Legal background
This Act amends existing legislation. The primary legislation that provides for the taking of a census in England and Wales (and in Scotland) is the Census Act 1920 (‘the 1920 Act’). Under the provisions of section 1(1) of the 1920 Act, an Order in Council may prescribe:
The date on which the census is to be taken;
The persons by whom and with respect to whom the census returns are to be made; and
The particulars to be stated in the returns.
	The matters in respect of which particulars may be required are in turn listed in the Schedule to the 1920 Act. This specifies the following matters:
	1. Names, sex, age.
	2. Occupation, profession, trade or employment.
	3. Nationality, birthplace, race, language.
	4. Place of abode and character of dwelling.
	5. Condition as to marriage or civil partnership, relation to head of family, issue born in marriage.
	5A. Religion.
	6. Any other matters with respect to which it is desirable to obtain statistical information with a view to ascertaining the social or civil condition of the population.
	Before Parliament, the Order in Council is subject to the draft negative resolution procedure for all of these matters except those falling in paragraph 6. The latter are subject to the draft amendable affirmative procedure.
	Section 8 of the 1920 Act provides a number of criminal offences in respect of the census. It also provides an exception in section 8(1A) whereby ‘no person shall be liable to a penalty under subsection (1) for refusing or neglecting to state any particulars in respect of religion’.
	Section 8(1A) and paragraph 5A of the Schedule were inserted by the Census (Amendment) Act 2000 (insofar as the 1920 Act extends to England and Wales). Those amendments are similar to those in this Act.
	Finally, the above provisions also apply in the case of a local census ordered under section 6 of the 1920 Act.
	In Northern Ireland, the primary census legislation is the Census Act (Northern Ireland) 1969 (‘the 1969 Act’). The only relevant difference of this legislation from the 1920 Act is that its Census Order is subject to the draft affirmative procedure in its entirety.
	Sexual orientation and gender identity already fall within the Schedules to the 1920 and 1969 Acts, as both constitute ‘any other matters with respect to which it is desirable to obtain statistical information with a view to ascertaining the social (or civil) condition of the population’. However, without this amendment to the primary legislation, any such questions would be compulsory and refusing or neglecting to answer would be subject to criminal penalty.