Forces gay ban 'ripe for review' says judge

Changing the guard: While courts advocate reconsideration of 'outdated' policy, service chiefs prepare to fight for status quo

A Court of Appeal judge told the Government yesterday its ban on gays in the armed forces was "ripe for review and for consideration of its replacement by a strict conduct code".

The conclusions of Lord Justice Henry on a legal challenge to the ban confirm the outspoken views of Lord Justice Brown in the High Court earlier this year, that the Government has the legal right to dismiss gays, but that the policy is outdated and should be lifted.

In their judgment yesterday the three judges, led by the Master of the Rolls, Sir Thomas Bingham, unanimously rejected an appeal by four gay servicemen and women that their dismissal from the forces was unlawful. They had not demonstrated, as they need to under the law, that the ban on gays was an irrational policy.

The four, who all had good service records, have four weeks to ask the House of Lords to consider the case. If the Lords refuse, they have said they will go to the European Court of Human Rights in Strasbourg, where they are thought almost certain to be successful.

The Armed Forces Minister Nicholas Soames welcomed the ruling yesterday. "We are absolutely delighted that the policy of excluding homosexuals from the armed forces has been examined in great depth by the High Court and the Court of Appeal and found to be lawful and rational," he said, adding that the decision would be greeted with great relief in the services. However, he pledged that the current review of the ban would continue. The ministry will report its conclusions to a Commons select committee early next year. Both the courts have criticised the lack of evidence to back the Ministry of Defence policy.

In his judgment, Sir Thomas Bingham said: "The existing policy cannot in my judgment be stigmatised as irrational at the time when these appellants were discharged." He added: "Major policy changes should be the product of mature reflection, not instant reaction."

In the High Court earlier this year Lord Justice Brown said he refused the applications with "hesitation and regret". He said the "tide of history" was against the Ministry of Defence and predicted that the policy would eventually collapse, but said it was for Parliament and not the courts to change the law.

Duncan Lustig-Prean, a former Lieutenant Commander in the Royal Navy, fought the case with Graeme Grady, 32, an ex-RAF sergeant; Jeanette Smith, 28, an ex-RAF nurse and John Beckett, 25, a former navy weapons engineer. He said: "What I find a shame is that our admirals and generals continue to dance a hornpipe of homophobia. Discharges continue and lives are being destroyed."