A Framework of Systemic Unfairness, Access to Justice, and Futility

A Framework of Systemic Unfairness, Access to Justice, and Futility Presented by: Mr. Abi Date: March 9, 2024 Background: Systemic Unfairness as key to Access to Justice Litigation The Rise of Systemic Challenges - Sedley LJ, Refugee Legal Centre [2004, CA], [7] • "We accept that no system can be risk-free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects." - >>> overcomes individual harm focus in domestic JR - >>> could it also be used in designing governing structures for individual redress online? Access to Justice & Systemic Challenges - Systemic challenges were further developed in Unison SC - Crystallization: key issue is the risk of futility of attempts to enforce right with important (social) consequences • "It is not only when fees are unaffordable that they can prevent access to justice. They can equally have that effect if they render it futile or irrational to bring a claim" (Unison, 96) - Futility: "pointlessness or uselessness" [OED] - Key to modelling claimant behaviour and system-level incentive structures - A2J becomes a concrete review standard, which can (in principle) be measured - Whether a policy denies access to justice is determined by two factors: • Access to Justice Risk = Risk of Futility x Cost of Futility Risk of Futility - Individual Incentives - System Level Incentives Individual Incentives to Launch Claims - Simple economic models of choice under uncertainty as framework for understanding key incentive structures - Economics 101: "Choose the feasible option that gives the highest expected utility" • What are the set of options available to an individual? (Pathways to Justice literature)  Affordability (Unison)  Ability (S, Rights of Women, Leech, Simms) • What is the net benefit of engaging with a particular alternative?  Costs relative to Benefit (see Gramatikov (2011) for review of relevant costs): Unison - Building on "Paths to Justice" and "Legal Needs" literature (Genn, Pleasence, Tilburg) System-Level Incentives: Vindicating a Meritorious Claim - Can the law be applied correctly to the facts of the case? • Requirement to be able to put case effectively  Hearings: when important facts are disputed and when significant explanation needs to be heard orally to be accepted (e.g. Osborne, Tabbakh)  Representation & Legal Aid: when issues are too factually/legally complex for an individual to present their own case (e.g. Gudanaviciene, S, Howard League, Ben Hoare Bell, Law Society)  Fast Tracks & Time Limits: case management does not provide sufficient opportunities to put case (e.g. Refugee Legal Center, Medical Justice, Detention Action, TN(Vietnam), US(Pakistan)) - Case handling and training Cost of Futility - Futility has important consequences when inability to vindicate rights has either: • High Social Cost  Public Goods & Positive externalities - deterrence & precedence o The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor's own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people. Unison, [70] - Implication: heightened review standard if large number of claims affected Broader Implications Access to Justice as Low Futility Risk: Implications - Reforms to the Justice System • Austerity • Digitalization: from lodging claims through to processing & adjudication  Including since 2017 Publication of ET Judgments - - Guidelines for Reform Design • Impact Assessment (RF) • Design of Data Collection Accountability: Review Standard • Parliamentary Scrutiny • Judicial Review