Two stage test for invalidating a law australia
This approach, albeit within a specific context, was taken by the Supreme Court’s in its decision in (2015), according to which a demand to base a decision on ‘reasonable grounds’ sets a higher hurdle than ‘mere rationality’ (paras 91, 129).
(3) Rationality as a ground of review that focuses on the decision-maker’s ‘mental process’ as opposed to reasonableness review that focuses on the outcome – i.e. See for example Lord Sumption’s view in (2013) that ‘reasonableness is an external, objective standard applied to the outcome of a person’s thoughts or intentions…
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.
The problem is that not taking all relevant considerations into account is a distinct, well-established ground of judicial review in public law.
Rationality is a well-established ground of judicial review in UK public law.
At the same time, the meaning of ‘rationality’ as ground of review is far from clear.
At the core of its reasoning, the court equated rationality with the duty to take into account all relevant considerations.
In other places in the judgment rationality was also equated with reasonableness.
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).