Public law specialists have asked the Office for Statistics Regulation to urgently review ‘flawed’ statistics being used by the government to justify reforming judicial review.
The government is currently consulting on a raft of reforms. These include 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 12 out of 5,502 applications for a Cart JR since 2012 have been successful.
The review’s report states that the 12 represent 0.22% of all applications for a Cart JR since 2012. However, PLP says the 0.22% figure is ‘entirely incorrect and misleading’.
In a letter to the OSR director general Ed Humpherson, PLP says: ‘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.’
PLP says it is concerned that the government’s proposed reforms are based on an ‘obviously flawed statistic’ and also raises concern about unpublished data submitted to the independent review. The OSR is asked ‘to urgently review the use of statistics in this ongoing process’.
A Ministry of Justice spokesperson said: 'We are extremely grateful for the detailed analysis of the IRAL panel and are continuing to gather more evidence through our consultation on judicial review.'
The department disagreed with PLP's assessment that the review panel's Cart recommendation was wrong and said the evidence suggests a large number of Cart JRs do not make it past the permission stage and those cases would not be included in the database cited.