Census faces high court challenge over right to privacy

Two men claim that granting census contract to an American company, Lockheed Martin, means private data could be shared with US government under some circumstances
Campaigners protesting about the involvement of Lockheed Martin
Campaigners protesting about the involvement of Lockheed Martin in the census last year. Photograph: Christian Sinibaldi for the Guardian Christian Sinibaldi/Guardian

A high court judge will be told on Thursday that the 2011 census was unlawful because a provision in the act that governs it allows data to be passed to third parties.

In a judicial review, lawyers representing a British Muslim and an Afghan refugee will argue that the Office for National Statistics' decision to grant a data processing contract to a UK subsidiary of the US defence contractor Lockheed Martin breaches the two men's right to privacy as guaranteed by the European convention on human rights.

The hearing before Mr Justice Beatson at the high court in Birmingham comes as more than 250 people have been prosecuted for failing to fill in the census.

Although the 2007 Statistics and Registration Service Act protects the privacy of information gathered for the census, an exemption was added that allows information to be handed over if the requesting state requires it for a criminal investigation.

Under the US's Patriot Act, the American government can compel any US company to hand over information it holds for the purposes of a criminal investigation. Lawyers for the two men argue that Lockheed Martin's UK subsidiary would be subject to that demand.

"It may be inadvertent, but there is a double loyalty," said Ramby de Mello, the lawyer representing the two men at the hearing. "We believe that the subsidiary and its parent company, which are not public bodies, are outside the reach of the Human Rights Act and the Data Protection Act."

Of the two men requesting the review, one is a British Muslim who frequently travels between the UK and Pakistan. He completed the census but is concerned that his movements between the two countries might be treated as suspicious by the US authorities and that his information could find its way to US intelligence.

The Afghan refugee, who did not complete the census, is concerned that an informed person would know from his census data that he was a refugee. A further concern is that once that information was in the hands of US authorities, which are not bound by the European human rights convention, there would be no barrier to it being passed to Afghan authorities.

"I think that the reason the exemption about disclosure was inserted into the act was to open out the tendering process to US companies who otherwise would not have been competitive," said de Mello. "If we are correct, then it would affect every other tendering process."

A spokesman for the ONS, the executive office of the UK Statistics Authority, said it would comment after the hearing.