Two stage test for invalidating a law australia
Currently in UK public law, rationality review is understood in the following ways: (1) Rationality as indistinguishable from reasonableness.It is quite common in UK public law to use the terms ‘reasonableness review’ (or case (1984) that made the most significant contribution to enshrining the conceptual mistake of seeing reasonableness and rationality as indistinguishable.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’.(2) Rationality as a distinct ground of review that, compared to reasonableness, sets a lower hurdle for the administrative body.For this view see also in , where Lord Sumption held that ‘a test of rationality…imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse’ ( (2018), especially by Lord Carnwath and Lord Sumption who asserted that it is irrational to treat like cases differently – if there is no ‘objective justification’ for the different treatment .A test of rationality, by comparison, applies a minimum objective standard to the relevant person’s mental processes’ (para 14).
At the same time, the meaning of ‘rationality’ as ground of review is far from clear. (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.With respect, arguing that it is unreasonable or irrational to not take all relevant considerations into account is conceptually confusing and in fact misguided.It is not more helpful than arguing that it is unreasonable or irrational to take irrelevant considerations into account, act in bad faith, be in a state of conflict of interests, act for an improper purpose etc.