Concerns have been raised about the accuracy of statistics that the Faulks inquiry into judicial review used to justify one of its two main recommendations.
Following a decision of the Supreme Court in R (Cart) v Upper Tribunal in 2011, it has been possible to seek judicial review of a decision by the Upper Tribunal to refuse permission to appeal against a decision of the First-tier Tribunal. Because this extended process had led to so few errors of law by the First-tier Tribunal being identified and corrected, the Faulks panel recommended discontinuing the practice — in other words, overturning the Cart judgment by statute.
As I reported last week, Lord Faulks QC, who chaired the inquiry, defended his reasoning after doubts were raised about the statistical underpinning of these proposals.
Now, two senior lawyers at the Public Law Project have said the panel’s research on this point was “seriously misconceived”. Over a period of eight years, it found only 12 cases out of 5,502 applications in which the courts were able to detect and correct an error of law by the First-tier Tribunal that the Upper Tribunal had failed to correct — a success rate of 0.22%.
The core flaw with the figure is that it is built out of reported cases, of which there were only 45 found by the panel.
And why did they describe this as this a core flaw? Two reasons:
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%. Why not use this figure instead? The figure being relied on artificially deflates the actual success rate by taking 5,457 cases — where we have no data on the outcomes — and assuming they were all failures. There is no basis for that assumption. What has resulted from this approach is manifestly flawed to anyone who knows this jurisdiction: the two of us know of more than 12 cases that have been successful since 2012. The best approach would be to admit that success rates are not known.
Cart cases are not generally reported because they go through a specific procedure, the dynamics of which means reported successful cases are unlikely.
I put these concerns to Faulks today. He told me:
The figures were checked and double-checked. The report must speak for itself.
Faulks noted his proposal had been supported in the House of Lords last week by one of the Supreme Court justices who decided the Cart case, Lord Hope of Craighead:
We set the bar as high as we could when we were defining the test that should be applied, but experience has shown that our decision has not worked so I agree that it is time to end that type of review.
Meanwhile, the government has been publishing some of the written submissions made to the Faulks inquiry. They include a letter from the lord chief justice, Lord Burnett of Maldon, in which he explained why he and his senior colleagues would not be submitting evidence:
We are of course acutely conscious of the need to maintain and promote judicial independence and consider it would not be appropriate for us to comment on issues which involve accumulated judicially made law, unless proposals were to be made that would adversely affect the independence of the judiciary and the rule of law.
As far as I can see, the Ministry of Justice has not yet published the summaries it has promised of evidence submitted by UK government departments. Faulks was criticised for not publishing responses to his call for evidence as they were received. In an unbroadcast passage from the interview he gave me on 19 March for Law in Action, he explained his thinking:
We were always extremely anxious as a panel that everything that people were prepared to have published should be published. Indeed, there was a website helpfully set up which contained a vast number of submissions. We also repeatedly said, during the process, that we would like the government to publish their submissions. We never received a very specific answer to that. But we repeatedly made the point. I understand now that the government submissions are going to be summarised within the next 10 days or so, in a way that’s consistent with cabinet collective responsibility.
All the points we made have been preserved in the report. There’s been no editing of it. But rather than identifying the particular government department, they’re anonymised effectively. We think it would have been helpful to put the individual government department by name, but that’s beyond our power to influence. We simply wanted, in the interest of transparency, anybody who assessed our review to know what the what the submission said — whoever they came from.
Did that mean his panel had been advised to anonymise the government departments that Faulks had wanted to name in his report?
No, we didn’t anonymise them in the report. We submitted our report. It then becomes the government’s property. We didn’t anonymise at all: we identified them specifically.
There was no change made to the content of our report where we had cited the submission of a particular government department. But, rather than naming the “department of blank”, it simply says “a government department”.
I gather there is going to be a summary of the submissions published in the next 10 days. Until I see that, of course, I reserve judgment as to whether that’s appropriate. I do understand, of course, cabinet collective responsibility. But it does seem, and it did always seem to us as a panel, very important that there should be as much transparency as possible — so that the process doesn’t become in any way mysterious.
Mysterious? That’s exactly what it will be if we don’t know what the Ministry of Justice told Faulks about judicial review in general and asylum and immigration cases in particular.