The admission followed sharp questioning by seven judges at the European Court of Human Rights who wanted to know why an employment "code of conduct" could not deal with the armed forces' objections to homosexuals. Lawyers representing three ex-servicemen and a former RAF nurse had earlier told judges in Strasbourg that the policy contravened fundamental liberties.
Stonewall, the gay lobby group that is supporting the four who are bringing the case, claimed the Government had virtually admitted in court that it could not find any good reason "for maintaining the ban".
Stephen Grosz, a solicitor advising one of the ex-servicemen, said the Government had presented a number of "old arguments" to make its case.
"It was rather surprising that they said there was a security risk over the fact that gays could be blackmailed, because if they did not enforce the ban then it wouldn't be an issue," he said.
The Government also objected on the basis that homosexuals posed an Aids risk.
The admission of the "intrusive and indefensible" nature of the ban related to the investigation techniques used to prove the homosexuality of armed forces personnel.
Sir Nicholas Bratza, the presiding judge, wanted to know why a code of conduct for all personnel would not satisfy the Government's concerns over homosexuality in the armed forces. Mr Grosz said: "He [Sir Nicholas] needed convincing that a policy ban was necessary."
Angela Mason, Stonewall's executive director, said: "The comments of the presiding judge make it likely that the ban will be found to violate the European Convention."
However, the Government said it would fight to uphold its policy on not allowing gay men and women in the armed forces. A Ministry of Defence spokesman said: "The bar on homosexuals serving in the armed forces is not a moral judgement but an assessment of the potential impact of homosexuality on our combat forces." He would not comment on what was said at the hearing until the full judgment was given in three months.
The cases have been brought by four former members of the armed forces, Duncan Lustig-Prean, John Beckett, Jeanette Smith and Graeme Grady, who each allege that their discharge from the forces for being homosexual was contrary to the European Convention of Human Rights.
They all admitted their homosexuality and were discharged in line with the armed forces' ban on homosexual personnel. They claim that investigations into their homosexuality and their subsequent discharges violated their right to respect for their private lives, protected by Article 8 of the European Convention on Human Rights, and that they were discriminatory, contrary to Article 14.
Ms Smith and Mr Grady also complain that their investigations and discharges were inhuman and degrading contrary to Article 3 and that they did not have an effective domestic remedy concerning their complaints, as required by Article 13. They also invoke Article 10 - freedom of expression.Reuse content