Systemic Unfairness

July 24th, 2020 by James Goudie KC

As an aspect of the rule of law, it is for the Court to assess what fairness requires. That is to be determined in the particular case-specific context. So too the Court will determine in that context whether the procedure adopted meets those requirements. This is the case both when an individual decision is challenged and when a challenge is advanced on the ground that the arrangements themselves are systemically or inherently unfair.

In R(OH) v SSHD (2020) EWHC 1912 (Admin) Johnson J, at paras 272-277, states that the test to be applied in assessing whether a policy is systemically unfair is whether it creates a real risk of unfairness in a significant number of cases. In some cases it may be possible to demonstrate that the test is met by reference to the wording of the policy.

Otherwise, systemic unfairness should not be found unless there is a sufficient evidential basis for concluding that unfairness is inherent in the situation. Consideration of the application of the policy against every possible factual permutation is unnecessary. A policy is systemically unfair if significant categories of cases can be demonstrated where there is a real risk of more than a minimal number of procedurally unfair decisions resulting from the policy.

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