PROCEDURE

The case originated in two applications against the United Kingdom of Great Britain and Northern Ireland lodged 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, Mr Duncan Lustig-Prean, is a British national born in 1959 and resident in London. He was represented before the Commission and, subsequently, before the Court by Mr S. Grosz, a solicitor practising in London. His application was introduced on 23 April 1996 and was registered on 7 May 1996 under file no. 31417/96. The second applicant, Mr John Beckett, is a British national born in 1970 and resident in Sheffield. He was represented before the Commission and, subsequently, before the Court by Ms H. Larter, a solicitor practising in Sheffield. His application was introduced on 11 July 1996 and was registered on 22 July 1996 under file no. 32377/96.

Both applicants complained that the investigations into their homosexuality and their discharge from the Royal Navy on the sole ground that they are homosexual constituted violations of Article 8 of the Covention taken alone and in conjunction with Article 14.

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. 33985/96 and 33986/96, Smith v. the United Kingdom and Grady 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, to which the applicants replied on 20 November and 8 December 1997, respectively.

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.

On 23 January 1998 the Commission granted Mr Beckett legal aid.

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).

Following the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 2 thereof, the applications fall to be examined by the Court. In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Third Section. The Chamber constituted within the 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)).

On 23 February 1998 the Chamber declared the applications admissible and, while it retained the joinder of the present applications, it decided to disjoin them from the above-mentioned Smith and Grady cases. It was also decided to hold a hearing on the merits of the case.

On 4 May 1999 the President of the Chamber decided to grant Mr Lustig-Prean legal aid.

The hearing in this case and in the case of Smith and Grady 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 D. Pannick QC, Mr J. Bowers QC, Counsel, Mr S. Grosz, Ms H. Larter, Solicitors, Mr A. Mason, Adviser. The Court heard addresses by Mr Pannick and Mr Eadie.

AS TO THE FACTS

I. The Circumstances of the case

A. The first applicant

Mr Lustig-Prean (the first applicant) joined the Royal Navy Reserve as a radio operator and in 1982 commenced a career in the Royal Navy. On 27 April 1983 he became a midshipman in the executive branch of the navy. His evaluation of November 1989 noted that he was an officer with “great potential” and the “sort of person that the Royal Navy needs to attract and retain”. His evaluation of December 1993 concluded that the applicant “is a balanced, enlightened and knowledgeable man who enjoys my complete trust in all matters. He is an outstanding prospect for early promotion to commander.” In 1994 the applicant attained the rank of lieutenant-commander.

For about thirty months prior to June 1994 the applicant had been involved in a steady relationship with a civilian partner. In early June 1994 the applicant was informed that the Royal Navy Special Investigations Branch (“the service police”) had been given his name anonymously in connection with an allegation of homosexuality and was investigating the matter. The applicant admitted to his commanding officer that he was homosexual.

The applicant was interviewed on 13 June 1994 by personnel from the service police about his sexual orientation for approximately twenty minutes. At the beginning of the interview, the applicant was cautioned that he did not have to answer questions and that any responses could be used in evidence later. He was also informed that he could obtain legal advice. The applicant confirmed his awareness of those rights and agreed to be interviewed without legal advice. He then confirmed that he was homosexual, acknowledging that he had been a practising homosexual since his teenage years. He was then asked, inter alia, whether he had had homosexual contact with service personnel (at least four questions on this subject), what type of sexual relations he had had with a particular person, when and where this had occurred, about his current relationship and whether his parents knew of his homosexuality. The applicant was asked repeatedly about who had tipped him off that he was the subject of an investigation by the service police and he was told that the question was put because the service police had “a lot of background knowledge about certain things” and there was somebody “providing information to us”. The applicant indicated that he was anxious to assist the service police to make sure that the issue was kept as “private and discreet as possible”. He was then informed that a search was normally completed but the search did not take place since, in anticipation, the applicant had already cleared his cabin of any incriminating evidence.

The applicant was again interviewed on 14 June 1994 for approximately ten minutes. It was explained to the applicant that the purpose of the interview was to ask him about an allegation, contained in an anonymous letter sent to the applicant’s commanding officer some time previously, that the applicant had had a relationship with a serviceman. The interviewer then explained that he was “attempting to keep the need to visit Newcastle and to investigate this matter to a minimum”, as the applicant wished. The applicant was then asked whether he had had the relationship as alleged in the letter. The anonymous letter was read. The writer claimed that he had recently had a relationship with the applicant, that the writer was HIV-positive and that he believed that the applicant was involved with a member of the armed forces. The applicant’s comments were requested, in particular, as to who would have written the letter. The interviewer also enquired of the applicant “purely as a matter of interest, although it’s a personal thing” whether the applicant was HIV-positive. In this context, it was indicated a number of times to the applicant that the purpose of the second interview was to avoid further investigations. He was also told that it would “come back” on the applicant’s interviewer if the latter did not properly follow up on the anonymous letter.

In a final evaluation dated 14 June 1994 the applicant’s commander noted that the applicant left the ship “with a well-deserved reputation for outstanding professional ability and admirable personal qualities”. He concluded that the applicant’s “loyal, dependable and always dignified service” would be “sorely missed”.

On 16 December 1994 the Admiralty Board informed the applicant that it had decided to terminate his commission and to discharge him, administratively, from the navy with effect from 17 January 1995. The ground for his discharge was his sexual orientation. The applicant’s commission was removed and most of the bonus which he had received with that promotion was recouped by the naval authorities (£4,875 out of £6,000). His term of service would otherwise have terminated in 2009, with the possibility of renewal.

B. The second applicant

On 20 February 1989 Mr Beckett (the second applicant) joined the Royal Navy, enlisting for twenty-two years’ service. In 1991 he became a substantive weapons engineering mechanic. The applicant’s report dated 27 November 1992 noted that he displayed potential in a number of areas essential to good leadership, that he had the ability to become an above-average leading hand and that if he applied his new skills wisely he could, with experience, be considered as a potential officer candidate.

In May 1993 the applicant had been refused time off to deal with a personal matter (he wished to collect his Aids test results) and consequently he spoke with the chaplain, to whom he admitted his sexual orientation. On 10 May 1993 the applicant was asked by his lieutenant-commander to repeat what he had told the chaplain and he again admitted his homosexuality to that officer. He was then called for interview by the service police. He was cautioned in the same terms as the first applicant and told that he would not be questioned on the above admissions prior to a search of his locker. His consent to the search was requested and given. The interview, which had lasted approximately five minutes, was suspended pending the search. During the search, slides (of himself, his partner and some of his service friends) and personal postcards were seized.

The applicant’s interview with the service police then resumed and lasted approximately one hour. The applicant immediately confirmed his homosexuality, later clarifying that he first had “niggling doubts” about his sexual orientation approximately two and a half years previously. He was then questioned about a previous relationship with a woman; he was asked the woman’s name and where she was from, when he had that relationship, why it ended, whether they had a sexual relationship, whether he enjoyed their relationship and whether “she was enough for you”. Details were sought as to how and what he did when he realised he was homosexual and, in this respect, he was asked what sort of feelings he had for a man, whether he had been “touched up” or “abused” as a child and whether he had bought pornographic magazines. The applicant was then questioned about his first and current homosexual relationship which began in December 1992 and, in this regard, he was asked about his first night with his partner, who was “butch” and who was “bitch” in the relationship and what being “butch” meant in sexual terms. Detailed questions were put as to how they had sex and whether they used condoms, lubrication and other sex aids, whether they ever had sex in a public place and how they intended to develop the relationship. He was also asked about gay bars he frequented, whether he had ever joined contact magazines, whether his parents knew about his homosexuality and whether he agreed that his secret life could be used as a basis to blackmail him and render him a weak link in the service. The personal slides and postcards which had been taken from his locker were examined and the applicant was questioned in detail about their contents.

The service police report completed after the applicant’s interview included several internal documents where it was noted that the applicant, in openly declaring his homosexuality and his relationship with a civilian, had effectively disposed “of any immediate potential security concern”. For that reason, it was considered in the report that “no cause was identified for conducting a security interview with Beckett”. That report also accepted that a case for fraudulent entry into the armed forces would be inappropriate given the date when the applicant had discovered his homosexuality. An officer, who advised the Admiralty Board on the applicant’s discharge, noted that the applicant’s reporting officers had commented on his “affability, intelligence, dedication and ambition” and pointed out that, had it not been for the applicant’s homosexuality, “his Royal Navy career would have blossomed”.

Prior to his discharge, the applicant completed his duties and remained in communal sleeping accommodation with no reported difficulties. On 28 July 1993 the applicant’s administrative discharge was approved on the basis of his homosexuality. The applicant then complained about the decision to discharge him to the Admiralty Board and on 6 December 1994 the Admiralty Board dismissed the applicant’s complaint.

C. The applicants’ judicial review proceedings (R. v. Ministry of Defence, ex parte Smith and Others 2 Weeky Law Reports 305)

Along with Ms Smith and Mr Grady (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.

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.”

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.

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).

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.

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).

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.

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’ …”.

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.

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.

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.

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”.

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

In December 1995 Mr Lustig-Prean issued proceedings in the Industrial Tribunal claiming unfair dismissal and sexual discrimination contrary to the Sexual Discrimination Act 1975. Those proceedings were adjourned pending the above-described application for leave to appeal to the House of Lords. Further to the rejection of the application, he requested the withdrawal of his Industrial Tribunal proceedings and those proceedings were dismissed by the Industrial Tribunal on 25 April 1996.

In December 1997 Mr Beckett also issued proceedings in the Industrial Tribunal claiming sexual discrimination contrary to the 1975 Act. In the light of subsequent decisions of the ECJ and of the domestic courts, the second applicant subsequently requested the withdrawal of those proceedings which were, on 27 August 1998, dismissed by the Industrial Tribunal.