The Ministry of Justice has maintained that it is ‘closely scrutinising’ disputed figures being used to justify a significant judicial review reform that would restrict a particular avenue to challenge government decisions.
The government is currently consulting on reversing the effect of the Supreme Court’s 2011 judgment in Cart, which would prevent Upper Tribunal appeals being subject to judicial review, after the Independent Review of Administrative Law assessed that only 12 out of 5,502 applications for a Cart JR have been successful, which represents 0.22% of all applications for a Cart JR since 2012.
Public Law Project, a strategic litigation firm, says the 0.22% figure is ‘entirely incorrect and misleading’, and has asked the Office for Statistics Regulation to investigate the data being used in the JR process.
PLP told the statistics regulator: ‘The core of the problem 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. Furthermore, Cart cases are not generally reported because they go through a specific procedure, the dynamics of which means reported successful cases are unlikely.’
Yesterday, the Ministry of Justice held a workshop to discuss the government’s Judicial Review Reform consultation, where officials acknowledged that there was a ‘lot of concern’ about the 0.22% figure - and said the department was ‘closely scrutinising the figures as we are going into these proposals’.
MoJ officials told the workshop that Cart JRs represent the largest proportion of judicial reviews, averaging nearly 800 applications per year. ‘Analysing all available Cart JRs since it has been available, in 12 instances there was an error of law - the rate they [the IRAL panel] concluded to be 0.22% of all JRs… Every Cart JR needs to be considered by a High Court judge. There is a considerable resource cost attached to each application.’
One attendee asked the department to release the data on the outcomes of the 5,502 Cart JR claims that were lodged, not just the 45 reported ones. Another questioned the definition of a successful Cart JR. The department was also asked about negotiated settlements. MoJs officials spoke of 'whole process success' and that JR settlements were a ‘notoriously difficult area to get empirical evidence on’.
The government’s consultation closes next Thursday.