CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 septembre 1999

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text-indent:0pt; display:inline-block } .s69D59A3 { width:105.7pt; text-indent:0pt; display:inline-block } .sC593A9DB { width:21.97pt; text-indent:0pt; display:inline-block } .s11C5CB45 { width:94.35pt; text-indent:0pt; display:inline-block } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s88CC502F { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt; text-align:justify } .s85FD9C02 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt; text-align:right } .s85DBFFB9 { margin-top:12pt; margin-left:328.5pt; margin-bottom:0pt } .s6E2FCA00 { margin-top:0pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCDABDDB1 { margin-top:24pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }     THIRD SECTION     CASE OF SMITH AND GRADY v. THE UNITED KINGDOM   (Applications nos. 33985/96 and 33986/96)     JUDGMENT   STRASBOURG     27 September 1999       FINAL     27/12/1999         In the case of Smith and Grady v. the United Kingdom, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   J.-P. Costa, President , Sir   N icolas Bratza, Mr   L. Loucaides, Mr   P. Kūris, Mr   W. Fuhrmann, Mrs   H.S. Greve, Mr   K. Traja, judges , and Mrs S. Dollé, Section Registrar , Having deliberated in private on 18 May and 24 August 1999, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in two applications against the United Kingdom of Great Britain and Northern Ireland lodged by the applicants with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The first applicant, Ms Jeanette Smith, is a British national born in 1966 and resident in Edinburgh. Her application was introduced on 9 September 1996 and was registered on 27 November 1996 under file no. 33985/96. The second applicant, Mr Graeme Grady, is a British national born in 1963 and resident in London. His application was introduced on 6 September 1996 and was also registered on 27 November 1996 under file no. 33986/96. Both applicants were represented before the Commission and, subsequently, before the Court by Mr P. Leech, a legal director of Liberty which is a civil liberties group based in London. 2.     The applicants complained that the investigations into their homosexuality and their discharge from the Royal Air Force on the sole ground that they are homosexual constituted violations of Article 8 of the Convention taken alone and in conjunction with Article 14. They also invoked Articles 3 and 10 of the Convention taken alone and in conjunction with Article 14 in relation to the policy of the Ministry of Defence against homosexuals in the armed forces and the consequent investigations and discharges. They further complained under Article 13 that they did not have an effective domestic remedy for these violations. 3.     On 20 May 1997 the Commission (Plenary) decided to give notice of the applications to the United Kingdom Government (“the Government”) and invited them to submit observations on the admissibility and merits of the applications. In addition, the applications were joined to two similar applications (nos. 31417/96 and 32377/96, Lustig-Prean v. the United Kingdom and Beckett v. the United Kingdom). The Government, represented by Mr M. Eaton and, subsequently, by Mr   C. Whomersley, both Agents, Foreign and Commonwealth Office, submitted their observations on 17 October 1997. 4.     On 17 January 1998 the Commission decided to adjourn the applications pending the outcome of a reference to the European Court of Justice (“ECJ”) pursuant to Article 177 of the Treaty of Rome by the English High Court on the question of the applicability of the Council Directive on the Implementation of the Principle of Equal Treatment for Men and Women as regards Access to Employment, Vocational Training and Promotion and Working Conditions 76/207/EEC (“the Equal Treatment Directive”) to a difference of treatment based on sexual orientation. 5.     On 17 April 1998 the applicants submitted their observations in response to those of the Government. 6.     On 13 July 1998 the High Court delivered its judgment withdrawing its reference of the above question given the decision of the ECJ in the case of R. v. Secretary of State for Defence, ex parte Perkins (13 July 1998). 7.     Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 and in accordance with the provisions of Article 5 § 2 thereof, the applications were examined by the Court. In accordance with Rule 52 § 1 of the Rules of Court [1] , the President of the Court, Mr L. Wildhaber, assigned the case to the Third Section. The Chamber constituted within that Section included ex officio Sir Nicolas Bratza, the judge elected in respect of the United Kingdom (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr J.-P. Costa, Acting President of the Section and President of the Chamber (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr   L.   Loucaides, Mr P. Kūris, Mr W. Fuhrmann, Mrs H.S. Greve and Mr   K.   Traja (Rule 26 § 1 (b)). 8.     On 23 February 1998 the Chamber declared the applications admissible [2] and, while it retained the joinder of the present applications, it decided to disjoin them from the Lustig-Prean and Beckett cases. The Chamber also decided to hold a hearing on the merits of the case. 9.     On 29 April 1999 the President of the Chamber decided to grant Ms   Smith legal aid. 10.     The hearing in this case and in the case of Lustig-Prean and Beckett v. the United Kingdom, took place in public in the Human Rights Building, Strasbourg, on 18 May 1999. There appeared before the Court: (a)     for the Government Mr   C. Whomersley, Foreign and Commonwealth Office,   Agent , Mr   J. Eadie,   Counsel , Mr   J. Betteley , Ms   J. Pfieffer,   Advisers ; (b)     for the applicants Mr   B. Emmerson , Ms   J. Simor,   Counsel , Mr   P. Leech, Ms   D. Luping ,   Solicitors , Mr   A. Clapham ,   Adviser .   The Court heard addresses by Mr Emmerson and Mr Eadie. THE FACTS I.     The Circumstances of the case A.     The first applicant 11.     On 8 April 1989 Ms Jeanette Smith (the first applicant) joined the Royal Air Force to serve a nine-year engagement (which could be extended) as an enrolled nurse. She subsequently obtained the rank of senior aircraft woman. From 1991 to 1993 she was recommended for promotion. A promotion was dependent on her becoming a staff nurse and in 1992 she was accepted for the relevant conversion course. Her final exams were to take place in September 1994. 12.     On 12 June 1994 the applicant found a message on her answering machine from an unidentified female caller. The caller stated that she had informed the air force authorities of the applicant’s homosexuality. On 13   June 1994 the applicant did not report, as required, for duty. On that day a woman telephoned the air force Provost and Security Service (“the service police”) stating, inter alia , that the applicant was homosexual and was sexually harassing the caller. 13.     On 15 June 1994 the applicant reported for duty. She was called to a pre-disciplinary interview because of her absence without leave. In explaining why she did not report for duty, she referred to the anonymous telephone message and admitted that she was homosexual. She also confirmed that she had a previous and current homosexual relationship. Both relationships were with civilians and the current relationship had begun eighteen months previously. The assistance of the service police was requested, a unit investigation report was opened and an investigator from the service police was appointed. 14.     The applicant was interviewed on the same day by that investigator and another officer (female) from the service police. The interview lasted approximately thirty-five minutes. She was cautioned that she did not have to say anything but that anything she did say could be given in evidence. The applicant later confirmed that her solicitor had advised her not to say anything but she agreed that she would answer simple questions but not the “nitty gritty”. She was told that she might be asked questions which could embarrass her and that if she felt embarrassed she should say so. It was also explained that the purpose of the questions was to verify that her admission was not an attempt to obtain an early discharge from the service. The applicant confirmed that, while she had had “thoughts” about her sexual orientation for about six years, she had her first lesbian relationship during her first year in the air force. She was asked how she came to realise that she was lesbian, the names of her previous partners (she refused to give this information) and whether her previous partners were in the service (this question was put a number of times). She was questioned about how she had met her current partner and the extent of her relationship with that partner but she would not respond at first, at which stage her interviewer queried how else he was to substantiate her homosexuality. The applicant then confirmed that she and her partner had a full sexual relationship. She was also asked whether she and her partner had a sexual relationship with their foster daughter (16 years old). The applicant indicated that she knew the consequences of her homosexuality being discovered and, while she considered herself just as capable of doing the job as another, she had come to terms with what was going to happen to her. The interviewers also wanted to know whether she had taken legal advice, who was her solicitor, what advice he had already given her and what action she proposed to take after the interview. She was also asked whether she had thought about HIV, whether she was being “careful”, what she did in her spare time and whether she was into “girlie games” like hockey and netball. The applicant agreed that her partner, who was waiting outside during the interview, could be interviewed for “corroboration” purposes. 15.     The report prepared by the interviewers dated 15 June 1994 described the subsequent interview of the applicant’s partner. The latter confirmed that she and the applicant had been involved in a full sexual relationship for about eighteen months but she declined to elaborate further. 16.     The investigation report was sent to the applicant’s commanding officer who, on 10 August 1994, recommended the applicant’s administrative discharge. On 16 November 1994 the applicant received a certificate of discharge from the armed forces. An internal air force document dated 17 October 1996 described the applicant’s overall general assessment for trade proficiency and personal qualities as very good and her overall conduct assessments as exemplary. B.     The second applicant 17.     On 12 August 1980 Mr Graeme Grady (the second applicant) joined the Royal Air Force at the rank of aircraftman serving as a trainee administrative clerk. By 1991 he had achieved the rank of sergeant and worked as a personnel administrator, at which stage he was posted to Washington at the British Defence Intelligence Liaison Service (North America) – “BDILS(NA)”. He served as chief clerk and led the BDILS(NA) support staff team. In May 1993 the applicant, who was married with two children, told his wife that he was homosexual. 18.     The applicant’s general assessment covering the period June 1992 to June 1993 gave him 8 out of a maximum of 9 marks for trade proficiency, supervisory ability and personal qualities. His ability to work well with all rank levels, with Canadian and Australian peers and with his senior officer contacts was noted, his commanding officer concluding that the applicant was highly recommended for promotion (a special recommendation being noted as well within his reach) and that he was particularly suited for “PS   [personal assistant]/SDL [special duties list]/Diplomatic duties”. 19.     Following disclosures to the wife of the head of the BDILS(NA) by their nanny, the head of the BDILS(NA) reported that it was suspected that the applicant was homosexual. A unit investigation report was opened and a service police officer nominated as investigator. 20.     On 12 May 1994 the applicant’s security clearance was replaced with a lower security clearance. On 17 May 1994 he was relieved of his duties by the head of the BDILS(NA) and was informed that he was being returned to the United Kingdom pending investigation of a problem with his security clearance. On the same day the applicant was brought to his home to pack his belongings and was required to leave Washington for the United Kingdom. He was then required to remain at the relevant air force base in the United Kingdom. 21.     On 19 May 1994 the head of the BDILS(NA) advised two service police investigators, who had by then arrived in Washington, that his own wife, their nanny, the applicant’s wife and another (female) employee of the BDILS(NA), together with the latter’s husband, should be interviewed. 22.     The nanny detailed in a statement how, through her own involvement in the homosexual community, she had come to suspect that the applicant was homosexual. The wife of the head of the BDILS(NA) revealed in interview confidences made to her by the applicant’s wife about the applicant’s marriage difficulties and sex life and informed investigators about a cycling holiday taken by the applicant with a male colleague. It was decided by the investigators that her statement would serve no useful purpose. The applicant’s colleague and the latter’s husband also spoke of the applicant’s marriage difficulties, the sleeping arrangements of the applicant and his wife and the applicant’s cycling holiday with a male colleague. These persons were also asked about the possibility of the applicant having had an extra-marital relationship and of being involved in the homosexual community. The investigators later reported that these friends were clearly loyal to the applicant and not to be believed. 23.     The applicant’s wife was then interviewed. The case progress report dated 22 May 1994 describes the interview in detail. It was explained to the applicant’s wife that the interview related to the applicant’s security clearance and that her husband had been transferred to the United Kingdom at short notice in accordance with standard procedure. She agreed to talk to the investigators and, further to questioning, outlined in some detail their financial position, the course of and the current state of their marriage, their sexual habits and the applicant’s relationship with his two children. She confirmed that her husband’s sexual tendencies were normal and indicated that her husband had gone on his own on the cycling holiday in question. 24.     On 23 May 1994 the applicant’s lower security clearance was suspended. 25.     On 25 May 1994 the applicant was required to attend an interview with the same two investigators who had returned from the United States. It began at 2.35 p.m. and was conducted under caution with an observer (also from the air force) present at the applicant’s request. The applicant was informed that an allegation had been made regarding his sexual orientation (the terms “queen” and “out and out bender” were used) and it was made clear that the investigators had been to Washington and had spoken to a number of people, one or two of whom thought he was gay. The applicant denied he was homosexual. He was asked numerous questions about his work, his relationship with the head of the BDILS(NA), his cycling holiday and about his female colleague. He was told that his wife had been interviewed in detail and he was informed from time to time by the interviewers if his answers matched those of his wife. He was asked to tell the interviewers about the break-up of his marriage, whether he had extra-marital affairs, about his and his wife’s sex life including their having protected sex and about their financial situation. He was also questioned on the cycling holiday, about a male colleague and the latter’s sexual orientation. They asked the applicant who he was calling since he had returned to the United Kingdom and how he was telephoning. He was told that he would be asked to supply his electronic diary which contained names, addresses and telephone numbers and was told that the entries would be verified for homosexual contacts. They informed the applicant that they had a warrant if he did not agree to a search of his accommodation. The applicant agreed to the search. The applicant also requested time to think and to take legal advice. The interview was adjourned at 3.14 p.m. 26.     The applicant then took advice from a solicitor and his accommodation was searched. The interview recommenced at 7.44 p.m. with the applicant’s solicitor and an observer present. Despite being pressed with numerous questions, the applicant answered “no comment” to most of the questions posed. Given the applicant’s responses, his lawyer was asked what advice had been given to the applicant. The applicant’s digital diary was taken from him. He was asked whether he realised the security implications of the investigation and that his career was on the line if the allegations against him were proved. One of the investigators then asked him: “… if you wish to change your mind and want to speak to me, while I’m still here, before I go back to Washington; because I’m going back to Washington. Because I’m going to see the Colonel tomorrow, that is the one in London, who is then going to see the General and we’re going to get permission to speak to the Americans … and I shall stay out there, Graeme, until I have spoken to all Americans that you know. Expense is not a problem. Time is not a problem …” The detailed evidence given by his wife to the investigators was put to the applicant, including information about his relationship with his son, his daughter and his mother-in-law, about matters relating to the family home of which the applicant was not aware and about his having protected sex with his wife. The interviewer returned again to the subject of the applicant having previously grown cold towards his wife but now declaring his love for her. The applicant continued to respond “no comment”. It was explained to the applicant’s solicitor that the service attitude in relation to investigations involving acts of alleged homosexuality did not warrant the provision of legal advice and that the applicant’s solicitor was only delaying matters. The investigators also mentioned that it was a security matter which they would not detail further since his solicitor did not have security clearance, but that the applicant should not be surprised if some counter-intelligence people came to talk to him and that there would be no legal advice for that. The applicant requested time to speak to his lawyer and the interview was interrupted at 8.10 p.m. The applicant then spoke to his lawyer and asked to think about matters overnight. 27.     The interview recommenced at 3.27 p.m. on 26 May 1994 with the same investigators and an observer, but the applicant did not require a solicitor. The applicant admitted his homosexuality almost immediately and confirmed that the reason he denied it at first was that he was not clear about the position as regards the retention of certain accumulated benefits on discharge and he was concerned about his family’s financial position in that eventuality. However, he had since discovered that his discharge would be administrative and that he would get his terminal benefits, so he could be honest. The applicant was questioned further about a person called “Randy”, whether his wife knew he was homosexual, whether a male colleague was homosexual and when he had “come out”. He was asked whether he was a practising homosexual, but he declined to give the name of his current partner, at which stage it was explained to him that the service had to verify his admission of homosexuality to avoid fraudulent attempts at early discharge. He was then questioned about his first homosexual relationship (he confirmed that it began in October 1993), his homosexual partners (past and present), who they were, where they worked, how old they were, how the applicant met them and about the nature of his relationship with them, including the type of sex they had. During this interview, the personal items taken from the applicant were produced and the applicant was questioned about, inter alia , the contents of his digital diary, a photograph, a torn envelope and a letter from the applicant to his current partner. He was questioned further about when he first realised he was homosexual, who knew about his sexual orientation, his relationship with his wife (including their sexual relationship), what his wife thought about his homosexuality, his HIV status and again about the nature of his sexual relationships with his homosexual partners. The interview terminated at 4.10 p.m. 28.     The investigators prepared a report on 13 June 1994. In his certificate of qualifications and reference on discharge dated 12 October 1994, the applicant was described as a loyal serviceman and a conscientious and hard worker who could be relied upon to achieve the highest standards. It was also noted that he had displayed sound personal qualities and integrity throughout his service and had enjoyed the respect of his superiors, peers and subordinates alike. The applicant was administratively discharged with effect from 12 December 1994. C.     The applicants’ judicial review proceedings ( R. v. Ministry of Defence, ex parte Smith and Others 2 Weekly Law Reports 305) 29.     Along with Mr Lustig-Prean and Mr Beckett (see paragraph   3 above), the applicants obtained leave to apply for judicial review of the decisions to discharge them from the armed forces. The applicants argued that the policy of the Ministry of Defence against homosexuals in the armed forces was “irrational”, that it was in breach of the Convention and that it was contrary to the Equal Treatment Directive. The Ministry of Defence maintained that the policy was necessary mainly to maintain morale and unit effectiveness, in view of the loco parentis role of the services as regards minor recruits and in light of the requirement of communal living in the armed forces. 30.     On 7 June 1995 the High Court dismissed the application for judicial review, Lord Justice Simon Brown giving the main judgment of the court. He noted that the cases illustrated the hardships resulting from the absolute policy against homosexuals in the armed forces and that all four of the applicants had exemplary service records, some with reports written in glowing terms. Moreover, he found that in none of the cases before him was it suggested that the applicants’ sexual orientation had in any way affected their ability to carry out their work or had any ill-effect on discipline. There was no reason to doubt that, but for their discharge on the sole ground of sexual orientation, they would have continued to perform their service duties entirely efficiently and with the continued support of their colleagues. All were devastated by their discharge. Simon Brown LJ reviewed the background to the “age-old” policy, the relevance of the Parliamentary Select Committee’s report of 1991, the position in other armed forces around the world, the arguments of the Ministry of Defence (noting that the security argument was no longer of substantial concern to the government) together with the applicants’ arguments against the policy. He considered that the balance of argument clearly lay with the applicants, describing the applicants’ submissions in favour of a conduct-based code as “powerful”. In his view, the tide of history was against the Ministry of Defence. He further observed that it was improbable, whatever the High Court would say, that the policy could survive for much longer and added, “I doubt whether most of those present in court throughout the proceedings now believe otherwise.” 31.     However, having considered arguments as to the test to be applied in the context of these judicial review proceedings, Simon Brown LJ concluded that the conventional Wednesbury principles, adapted to a human rights context, should be applied. Accordingly, where fundamental human rights were being restricted, the Minister of Defence needed to show that there was an important competing interest to justify the restriction. The primary decision was for him and the secondary judgment of the court amounted to asking whether a reasonable Minister, on the material before him, could have reasonably made that primary judgment. He later clarified that it was only if the purported justification “outrageously defies logic or accepted moral standards” that the court could strike down the Minister’s decision. He noted that within the limited scope of that review, the court had to be scrupulous to ensure that no recognised ground of challenge was in truth available to an applicant before rejecting the application. When the most fundamental human rights are threatened, the court would not, for example, be inclined to overlook some minor flaw in the decision-making process, or to adopt a particularly benevolent view of the Minister’s evidence, or to exercise its discretion to withhold relief. However, he emphasised that, even where the most fundamental human rights were being restricted, “the threshold of unreasonableness is not lowered”. It was clear that the Secretary of State had cited an important competing public interest. But the central question was whether it was reasonable for the Secretary of State to take the view that allowing homosexuals into the forces would imperil that interest. He pointed out that, although he might have considered the Minister wrong, “… [the courts] owe a duty ... to remain within their constitutional bounds and not trespass beyond them. Only if it were plain beyond sensible argument that no conceivable damage could be done to the armed services as a fighting unit would it be appropriate for this court now to remove the issue entirely from the hands of both the military and of the government. If the Convention … were part of our law and we were accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown proportionate to the benefits then clearly the primary judgment … would be for us and not others: the constitutional balance would shift. But that is not the position. In exercising merely a secondary judgment, this court is bound to act with some reticence. Our approach must reflect, not overlook, where responsibility ultimately lies for the defence of the realm and recognise too that Parliament is exercising a continuing supervision over this area of prerogative power.” Accordingly, while the Minister’s suggested justification for the ban may have seemed “unconvincing”, the Minister’s stand could not properly be said to be unlawful. It followed that the applications had to be rejected “albeit with hesitation and regret”. A brief analysis of the Convention’s case-law led the judge to comment that he strongly suspected that, as far as the United Kingdom’s obligations were concerned, the days of the policy were numbered. 32.     Simon Brown LJ also found that the Equal Treatment Directive was not applicable to discrimination on grounds of sexual orientation and that the domestic courts could not rule on Convention matters. He also observed that the United States, Canada, Australia, New Zealand, Ireland, Israel, Germany, France, Norway, Sweden, Austria and the Netherlands permitted homosexuals to serve in their armed forces and that the evidence indicated that the only countries operating a blanket ban were Turkey and Luxembourg (and, possibly, Portugal and Greece). 33.     In August 1995 a consultation paper was circulated by the Ministry of Defence to “management” levels in the armed forces relating to the Ministry of Defence’s policy against homosexuals in those forces. The covering letter circulating this paper pointed out that the “Minister for the Armed Forces has decided that evidence is to be gathered within the Ministry of Defence in support of the current policy on homosexuality”. It was indicated that the case was likely to progress to the European courts and that the applicants in the judicial review proceedings had argued that the Ministry of Defence’s position was “bereft of factual evidence” but that this was not surprising since evidence was difficult to amass given that homosexuals were not permitted to serve. Since “this should not be allowed to weaken the arguments for maintaining the policy”, the addressees of the letter were invited to comment on the consultation paper and “to provide any additional evidence in support of the current policy by September 1995”. The consultation paper attached referred, inter alia , to two incidents which were considered damaging to unit cohesion. The first involved a homosexual who had had a relationship with a sergeant’s mess waiter and the other involved an Australian on secondment whose behaviour was described as “so disruptive” that his attachment was terminated. 34.     On 3 November 1995 the Court of Appeal dismissed the applicants’ appeal. The Master of the Rolls, Sir Thomas Bingham, delivered the main judgment (with which the two other judges of the Court of Appeal agreed). 35.     As to the court’s approach to the issue of “irrationality”, he considered that the following submission was an accurate distillation of the relevant jurisprudence on the subject: “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.” He went on to quote from, inter alia , the judgment of Lord Bridge in R.   v. Secretary of State for the Home Department, ex parte Brind [1991] 1   Appeal Cases 696, where it was pointed out that: “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.” Moreover, he considered that the greater the policy content of the decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court had to be in holding a decision to be irrational. 36.     Prior to applying this test of irrationality, the Master of the Rolls noted that the case concerned innate qualities of a very personal kind, that the decisions of which the applicants complained had had a profound effect on their careers and prospects and that the applicants’ rights as human beings were very much in issue. While the domestic court was not the primary decision-maker and while it was not the role of the courts to regulate the conditions of service in the armed forces, “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’ …”. 37.     He then reviewed, by reference to the test of irrationality outlined above, the submissions of the parties in favour of and against the policy, commenting that the applicants’ arguments were “of very considerable cogency” which called to be considered in depth with particular reference to past experience in the United Kingdom, to the developing experience of other countries and to the potential effectiveness of a detailed prescriptive code in place of the present blanket ban. However, he concluded that the policy could not be considered “irrational” at the time the applicants were discharged from the armed forces, finding that the threshold of irrationality was “a high one” and that it had not been crossed in this case. 38.     On the Convention, the Master of the Rolls noted as follows: “It is, inevitably, common ground that the United Kingdom’s obligation, binding in international law, to respect and ensure compliance with [Article 8 of the Convention] 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 the exercise of that discretion.” He observed that 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 show respect for that person’s private and family life and that there might be room for argument as to whether the policy answered a “pressing social need” and, in particular, was proportionate to the legitimate aim pursued. However, he held that these were not questions to which answers could be properly or usefully proffered by the Court of Appeal but rather were questions for the European Court of Human Rights, to which court the applicants might have to pursue their claim. He further accepted that the Equal Treatment Directive did not apply to complaints in relation to sexual orientation. 39.     Henry LJ of the Court of Appeal agreed with the judgment of the Master of the Rolls and, in particular, with the latter’s approach to the irrationality test and with his view on the inability of the court to resolve Convention issues. He questioned the utility of a debate as to the likely fate of the “longstanding” policy of the Ministry of Defence before the European Court of Human Rights with which the primary adjudicating role on the Convention lay. The Court of Appeal did not entertain “hypothetical questions”. In Henry LJ’s view, the only relevance of the Convention was as “background to the complaint of irrationality”, which point had been already made by the Master of the Rolls. It was important to highlight this point since Parliament had not given the domestic courts primary jurisdiction over human rights issues contained in the Convention and because the evidence and submissions before the Court of Appeal related to that court’s secondary jurisdiction and not to its primary jurisdiction. 40.     Thorpe LJ of the Court of Appeal agreed with both preceding judgments and, in particular, with the views expressed on the rationality test to be applied and on its application in the particular case. The applicants’ arguments that their rights under Article 8 had been breached were “persuasive” but the evidence and arguments that would ultimately determine that issue were not before the Court of Appeal. He also found that the applicants’ challenge to the arguments in support of the policy was “completely persuasive” and added that what impressed him most in relation to the merits was the complete absence of illustration and substantiation by specific examples, not only in the Secretary of State’s evidence filed in the High Court, but also in the case presented to the Parliamentary Select Committee in 1991. The policy was, in his view, “ripe for review and for consideration of its replacement by a strict conduct code”. However, the applicants’ attack on the Secretary of State’s rationality fell “a long way short of success”. 41.     On 19 March 1996 the Appeals Committee of the House of Lords refused leave to appeal to the House of Lords. D.     The applicants’ Industrial Tribunal proceedings 42.     At or around the time the applicants lodged their applications for leave to take judicial review proceedings, they also instituted proceedings before the Industrial Tribunal alleging discrimination contrary to the Sexual Discrimination Act 1975. The latter proceedings were stayed pending the outcome of the judicial review proceedings. 43.     By letter dated 25 November 1998 the applicants confirmed to the Court that they had requested the withdrawal of the Industrial Tribunal proceedings given the outcome of the judicial review proceedings and other intervening jurisprudence of the domestic courts and of the ECJ. II.     Relevant domestic law and practice A.     Decriminalisation of homosexual acts 44.     By virtue of section 1(1) of the Sexual Offences Act 1967, homosexual acts in private between two consenting adults (at the time meaning 21 years or over) ceased to be criminal offences. However, such acts continued to constitute offences under the Army and Air Force Acts 1955 and the Naval Discipline Act 1957 (Section 1(5) of the 1967 Act). Section 1(5) of the 1967 Act was repealed by the Criminal Justice and Public Order Act 1994 (which Act also reduced the age of consent to 18   years). However, section 146(4) of the 1994 Act provided that nothing in that section prevented a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of the armed forces. B.     R. v. Secretary of State for Defence, ex parte Perkins , judgments of 13 March 1997 and 13 July 1998, and related cases 45.     On 30 April 1996 the ECJ decided that transsexuals were protected from discrimination on grounds of their transsexuality under European Community law ( P. v. S. and Cornwall County Council [1996] Industrial Relations Law Reports 347). 46.     On 13 March 1997 the High Court referred to the ECJ pursuant to Article 177 of the Treaty of Rome the question of the applicability of the Equal Treatment Directive to differences of treatment based on sexual orientation (R. v. Secretary of State for Defence, ex parte Perkins , 13 March 1997). Mr Perkins had been discharged from the Royal Navy on grounds of his homosexuality. 47.     On 17 February 1998 the ECJ found that the Equal Pay Directive   75/117/EEC did not apply to discrimination on grounds of sexual orientation ( Grant v. South West Trains Ltd [1998] Industrial Cases Reports   449). 48.     Consequently, on 2 March 1998 the ECJ enquired of the High Court in the Perkins’ case whether it wished to maintain the Article 177 reference. After a hearing between the parties, the High Court decided to withdraw the question from the ECJ (R. v. Secretary of State for Defence, ex parte Perkins , 13 July 1998). Leave to appeal was refused. C.     The Ministry of Defence policy on homosexual personnel in the armed forces 49.     As a consequence of the changes made by the Criminal Justice and Public Order Act 1994, updated Armed Forces’ Policy and Guidelines on Homosexuality (“the Guidelines”) were distributed to the respective service directorates of personnel in December 1994. The Guidelines provided, inter alia , as follows: “Homosexuality, whether male or female, is considered incompatible with service in the armed forces. This is not only because of the close physical conditions in which personnel often have to live and work, but also because homosexual behaviour can cause offence, polarise relationships, induce ill-discipline and, as a consequence, damage morale and unit effectiveness. If individuals admit to being homosexual whilst serving and their Commanding Officer judges that this admission is well-founded they will be required to leave the services ... The armed forces’ policy on homosexuality is made clear to all those considering enlistment. If a potential recruit admits to being homosexual, he/she will not be enlisted. Even if a potential recruit admits to being homosexual but states that he/she does not at present nor in the future intend to engage in homosexual activity, he/she will not be enlisted ... In dealing with cases of suspected homosexuality, a Commanding Officer must make a balanced judgment taking into account all the relevant factors. ... In most circumstances, however, the interests of the