Two stage test for invalidating a law australia updating clause used in instead of trigger

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[2019] (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.Equating this ground of review with ‘rationality’ adds nothing to our understanding of that ground of review.It also means that rationality review has no distinct meaning in UK public law.The court emphasised that ‘the only legal error which is alleged to have been committed is founded on the public law doctrine of irrationality’ and that rationality refers to the decision-making process, and in our case – the duty to take into account all relevant considerations (para 57).The problem is that not taking all relevant considerations into account is a distinct, well-established ground of judicial review in public law.That, according to the court, made the decision-making process irrational and therefore illegal.The court invalidated the granting of the licenses – but allowed the Secretary of State to reconsider his decision, by taking into account the historic pattern of breaches of international humanitarian law on the part of the coalition.

(4) Rationality as a mega ground of judicial review that covers more specific grounds of review such as acting in bad faith, acting capriciously or arbitrarily etc.

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 .

It is common to refer to the principle of proportionality as a four-stage test which includes legitimate aim; suitability (or rational connection); necessity (or applying the least intrusive measure); and proportionality in the narrow sense (proportionality stricto sensu).

When we apply the second stage that sets the suitability or rationality test we are asking whether the means (that is, interfering with a protected right or interest) can achieve the legitimate aim of the law or of the administrative decision.

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