes to the questions on ethnicity to respond to the representations made by the Scots-Arab community.

11. One member of the Committee also raised an issue in relation to those parts of the draft Order covering religion, in particular whether a person would be required to be a formal member of a religion in order to complete this question. The Minister gave his assurances on this issue.

12. Finally, both the Committee and the Minister raised the issue of the need for reform of the parliamentary processes for the consideration of future versions of the census. The Committee considers that there is a need for an earlier identification of the lead committee for the consideration of any subsequent draft Order and for the committee to be able to take written and oral evidence in a process more akin to stage 1 scrutiny of primary legislation. On this, the Minister agreed that—

“… the process could be improved. In particular, it would be better if a lead committee were identified well in advance and could take a continuing interest in the development of the census proposals over several years. I would be happy to see such a recommendation from the committee.”4


13. After the debate was concluded, the Minister moved motion S3M-05952—

That the Economy, Energy and Tourism Committee recommends to the Parliament that the Census (Scotland) Order 2010 to the extent that it relates to the following particulars in Schedule 2—

(a) item 1;

(b) in item 2, the words “and, as the case may be, where there are 5 or fewer persons in the household, the relationship of each of the previous persons mentioned in the return and where there are 6 or more persons in the household, the relationship of the sixth and subsequent persons to the two previously mentioned persons in the return”;

(c) item 7;

(d) in item 8, the words “and, if not born in the United Kingdom, month and year of most recent arrival to live in the United Kingdom”;

(e) items 9,10,12,14,17,18,19,20;

(f) in item 21, the words “on a Government sponsored training scheme;”

(g) items 22,27,28,30,31,33,34;

and items 1,2,3 and 4 of Schedule 3 to the Order, be approved.

14. The Motion was agreed to by the Committee without a division.

Recommendations to the Parliament

15. As a result, the Economy, Energy and Tourism Committee recommends that the draft Census (Scotland) Order be approved.

16. The Committee further recommends that consideration be given to the parliamentary procedure and process followed for the scrutiny of future versions of the census and recommends that this should be investigated by the Standards, Procedures and Public Appointments Committee or its successor.



18th March 2010

Dear Iain,


Thank you for your letter of 12 March following the Committee’s discussion of the draft Order on 10March.

I am grateful for your remarks about the way in which I engaged with the Committee. As you record, I very much agree that there is scope for more effective procedures in the Parliament to improve scrutiny of this important Order. In particular, there could be a real benefit in having one responsible Committee - and I appreciate there has been some discussion over which Committee that should be - identified in advance to maintain a role in relation to the census and which would allow the chosen Committee to keep in touch with the progress of preparations for the census and take evidence at appropriate times.

Despite the short time given to the Committee to consider the draft Order, it seemed to me that we had a very useful exchange of views last week. I got a clear idea of the points which members felt strongly about and I felt that I also had a chance, with my officials, to answer fully and effectively many of the points which were put to us. I agreed to withdraw the draft Order to allow me to amend it in a number of respects to meet the points raised by the Committee, and by interested members in previous discussions. The census preparations have a long lead time and, in particular, the final questionnaire needs to be sent to the printers in the middle of May. Because of the intervention of the Easter recess, it was necessary for me to re-lay the draft Order on 12March to be sure that we have Parliamentary approval for the questions in time to meet that deadline – which, if missed, would certainly impose significant extra and unnecessary costs and might endanger the broader census timescale.

I enclose a paper, covering the points which you listed in your letter, explaining the changes which I have incorporated in the new draft Order and why we cannot go further. I enclose also a redraft of the census questionnaire. I hope that that will give a good basis for further consideration of the new draft Order.




This paper responds to the points made in the discussion of the draft Census (Scotland) Order at the meeting of the Committee on 10March, highlighting in particular the changes to the draft Order in the version which was re-laid on 12March 2010. Paragraph references are to the paragraph numbers in Schedule2 to the 12March version of the draft Order.

Paragraph 15: Ethnic Group

As I explained to the Committee at the meeting on 10 March, the ethnic group question has been changed in a number of respects since the original draft Order which was laid at the end of November2009. At the meeting, Marilyn Livingstone MSP suggested two furtherchanges, to paragraph15(f), advocated by the Fife Arab Society.

The Society has had contact with the Registrar General and his staff over a number of years and the present version of the question incorporates the Society’s views to the maximum extent possible. It was at the behest of the Society that the earlier wording of question15(f)(i) was changed from “Arab” to “Arab, Arab Scottish or Arab British”. That formulation is the same as the wording used for other ethnic groups. To replace it by “Arab, Scottish Arab or British Arab” would lose that uniformity, and cause puzzlement among those completing the questionnaire. The Society has also advocated changing the heading of paragraph15(f) from “Other ethnic group” to “Arab and other ethnic groups”. This would have twounintended consequences. First, it would risk reducing the response from ethnic groups which, unlike the Arab group, have no tick box – as their eye would be caught by the word “Arab” in the section title and they might not notice the subsequent tick box for “Other”. Second, because the proposed category headings are the same throughout the UK, such a change would cause a loss of comparability with England and Wales, which is important to many users of census data.

The Fife Arabic Society has welcomed the fact that an Arab tick box is provided, for the first time in a Scottish census. The present label on the “Arab” tick box is worded in the way that the Society requested of the Registrar General. But I regret that, for the reasons I have explained, it is not possible to go further to meet the Society’s wishes.

Paragraph 16: Language

The Convener indicated that he preferred the clear and simple way in which the census in England and Wales was proposing to ask about language.

In England and Wales, there are 2questions: “What is your main language?” and “How well can you speak English?” – with the secondquestion to be answered only by those whose main language is not English. These are undoubtedly simpler than the 3Scottish questions. But they would not provide the information sought by users of census information in Scotland. In Scotland, the demand is for a variety of information, not focussed on a person’s main language, which is met in the following way by the proposed questions:-

  • The question at paragraph 16(a) is to provide information, comparable with the 2001 Census, about Gaelic – plus parallel information about Scots (because it is the other native language included in the European Charter for Regional or Minority Languages) and English (to help identify people with little or no English language ability).

  • The question at paragraph16(b) is identical to that in the England and Wales census – but is for everybody to answer, because it is important to identify English speaking ability for those who are native speakers, because of concern about the fluency of English among the entire population.

  • The question in paragraph16(c) is designed to identify the language used at home (which may not be the firstlanguage, or preferred language, of some of the members of the household) and to identify users of British Sign Language.

The questions are undoubtedly more complex than those for England and Wales. But they have been extensively tested, most recently in the large-scale rehearsal in March2009, and subsequently in cognitive testing of an adjusted treatment of the Scots language in the questions. It is clear that people do not find them difficult to answer. The draft Order has not therefore been amended.

Paragraph 18: Health Condition

WendyAlexander MSP advocated a change to the question about long-term health conditions, particularly to identify people with autism spectrum disorder or Asperger’s syndrome.

The question has been adjusted in the revised draft Order by providing a tick box for “developmental disorder” separate from “learning difficulty” and the insertion of “autistic spectrum disorder or Asperger’s syndrome” as an example of what is meant by a developmental disorder. Examples have also been inserted for “learning disability” and “learning difficulty”.

The question seeks information about broad categories of health conditions, because it would not be possible to ask about every individual health condition, particularly physical disabilities. The original intention, trialled for example in the large-scale census rehearsal in March2009, was to ask (among other categories) about “learning difficulty”. The category was changed to “learning difficulty or developmental disorder” at the suggestion of stakeholder groups, to try and make the category more easily understood and to ensure that no relevant health condition was excluded. The change which I have now made to the draft Order carries that process of clarification a stage further, by including examples. I appreciate that the term “developmental disorder” includes health conditions besides autistic spectrum disorder and Asperger’s syndrome. But there is insufficient space on the questionnaire to list every specific health condition.

Paragraph 29: Central Heating

The Convener suggested that this census question should provide an opportunity to indicate any form of central heating powered by renewable energy.

We are very happy to accommodate this change. While there is no need to revise the wording of paragraph29 as it appears in the Order, as it does not specify the response categories, the questionnaire prescribed in the Regulations will be revised. Our provisional view is that the “Other central heating” tick box is expanded to read “Other central heating, please write in”, with a new space to write in alternative forms of central heating. We are however considering whether wording which more precisely meets the Convener’s point (perhaps “Renewable heat source”) would exclude types of central heating which do not already have tick boxes but which are not renewable. We will adopt wording along these lines if it is feasible to do so. The opportunity will also been taken to add a definition of central heating, in line with the questionnaire in England and Wales.

Estimated Household Income

Members of the Committee considered that this question was unacceptably intrusive. It has been removed from the revised Order.

Minister for Energy, Enterprise and Tourism
Scottish Government

March 2010


2 Scottish Parliament Economy, Energy and Tourism Committee. Official Report, 14 April 2010.

3 Scottish Parliament Economy, Energy and Tourism Committee. Official Report, 14 April 2010, Col 3450.

4 Scottish Parliament Economy, Energy and Tourism Committee. Official Report, 14 April 2010, Col 3448.