Armed forces' homosexual policy is not irrational

LAW REPORT 7 November 1995

Regina v Secretary of State for Defence, ex parte Lustig-Prean and others; Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Henry and Lord Justice Thorpe) 3 November 1995

The Ministry of Defence's absolute ban on homosexuals in the armed forces could not be stigmatised as irrational even when its interference with the human rights of those affected was taken into account. The jurisdiction to decide whether the policy breached the European Convention of Human Rights lay with the European Court of Human Rights at Strasbourg. The Equal Treatment Directive was directed to gender discrimination and not to discrimination against sexual orientation.

The Court of Appeal dismissed appeals by four applicants from the Queen's Bench Divisional Court's decision (Law Report, 8 June) that the Ministry of Defence's policy to discharge homosexuals from the armed forces was lawful.

The existing policy that homosexual orientation should be an absolute bar to membership of the armed forces was upheld by House of Commons Select Committee in 1991. The ministry's reasons for the policy related to morale and unit effectiveness, the role of the services as guardian of recruits under 18 and the requirement of communal living. The policy was currently under review.

The applicants, three men and one woman, were discharged under the policy between November 1994 and January 1995. They challenged the lawfulness of their discharge on the grounds that the policy was irrational and in breach of the right to respect for private life under article 8 of the European Convention on Human Rights and was contrary to the Equal Treatment Directive 76/207/EEC.

David Pannick QC and Peter Duffy (Bindmans); David Pannick QC and Ramby de Mello (Tyndallwoods, Birmingham); David Pannick QC and John Bowers (Wansbroughs Willey Hargrave, Sheffield); Laura Cox QC, Jonathan Cooper and Stephanie Harrison (Tyndallwoods, Birmingham) for the applicants; Stephen Richards, James Eadie and Andrew Tabachnik (Treasury Solicitor) for the Defence Secretary.

Sir Thomas Bingham MR said that there had been a discernible trend in the United Kingdom towards greater understanding and greater tolerance of homosexuals by heterosexuals. Outside the United Kingdom, opinion had not stood still. Very few Nato countries barred homosexuals from their armed forces. In 1992-93, Australia, New Zealand and Canada relaxed their ban on homosexuals in their armed services. The progressive development and refinement of public and professional opinion at home and abroad was an important feature. A belief which represented unquestioned orthodoxy in year X might have become questionable by year Y and unsustainable by year Z. The lawfulness of the applicants' discharge fell to be judged as at the end of 1994.

When judging whether a decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision-maker, the human rights context was important. The test for irrationality was sufficiently flexible to cover all situations. The present cases concerned innate qualities of a very personal kind. The decisions had had a profound effect on the applicants' careers and prospects. The applicants' rights as human beings were very much in issue.

It was not the constitutional role of the court to regulate the conditions of service in the armed forces, nor had it the expertise to do so. But it had the constitutional role and duty of ensuring that the rights of citizens were not abused by the unlawful exercise of executive power. While the court must properly defer to the expertise of responsible decision- makers, it must not shrink from its fundamental duty to do right to all manner of people.

The existing policy could not be stigmatised as irrational at the time when the applicants were discharged. It was supported by both Houses of Parliament. The threshold of irrationality was a high one. It was not crossed in this case. The relevance of the Convention was as background to the complaint about irrationality. The responsibility for deciding issues under the Convention lay with the European Court of Human Rights.

There was nothing in the Equal Treatment Directive which suggested that the problems of discrimination on grounds of sexual orientation were addressed. It was directed to banning unacceptable behaviour in the workplace and not to regulating employment policy in relation to sexual orientation. The appeals were dismissed.

Lord Justice Henry and Lord Justice Thorpe concurred.

Ying Hui Tan, Barrister