[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R v Ministry of Defence Ex p. Smith [1995] EWCA Civ 22 (03 November 1995) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1995/22.html Cite as: [1996] 1 All ER 257, [1996] IRLR 100, [1996] 2 WLR 305, [1996] QB 517, (1996) 8 Admin LR 29, [1996] ICR 740, [1995] EWCA Civ 22 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [1996] 2 WLR 305] [Buy ICLR report: [1996] QB 517] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(DIVISIONAL COURT)
(SIMON BROWN LJ and CURTIS J)
The Strand London |
||
B e f o r e :
(Sir Thomas Bingham)
LORD JUSTICE HENRY
and
LORD JUSTICE THORPE
____________________
R E G I N A | ||
- v - | ||
ADMIRALTY BOARD OF THE DEFENCE COUNCIL | ||
ex parte Lustig-Prean | ||
ex parte Beckett | ||
R E G I N A | ||
- v - | ||
SECRETARY OF STATE FOR DEFENCE | ||
ex parte Smith | ||
ex parte Grady |
____________________
John Larking, Chancery House, Chancery Lane, London WC2
Telephone 0171 404 7464
Official Shorthand Writers to the Court)
MR DAVID PANNICK QC and MR J BOWERS (instructed by Messrs Wansbroughs, Willey & Hargrove, Sheffield) appeared on behalf of the applicant MR BECKETT
MR DAVID PANNICK QC and MR R DE MELLO (instructed by Messrs
Tyndallwoods, Edgbaston) appeared on behalf of the applicant MISS SMITH
MISS LAURA COX QC, MR J COOPER and MISS STEPHANIE HARRISON (instructed by Messrs Tyndallwoods, Edgbaston) appeared on behalf of the applicant MR GRADY
MR STEPHEN RICHARDS, MR J EADIE and MR A TABACHNIK (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENTS
____________________
Crown Copyright ©
Friday 3 November 1995
THE MASTER OF THE ROLLS: the policy which currently governs homosexuals (male and female) in the British armed forces is clear:
"The Ministry of Defence's policy is that homosexuality is incompatible with service in the Armed Forces. Service personnel who are known to be homosexual or who engage in homosexual activity are administratively discharged from the Armed Forces."
As this statement makes plain, proof of homosexual activity is not needed. A reliable admission of homosexual orientation is enough. Where homosexual orientation or activity is clear, the service authorities give themselves no choice but to discharge the member involved without regard to the member's service record or character or the consequences of discharge to the member personally.
These four appellants, three men and one woman, were administratively discharged from the armed forces because they were homosexual. None of them had committed any offence against the general criminal law, nor any offence against the special law governing his or her service. None of them had committed any homosexual act on service premises nor (save in one instance, said to be unwitting) any act involving another member of the service. All of them had shown the qualities required of loyal and efficient service personnel. All of them had looked forward to long service careers, now denied them. Their lives and livelihoods have been grossly disrupted by their involuntary discharge.
The appellants challenge the lawfulness of their discharge and thus, indirectly, of the policy which required them to be discharged. They say that the policy is irrational, and in breach of the European Convention on Human Rights, and contrary to the Equal Treatment Directive. They accept without reservation that any member of the armed services who acts inappropriately towards any other member, or who is guilty of any harassment, or who commits any offence or breach of service discipline, may be discharged administratively, if not on disciplinary grounds. So too if a member's sexual orientation undermines that member's efficiency as a member of the service or is shown to cause demonstrable damage to the service. They claim no right or liberty to commit homosexual acts or to make homosexual advances on the mess-deck or in the barrack-room or in any other service setting. They accept that membership of a disciplined fighting force involves a curtailment of freedoms enjoyed by others in civilian employments, and recognise that the exigencies of service life may properly justify restrictions on homosexual activity and manifestations of homosexual orientation. Their challenge is, and is only, to the blanket, non-discretionary, unspecific nature of the existing policy.
Background
There can be no doubt that public attitudes to homosexuals and homosexuality have in the past varied widely from country to country, and within the same country at different times, and among different social groups in the same country. Almost any generalisation can be faulted. But there has in this country been a discernible trend, over the last half century or so, towards greater understanding and greater tolerance of homosexuals by heterosexuals, and towards greater openness and honesty by homosexuals. In part this trend has prompted, in part it may have been a result of, legislative change.
Section 1(1) of the Sexual Offences Act 1967 decriminalised homosexual acts between consenting adults in private. It only applied to males, since homosexual acts between women were not criminal anyway. This legislative change, now nearly 30 years ago, followed and gave effect to the report of the Wolfenden Committee in 1957 (Cmnd 247). At that time very few European countries took cognisance of homosexual behaviour between consenting parties in private: see paragraph 59 and Appendix III of the report. It does not appear that that Committee addressed the issues with specific reference to the armed forces. But it is important to note that section 1(1) of the Act did not, by virtue of section 1(5), prevent a homosexual act being an offence (other than a civil offence) under the statutes governing the three services. Any person subject to those statutes remained liable to punishment for homosexual acts. So, by section 2 of the 1967 Act, did the crew of British merchant ships. Plainly, the view was then taken that to permit homosexual acts by or between members of the armed services, or in the special conditions pertaining aboard ship, would be subversive of discipline, efficiency and good order.
The routine quinquennial review of the statutes governing the armed forces has the effect that issues such as the treatment of homosexuals are reconsidered periodically. In 1986 a Select Committee of the House of Commons, despite argument that service law should be brought into line with civilian law, concluded that the law should remain as it then stood. But opinion did not stand still. In 1991 another House of Commons Select Committee returned to the subject. Submissions were then made that service law should be brought into line with civilian law and that homosexual orientation alone should not be a bar to membership of the armed forces. The Select Committee accepted the first of these submissions, seeing "no reason why Service personnel should be liable to prosecution under Service law for homosexual activity which would be legal in civilian law." But they rejected the second submission, concluding that there was "considerable force to MoD's argument that the presence of people known to be homosexual can cause tension in a group of people required to live and work sometimes under great stress and physically at very close quarters, and thus damage its cohesion and fighting effectiveness." The Select Committee were not persuaded in 1991 that the time had yet come to permit the armed forces to accept homosexuals or homosexual activity.
In 1992 the responsible minister announced that in future individuals who engaged in homosexual activity that was legal in civilian law would not be prosecuted under service law. For want of parliamentary time, legislative effect was not given to this change until 1994, when section 146(1) of the Criminal Justice and Public Order Act 1994 was enacted. But section 146(4) provided that this change should not prevent a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of the armed forces.
In upholding the existing policy that homosexual activity or orientation should be an absolute bar to membership of the armed forces the 1991 Select Committee undoubtedly reflected the overwhelming consensus of service and official opinion in this country. It does not appear that the Select Committee required or received any evidence of actual harm done by sexual orientation alone or by private homosexual activity outside the context of service life. Nor does the Select Committee appear to have considered whether the objectives of the existing policy could be met by a rule less absolute in its effect than that which was then applied.
In other areas of national life opinion has shifted. In July 1991 the Prime Minister announced that neither homosexual orientation nor private homosexual activity should henceforth preclude appointment even to sensitive posts in the home civil service and the diplomatic service. The Lord Chancellor has made similar announcements in relation to judicial office. In July 1994 the Royal Fleet Auxiliary introduced an equal opportunities policy stating that it did not discriminate on grounds of homosexuality. A majority of police forces now follow the same policy.
Outside the United Kingdom also, opinion has not stood still. Very few NATO countries bar homosexuals from their armed forces. This practice does not appear to have precluded the closest co-operation between such forces and our own. In the course of 1992-93 Australia, New Zealand and Canada relaxed their ban on homosexuals in their armed services but, importantly, introduced codes of conduct which defined the forms of homosexual conduct which were judged to be unacceptable. In the United States, on the other hand, as an authoritative report in 1993 made plain, military opinion remained overwhelmingly against allowing homosexuals to serve. The lawfulness of the legislative compromise adopted in that country is in doubt: see Able v United States (US District Court, Eastern District of New York, 30 March 1995). In arguing that case the US government "recognized that a policy mandating discharge of homosexuals merely because they have a homosexual orientation or status could not withstand judicial scrutiny."
Irrationality
(a) The test
"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above".
This submission is in my judgment an accurate distillation of the principles laid down by the House of Lords in R v Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514 and R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696. In the first of these cases Lord Bridge of Harwich said at page 531 E:
"I approach the question raised by the challenge to the Secretary of State's decision on the basis of the law stated earlier in this opinion, viz. that the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the court's power of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."
"But I do not accept that this conclusion means that the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred, as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights. Most of the rights spelled out in terms in the Convention, including the right to freedom of expression, are less than absolute and must in some cases yield to the claims of competing public interests. Thus, article 10 (2) of the Convention spells out and categorises the competing public interests by reference to which the right to freedom of expression may have to be curtailed. In exercising the power of judicial review we have neither the advantages nor the disadvantages of any comparable code to which we may refer or by which we are bound. But again, this surely does not mean that in deciding whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations, we are not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it. The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment."
Again, Lord Templeman (at page 751 E) spoke to similar effect:
"It seems to me that the courts cannot escape from asking themselves whether a reasonable Secretary of State, on the material before him, could reasonably conclude that the interference with freedom of expression which he determined to impose was justifiable."
It is important to note that, in considering whether English law satisfies the requirement in Article 13 of the European Convention that there should be a national remedy to enforce the substance of the Convention rights and freedoms, the European Court of Human Rights has held that it does, attaching very considerable weight to the power of the English courts to review administrative decisions by way of judicial review: see Vilvarajah v United Kingdom (1991) 14 EHRR 248 at pages 291 and 292.
It was argued for the Ministry in reliance on Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 and Hammersmith & Fulham LBC v Secretary of State for the Environment [1991] 1 AC 521 that a test more exacting than Wednesbury was appropriate in this case. The Divisional Court rejected this argument and so do I. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations.
(b) The facts
The reasons underlying the present policy were given in an affidavit sworn by Air Chief Marshal Sir John Willis KCB CBE, the Vice-Chief of the Defence Staff, an officer of great seniority and experience. The relevant paragraphs of his affidavit have been recited in full by Simon Brown LJ in his judgment in the Divisional Court, and it is unnecessary to duplicate that recital. Sir John advanced three reasons. The first related to morale and unit effectiveness, the second to the role of the services as guardian of recruits under the age of 18 and the third to the requirement of communal living in many service situations. Sir John described the Ministry's policy as based not on a moral judgment but on a practical assessment of the implications of homosexual orientation on military life. By "a practical assessment" Sir John may have meant an assessment of past experience in practice, or he may have meant an assessment of what would be likely to happen in practice if the present policy were varied. His affidavit makes no reference to any specific past experience, despite the fact that over the years very many homosexuals must have served in the armed forces. He does, however, make clear the apprehension of senior service authorities as to what could happen if the existing policy were revoked or varied, and the grounds upon which he relies were the subject of consideration by the House of Commons Select Committees to which reference has already been made.
The first factor relied on by Sir John, morale and unit effectiveness, was the subject of searing criticism by Mr Pannick. He submitted that the effect of a homosexual member of any military unit would depend on the character, ability and personality of the member involved. He pointed out that many homosexuals had successfully served in the services over the years. He drew attention to the experience of other disciplined forces such as the police. He submitted that inappropriate behaviour by homosexual members of the armed forced could be effectively regulated. He submitted that the Ministry should not be deterred from doing what fairness and good sense demanded by apprehensions of irrational and prejudiced behaviour on the part of others.
Mr Pannick also criticised the second factor relied on by Sir John. He pointed out that any service member behaving inappropriately towards an under-age member of the service could be disciplined and punished in the same way as in society at large. He rejected the suggestion that homosexuals were less able to control their sexual impulses than heterosexuals. Again he suggested that the policy of the Ministry was pandering to ignorant prejudice.
Mr Pannick accepted, of course, that members of the services could in many situations find themselves living together in conditions of very close proximity, although he pointed out that one of the appellants (by reason of his seniority) and another of the appellants (by reason of her particular occupation) were in no foreseeable situation likely to share accommodation with anyone. The lack of privacy in service life was, he suggested, a reason for imposing strict rules and discipline, but not a reason for banning the membership of any homosexual. He drew attention to the experience of other disciplined services. He pointed out that each of the appellants had worked in the armed forces for a number of years without any concern being expressed or complaints made about inappropriate behaviour. Each of them had earned very favourable reports. The same, it was said, was true of many other homosexual members of the services.
Above all, Mr Pannick criticised the blanket nature of the existing rule. He placed great emphasis on the practice of other nations whose rules were framed so as to counter the particular mischiefs to which homosexual orientation or activity might give rise. He pointed out that other personal problems such as addiction to alcohol, or compulsive gambling, or marital infidelity were dealt with by the service authorities on a case by case basis and not on the basis of a rule which permitted no account to be taken of the peculiar features of the case under consideration.
The European Convention
Article 8 of the European Convention on Human Rights provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The first of these objections would not at first blush strike me as persuasive: to dismiss a person from his or her employment on the grounds of a private sexual preference, and to interrogate him or her about private sexual behaviour, would not appear to me to show respect for that person's private and family life. There may also be room for argument whether the interference in question "answers a pressing social need and in particular is proportionate to the legitimate aim pursued": see Norris v Ireland (1988) 13 EHRR 186 at 198. These are not, however, questions to which answers may properly or usefully be proffered by this court which has seen none of the evidence which would be relied on if it were this court, and not the European Court of Human Rights, with whom the responsibility for deciding this issue lay. As it is it may be necessary for the appellants, if all else fails, to incur the expense and endure the delay of pursuing their claim in Strasbourg.
The Equal Treatment Directive
"Each member state shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.
For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer. Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job."
Article 235 of the Treaty provided:
"If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures."
"Having regard to the Treaty establishing the European Economic Community, and in particular Article 235 thereof, ......
Whereas the Council, in its resolution of 21 January 1974 concerning a social action programme, included among the priorities action for the purpose of achieving equality between men and women as regard access to employment and vocational training and promotion and as regards working conditions, including pay ; ....
Whereas Community action to achieve the principle of equal treatment for men and women in respect of access to employment and vocational training and promotion and in respect of other working conditions also appears to be necessary ; whereas, equal treatment for male and female workers constitutes one of the objectives of the Community, insofar as the harmonization of living and working conditions while maintaining their improvement are inter alia to be furthered ; whereas the Treaty does not confer the necessary specific powers for this purpose ; ...."
"1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.
2. This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor."
On 29 May 1990 the Council adopted a resolution (90/C157/02) affirming that conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work, constituted an intolerable violation of the dignity of workers or trainees and was unacceptable if certain conditions were fulfilled. On 27 November 1991 the Commission made a recommendation to member states (92/131/EEC) that action should be taken to implement a code of practice promulgated by the Commission and designed to protect the dignity of women and men at work. This code drew attention to the risk that homosexuals might be the subject of harassment in the workplace on grounds of sexual orientation, which was recognised to undermine the dignity of those involved.
"(1) Where there is discrimination on the basis of stereotyping, under a purposive interpretation of the concept of equal treatment there is sex discrimination per se without the need to investigate the actual or hypothetical treatment of someone of the opposite sex
(analogous to Dekker [1990] ECR 1-3941).
(2) If, alternatively, Article 1 is to be interpreted as meaning equal treatment "as between" men and women, sexual orientation discrimination is still discrimination on grounds of sex within the ETD."
Her first proposition, if I understood it correctly, rested on the contention that an employer was in breach of the principle of equal treatment if he treated (say) a homosexual man differently from a heterosexual man. Her second proposition rested on the contention that if both a man and a woman had sexual relations with the same woman, the principle of equal treatment was breached if the woman but not the man were subject to dismissal.
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
The Divisional Court rejected Miss Cox's argument, and in my judgment they were right to do so.
On all these grounds, I would dismiss these appeals.
LORD JUSTICE HENRY: I agree with the judgment of the Master of the Rolls. I will add some words of my own on the first and second topics.
Irrationality
On the evidence before us, our Armed Forces have had a long-standing absolute prohibition on those known to be homosexual joining, or once discovered, remaining in the Armed Forces. We are told that that policy existed throughout the years of conscription (1939/1960). This fact may surprise post-war National Servicemen, who I believe to have been generally unaware that a genuine homosexual orientation would have rendered them exempt from compulsory National Service, but their ignorance is explained before us on the basis that the policy did not need to be publicised, committed to paper, or indeed specifically addressed until some time after male homosexual acts between consenting adults in private were decriminalised in civilian life (though not under military law) in 1967.
Despite this ban (and in the early years, perhaps as a result of ignorance of it) it seems to be realistically accepted on all sides that the reality is that many more homosexuals served in the Armed Forces than the relatively small numbers dismissed for it either on disciplinary grounds relating to their conduct (the minority) or on administrative grounds based on their status as homosexuals (the vast majority, at any rate in recent years). This suggests that the majority of serving homosexuals were undetected and had a useful and productive service life and that there had been nothing in their conduct which either disclosed their sexual orientation or threatened the cohesion of their units. This experience clearly should not be disregarded when considering the necessity for an absolute ban, especially as that experience is replicated in the case histories of the appellants before us.
Additionally, over the years since the passing of the Sexual Offences Act, 1967, there can be no doubt that public opinion has moved a very long way towards toleration and acceptance of homosexuals (as Lord Wolfenden himself commented as long ago as 1976 in his autobiography "Turning Points" [Bodley Head at p 144/146]) We have seen a greater and greater public awareness and acceptance of homosexuality, together with a greater personal openness in acknowledging it. Consequently there has been a growing recognition of the specific human rights of homosexuals, including rights in the workplace.
But both sides of the argument as to acceptance of homosexuals in the armed forces accept first that the armed forces are quite unlike any other employer, that military life is quite different from civilian life, and second that the forces can properly demand (and those serving must unquestioningly accept) restriction on their liberty and behaviour that would not be acceptable if imposed on a citizen in civilian life. It is accepted that these personal sacrifices can be demanded and must be made in the interests of the overall goal of military effectiveness, based on high morale, good discipline and unit cohesion. It is accepted that certain conduct, whether homosexual or heterosexual, can threaten military effectiveness, and so can reasonably be proscribed by the Armed Forces where a civilian employer could not lawfully do so. For example, in America in 1993 the National Defense Research Institute (RAND), given by the Secretary of Defense the task of preparing a draft of an executive order "ending discrimination on the basis of sexual orientation in determining who may serve in the Armed Forces" in a way which was "practical and realistic, and consistent with the high standards of combat effectiveness and unit cohesion our Armed Forces must maintain", found that the only policy option to achieve that result was one conduct-based, commenting "all personnel, including acknowledged homosexuals, must understand that the military environment is no place to advertise one's sexual orientation". (To like effect is the Australian Defence Force in Annex B to its statement of policy on Unacceptable Sexual Behaviour by members of the ADF which may threaten operational effectiveness includes, for example "public flaunting and advocacy of a particular sexual proclivity.")
So the plaintiffs here accept the legitimacy of the Armed Forces achieving their aim by a non-discriminatory, conduct-based code restricting expression or other manifestation of their sexual orientation. What they challenge is the legitimacy of a status-based absolute proscription of all homosexuals in the Armed Forces, however exemplary their service conduct.
The sole question on the irrationality issue is, accepting the formulation as proposed by Mr Pannick and accepted by my Lord, whether it was irrational at the end of 1994, when these appellants were discharged, for the Defendants still to have in place an absolute proscription of all homosexuals.
I agree with my Lord it was not. I would add only these remarks to his reasons. On the evidence before us, the issue between a conduct-based code or status-based ban was a relatively new one. It does not seem to have been raised before the Select Committee in 1986. It was raised in broad terms by the Stonewall Group in 1991. The Select Committee recognised that there was much more tolerance of differences in sexual orientation both without and (possibly) within the Armed Forces. But they were not persuaded that the time had yet come to require the Armed Forces to accept homosexuals.
The European Convention, Article 8
LORD JUSTICE THORPE: I agree with both the preceding judgments. Mr Pannick proposes this formulation of the test to be applied to the application for judicial review:-
"This Court may not interfere with the exercise of an administrative discretion on substantive grounds save where it is satisfied that decision is unreasonable in the sense of being beyond the range of responses open to a reasonable decision maker. But in judging whether the decision maker has exceeded this margin of appreciation, the human rights context is important. The more substantial the interference with human rights the more the Court will require by way of justification before it is satisfied that the decision was reasonable in the sense outlined above".
That formulation is in my judgment sensible and not inconsistent with the speeches in Brind [1991] 1AC 696. I consider that Mr Pannick is entitled to emphasise the importance of the human rights dimension. It seems to me that the Secretary of State in formulating the administrative policy from time to time has to have regard to factors besides the advice of senior officers who have the responsibility of maintaining efficient and effective armed units including human rights and international treaty obligations.
The arguments on the facts and the merits were very skilfully presented. Mr Pannick's analytical attack on the case presented by Air Chief Marshall Sir John Willis was completely persuasive. Mr Richards took what I thought was a dangerous point when he urged that the leading American commanders, including Generals Schwartzkopf and Powell, had expressed the same view as their British counterparts and in very similar language. He derives that evidence from the judgment of Justice Nickerson in Able v United States (US District Court, Eastern District of New York, 30.03.95) where the views expressed by the commanders to the Congressional Committee were recorded by the judge. However, in the sentence immediately following that record he made the following comment:- "This heterosexual animosity towards homosexuals is by its terms based on irrational prejudices". That may be a strong view expressed in strong language but it follows that if Mr Richards invites the Court to give weight to the similar expression of the United States commanders he must continue by submitting that the judge's view of that evidence was quite untenable.
Order:Appeals dismissed with costs. Leave to appeal to the House of Lords refused.