The Rise of Facts in Public Law III: Systemic Challenges to Regulatory Regimes

In a draft book chapter I am working on with co-author Kseniya Kudischeva, we discuss the increased importance of factual assessments in public law. This is the third of four substantive parts (see Part I here and Part II here). Comments and thoughts welcome.

In our increasingly complex and fast-changing world, legislatures and executives have erected increasingly complex legislative and regulatory regimes, which are often supplemented by non-binding soft law instruments.[1]

In some areas, like immigration, such regimes push up against fundamental rights. Removing migrants from a jurisdiction may upend their family lives or expose them to physical or psychological harm in their country of origin or a third country. In other areas, the regimes may create tension with the principles of administrative law, for example by authorizing the same decision-maker to perform multiple functions (say, investigation and adjudication) thereby potentially prompting a reasonable apprehension of bias, or by failing to require sufficiently robust procedures, or even by contradicting a rule set out in statute or delegated legislation.

Whether the tension is with fundamental rights or the principles of administrative law, one response is to mount a ‘systemic’ challenge to the regime. This response is facilitated by the liberal contemporary approach to standing in public law matters, so that non-governmental organizations with an interest in the regime in question (the Canadian Association of Refugee Lawyers, say, or the Public Law Project) will be able to bring systemic challenges even though they are not directly affected by the regime.[2] Of course, individuals who have a direct interest, perhaps because their rights were interfered with or they were denied a benefit or status, can also bring a systemic challenge. Regardless of the identity of the challenger, the focus of the challenge will be on the way that the system operates, the overall goal being to demonstrate that in a substantial number of cases the system generates results which infringe upon fundamental rights or the principles of administrative law. This requires, evidently, a fact-based inquiry: a judge must determine on the basis of the evidence adduced or the record (in an administrative law case) whether or not the threshold for making out a systemic challenge has been reached.

Here, again, difficulties of practice and principle arise.[3]

On the practical side, individuals and non-governmental organizations have to work extremely hard to build an evidence base or a detailed factual record to permit a court to arrive at the conclusion that there is indeed a systemic problem with the regime. From the courts’ perspective, there is the additional problem that the judge necessarily gets only a partial glimpse of the reality of the regime at issue. Judicial review is not an exercise in ethnography or social anthropology in which the judge embeds themselves in day-to-day operations on the front line of public administration. Rather, the judge must make a determination on a balance of probabilities based on incomplete information. Again, there are no binary decisions here, only difficult evaluative judgements.

On the principled side, these regimes have many moving parts. As a consequence, when a fundamental right or a principle of administrative law is breached by the operation of the regime, it may be hard to identify the source of the violation: does it lie in the legislation itself, or in the operation of the legislation by an administrative actor? If there is an agreed statement of facts about the regulatory regime operates, making these determinations is easier, but where the legislation is operationalized by administrative actors using administrative policies, the picture becomes much less clear.[4] And if a violation is established and the source identified, a court must decide on the appropriate remedy: is redress for the individual concerned sufficient, or must the entire edifice of the regime be brought crashing to the ground? Where systemic challenges succeed, difficult questions often arise about their implications for cases decided and things done under the regulatory regime.[5]

Two responses are evident in recent jurisprudence: to limit the scope of systemic challenges; and to require the demonstration of a causal link between the operation of the regime and the breach of fundamental rights or principles of administrative law in individual cases.

The most obvious response is to limit the scope of systemic challenges. The recent decision of the United Kingdom Supreme Court in R (A) v Secretary of State for the Home Department[6] is instructive. In a series of prior decisions, the English courts had treated as unlawful any policy which “is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision-making”.[7] This “unacceptable risk” test, Lord Sales concluded, is too loose. Instead, a court may intervene only “when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others”.[8] Only if the policy “directs” officials “to act in a way which contradicts the law” will it be found to be illegal.[9] The difficulty with the lower courts’ approach was the emphasis on risk, which amongst other things drew judges into the difficult territory of trying to quantify how often the regime produced problematic results. Lord Sales did not evacuate quantitative considerations from the analysis entirely, so “the significance of the [Salesian] restatement … will depend on how important quantitative considerations turn out to be in practice”.[10] But Lord Sales’s intention was clearly to limit the scope of systemic challenges by making them turn on qualitative considerations about whether a regulatory regime positively authorizes or approves unlawful conduct, not quantitative considerations about how often unlawful conduct occurs in practice in a regulatory regime.

Another recent decision, from Canada, exemplifies the insistence on the demonstration of a causal link. The applicants in Canada (Citizenship and Immigration) v. Canadian Council for Refugees[11]challenged the operation of the so-called Safe Third Country Agreement entered into by Canada and the United States. Certain refugee claimants who arrive in Canada via a designated third country are ineligible to seek asylum in Canada.[12] The criteria for designation include adherence to the Refugee Convention and the Convention against Torture, as well as the third country’s human rights record.[13] Designations are subject to “continuing review”.[14] The United States is a designated third country[15] and so certain refugee claimants arriving in Canada from the United States are turned away at the border and sent back to the United States.

The challenge to this regime based on the physical and psychological harm suffered by refugee claimants turned away at the Canadian border succeeded at first instance.[16] But the Federal Court of Appeal allowed the government’s appeal, on the basis that the challenge was misconceived. In essence, the challengers aimed at the wrong target by relying on the evidence of individuals who had suffered harm due to the operation of the regulatory regime. They should, rather, have contested the lawfulness of the continuing review of the designation of the United States, because it would have been the failure of this “safety valve” which caused the harm suffered.[17] Stratas JA took the view that the challengers had violated two inter-related principles: first, “[l]egislative provisions in an interrelated legislative scheme cannot be taken in isolation and selectively challenged”, as the isolated provisions may not have caused the harm complained of; second, “[w]here administrative action or administrative inaction under legislation is the cause of a rights infringement, it, not the legislation, must be challenged”.[18] Here, the “real cause” of the harm complained of was the misfiring of the safety valve:[19] the focus on individual claimants made it impossible to draw “system-wide inferences” about whether it had been appropriate to designate the United States[20] and directed the court’s attention way from the proximate cause of the alleged Charter violations, which was “how administrators and officials are operating the legislative scheme, not the legislative scheme itself”.[21] Causation, then, is key, with ‘systemic’ challengers required to demonstrate a link between the harm complained of and the operation of the regulatory regime responsible.[22]

The effect of limiting the scope of systemic challenges and requiring a causal connection is to ensure a properly tailored record for decision. By putting the focus on qualitative rather than quantitative considerations, Lord Sales’s new test for the scope of challenges to administrative policies would produce a less sprawling record: if quantitative evidence is less relevant, less of it should be generated. Similarly, one of Stratas JA’s concerns about the failure to think seriously about causation was that it would lead to “the creation of an unduly artificial and narrow evidentiary record”.[23] The plea here, from both sides of the Atlantic, is for systemic challenges to be properly tailored, with an evidentiary record which hones in on the proximate cause of any breach of fundamental rights or the principles of administrative law, allowing for appropriate relief to be granted. This also allows for the provision of appropriate remedies: rather than causing the whole system to grind to a halt or occasioning a root-and-branch reform of the system, a declaration or quashing order can be directed to the source of the harm, allowing those responsible to take rapid remedial action.

Again, the rise of facts requires responsiveness on the part of courts to the practical and principled difficulties thrown up by systemic challenges to the operation of regulatory regimes.

[1] See e.g. Richard Rawlings, “Soft Law Never Dies” in Mark Elliott and David Feldman eds., The Cambridge Companion to Public Law (Cambridge University Press, Cambridge, 2015).

[2] See generally, Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021), chapter 6.

[3] See further Jason Varuhas, “Evidence, Facts and the Changing Nature of Judicial Review”, U.K. Const. L. Blog (15th June 2020) (available at https://ukconstitutionallaw.org/)).

[4] See e.g. Langlois c Commission municipale du Québec 2021 QCCS 2725.

[5] See e.g. House of Commons Library, Research Briefing: Employment tribunals after R (Unison) v Lord Chancellor, 5 November, 2018, discussing the implications of the decision in R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869.

[6] [2021] UKSC 37.

[7] R (Suppiah) v Home Secretary [2011] EWHC 2 (Admin), [137].

[8] [2021] UKSC 37, [8].

[9] [2021] UKSC 37, [41].

[10] Paul Daly, “Firming Up Judicial Review of Soft Law” (2022) 72 Cambridge Law Journal 1.

[11] 2021 FCA 72. Note that the Supreme Court of Canada has granted leave to appeal this decision of the Federal Court of Appeal.

[12] Immigration and Refugee Protection Act, SC 2001, c 27, s. 101(1)(e).

[13] Immigration and Refugee Protection Act, SC 2001, c 27, s. 102(2).

[14] Immigration and Refugee Protection Act, SC 2001, c 27, s. 102(3). See further, Directives for Ensuring a Continuing Review of Factors Set Out in Subsection 102(2) of the Immigration and Refugee Protection Act with Respect to Countries Designated Under Paragraph 102(1)(A) of That Act (2015), P.C. 2015-0809; Immigration, Refugees and Citizenship Canada, Monitoring Framework for the U.S. Designation As a Safe Third Country, June 2015.

[15] Immigration and Refugee Protection Regulations, S.O.R./2002-227, s. 159(3).

[16] 2020 FC 770.

[17] 2021 FCA 72, [70].

[18] 2021 FCA 72, [58].

[19] 2021 FCA 72, [74].

[20] 2021 FCA 72, [78].

[21] 2021 FCA 72, [89].

[22] See also R (TN (Vietnam)) v Home Secretary [2021] UKSC 41, [87].

[23] 2021 FCA 72, [58].

This content has been updated on May 5, 2022 at 17:46.