The Office for Statistics Regulation (OSR) has rebuked the Ministry of Justice (MoJ) and the Faulks review of administrative law for issuing “overly simplistic” figures to support the case for reform of judicial review.
It follows a complaint submitted by the Public Law Project (PLP) about the claim that only 0.22% so-called Cart judicial reviews were successful.
A Cart JR is a challenge to an Upper Tribunal decision to refuse permission to challenge a First-Tier Tribunal decision, where there is no further right of appeal to the Court of Appeal.
The independent panel headed by Lord Faulks recommended removing Cart jurisdiction, citing its analysis that out of 5,502 such cases, only 12 were upheld.
In agreeing to take this forward, the MoJ said: “Cart judicial reviews, which stand hardly any chance of success, were found to have led to delays with the swift processing of immigration and asylum cases, with last-minute challenges often made to frustrate the removal of people with no right to be in this country.”
PLP research director Dr Joe Richardson complained to the OSR, writing: “The figure 0.22% is entirely incorrect and misleading. The core of the problem with the figure is that it is built out of reported cases, of which there were only 45 found by the panel.
“On the basis of the outcomes the panel had access to via legal databases, the success rate figure would be 12 out of 45 cases, not 5,502. This would represent a much higher success rate of 26.7%.
“The figure being relied on artificially deflates the actual success rate in reported cases by taking 5,457 cases and assuming they were all failures. There is no basis for that assumption.”
In his response today, Ed Humpherson, the OSR’s director general for regulation, said that while it was “not usually within our remit to comment on the use of statistics in independent reviews”, the OSR agreed that “the main assumption that underpins the analysis – that all unreported Cart cases are failures – is overly simplistic”.
He said it was clear from evidence that some unreported cases have successful outcomes.
“It would have been helpful if the report had discussed the limitations of the analysis, including the rationale for the assumption.”
Mr Humpherson said the OSR supported the call of Oxford University academic Dr Joanna Bell for better data on this topic and “will raise the issue with the Ministry of Justice”.
He said the MoJ has “agreed to review how the data are presented in its publications and the associated caveats” and would examine the possibility of collecting improved data “in the longer term”.
Notably, Mr Humpherson’s letter initially said the MoJ “agreed with our view that the reported cases figure used by the panel was too limited” – but he quickly sent a revised version that removed that line.
Dr Tomlinson said the Faulks report was “an otherwise thorough piece of work”, but said this was “a poor conclusion drawn from inadequate data which was then unfortunately relayed to Parliament and the media” by the MoJ.
The PLP said the OSR letter made the case for publishing all the unseen government submissions and data to the Faulks review “even more compelling”.
Individual departments have refused to do so, with the MoJ claiming that publication would undermine collective cabinet responsibility.
Dr Tomlinson said: “Transparent policy-making is essential in constitutionally important reform. This level of secrecy is unnecessary and undermines confidence in the process. This evidence should simply be published in full so there can be an informed debate.”
We have approached the MoJ for comment.