Published:  11th June 2021

If figures we can see are wrong, what about the figures we can’t see?

  • Last week in response to an FOIA request from PLP, the MoJ cited the convention of collective cabinet responsibility as it refused to disclose Whitehall departments’ full submissions to the Independent Review of Administrative Law (IRAL).


Joe Tomlinson, Public Law Project Research Director, said: “The Government is using incorrect data to justify reforms that will restrict how it, and future governments, can be held to account. Correspondence we received from the OSR confirms that.

“Just a few days before the OSR wrote to us, the Ministry of Justice refused to publish the Government’s own submissions to the IRAL. In the light of the letter from the OSR, the case for publishing all the unseen Government submissions and data has just become even more compelling.

“There is a clear public interest in making these submissions available for public scrutiny. The claim that publication would undermine collective cabinet responsibility seems very difficult to sustain.

“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.”

Office for Statistics Regulation: JR data based on “overly simplistic” analysis

The statistics regulator wrote to PLP on 10 June to say that Cart judicial review data supplied by the MoJ to the IRAL was, even by the MoJ’s admission, too limited, and that the analysis applied to that data by the IRAL was “overly simplistic”.*

In March this year, the IRAL reported that out of 5,502 Cart judicial reviews brought between 2012 and 2019, only 0.22% were successful. The Lord Chancellor later told Parliament that this was “an astonishingly low rate”. But in a letter to the Public Law Project, the OSR described the assumptions underpinning the 0.22% claim as “overly simplistic”.

The 0.22% claim was based on analysis of figures supplied by the Ministry of Justice which has, according the OSR, agreed to review how it presents data and look into collecting “improved data in the longer term.”

Joe Tomlinson, Research Director at the Public Law Project said: “As we have previously stated, the claim about Cart JRs was deeply misleading. It was based on the incorrect assumption that, aside from the 12 successful Cart judicial reviews that were reported, all the other 5,490 had failed. The IRAL report is an otherwise thorough piece of work despite the limited time it had to do its job, but this was a poor conclusion drawn from inadequate data which was then unfortunately relayed to Parliament and the media.

“In his opening statement to Parliament about the IRAL report, the 0.22% figure was the only statistical data about judicial review to which the Lord Chancellor referred. This incorrect claim also featured prominently in the Ministry of Justice press release and was reported in the national press. This presented parliamentarians and the public with a distorted view of judicial review.

Whitehall evidence kept from public scrutiny

Following PLP’s request to publish the IRAL submissions of all Government departments in full, on June 2 the Ministry of Justice responded by publishing a small selection of data from just four central Government departments: BEIS, DHSC, FCDO and the OAG. No data were provided from the Home Office, despite PLP’s specific request to disclose data relating to the claim that the department spent £75 million in 2019-20 to defend judicial reviews and on associated damages claims.

Joe Tomlinson, PLP’s Research Director said: “From one department we have a simple table of figures with headings that are so vague that it is difficult to understand what they mean. From another we have a very detailed table of judicial review judgments going back to the 1980s, but with very different information included.

“The information disclosed is barely a fraction of what should have been published by now. It is not detailed or clear enough to give any meaningful insight as to how judicial review impacts Government departments, how policy on JR reform is being developed, which assertions have been put forward by Government departments, and on what data – if any – they are based. There is an ongoing programme of reform to judicial review, with further reform anticipated. Yet the evidence-base for that reform is still hidden from public view.”

*NB PLP received a subsequent letter from the Office for Statistics Regulation on 11 June – after our press release was issued – which removed the line: “MoJ agreed with our view that the reported cases figure used by the panel was too limited.”

Ends

Documents

  1. Office for Statistics Regulation letter to PLP, 10 June 2021
  2. Office for Statistics Regulation letter to PLP, 11 June 2021
    1. PLP’s letter to the OSR, 20 April 2021
  3. Ministry of Justice response to PLP Freedom of Information Act request, 2 June
    1. FOI response – BEIS data
    2. FOI response – FCDO data
    3. FOI response – DHSC data
    4. FOI response – OAG data

Further reading

  • “[The IRAL panel has recommended] Removing so-called ‘Cart judgments’ to prevent appeals in the Upper Tribunal being subject to judicial review in the High Court. Out of 5,502 such cases analysed by the panel, only 12 (or 0.22%) were upheld – demanding a disproportionate amount of judicial time.” Ministry of Justice press release, 18 March 2021

About the Public Law Project

  1. PLP was set up to ensure those marginalised through poverty, discrimination or disadvantage have access to public law remedies and can hold the state to account.
  2. Our vision is a world in which individual rights are respected and public bodies act fairly and lawfully. 
  3. Our mission is to improve public decision making and facilitate access to justice.
  4. Our priorities are to:
    1. Promote and preserve the Rule of Law
    2. Ensure fair systems
    3. Improve access to justice