Legal Affairs Correspondent
Army regulations allowed men on National Service to be homosexual, the Ministry of Defence conceded yesterday at the Court of Appeal.
The admission that gays had served in the forces in the past without undermining morale or discipline came on the third day of the latest legal stage of an attempt by four former servicemen and women to overturn Britain's blanket ban on homosexuals in the armed forces.
Earlier in the hearing, the Master of the Rolls, Sir Thomas Bingham, had asked if there had been a ban on homosexuality when he had been serving, because he could not recall one.
Answering Sir Thomas's question yesterday, the MoD's counsel, Stephen Richards, said compulsory National Service for all men, which ended in 1961, was covered by Acts passed in 1939 and 1948. He said: "There were no provisions to cover homosexuality." He said the list of exceptions including priests, lunatics and conscientious objectors."
But he said there was "anecdotal evidence", although no "concrete examples", that some people had been able to avoid national service by saying they were gay. He said homosexuality was illegal at that time, so it seemed that most people just kept quiet about it.
The four appellants are claiming that the ban on homosexuals is irrational, and breaches Equal Treatment directives under the European Union, and Britain's obligations under the European Convention on Human Rights.
In his closing submissions yesterday their counsel, David Pannick QC, said no evidence had been put forward during the hearings that there was a good reason to ban gays from the services. All the arguments related to behaviour, which could be governed by regulations without the need for a blanket ban.
Mr Pannick said the MoD had argued that gays could not be allowed because other members of the forces did not want to serve alongside them. "These feelings undoubtedly exist, but there has been no evidence that they are based on any reasonable concern. If they are simply based on bigotry, they are unacceptable." He said feelings had probably existed against serving alongside black people, but no one would suggest these should be used as the basis to ban black servicemen and women.
The MoD has argued that to lift the ban would seriously risk damaging the forces' fighting efficiency, and does not breach either treaty obligation.
The case was rejected by the High Court in June, although one of the judges, Lord Justice Simon Brown, said he doubted the ban could survive much longer.
The MoD subsequently commissioned a review of the evidence, and is looking at the operation of other armed forces which do not ban gays. Britain is virtually alone among Nato allies in retaining a ban.
The four appellants are Duncan Lustig-Prean, 36, a former lieutenant commander in the navy; Graeme Grady, 32, formerly a sergeant in the RAF; Jeanette Smith, 28, an ex-RAF nurse, and John Beckett, 25 a former navy weapons engineer. All had civilian partners when they were discharged, and all had good service records.They have said they will take their case to the House of Lords if they are turned down by the Court of Appeal.
The hearing ended and the judges reserved their judgment.Reuse content