R v Ministry of Defence, Ex p Smith (Beckett, Ex parte, Grady, Ex parte, Lustig-Prean, Ex parte, R v Admiralty Board of the Defence Council, Ex parte Beckett, R v Admiralty Board of the Defence Council, Ex parte Lustig-Prean, R v Ministry of Defence, Ex parte Grady, Smith, Ex parte)

An administrative decision may be set aside on substantive judicial review only if it lies beyond the range of responses open to a reasonable decision-maker. Where fundamental human rights are substantially affected, the court requires correspondingly weighty justification and subjects the decision to anxious scrutiny. Policy, military expertise and national security call for greater judicial caution, but they do not alter the test or remove the court’s supervisory duty.

At the relevant time, the armed forces’ blanket policy of discharging personnel known to be homosexual was not irrational. Its severe effects and the cogent case for a conduct-based alternative did not overcome the high threshold, given parliamentary support, professional military advice and limited experience of recent reforms elsewhere. The European Convention on Human Rights was relevant only as background to irrationality, and the Equal Treatment Directive did not extend to discrimination based on sexual orientation.

Four members of the armed forces were administratively discharged solely because they were homosexual. They had committed no relevant criminal or service offence and had good service records. They challenged the blanket policy as irrational, contrary to article 8 of the European Convention on Human Rights, and contrary to the Equal Treatment Directive (76/207/EEC).

The Queen’s Bench Divisional Court rejected their applications on 7 June 1995, while urging the Ministry of Defence to review the policy. The appellants appealed to the Court of Appeal. The central questions were whether the absolute status-based policy was outside the range of reasonable responses at the dates of discharge, whether the Convention supplied an enforceable domestic ground, and whether the Directive covered discrimination based on sexual orientation.

Appeals dismissed unanimously.

1. Sir Thomas Bingham MR, with whom Henry and Thorpe LJJ agreed, held that substantive review remained governed by whether the decision was beyond the range of responses open to a reasonable decision-maker. The human-rights context affected the intensity of scrutiny. The greater the interference with fundamental rights, the more substantial the justification required. Policy-laden, specialised, military or security questions required greater caution, but no separate test applied.

2. The court’s function remained secondary. It could not regulate conditions of military service or substitute its judgment for that of the responsible authority. It nevertheless had a constitutional duty to prevent unlawful executive abuse, while giving proper weight to military expertise.

3. The blanket policy had grave consequences and the arguments for replacing it with a conduct-based code were highly cogent. The absence of specific examples supporting the asserted risks, the successful service of undetected homosexual personnel, changing social attitudes and recent overseas reforms all called for serious reassessment. Even so, the policy was supported by both Houses of Parliament and professional military advice. Recent foreign codes had produced little tested experience. At the relevant dates, reasonable decision-makers were not compelled to conclude that the policy was unlawful. The high threshold of irrationality was therefore not crossed.

4. Article 8 of the European Convention on Human Rights was not enforceable in domestic law. Convention rights could inform the irrationality inquiry, but failure to consider Convention obligations did not itself invalidate an administrative discretion. The court should not determine hypothetically whether the policy violated article 8 on evidence directed only to domestic review.

5. The Equal Treatment Directive (76/207/EEC) addressed equal treatment between men and women. Neither its text nor the Treaty provisions showed an intention to regulate discrimination based on sexual orientation. A later code concerning workplace harassment did not alter the Directive’s scope. Prohibition of sexual-orientation discrimination required specific Community legislation, rather than an extended construction of the 1976 Directive.

The appeals were dismissed with costs. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: In [1995] EWCA Civ 22, the appeals were dismissed unanimously with costs. Leave to appeal to the House of Lords was refused.
2. High Court, Queen’s Bench Divisional Court: Simon Brown LJ and Curtis J rejected the four challenges on 7 June 1995, but urged the Ministry of Defence to re-examine its policy.