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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
    1. Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.
    2. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    3. Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
    4. H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871
    5. British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165
    6. Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724
    7. Robertson v Minister of Pensions [1948] 2 All ER 767
    8. Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496
    9. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204
    10. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643
    11. Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720
    12. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517

SIR THOMAS BINGHAM MR. 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...... 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.... 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.

BACKGROUND

There can be no doubt that public attitudes to homosexuals and homosexuality have in the past varied widely from country to country, and within the same country at different times, and among different social groups in the same country. Almost any generalisation can be faulted. But there has in this country been a discernible trend, over the last half century or so, towards greater understanding and greater tolerance of homosexuals by heterosexuals, and towards greater openness and honesty by homosexuals. In part this trend has prompted, in part it may have been a result of, legislative change.

Section 1(1) of the Sexual Offences Act 1967 decriminalised homosexual acts between consenting adults in private. It only applied to males, since homosexual acts between women were not criminal anyway. This legislative change, now nearly 30 years ago, followed and gave effect to the Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247) (the Wolfenden Committee) in 1957... It does not appear that that committee addressed the issues with specific reference to the armed forces. But it is important to note that s.1(1) of the Act did not, by virtue of s.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....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.....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 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.... 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....

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.

IRRATIONALITY

(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 decisionmaker 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 Bugdaycay v Secretary of State for the Home Dept [1987] 1 All ER 940, [1987] AC 514 and Brind v Secretary of State for the Home Dept [1991] 1 All ER 720, [1991] 1 AC 696. In the first of these cases Lord Bridge of Harwich said ([1987] 1 All ER 940 at 952, [1987] AC 514 at 53 l):

"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".....

It was argued for the ministry, in reliance on Nottinghamshire CC v Secretary of State for the Environment [1986] 1 All ER 199, [1986] AC 240 and Hammersmith and FulhamLondon BC v Secretary of State for the Environment [1990] 3 All ER 589, [1991] 1 AC 521, that a test more exacting than Wednesbury was appropriate in this case (see Associated Provincial Picture Houses Ltd v Wednesbury Corp.). 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.... 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 reassessment of the existing policy is already, as I have noted, in train, and 1 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.....