First Class Administrative Law Notes that can be used to frame any essay question they could throw at students.
These notes are the product of highly extensive further reading of every article and case note for the Systemic Review topic (via Westlaw and Lexis Nexis as well as other legal sources...
Essay Plan
Thesis: The historic uncertainties associated with SPR have been dispelled by the recent cases of R(A) and
BF(Eritrea).
1. General SPR Definition and Thesis/Intro
2. Detail original test and how it was limited
3. Rationale - good things about it
4. BUT illegitimacies and why the original test was changed recently
1. Good thing, but
2. Remaining uncertainties - state of SPR is unclear, await decision from apex court as to the
future of SPR
Structured Procedural Review
Legitimacy/Rationale
1. FACILITATES ACCESS TO JUSTICE
Intuitively Attractive: Access to Justice
a. Rectifying inherent effects in administrative procedure which produce extensive injustice and error is inherently
attractive, particularly for vulnerable individuals who face a multitude of barriers to “access to justice”. In
acknowledging that application of the law does not always guarantee equitable treatment, SPR reflects the
reality of the juridifed bureaucratic state of rule-makers as chief decision-makers (Lord Dyson in Detention
Action); perhaps through statutory instruments or softer-forms of policy guidance. As Harlow and Rawlings
highlight, the rise of automated decision-making reinforces this argument.
b. As per the "toothpaste theory", it is unsurprisingly to see increases in systemic forms of JR consequent to sharp
pressures on legal aid
c. Efficiency argument to buttressing access to justice:Not everyone will come forward;Not everyone can afford
such litigation
d. Access to justice: drawn attention to group pattern nature of impact of decision-making and the root-based
nature and effect of administrative law decision-making
e. Barriers to justice will rarely be characterized by a single decision: "paths to justice" (Glenn 1999) are notable for
the complex interaction of multiple factors
f. Given the variability of individual paths to justice, the impact of a new policy will be heterogeneous: not
everyone subject to short time limits, for example, will be exposed to the same risks of unfairness (Balmer and
Pascoe 2019)
Ex-ante tool: Important Implications of ‘risk of unfairness’ emphasis over ‘realisation of risk’
It enables challenges to policy, including pre-emptive challenges, without the identification of specific instances
where problems have materialized (Medical Justice n 23).
This doesn’t mean that the courts are suddenly to try hypothetical cases: systemic challenges are designed to
‘obviate in advance a proven risk of injustice’ (Refugee Legal Centre)
The absence of specific instances of unfairness or unlawful decision making furthermore requires a significant
level of risk before systemic unfairness can be made out: “no system can be risk free” as a result of which “the
threshold… is a high one”.
The risk, finally, must inhere in the policy itself. Demonstrating even a high level of risk is not enough to succeed
if it merely reflects ‘the ever-present risk of aberrant decisions’ (Tabbakh): “there is an obvious but important
difference between a scheme or system which is inherently bad or unlawful on that account, and one which is
being badly operated” (S CA).
That difference is the existence of a policy mechanism which drives the risk of unfairness. In practice, identifying
such a policy mechanism as the 'decision, action or failure to act in relation to the exercise of a public function'
(CPR) under review requires 'consideration and analysis of the scheme itself, and the identification of what,
within the scheme, gives rise to the unacceptable risk".
Ex-post considerations: Detention Action
As well as ex ante elements
Present evidence
, In scrutinizing governmental policy for violation of the right of access to justice, it will furthermore frequently be
necessary to look beyond harm that has already materialized.
2. SUCCEEDS WHERE JR PREVIOUSLY FAILED
Problems with traditional JR
a. Barriers to justice will rarely be characterized by a single decision: "paths to justice" (Glenn 1999) are notable for
the complex interaction of multiple factors
b. Given the variability of individual paths to justice, the impact of a new policy will be heterogeneous: not
everyone subject to short time limits, for example, will be exposed to the same risks of unfairness (Balmer and
Pascoe 2019)
Provides a dual form of control:
SPR is a creative response to the limits of “downstream” forms of procedural review which are purely directed at
individual decisions within the administrative process. As Galanter 1974) submits, practically it means that a
“dual form of control” to rectify “proven in-built risk” and the “actual realisation harm for one-shotters and
repeat-players”.
This systemic approach has allowed courts to address the issues associated with the review of administrative
systems, discussed in the previous section. Litigation has often been led by public interest groups representing
vulnerable and marginalised segments of the population who would not otherwise be able or willing to seek
review. Moreover, review is concerned directly with sources of error within systems through the focus on
unacceptable risk. These developments also highlight the forward-facing nature of judicial review, which seeks
not only to prevent unlawful- ness but also to encourage good administration;34 systemic challenges may be
made before downstream error has occurred (although instances of downstream error may be advantageous in
terms of evidence gathering and system auditing) and so SPR can prevent, rather than merely remedy, harm.
APPROACH TO SPR
1. Unacceptable Risk of Unfairness
This complementary ground of review expands judicial review to include “the risk of harm” rather than its
mere realisation, asking whether that risk “is inherent in an overall policy, rather than an individual decision
maker’s exercise of her discretionary power”.
Refugee Legal Centre: Original Test
Whilst ultimately convinced that the system was of sufficient flexibility to avoid an
“unacceptable risk of unfairness” to these individuals, a new ‘vista’ of judicial supervision
was nonetheless cultivated: “potential unfairness is susceptible to… judicial review… to
obviate a proven risk of injustice which goes beyond aberrant interviews or decisions and
inheres in the system itself”.
That is, ex-post scrutiny of decisions is not always sufficient on its own: “it will not necessarily
be an answer, where a system is inherently unfair, that judicial review can be sought to
correct its effects”; “there has to be in asylum procedures, as in many other procedures, an
irreducible minimum of due process”. So, instead of targeting individual, aberrant decisions,
claimants must point to a mechanism inherent in a policy, which gives rise to an
unacceptable risk of unfairness.
Concerned with a challenge an early-version of the fast-track (three-day) process (FTR) of
asylum adjudication for single male asylum seekers with straightforward cases, asked
whether the system provided “a fair opportunity for asylum seekers to present their case”,
framing the inquiry in terms of judicial assessment of risk
More stringent in Detention Action:
The test was held to be as follows: In considering whether a system is fair, one must look at the full run
of cases that go through the system. A successful challenge to a system on grounds of unfairness must
(1) show more than the possibility of aberrant decisions and unfairness in individual cases; (2) A system
will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (3) the
threshold of showing unfairness is a high one; (4)The core question is whether the system has the
capacity to react appropriately to ensure fairness... And (5) Whether the irreducible minimum of
fairness is respected by the system and therefore lawful is ultimately a matter for the courts.”
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