Legal Affairs Correspondent
The ban on gays serving in the armed forces was brought into question last night after stinging criticism of the service chiefs by a High Court judge who had been asked to overturn the policy.
Lord Justice Simon Brown said it was with "hesitation and regret" that the court decided it could not overturn the ban. "The tide of history is against the Ministry of Defence. Prejudices are breaking down - old barriers are being removed," he said.
"It seems to me improbable, whatever this court may say, that the existing policy can survive much longer. I doubt whether most of those present in court believe otherwise.
"The decision upon the future of this policy must still properly rest with others, notably the Government and Parliament. But I make no secret of this: my greatest concern in leaving the matter this way is lest the policy's human rights dimension becomes depreciated once the court's doors are closed.
"There is little in the evidence before us to instil confidence that the fundamental human rights of these applicants and others like them will be fully and faithfully recognised elsewhere."
Later this year, a Commons select committee is to consider the policy - which leaves Britain virtually isolated in the Western world - and the Government will decide whether to renew the ban when it passes a new Armed Forces Bill next year.
Labour and the Liberal Democrats both oppose continuation of the ban.
The four service people who had applied for judicial review of the ban after being forced to leave the forces because of their sexuality despite impeccable records were given leave to take their case to the Court of Appeal. The MoD refused to let them take the appeal straight to the House of Lords. If the Lords upholds the ban, the case will be taken to the European Court of Human Rights. The Defence Minister, Roger Freeman, welcomed the decision not to overrule the ban, and emphasised that the MoD remained committed to its policy. Service chiefs argue that homosexuality could corrupt young soldiers, and undermine morale and efficiency. "That remains the advice of the chiefs of staff," Mr Freeman said. "But we will need to study what the judges said very carefully. They implicitly called for a review of the system." If the Government does seek to remove the ban, it will clearly face opposition from its own MPs. Julian Brazier, a vice-chairman of the Tory backbench defence committee, welcomed yesterday's ruling: "The vast majority of people in the armed forces will b e relieved because most serving forces personnel do not want to share their homes with practising homosexuals." The application for judicial review even divided the two judges hearing the case. Mr Justice Curtis, while echoing the call for a review of the policy, said: "I do not hold the opinion that the balance of the argument lies with the applicants or that the decision of the Armed Forces is doomed to die an early death or is necessarily wrong." The three men and a woman bringing the action were a former lieutenant-commander, Duncan Lustig-Prean, 36, from London, a former RAF ser-geant Graeme Grady, 32, from London, a former RAF nurse Jeanette Smith, 28, from Edinburgh, and a former Royal Navy w eapons engineer John Beckett, 25, from Sheffield. All had civilian partners. If they win in a higher court, the MoD will be liable to pay damages to an estimated 250 more servicemen forced to leave because of their sexuality.Reuse content