FOURTH SECTION

DECISION

Application no. 301/04 by Roderick Kenneth William MACDONALD against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 6 February 2007 as a Chamber composed of:

Mr J. Casadevall , President , Sir Nicolas Bratza , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 4 December 2003,

Having regard to the Government ’ s observations dated 8 December 2004,

Having regard to the unsuccessful friendly-settlement negotiations conducted pursuant to Article 38 § 1 (b) of the Convention,

Having regard to the Government ’ s request to strike the case out of its list of cases and the text of a unilateral declaration made with a view to resolving the issues raised by the application,

Having regard to the applicant ’ s comments on the Government ’ s proposal for a unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Roderick Mac D onald, is a national of the United Kingdom . He was born in 1964 and lives in Edinburgh . He was represented before the Court by Mr A. Lothian , a lawyer practising in Edinburgh . The United Kingdom Government (“the Government”) were represented by their Agent , Mr J. Grainger of the Foreign and Commonwealth Office .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background facts

The applicant joined the Royal Air Force (“RAF”) in August 1989. In January 1996 he applied for a compassionate posting as his mother was ill. He was posted to Prestwick . The security level of that posting required him to obtain Developed Vetting (“DV”) security clearance. The procedure involved the completion of a questionnaire and an interview. He was supplied with a copy of “Notes for Guidance of Developed Vetting Candidates” which explained the reasons for the vetting procedure and the process. The applicant was aware therefore that he would be asked about his homosexuality in the course of the vetting procedure.

He was interviewed on 10 April 1996 by a Field Investigating Officer. When asked if he was homosexual, he confirmed that he was. The recommendation of that Officer was that, with the exception of the applicant ’ s homosexuality, he was suitable for Developed Vetting clearance. While Wing Commander Leeds in RAF Security Vetting had consequently decided that security clearance could not be granted, he took the view that it was essential to re-interview the applicant to obtain more detail about his sexuality and, in particular, to establish the depth of his homosexual activities, with whom he had been involved and whether any other servicemen had been involved with him. Wing Commander Leeds ’ superior officer in turn supported this proposal noting the lack of detail and “astounding recommendation” of the Field Investigating Officer.

On 23 May 1996 Wing Commander Leeds interviewed the applicant asking him numerous questions about his sexuality, his sexual history, his past sexual relationships and about his sexual conduct and activities both within and outside the Services. Wing Commander Leeds recommended not only against Developed Vetting security clearance but also against his retaining the basic level of clearance required of all RAF personnel.

In June or July 1996 the applicant ’ s commanding officer was informed that Developed Vetting clearance was unlikely to be granted. He asked the applicant to explain and the applicant explained at a meeting (which his Squadron Leader also attended) that the difficulty arose from the fact that he had confirmed during the vetting interview that he was homosexual.

By letter dated 22 October 1996 the applicant was called upon to resign his commission on grounds of his homosexuality. By letter dated 3 November 1996 he replied that, having taken legal advice, he would not voluntarily resign his commission. By letter dated 18 December 1996 the applicant was informed that his resignation would be effected compulsorily. A letter of 11 March 1997 confirmed that his compulsory resignation would take effect on 29 March 1997 . A letter of 12 March 1997 conveyed the RAF ’ s appreciation for services rendered.

2. Domestic proceedings

On 29 April 1997 the applicant submitted a claim to the Employment Tribunal (“ET”) claiming that his dismissal constituted unlawful discrimination on grounds of sex and, in addition, that the circumstances leading to his dismissal (in particular the holding of the second interview) constituted sexual harassment. He relied on the Sex Discrimination Act 1975 (“the 1975 Act”), the EU 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”) and on Articles 8 and 14 of the Convention.

(a) The Employment Tribunal (“ET”)

By detailed decision of 16 December 1999 , the ET found against the applicant. It considered that the 1975 Act applied to discrimination on grounds of gender and not on grounds of sexual orientation. It also found that there was no discrimination on grounds of “gender”: the relevant comparator in this respect was a homosexual woman and, since she would have been similarly treated, there was no gender discrimination. As to sexual harassment, the ET found that Wing Commander Leeds had not been motivated by any sexual or personal motive: he would have conducted the interview in the same way with a homosexual woman.

(b) The Employment Appeal Tribunal (“EAT”)

On 19 September 2000 the EAT delivered a detailed judgment allowing the appeal and disagreeing with the ET on all main points. The EAT considered the word “sex” in the 1975 Act to be ambiguous so that it should be interpreted as including “sexual orientation”, that the correct comparator was a heterosexual woman who clearly would have been treated differently to the applicant and that he had also suffered sexual harassment (the conduct of his security vetting being “sexually-related” and “blatantly unacceptable”).

(c) Court of Session

On 1 June 2001 the majority of the Inner House of the Court of Session allowed the appeal and restored the decision of the ET, all three judges delivering individual judgments. Counsel for the Secretary of State for Defence expressly accepted that the applicant ’ s rights under Article 8, alone and in conjunction with Article 14 of the Convention, had been violated.

The judges were unanimous in finding that the 1975 Act was concerned with gender and not with sexual orientation. Indeed, Lord Prosser (who dissented on other points) considered that, while any general discussion about , or study of , “ sex ” would no doubt cover questions of sexual orientation and not be limited to mere questions of gender, he was quite unable to give the word “ sex ” in the 1975 Act any meaning other than its familiar and ordinary one of “ gender ”. T he court was , however, divided on the question of the appropriate comparator : Lord Prosser said that the appropriate comparison was between the applicant and a heterosexual woman whereas Lord s Kirkwood and Caplan took the view that the correct comparator was a homosexual woman who would not have been treated any differently to the applicant. Lord s Kirkwood and Caplan thereby rejected his claim of discrimination on grounds of sex and of sexual harassment.

(d) House of Lords

The applicant appealed to the House of Lords. On 19 June 2003 his appeal was rejected, each of the five judges delivering individual judgments. The judges were unanimous in finding, and indeed the applicant had accepted before them, that the word “sex” in the 1975 Act meant “gender”. They also found that the correct comparison was between the applicant and a homosexual woman. These two conclusions meant that the claim of sexual discrimination and harassment fell away: in both cases, the applicant would not have been treated any differently to a female homosexual.

B. Relevant domestic and European law and practice

1. The former policy of the Ministry of Defence

The Ministry of Defence policy, together with the associated law and practice in force at the relevant time, which led to the investigation and dismissal of homosexuals from the armed forces is described in the judgments of the Court in the cases of Lustig-Prean and Beckett v. the United Kingdom (nos. 31417/96 and 32377/96, 27 September 1999) and Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, ECHR 1999-VI). The relevant policy was repealed immediately following delivery of the above-cited judgments and replaced by the Armed Forces Code of Social Conduct Policy Statement.

2. The Equal Treatment Directive: the Perkins ’ case

On 24 January 1996 Mr Perkins, who had also been dismissed from the Royal Navy in 1995 on grounds of his homosexuality, applied to the High Court for leave to take judicial review proceedings on the basis that the Ministry of Defence policy was “irrational”, that it was in breach of Articles 8 and 14 of the Convention and that it was contrary to the Equal Treatment Directive.

On 30 April 1996 the European Court of Justice (“ECJ”) decided that transsexuals were protected from discrimination arising from their gender reassignment under European Community law and, in particular, by the Equal Treatment Directive ( P. v. S. and Cornwall County Council [1996] I.R.L.R 347). On 3 July 1996 Mr Perkins was granted leave by the High Court. On 13 March 1997 the High Court referred to the ECJ pursuant to the then 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).

On 17 February 1998 the ECJ found that the refusal of travel concessions to a worker living with a person of the same sex could not be regarded as discrimination based on sex prohibited by the Equal Pay Directive ( Grant v. South West Trains Ltd [1998] I.C.R. 449). 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.

3. The Sex Discrimination Act 1975 (“the 1975 Act”)

This Act gave effect in domestic law to the Equal Treatment Directive. Section 1(1)(a) of the 1975 Act provides:

“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man.”

Section 2(1) provides that section 1, and the provisions of Part II and III of the Act relating to sex discrimination against women, are to be read as applying equally to the treatment of men, with the requisite modifications.

Section 5(3) of the Act provides:

“A comparison of the cases of persons of different sex ... under section 1(1) ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

Section 6(2) provides that it is unlawful for a person to discriminate against a female employee by dismissing her or subjecting her to any other detriment. If sexual harassment occurs in an employment context, it is considered “detriment” within the meaning of Section 6(2) of the Act.

COMPLAINTS

1. The applicant complained under Article 8, alone and in conjunction with Article 14 of the Convention, about the investigation into his sexual orientation and about his subsequent discharge from the armed forces pursuant to the absolute policy against homosexuals in those forces.

2. He also complained under Article 13 that he did not have an effective domestic remedy in this regard.

THE LAW

The applicant complained about the interference with his right to respect for his private life by the investigation into his sexual orientation and his dismissal from the armed forces. He invoked Article 8 of the Convention, which provides, in so far as relevant, that:

“1. Everyone has the right to respect for his private (...) life (...).

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant also complained that the impugned investigation and dismissal constituted a violation of Article 14 taken in conjunction with Article 8 of the Convention. Article 14 provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

He further complained about the lack of an effective remedy for these alleged violations of his rights and invoked Article 13 which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

By letter dated 27 February 2006, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. It further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of the United Kingdom regret the investigation into the sexual orientation of the applicant Roderick MacDonald and his subsequent discharge from the RAF on the grounds of his sexual orientation. The Government acknowledge that the investigation and discharge breached the applicant ’ s rights under Article 8 of the Convention (alone and in conjunction with Article 14) and of Article 13 in conjunction with Article 8.

In regard to this issue, the Government recall that on 12 January 2000, and in response to the Court ’ s judgments on the merits in the Lustig-Prean and Beckett and the Smith and Grady cases, they introduced The Armed Forces Code of Social Conduct Policy Statement lifting the ban on homosexuals serving in the military. The Code is intended to explain the Armed Forces ’ revised policy on personal relationships involving Service personnel and applies to all members of the Armed Forces, regardless of their gender, sexual orientation, rank or status, and provides a clear framework within which people in the services can live and work. Furthermore, it complements existing policies, such as zero tolerance towards harassment, discrimination and bullying. Under paragraph 5 of the Policy Statement, when considering possible cases of social misconduct, and in determining whether the Service has a duty to intervene in the personal lives of its personnel, Commanding Officers at every level must consider each case against a Service Test based on whether the actions or behaviour of an individual has adversely impacted or is likely to impact on the efficiency or operational effectiveness of the Service and not on the sexual orientation of the personnel. Furthermore , Guidance Notes for Commanding O fficers have been issued in order to explain the Code of Conduct and to give officers detailed guidance on how it should be implemented.

In these circumstances, and having had regard to the particular facts of Mr MacDonald ’ s case, the nature and extent of the domestic proceedings in which he was involved, and the amount of financial loss he suffered, the Government declare that they hereby offer to pay ex gratia to the applicant the amount of £115,000. This sum, which also covers legal expenses connected with the case, shall be paid in pounds sterling to a bank account named by the applicant within three months from the date of the striking-out decision of the Court pursuant to Article 37 of the European Convention on Human Rights. This payment will constitute the final settlement of the case.”

The applicant in his written reply dated 17 March 2006 requested the Court to reject the Government ’ s initiative on the basis that the unilateral declaration was insufficient both in terms of the statement on the merits of his case and the level of compensation proposed.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government on 27 February 2006 outside the framework of the friendly-settlement negotiations.

The Court also recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Article 37 § 1 in fine includes the proviso that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court notes that it has specified in a number of cases the precise nature and extent of the obligations which arise for the respondent State under Articles 8 and 13 of the Convention as regards the investigation and dismissal of homosexuals from the British armed forces. It has further made awards for just satisfaction in those cases ( Lustig-Prean and Beckett v. the United Kingdom and Smith and Grady v. the United Kingdom , both cited above; Lustig-Prean and Beckett v. the United Kingdom (just satisfaction), nos. 31417/96 and 32377/96, 25 July 2000 and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, ECHR 2000 ‑ IX ; Perkins and R. v. the United Kingdom , nos. 43208/98 and 44875/98, 22 October 2002; and Beck, Copp and Bazeley v. the United Kingdom , nos. 48535/99, 48536/99 and 48537/99, 22 October 2002).

It has carefully examined the terms of the Government ’ s declaration. Having regard to the nature of the admissions contained in the declaration , the speed and nature of the State ’ s reaction to the afore-mentioned lead judgments in Lustig-Prean and Beckett v. the United Kingdom and Smith and Grady v. the United Kingdom (notably through the introduction of The Armed Forces Code of Social Conduct Policy Statement ) as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; and also Haran v. Turkey , no. 25754/94, judgment of 26 March 2002).

In light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

Accordingly, the application sh ould be struck out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention .

T.L. Early Josep Casadevall Registrar President