Even before the passing of the Human Rights Act in 1998, the UK courts were becoming uneasy with the rigidity of the Wednesbury approach which meant that so long as the procedure for decision-making had been properly observed, it was very difficult to challenge even quite questionable decisions. To deal with this they developed the doctrine of “anxious” or “heightened” scrutiny of the reasonableness of decisions in areas that affected human rights.11
A number of High Court judges here have suggested that the “anxious scrutiny” test might be more appropriate than the O’Keeffe standard in leave applications in asylum
cases12 but the issue is still not fully resolved. Gilligan J. certified an appeal to the Supreme Court in the case of Meadows v. Minister for Justice, Equality and Law Reform13 in November 2003 on the question of whether “in determining the reasonableness of an administrative decision which affects or concerns constitutional rights or fundamental rights is it correct to apply the standard as set out in O’Keeffe v An Bord Pleanala  1 I.R. 39”, but this does not seem to have been decided as yet.
Outside the asylum area the “anxious scrutiny” test has not made much progress in the Irish courts.
In any event, “anxious scrutiny” was not enough to satisfy the European Court of Human Rights and in the case of Smith and Grady v. The UK14in 1999, the Strasbourg Court held that Judicial Review did not provide an effective remedy as required by Article 13 of the Convention because “it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued.” The case concerned a ban on gays and lesbians serving in the British armed forces.
In deciding whether executive or administrative decisions or actions were in breach of the European Convention, the European Court of Human Rights used the doctrine of proportionality, i.e. if a decision interfered with a person’s rights under the Convention, the Strasbourg Court asked a sequence of questions: did the interference pursue a legitimate aim; did it meet a pressing need in society; and was it proportionate in all the circumstances?
11 R v. Secretary of State for the Home Department ex parte Bugdaycay  1 AC 514
12 I (V) v. Minister for Justice, Equality and Law Reform & The Refugee Appeals Tribunal  IEHC 150 (Clarke J.) 10 May 2005; Ogunyemi v. The Refugee Appeals Tribunal & Another  IEHC 203 (McGovern J.) 30 June 2006; KCC v. Minister for Justice, Equality and Law Reform  IEHC 176 (McGovern J.) 2 March 2007
13 Meadows v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General  IEHC 79, 19 November 2003
14 Smith and Grady v. UK (1999) 29 EHRR 493