Two stage test for invalidating a law australia
This case gives rise to interesting questions about justiciability, judicial deference and the scope of judicial review.Here, however, I wish to focus on the confusing yet common way in which the court used ‘rationality’ as ground of judicial review. (hereinafter CAAT), the Court of Appeal invalidated the UK government’s decision to grant licences for the sale of military equipment to Saudi Arabia for possible use in the conflict in Yemen.The court found that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance.The court repeatedly held that it was irrational to not take into account the historic pattern of breaches of international humanitarian law on the part of the coalition while making the decision about granting the licenses (paras 35, 57-59, 62, 139, 144, 145, 153).The court relied on (1977) that established the proposition that a public body has a duty to carry out a sufficient inquiry prior to making its decision.This was done by classifying the grounds of judicial review to three main categories: ‘illegality’, ‘irrationality’ and ‘procedural impropriety’; and by clarifying that ‘irrationality’ is in fact identical to ‘ unreasonableness’.
It also means that rationality review has no distinct meaning in UK public law.
The court in CAAT held that the question of whether there was a historic pattern of breaches of international humanitarian law on the part of the coalition – and Saudi Arabia in particular – was central to the estimation of the risk of future violations.
The ‘historic pattern question’, however, was not addressed by the UK Government.
If there is no rational connection of any kind between the means and the end, that is, if the means cannot or does not achieve the end, then this is a decision that no rational person could have made.
In the recent CAAT case, rationality review was applied in a rather confusing way.Currently in UK public law, rationality review is understood in the following ways: (1) Rationality as indistinguishable from reasonableness.