Forces' homosexual policy lawful

LAW REPORT: 8 June 1995

Regina v Ministry of Defence, Ex parte Smith and others.

Queen's Bench Divisional Court (Lord Justice Simon Brown and Mr Justice Curtis).

7 June 1995.

Since the minister's justification of his policy of a blanket ban on all those of homosexual orientation from the armed forces was not irrational, the court, acting within its constitutional bounds, could not find that policy unlawful.

The Divisional Court dismissed four applications of judicial review of the Ministry of Defence's policy, which was considered by Parliament every five years, to discharge homosexual men and women from the armed forces.

The applicants, a lesbian and three male homosexuals, who were discharged under the policy, challenged the legality of the policy on the grounds that it is irrational, and breached the right to respect for private life in the European Convention of Human Rights and breached the Equal Treatment Directive.

The Ministry of Defence's reasons for the policy related to morale and unit effectiveness, the special conditions of communal living and the services' "in loco parentis" role in relation to those new recruits who were under 18.

David Pannick QC and Rambert de Mello (Tyndallwoods, Birmingham) David Pannick QC and Peter Duffy (Bindmans); David Pannick QC and John Bowers (Wansbroughs Willey Hargrave, Sheffield); Laura Cox QC, Ben Emmerson and Jonathan Cooper (Tyndallwoods, Birmingham) for the applicants; Stephen Richards and Richard McManus (Treasury Solicitor) for the ministry.

LORD JUSTICE SIMON BROWN said that the relevance of the European Convention of Human Rights was stated in R v Secretary of State for the Environment, ex parte Nalgo [1993] ALP 785 which analysed the relatively limited impact which the Convention had on judicial review.

Its approach was that even where fundamental human rights were being restricted the threshold of unreasonableness was not lowered but the minister on judicial review would need to show that there was an important competing public interest which he could reasonably judge sufficient to justify the restriction.

Could the minister show an important competing public interest which he could reasonably judge sufficient to justify the restriction?

The primary judgment was for him. Only if his purported justification outrageously defied logic or accepted moral standards could the court, exercising its secondary judgment, properly strike it down.

The public interest advanced by the minister as justifying the policy was the delivery of an operationally efficient and effective fighting force. Was it reasonable for the minister to take the view that allowing homosexuals into the forces would imperil that interest?

His lordship indicated that in his opinion that was a wrong view which rested on the supposition of prejudice in others and insufficiently recognised the damage to human rights inflicted. But could it properly be stigmatised as irrational?

The protection of human rights was a matter with which the courts were particularly concerned and for which they had undoubted responsibility.

But the courts owed a duty too to remain within their constitutional bounds and not trespass beyond them.

In exercising a secondary judgment, the court was bound, even though adjudicating in a human rights context, to act with some reticence.

The court's approach must reflect where responsibility ultimately lay for the defence of the realm, and recognised that Parliament was exercising a continuing supervision over this area of prerogative power.

The minister's stance could not properly be held unlawful. His suggested justification might seem unconvincing; to say that it was outrageous in its defiance of logic was another thing. The decision on the future of this policy must rest with others, notably the Government and Parliament.

As to the Equal Treatment Directive, on its plain and unambiguous language, it said everything about gender discrimination and nothing about orientation discrimination. The applications were refused.

MR JUSTICE CURTIS agreed for the same reasons in law that the applications should be dismissed, but disagreed that the minister's view of the policy was necessarily wrong.

Ying Hui Tan, Barrister