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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Raabe, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1736 (Admin) (20 June 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1736.html Cite as: [2013] EWHC 1736 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF DR HANS-CHRISTIAN RAABE |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Thomas de la Mare QC (instructed by Treasury Solicitors) for the Defendant
Hearing date: 6 December 2012
____________________
Crown Copyright ©
Mr Justice Stadlen:
The Misuse of Drugs Act 1971
"1 The Advisory Council on the Misuse of Drugs.
(1)There shall be constituted in accordance with Schedule 1 to this Act as Advisory Council on the Misuse of Drugs (in this Act referred to as "the Advisory Council"); and the supplementary provisions contained in that Schedule shall have effect in relation to the Council.
(2)It shall be the duty of the Advisory Council to keep under review the situation in the United Kingdom with respect to drugs which are being or appear to them likely to be misused and of which the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem, and to give to any one or more of the Ministers, where either the Council consider it expedient to do so or they are consulted by the Minister or Ministers in question, advice on measures (whether or not involving alteration of the law) which in the opinion of the Council ought to be taken for preventing the misuse of such drugs or dealing with social problems connected with their misuse, and in particular on measures which in the opinion of the Council ought to be taken—
(a)for restricting the availability of such drugs or supervising the arrangements for their supply;
(b)for enabling persons affected by the misuse of such drugs to obtain proper advice, and for securing the provision of proper facilities and services for the treatment, rehabilitation and after-care of such persons;
(c)for promoting co-operation between the various professional and community services which in the opinion of the Council have a part to play in dealing with social problems connected with the misuse of such drugs;
(d)for educating the public (and in particular the young) in the dangers of misusing such drugs, and for giving publicity to those dangers; and
(e)for promoting research into, or otherwise obtaining information about, any matter which in the opinion of the Council is of relevance for the purpose of preventing the misuse of such drugs or dealing with any social problem connected with their misuse.
(3)It shall also be the duty of the Advisory Council to consider any matter relating to drug dependence or the misuse of drugs which may be referred to them by any one or more of the Ministers and to advise the Minister or Ministers in question thereon, and in particular to consider and advise the Secretary of State with respect to any communication referred by him to the Council, being a communication relating to the control of any dangerous or otherwise harmful drug made to Her Majesty's Government in the United Kingdom by any organisation or authority established by or under any treaty, convention or other agreement or arrangement to which that Government is for the time being a party.
(4)In this section "the Ministers" means the Secretary of State for the Home Department, the Secretaries of State respectively concerned with health in England, Wales and Scotland, the Secretaries of State respectively concerned with education in England, Wales and Scotland, the Minister of Home Affairs for Northern Ireland, the Minister of Health and Social Services for Northern Ireland and the Minister of Education for Northern Ireland.
SCHEDULE 1 Constitution etc. of Advisory Council on the Misuse of Drugs
1(1) The members of the Advisory Council, of whom there shall be not less than twenty, shall be appointed by the Secretary of State after consultation with such organisations as he considers appropriate, and shall include—
(a) in relation to each of the activities specified in sub-paragraph (2) below, at least one person appearing to the Secretary of State to have wide and recent experience of that activity; and
(b) persons appearing to the Secretary of State to have wide and recent experience of social problems connected with the misuse of drugs.
(2) The activities referred to in sub-paragraph (1)(a) above are—
(a)the practice of medicine (other than veterinary medicine);
(b)the practice of dentistry;
(c)the practice of veterinary medicine;
(d)the practice of pharmacy;
(e)the pharmaceutical industry;
(f)chemistry other than pharmaceutical chemistry.
(3)The Secretary of State shall appoint one of the members of the Advisory Council to be chairman of the Council……"
The Background
The 2005 Paper.
"The media portrays the homosexual lifestyle and relationships as happy, healthy and stable. However the homosexual lifestyle is associated with a large number of very serious physical and emotional health consequences. Many "committed" homosexual relationships only last a few years. This raises doubts as to whether children raised in same-sex households are being raised in a protective environment."
"A. There are very high rates of sexual promiscuity among the homosexual population with short duration of even "committed" relationships.
B. Among homosexuals, highly risky sexual practices such as anal sex are very common.
C. Homosexuals have very high rates of sexually transmitted infections such as HIV which pose a major burden to the health service.
D. There are increased rates of mental ill health among the homosexual population compared to the general population. Many studies show much higher rates of psychiatric illness, such as depression, suicide attempts and drug abuse among homosexuals than among the general population. The homosexual lifestyle is associated with a shortened life expectancy of up to 20 years."
"Promiscuity among lesbian women is less extreme, but is still higher than among heterosexual women. Many "lesbian" women also have sex with men. Lesbian women were more than four times as likely to have had more than 50 lifetime male partners than heterosexual women. (Fethers K et al. Sexually transmitted infections and risk behaviours in women who have sex with women. Sexually transmitted Infections 2000; 76; 345-9.)"
The high rates of promiscuity are not surprising; Gay authors admit that "gay liberation was founded…on a sexual brotherhood of promiscuity" (Rotello G. Sexual Ecology. New York 1998).
"The majority of homosexual men (60%) engage in anal sex, frequently without condom and even if they know that they are HIV positive."
"It is claimed, that the high rates of mental illness among homosexuals are the result of "homophobia." However, even in the Netherlands, which has been far more tolerant to same-sex relationships and which has recently legalised same-sex marriages, high levels of psychiatric illness, including major depression, bipolar disorder ("manic depression"), agoraphobia, obsessive compulsive disorder and drug addiction are found. (A source was then cited).
Furthermore, if homophobia and prejudice were the cause of the high rates of psychiatric disorders and suicide attempts among homosexuals, one would similarly expect to find higher rates of suicide attempts and suicide among ethnic minorities exposed to racism. However this is not usually the case."
- One well known historic example on the link between homosexuality and paedophilia is found in ancient Greece. Greek mythology is saturated with stories of paedophilia and ancient Greek literature praises paedophilia. The age group of boys that were used for "sexual pleasure" was probably in the range of 12 – 17. Male prostitution was very common with brothels in which boys and young men were available. There is evidence of an extensive trade in boys. (Churchill W. Homosexual Behaviour among Males. Hawthorn. New York. 1967)
- There are links between paedophilia and homosexuality. The political scientist Prof. Mirkin wrote in a paper that: "paedophile organisations were originally a part of the gay/lesbian coalition…". (Mirkin H. The pattern of sexual politics: Feminism, homosexuality and paedophilia. Journal of Homosexuality 1999: 37:1 – 24.). There is an overlap between the "gay movement" and the movement to make paedophilia acceptable through organisations such as the North American Man/Boy Love Association (NAMBLA), as admitted by David Thorstad, Co-founder of NAMBLA writing in the Journal of Homosexuality. (Thorstad D. Man/Boy Love and the American Gay Movement. Journal of Homosexuality. 1990; 20: 251 – 74).
- The number of homosexuals in essentially all surveys is less than 3%. (Statistics Canada found only 1% of the population who described themselves as homosexuals.) However, the percentage of homosexuals among paedophiles is 25%. (Blanchard R et al. Fraternal Birth order and sexual orientation in paedophiles. Archives of Sexual Behaviour 2000; 29: 463-78). Therefore, the prevalence of paedophilia among homosexuals is about 10 – 25 times higher than one would expect if the proportion of paedophiles were evenly distributed within the (hetero – and homosexual) populations."
"
- In a review of all the studies that purport to find no difference between children raised in families by same-sex parents and parents of different sex, major methodological flaws have been noted. For example, the studies have very small sample sizes, biased sample selection, or lack of control groups. (P. Morgan, Children as Trophies? Christian Institute. Newcastle upon Tyne, 2002).
- Despite the limitations of the studies of same-sex parenting some differences are found. Children raised in same-sex parents are more likely to become sexually promiscuous and are more likely to become homosexual themselves. (Riggs SC. Co-parent or Second Parent Adoption by Same-sex Parents. (Letter) Paediatrics 2002; 109: 1193 – 4).
- However, the main concern remains the inherent instability of same-sex marriages. In the above mentioned Dutch survey, the average length of a "committed" homosexual partnership was only 1.5 years. In the mentioned survey of nearly 8,000 gays 71% of relationships did not last a year. Furthermore, violence amongst homosexual partnerships is two to three times as common as in heterosexual relationships. Such an environment does not provide the stability required for raising children. Former homosexual Stephen Bennett who is married to his wife and has two children states: "Granting homosexuals the right to marry or adopt children is deliberately creating dysfunctional families." "
"
- A recent review by authors sympathetic to the gay movement shows clearly that homosexual development cannot be only determined by genes. Evidence from biology shows clearly that gays are not simply born that way. Environmental influences play a significant role in the development of gender identity and sexual behaviour (Bailey JM. Biological Perspectives on Sexual Orientation. In: Garnets LD and Kimmell DC: Psychological Perspectives on Lesbian, Gay and Bi-sexual Experiences. Columbia University Press, New York. 2003).
- There is no convincing evidence for a "gay gene". Indeed, if there were a "gay gene" those who carry it would probably be at a disadvantage in the natural selection process of evolution: "If there was a gene" this gene would cause a significant problem: homosexuality is associated with low fertility, indeed if a homosexual has only sex with same-sex persons he will have no offspring. (Bailey JM. Biological Perspectives on Sexual Orientation. 2003)
- One way of finding out whether a condition is genetically determined is to examine the behaviour of identical twins (who have the same genetic material) and comparing them with non-identical twins. It is assumed, that twins grow up in the same environment. There have been several studies investigating whether the identical twin brothers of homosexual men are also homosexual. Concordance (both identical twins being homosexual) was found in only 25 – 50% of identical twin pairs. "Genes" therefore cannot entirely explain homosexual orientation and behaviour. (Pillard RC and Weinrich JD. Evidence of Familial nature of male homosexuality. Archive of General Psychiatry. 1986: 42; 808 – 12. King and McDonald E. Homosexuals who are Twins. A study of 46 probands. British Journal of Psychiatry. 1992; 160: 407 – 9).
- Recently, a study was published by Professor Spitzer, a prominent psychiatrist. He is viewed as a historic champion of gay activism by playing a key role in removing homosexuality from the psychiatric manual of mental disorders in 1973. In his study he examined whether a predominantly homosexual orientation will, in some individuals, respond to therapy. He examined two hundred respondents of both genders who reported changes from homosexual to heterosexual orientations lasting five years or more. He writes: "Although initially sceptical, in the course of the study, the author became convinced of the possibility of change in some gay men and lesbians." Although examples of "complete" change in orientation were not common, the majority of participants did report change from a predominantly or exclusively homosexual orientation before therapy to a predominantly or exclusively heterosexual orientation in the past year as a result of reparative therapy. These results would seem to contradict position statements of the major mental health organisations in the United States, which claim there is no scientific basis for believing psychotherapy effective in addressing same-sex attractions. (Spitzer RL. Can some gay men and lesbians change their sexual orientation? 200 participants reporting a change from homosexual to heterosexual orientation. Arch Sex Behav 2003; 32: 403 – 17; discussion 419 – 72. – further evidence see www.narth.com.)."
"
- In reviews by Professor Oswald, Professor of Economics at Warwick University, UK it was found that marriage reduces mortality. The excess mortality of men who are not married is similar to the excess mortality by smoking. Marriage has a much more important effect on longevity than income does. For men, the effect is positive and substantial. It almost exactly offsets the large (negative) consequences of smoking. For women, the effect is approximately half the size of the smoking effect.
- Marriage is associated with greater happiness, less depression, less alcohol abuse and less smoking. Marriage gives a beneficial effect in terms of reducing alcohol abuse especially for men and reducing depression for both men and women.
- Health benefits of marriage appear to be limited to marriage. Co-habitation does not confer the same degree of benefit than marriage. Formal marriage itself seems to matter. In the few studies that compare marriage and co-habitation, the result end to show a beneficial effect from being married. (Gardner J, Oswald A, Is It Money or Marriage that Keeps People Alive?) August 2002. Wilson CM and Oswald AJ: How Does Marriage Affect Physical and Psychological Health? A Survey of the Longitudinal Evidence (January 2002: both papers available on Prof Oswald's website – see "further reading"."
"
- At the root of many of the problems we see in children and young adults – such as emotional and behavioural difficulties, poor school performance, substance misuse, precocious teenage sexuality including teenage pregnancy and juvenile delinquency – is the dramatic increase in family break-up and "relationship turnover" of parents, adversely affecting their children (for an overview see: Rebecca O'Neill. Experiments in living. CIVITAS. 2002)
- As a result of family breakdown, children have on average more ill-health including higher mortality, emotional problems (including a higher suicide rate).
- Children from broken families have poorer school performance including poorer performance in maths, reading and writing.
- Children from broken families are more likely to live in poverty. As a result of family breakdown, many single parent families live in poverty.
- Children from broken families are also more likely to have problems with substance misuse and poor sexual health including teenage pregnancy.
- Furthermore, children from broken homes are more likely to be engaging in criminal activity and are disproportionally over-represented in the prison population.
- In a study of more than 170 US cities, a clear link between divorce rate and crime was found. Low rates of divorce were associated with reduced crime rates. (Sampson RJ, Crime in Capital Cities. Tonry and Morris Eds, Crime and Justice Chicago 1992)"
"Health risks of gay sex, Effects of family breakdown on children and society, marriage research and Therapy of homosexual orientation."
Dr Raabe's appointment to the ACMD
The events leading up to the revocation of Dr Raabe's appointment
"All appointments are made on merit and political activity plays no part in this election process. However, in accordance with the original Nolan recommendations, there is a requirement for appointees' political activity (if any declared) to be made public. (Dr Hans-Christian Raabe declared political activity, standing in 2009 as MEP candidate in the North West region for the Christian Party/Christian Peoples Alliance Party)".
"The Minister is disturbed by this issue and that given the one of the issues the ACMD needs to do is to gain a better understanding of drug use within the LGBT community where there are specific issues.
The Minister has added that another new appointee … will add some extra depth in this regard. He also stated that had we known the details which had now been made public, he would not have agreed to Dr Raabe's appointment. Given the need for work around LGBT drug use, Dr Raabe's continued membership is likely to be highly problematic. He would also like to know what the exact vetting process was for the application and interview stage for all applicants. He also agrees that Professor Iversen's views should be canvassed urgently on the potential impact on the committee. But please can you advise as to if this canvassing will also involve Dr Raabe's being approached as we are inclined to think that the Minister would want to be as open as possible but would like to know what Professor Iversen advises regarding canvassing the whole of the committee which now includes Dr Raabe."
"Dr Hans-Christian Raabe was appointed to the [ACMD] with effect from 1 January 2011. Subsequently media reports on the BBC website have brought to light his involvement with the publication on homosexuality that contains views inconsistent with those of government."
"Making heavy reference to other publications, the article claims that (1) the homosexual lifestyle is associated with a large number of very serious physical and emotional health consequences; (2) many "committed" homosexual relationships only last a few years raising doubts about whether children raised in same-sex households are being raised in a protective environment; (3) there are a disproportionately greater number of homosexuals among paedophiles and there is an overlap between the gay movement and the movement to make paedophilia acceptable; (4) studies seem to suggest that children raised by the same-sex parents may be more sexually promiscuous and more likely to become homosexual; (5) homosexuality is neither an entirely innate condition nor is it unchangeable … "it is possible to change sexual orientation" (6) heterosexually married couples are, on average, healthier and have fewer psychological problems; and (7) "gay marriage", with its inherent instability, contributes to the many adverse effects family breakdown has on children and on society."
"Given the sensitivities of the relationship between Government and the council and the [redacted] it would be preferable to have the ACMD calling on the Home Secretary to dismiss him, making it clear this is not a decision that has been imposed on the Council. While this would mean we are unable to dismiss Dr Raabe immediately, it would demonstrate due process when we come to explain our actions. You should note, any row around Government's interference with the council may not just be limited to the ACMD and drugs policy, but broaden into the value Government places on independent scientific advice in general."
"Can you confirm you authored the Canadian paper on homosexuality?
That paper was written by a group of people in Canada because of the decision in Canada to legalise same-sex marriage and obviously there was lots of discussion and we felt it would be good to make some comments.
Were you a co-author of that report?
Yes that is correct.
Do you still stand by the statements made?
I have not read it recently. I think some of the statements probably are somewhat strident and I recognise could be seen as offensive to some people. Perhaps I would not quite, in the same situation again, I probably would perhaps be a little less strident and more conciliatory… I think the tone was in retrospect a bit harsh. I could see certain people would find themselves attacked by it. I could see that, … obviously the aim or focus of that paper was on a political discussion … I was looking at a political decision on whether or not to legalise same-sex marriage… I think the general tone was harsh and I can understand some people would take issue with certain points. We believe we have researched the topic thoroughly. We have very much tried not to say anything without having it backed up by at least one or several sources… I struggle a little bit to see what this issue has to do with advising on drug policy?
Some of the concerns we have had here are the ACMD does provide advice, considering issues on certain drugs, for example GBL which is prevalent in the LGBT community. Just thinking about that, and would some of the views expressed in this article prejudice your advice?
I really don't think so. I could reassure you I would look at the pharmacological profile of GBL and the data we have. I don't think that would have any effect at all on my judgment. I am described as a raging homophobe [in press reports]. That is simply not the case. I can very clearly differentiate between medical evidence without letting any personal views I have on a subject interfere with that. I understand Mark Easton said some gay people on the ACMD could find it offensive. I am sorry if they find me offensive, I would not find them offensive.
You were asked at interview if there was anything in your personal or professional history that may cause embarrassment?
I remember that question; I did not think it would cause [embarrassment]. Everything you refer to has been in the public domain for many years, it's nothing new. I was criticised [in the media] for writing a [ ] in 2004. Maybe I was a little bit naïve; I didn't think this would cause any offence at all…
The section about homosexuals and paedophiles that was picked up in the Observer. What do you think about what is said in the Canadian paper on that issue?
This is very very problematic, a very hot topic. I seem to recall it's from a paper by a man called Blanchard, a forensic psychiatrist in Toronto. He looked at sexual offences and from my reading of that paper he found a disproportionate number of gays among sexual offenders, including paedophiles. The other thing I seem to remember is that we were quoting what an overlap between the lesbian and gay movement and the movement for paedophiles, written by someone who is sympathetic to paedophiles. This was what was quoted based on a forensic psychiatrist and on an activist within the movement. I accept this is a very problematic thing and could easily be misunderstood. I am not here to condemn. That was not the intention against any person or individual. There's a big discussion going on in Germany about a children's home where there has been a lot of child abuse. It's been described very clearly there's always been an overlap between these two movements; that has been recognised for quite a while now. If that causes offence I apologise but I had what are scientific studies that have been published.
Anything else that we ought to be aware of that could be embarrassing?
I have had my fingers burnt with something; I didn't think there was a problem. Could you tell me what you believe might be a problem? My first thought without question was criminal offence. To my knowledge I have never committed a crime, I'm not aware of anything else. I have probably caused enough embarrassment to the Home Office.
Obviously criminal offences are one thing. Any written views or exchanges you have expressed to individuals that could come out into the public domain that could be embarrassing for whatever reason? …
No
Can I ask what's going to happen next? I had a telephone message from the Sunday Times asking me to give an interview. I want to ask your advice – what's the next step? [Pass it on to Press Office – Les Iversen is the only spokesperson for the ACMD]
I will do that – can you comment on comments that at least another member is threatening to resign?
I can't because I have only read what you have read."
"At your request to ensure proper process a conversation was held with Dr Raabe on the afternoon of 24 January to discuss the recent press coverage regarding his appointment to the ACMD (full transcript at Annex A). Dr Raabe was polite, helpful and apologetic throughout the conversation.
Dr Raabe confirmed he was the author of the [2005 Paper]. He stated that this was written at a time of political controversy in Canada in relation to the legal position of same-sex marriage.
Dr Raabe stated that, with hindsight, he could see that the Paper was presented in a strident manner because of the purpose for which it had been written and it might have been better if the tone was more measured. He apologised if any offence had been caused.
However Dr Raabe did not distance himself from the views expressed in the Paper, but he did stress that the authors were careful to ensure that any statement made in the Paper was backed up with references. During the conversation Dr Raabe was given several opportunities to distance himself from the view expressed in the Paper which he did not take.
The section in the Paper that refers to the link between homosexuality and paedophilia was raised specifically and Dr Raabe quoted the sources the authors used in the papers for the opinions expressed. He did not in any way retract the overall conclusions about links between paedophilia and homosexuality.
Dr Raabe questioned why his views on homosexuality would be considered important in the context of drug misuse.
It was pointed out to him that the ACMD periodically advises on substances that may be particularly misused by the LGBT community. To this Dr. Raabe stated that his views would have no impact on the advice or his contribution to the ACMD, and he would only comment on the pharmacology, toxicology and medical aspects of the substance, without reference to his personal views.
Dr. Raabe was asked why he did not declare this paper during the interview when asked to declare anything that may cause embarrassment to the Home Office or ACMD. He stated that he remembered this question and considered it to refer to criminality. He also noted that this paper was in the public domain. He noted he might have been "naive" in [sic] considering that this paper would not have been a source of embarrassment.
When asked if there was anything else that might cause embarrassment to the Home Office he stated after a time for thought that he did not consider there was."
"Because of your failure to declare this paper, and because of its contents, the Home Office is minded to reconsider your appointment to the ACMD and I am writing to give you the opportunity to make any comments you wish in response. Given the nature of this issue the Department would welcome your response by Wednesday 2 February.
It would also be helpful in your response if you could, in light of the position and embarrassment caused to date, inform the Department if there is anything else that could cause embarrassment that you would wish the Department to take into account.
The Department's concern is irrespective of your religious beliefs, views on drug misuse or declared political activity. We do not in any way question your expertise as a General Practitioner knowledgeable in drug misuse issues."
(a) it had no relevance to matters which fell within the remit of the ACMD;
(b) whilst some might not be prepared to accept the factual evidence cited in the Paper that did not make it wrong;
(c) neither the Home Office nor the ACMD should be embarrassed by factual evidence or brought into disrepute by upholding it; and
(d) Dr. Raabe was asked whether anything would come to light that would cause embarrassment. The Paper was in no way hidden from view. It had been in the public domain for 5 years, would readily be disclosed by an internet search and could have been easily and quickly assessed by those responsible for vetting his application.
(a) agreed that he did not refer to the 2005 Paper in his application or interview but disputed (giving several arguments) that that was a failure of proper disclosure
(b) sought a more objective definition of "embarrassment" as it might apply to the Home Office
(c) asked for detail and transparency of the way that his case was being considered and requested a much more detailed and formal process than the current exchange of correspondence
(d) fully recognised and accepted the need for ACMD members to be known to have both integrity and ability
(e) explicitly requested that his letter be placed before the Parliamentary Under Secretary of State.
"Disclosure
Dr Raabe states that no reference was made to the Paper in his application or interview because:
(a) it has no relevance to matters which fall within the remit of the ACMD
This point is arguable, as the ACMD frequently consider the misuse of new substances that appear to be used largely within nightclubs favoured by the LGBT community. However Dr Raabe, citing his own treatment of LGBT patients within his medical practice nevertheless maintains that his views are irrelevant and would not influence his judgment.
(b) Whilst some might not be prepared to accept the factual evidence cited in the Paper, that does not make it wrong.
Dr Raabe has stressed that in the Paper all assertions are based on reference material. Whilst this appears to be the case, and a full scientific assessment of this Paper has not been undertaken, it could be considered that the Paper selectively cites research work to demonstrate a point.
(c) Neither the Home Office nor the ACMD should be embarrassed by factual evidence or brought into disrepute by upholding.
See above
(d) I was asked whether "anything would come to light" that would cause embarrassment: the Paper was in no way hidden from view – it has been in the public domain for five years, would readily be disclosed by an internet search and could have been easily and quickly accessed by those responsible for vetting my application.
Whilst the Paper is in the public domain, Dr Raabe's co-authorship is not easily identifiable as asserted. Owing to the declaration of political activity an internet search was conducted on Dr Raabe. This Paper, nor the views expressed within, were not found on an internet search under Dr Raabe's name alone. Only when, retrospectively, searching the internet using Dr Raabe's name together with additional search terms relevant to the Paper, such as "gay health", is the Paper found. Searching on the paper with the name of the first author (Shea) finds the Paper, not Dr Raabe, but without using the additional search terms or the first author the Paper is not readily found. It would therefore be a matter of argument whether the paper was easily found especially given the difficulty of establishing the way internet search engines would have worked at the time the appointment was made.
Note also that Dr Raabe uses the term "vetting" – note that ACMD members are not vetting for high level security clearance as they do not need to access to, in the course of their work, classified material.
Embarrassment
Dr Raabe claims that his position appears to be undermined by "embarrassment" caused to the Home Office, but there is no clear objective definition of "embarrassment" in this context.
The question at interview that requests applicants to disclose anything that may cause embarrassment to the organisation is a question set out by OCPA and one asked for all appointments to advisory committees. However OCPA do not, as far as I am aware, provide a definition of "embarrassment".
Dr Raabe also asks if the Department could specify exactly which sentences, statistics, quotations and data in the Paper are said to be a cause for embarrassment.
Some external observers have concentrated broadly on his (supposed) views on homosexuality, without being specific to any point raised in the Paper and in some cases attributing personally to him views that of organisations. Others have quoted the link in [sic] Paper makes between homosexuality and paedophilia, which may be considered to have caused particular embarrassment.
Dr Raabe asks numerous questions in relation to the review, which assert that a longer and more detailed review is required.
As noted in the body of submission, advice from LAB [the internal legal department in the Home Office] was that that was not necessary.
Dr Raabe asks whether other members of the ACMD have been, or will be, asked to state their position in relation to matters concerning homosexuality and whether there are any circumstances in which their answers will result in them being investigated.
There is no such intention to ask ACMD members their views on homosexuality or other issues."
"Ministers have now considered [Professor Silverman's] submission and found that the key factors here are:
(i) the non-disclosure of the information, and
(ii) the impact on the smooth running of the Committee and the ability of Dr Raabe to be able to respond to provide balanced advice on drugs issues affecting the LGBT community.
Consequently Ministers find that Dr Raabe should be dismissed and the GP post re-advertised.
I would be grateful if you could provide a suitable letter and covering submission for James Brokenshire's signature as soon as possible. Clearly it is important that this letter should issue today. The Minister has also asked that you ensure LAB has agreed the content of the letter…"
"The emergence of your authorship of the [2005 Paper] into the wider public domain, not disclosed by you in your interview and application, has raised concerns over your credibility to provide balanced advice on drug misuse issues affecting the lesbian, gay, bisexual and transgender (LGBT) community and impacts on the smooth running of the Advisory Council on the Misuse of Drugs (ACMD). Therefore I have decided to revoke your appointment to the ACMD.
The Department considers that your failure to disclose your authorship of this Paper raises serious issues of judgment and a failure to appreciate that the views expressed in it could affect your credibility as an advisor on drug misuse issues.
I have carefully considered your letter to Alan Pratt of 2 February 2011 and would respond to the points you make as follows
Disclosure
You state that your Paper was irrelevant, was not "wrong", should not be embarrassing and was in the public domain. I disagree that your Paper has no relevance to your role on the ACMD: as stated above it has the potential to undermine the credibility of its advice.
I disagree that it is necessary to effect a fuller evaluation of your Paper and the sources on which it is based. I consider that it is readily apparent your Paper is polemical and assembles material in a way in which disparages gay people and their lifestyles and relationships.
I do not accept that the fact that your Paper may have been publicly accessible absolved you from the need to mention it when invited to do so at interview. The views expressed in your Paper are such that if we had known of them at the time of your interview they would have prevented or inhibited your appointment.
Embarrassment
The Department re-iterates that the emergence of your Paper is embarrassing and to have an advisor who holds views expressed within the Paper could impact on the effective functioning of the ACMD. The Department takes equality issues very seriously, and under section 149 of the Equality Act 2010 it must, in the exercise of its functions, have due regard to the need, among other things, to eliminate discrimination, to advance equality of opportunity between persons who share a relevant protected characteristic (e.g. sexuality) and persons who do not share it and to foster good relations persons who share a relevant protected characteristic and persons who do not share it.
Review Process
The Department does not intend to establish a review process. In responding to correspondence you have now had a reasonable opportunity to explain your position. You have given no reason for us to believe that there are additional facts relevant to your article or your failure to disclose it which are currently unknown by the Department and which would, if known, materially affect our decision. In determining that the Department now has a knowledge of all relevant facts, it is entitled to take into account the need to act with reasonable speed to avoid you and the ACMD being mired in a protracted controversy.
Other issues
The Government accepts that in principle policy-making is enhanced if it is informed by a wide range of perspectives. However, in this case we believe that this consideration is out-weighed by the need to ensure the effective functioning of the ACMD and the weight placed on its advice.
I can confirm that other members of the ACMD are not questioned as to their views on homosexuality, just as you were not questioned until your Paper came to light."
The Parties' Submissions
1. Its central conclusion was that the 2005 Paper was a relevant consideration in any appointment, because of its polemical nature and the way in which it disparaged gay people and their lifestyle.
2. For that reason the 2005 Paper (and the embarrassment it engendered) raised relevant concerns over the ability of Dr Raabe/ACMD to work with the LGBT community and the credibility in the LGBT community of ACMD advice.
3. Had its contents been known at the time of interview it would have affected or inhibited Dr Raabe's appointment. His appointment was accordingly revoked.
"I use the term "views" [to describe the contents of the 2005 Paper] advisedly, as the Paper is written in an unbalanced way that includes personal opinion".
Discussion
Were irrelevant considerations taken into account in the making of the decision?
"This option does not deal immediately with the issue that Dr Raabe holds the views described, especially in the context of the Home Secretary's position as Minister for Equalities."
"While the link has yet to be made by the media, the fact that Dr Raabe was appointed by the Home Secretary could anger Equality groups given her dual role as Equalities Minister. Such groups could seek to generate further publicity in an effort to get Dr Raabe removed from the Council. It is worth noting this follows the Home Office recently being named by Stonewall as top employee for gay people in the UK."
Was the decision to revoke irrational?
"Whilst the defendants' beliefs about sexual practice may not find the acceptance that once they did, nevertheless democratic society must ensure that their espousal and expression remain open to those who held them. It would be unfortunate to replace oppression on one community (homosexual couples) with legal oppression of another (those sharing the defendants' beliefs); rather there should be achieved respect for the broad protection granted to religious freedom as underlined in Kokkinakis v Greece 17 EHRR 397. Any interference with religious rights, specifically identified in Article 9 and listed in Article 14 of the Convention, must satisfy the test of 'anxious scrutiny'. However, in a pluralist society it is inevitable that from time to time, as here, views, beliefs and rights of some are not compatible with those of others. As I have made plain I do not consider that the defendants face any difficulty in manifesting their religious beliefs, they are merely prohibited from so doing in the commercial context they have chosen."
"Article 9 does not require that one should be allowed to manifest one's religion at any time and place of ones choosing." (p. 2529 B)
Was there a breach of the rules of natural justice?
Was the decision unlawful because Dr Raabe had not acted in breach of the terms and conditions of his appointment?
Conclusion