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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)
Cite as: [1996] 2 WLR 305, [1996] QB 517, (1996) 8 Admin LR 29, [1996] 1 All ER 257, [1996] IRLR 100, [1996] ICR 740, [1995] EWCA Civ 22

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BAILII Citation Number: [1995] EWCA Civ 22
QBCOF 95/0864/D, QBCOF 95/0892/D, QBCOF 95/0893/D, QBCOF 95/0948/D


Royal Courts of Justice
The Strand
3 November 1995

B e f o r e :

(Sir Thomas Bingham)


- v -
ex parte Lustig-Prean
ex parte Beckett
- v -
ex parte Smith
ex parte Grady


(Computer Aided Transcription by
John Larking, Chancery House, Chancery Lane, London WC2
Telephone 0171 404 7464
Official Shorthand Writers to the Court)


MR DAVID PANNICK QC and MR P DUFFY (instructed by Messrs Bindman & Partners, London) appeared on behalf of the applicant LT COMMANDER LUSTIG-PREAN
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.

    The appellants' challenge was rejected by the Queen's Bench Divisional Court (Simon Brown LJ and Curtis J) on 7 June 1995. But the Court urged the Ministry of Defence to re-examine its policy in the light of changing attitudes and circumstances, and of all available evidence, and we are told that such a review is now in progress. Meanwhile, the appellants contend that the Divisional Court were wrong to reject their challenge.


    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."

    I regard the progressive development and refinement of public and professional opinion at home and abroad, here very briefly described, as an important feature of this case. A belief which represented unquestioned orthodoxy in Year X may have become questionable by Year Y and unsustainable by Year Z. Public and professional opinion are a continuum. The four appellants were discharged towards the end of 1994. The lawfulness of their discharge falls to be judged as of that date.


    (a) The test

    Mr David Pannick QC (who represented three of the appellants, and whose arguments were adopted by the fourth) submitted that the Court should adopt the following approach to the issue of irrationality:

    "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."

    Lord Templeman, at page 537H, spoke to similar effect. In the second case, having concluded that it was not open to an English court to apply the European Convention on Human Rights, Lord Bridge said at page 748 F:

    "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.

    The present cases do not affect the lives or liberty of those involved. But they do concern innate qualities of a very personal kind and the decisions of which the appellants complain have had a profound effect on their careers and prospects. The appellants' rights as human beings are very much in issue. It is now accepted that this issue is justiciable. This does not of course mean that the court is thrust into the position of the primary decision-maker. It is not the constitutional role of the court to regulate the conditions of service in the armed forces of the Crown, nor has it the expertise to do so. But it has the constitutional role and duty of ensuring that the rights of citizens are 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...".

    (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 arguments advanced by Mr Pannick are in my opinion of very considerable cogency. They call to be considered in depth, with particular reference to specific evidence of past experience in this country, to the developing experience of other countries and to the potential effectiveness or otherwise of a detailed prescriptive code along the lines adopted elsewhere in place of the present blanket ban. Such a re-assessment of the existing policy is already, as I have noted, in train, and I note that the next Select Committee quinquennial review of the policy is to receive a departmental paper of evidence covering all the matters canvassed on this appeal. What the outcome of that review will be, I do not know.

    The existing policy cannot in my judgment be stigmatised as irrational at the time when these appellants were discharged. It was supported by both Houses of Parliament and by those to whom the Ministry properly looked for professional advice. There was, to my knowledge, no evidence before the Ministry which plainly invalidated that advice. Changes made by other countries were in some cases very recent. The Australian, New Zealand and Canadian codes had been adopted too recently to yield much valuable experience. The Ministry did not have the opportunity to consider the full range of arguments developed before us. Major policy changes should be the product of mature reflection, not instant reaction. The threshold of irrationality is a high one. It was not crossed in this case.

    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."

    It is, inevitably, common ground that the United Kingdom's obligation, binding in international law, to respect and secure compliance with this article is not one that is enforceable by domestic courts. The relevance of the Convention in the present context is as background to the complaint of irrationality. The fact that a decision-maker failed to take account of Convention obligations when exercising an administrative discretion is not of itself a ground for impugning that exercise of discretion.

    Mr Stephen Richards, representing the Ministry, indicated that it did not accept that the existing policy interfered with any right of the appellants protected by the Convention. If, contrary to that submission, there were an interference with the appellants' right of privacy, he submitted that such interference was justified as being in accordance with the law and necessary in a democratic society in the interests of national security.

    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

    One of the objects of the Treaty of Rome was "to ensure the economic and social progress" of member countries by common action to eliminate the barriers which divided Europe. The tasks of the Community, specified in Article 2, were (among others) to promote a high level of employment and of social protection and social cohesion and solidarity among member states. Article 119 of the Treaty provided:

    "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."

    On 9 February 1976 the Council adopted the Equal Treatment Directive (76/207/EEC). The recitals to the Directive included the following:

    "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 ; ...."

    In Article 1 of the Directive its purpose was stated to be to put into effect in member states the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, subject to conditions, social security. That was described as "the principle of equal treatment". Article 2 provided:

    "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.

    Miss Cox QC (who represented one of the appellants, and whose argument was adopted on behalf of the other three) submitted, as expressed in her skeleton argument,

    "(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.

    I find nothing whatever in the Treaty of Rome or in the Equal Treatment Directive which suggests that the draftsmen of those instruments were addressing their minds in any way whatever to problems of discrimination on grounds of sexual orientation. Had it been intended to regulate discrimination on that ground it could easily have been done, but to my mind it plainly was not. It is true that the Commission's code of practice, drawn up many years after the Treaty and the Directive, makes reference to sexual orientation, but it seems to me quite plain that this code is directed to banning unacceptable behaviour in the workplace and not to regulating employment policy in relation to sexual orientation. We were referred to a number of cases decided in the European Court of Justice, but none of these in my opinion lends any support to Miss Cox's argument. There is equally, in my opinion, no assistance to be gained from cases decided under the International Covenant on Civil and Political Rights. Article 26 of that Covenant provides:

    "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."

    It is evident from cursory consideration of this language that its terms extend well beyond anything to be found in the Treaty of Rome or the Equal Treatment Directive. It is in my judgment a misuse of authority to suggest that the language of either of the European instruments can usefully be construed by reference to decisions on the construction of Article 26.

    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.


    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.

    But the clock did not stop there. Since then Canada, Australia and New Zealand all (in 1992 or 1993) moved away from an absolute ban, and the American middle position of "Don't ask, don't tell) is under powerful legal attack, with the last appellate word probably not yet said (see Able -v- US District Court, Eastern District of New York, 30.03.95). All these were matters to be taken into consideration when the individual decisions in these cases were taken.

    It would seem that the movement in public opinion recognised by the Select Committee is continuing, and it might be that positions within the Armed Forces of Canada, Australia and New Zealand have shifted also - though the evidence does not make this clear. But the advice received from those with experience in our Armed Forces remained the same: that the absolute ban was necessary for the reasons stated. We know from the material before us the substance of that advice and the assertions contained in it, but we do not know details of the experience which informed to that advice. Hence the lawyers' criticism that the advice is not based on evidence. I would not at this stage of the debate assume that the views of the Armed Forces are not based on evidence, though that evidence is not before us.

    Those responsible for the policy were faced with a rapidly changing scene on a highly charged issue of great importance to both the Armed Forces and the individuals. That combination of circumstances points against precipitate action both by the policy maker with primary responsibility and a fortiori by the reviewing court in its secondary role. At the end of 1994 it could not be said that reasonable decision makers must inevitably conclude that the existing policy was unlawful and so must be changed. It was not legally irrational to continue the policy. What was needed is what has now been set up - namely the Ministry preparing a paper of evidence to assist the Select Committee. I am pleased to see that there are to be visits to overseas armed forces, as I was not persuaded by the bald submission in evidence that "comparison with other countries does not assist" In the balance, proper appreciation will have to be given both to the impact of a total ban on the human rights of the affected individuals, and to any practical justification for that ban and the evidence supporting it.

    The European Convention, Article 8

    In the court below there was a difference of opinion between Lord Justice Simon Brown and Mr Justice Curtis as to the likely fate of this policy were it to be tested in the Court of Human Rights at Strasbourg. I question the utility of such a debate in our courts.

    As my Lord has said, it is inevitably common ground that the United Kingdom's obligation under international law to respect and secure compliance with Article 8 is not enforceable by domestic courts, and so its relevance is simply as "background to the complaint of irrationality". If the Convention were part of our law, then, as Lord Justice Simon Brown said in the Divisional Court, the primary judgment on this issue would be for the judges. But Parliament has not given us that primary jurisdiction on this issue. Our present constitutional role was correctly identified by Lord Justice Simon Brown as exercising a secondary or reviewing judgment. As it is, in relation to the Convention, the only primary judicial role lies with the European Court of Human Rights at Strasbourg.

    This is why, as the Master of the Rolls has said, that questions relating to any future liability under the Convention as Strasbourg "are not ... questions to which answers may be properly or usefully proffered by this Court". This Court does not entertain hypothetical questions, and there are four reasons why that principle is particularly important in this case.

    First, Parliament has not given our judges primary jurisdiction over the human rights issues contained in the Convention. Without such jurisdiction, the court should not speculate. Second, the evidence and submissions before us were directed to our secondary or review jurisdiction, and not to the primary jurisdiction. We should not opine on a case not argued before us. Third, if the Convention were to be made (or possibly be held to be) part of our domestic law, then in the exercise of the primary jurisdiction the Court in, for it, a relatively novel constitutional position, might well ask for more material then the adversarial system normally provides, such as a "Brandeis brief". The Court could well appear to be taking too narrow a view if it hypothetically answered a different question on limited evidence. Lastly the dangers of speculation and the absence of what Lord Justice Simon Brown refers to as the "tide of history" from the published tide tables both point to judicial silence on any eventual primary judicial judgment on Article 8 in this case.

    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.

    Whether or not the current policy constituted an infringement of the appellant's rights under Article 8 of the European Convention for the Protection of Human Rights will no doubt ultimately be decided in Strasbourg. Whilst Mr Pannick's submission that the application of the current policy to the four appellants was a plain breach of their Article 8 rights is very persuasive, the evidence and arguments that would ultimately determine the outcome are not before this court.

    As to the Equal Treatment Directive (76/207/EEC), any common sense construction of the Directive in the year of its issue leads in my judgment to the inevitable conclusion that it was solely directed to gender discrimination and not to discrimination against sexual orientation. In passing, the answer given by Monsieur Delors to the question raised by Edward Glinne in 1988 demonstrates that that was the bureaucratic interpretation. It seems to me plain that social attitudes and concerns 20 years ago when the Directive was in gestation were not focusing upon sexual orientation discrimination. The emergence of that concern is marked by the issue of the recommendation in 1991. It seems to me that if the European Union is to proscribe discrimination on the grounds of sexual orientation that must be achieved by a specific directive and not by an extended construction of the 1976 Directive.

    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.

    The consideration that impresses me most in relation to merits is the complete absence of illustration and substantiation by specific examples not only in the respondent's evidence filed in the Court below but also in the case that was presented to the Select Committee in 1991. What is experience if not the distillation of lessons learned from specific cases over an extensive period? It seems to me that those who question the reality of the current policy in modern times and those who are directly damaged by its application are entitled to see substantiation by specific example. Very senior commanders will have given their lives to the service. They will have developed strong emotions of loyalty and pride along the way. There may be a natural instinct to contend for the needs of the Service as they perceive them in disregard of human rights protection as formulated in Europe. The submissions of senior officers might be armoured against the allegation of prejudice were they to demonstrate that general experience is drawn from specific cases.

    Having made these criticisms of the respondent's case it is fair to say that social attitudes and concerns are constantly evolving with a consequential need for a reasonably swift and sensitive reaction in the decision maker to such evolutions. What may be unjustifiable in 1995 may have been perfectly justifiable in 1991. Furthermore, codes of conduct introduced by commonwealth countries are of recent origin and are thus as yet relatively untested.

    The relevant dates of discharge in relation to the four appellants all fall within the brief period commencing 25th November 1994 and ending 17th January 1995. Could it be said that even at that relatively recent date the continuing application of a policy established in 1991 and due for regular review in 1996 was irrational? Although I am of the opinion that the current policy is ripe for review and for consideration of its replacement by a strict conduct code, I conclude that the appellants' attack on the Secretary of State's rationality falls a long way short of success. Even applying Mr Pannick's test it would be quite impossible to say in my judgment that the Court is entitled to interfere with the Secretary of State's application of a policy which clearly commands a wide measure of general support. It could not possibly be labelled as falling outside the significant margin of appreciation vested in the Secretary of State. I agree that these appeals should be dismissed.

    Order:Appeals dismissed with costs. Leave to appeal to the House of Lords refused.

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