THIRD SECTION

DECISION [Note1]

AS TO THE ADMISSIBILITY OF

Application no. 31417/96 by Duncan LUSTIG-PREAN

against the United Kingdom

and

Application no. 32377/96 by John BECKETT against the United Kingdom [Note2]

The European Court of Human Rights ( Third Section ) sitting on 23 February 1999 as a Chamber composed of

Mr L. Loucaides, President , Sir Nicolas Bratza,

Mr P. Kuris,

Mrs F. Tulkens, Mr. W; Fuhrmann,

Mrs H.S. Greve,

Mr K. Traja,

and Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 April 1996 by Duncan Lustig ‑ Prean against the United Kingdom and registered on 7 May 1996 under file no. 31417/96;

Having regard to the application introduced on 11 July 1996 by John Beckett against the United Kingdom and registered on 22 July 1996 under file no. 32377/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 17 October 1997 and the observations in reply submitted by the first applicant on 20 November 1997 and by the second applicant on 8 December 1997;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, a British national, was born in 1959 and he is currently resident in London. He is represented before the Court by Stephen Grosz , a solicitor practising in London. The second applicant, a British national, was born in 1970 and he is currently resident in London. He is represented before the Court by Hilary Larter , a solicitor practising in Sheffield. The facts of the cases, as submitted by the parties, may be summarised as follows.

A. Particular facts of the applicants’ cases

1. The first applicant

The 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 and in 1994 he attained the rank of Lieutenant-Commander. For about 30 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 (“SIB”) had been given his name anonymously in connection with an allegation of homosexuality and was investigating the matter. Having reflected on the matter, the applicant admitted to his Commanding Officer that he was homosexual.

The applicant was then interviewed on 13 and 14 June 1994 by personnel from the SIB about his sexual orientation. He was cautioned that he did not have to answer questions (but if he did, any responses could be used in evidence later) and that he could obtain legal advice. The applicant confirmed his awareness of those rights and that he would be interviewed without legal advice. The applicant was asked , inter alia , how long he had been involved in homosexual activity, whether he had had homosexual contact with service personnel (at least four questions on this subject), what type of sex 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 also asked repeatedly who had tipped him off about an investigation against him and he was informed that a search is normally completed in such circumstances. An anonymous letter sent to the applicant’s Commanding Officer was read to the applicant during his second interview in which the writer claimed to have recently had a relationship with the applicant, that he was HIV positive and that he believed that the applicant was involved with a member of the armed forces. The applicant was asked who would have written the letter and whether he was HIV positive.

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 Royal 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 the applicant had received upon that promotion was recouped by the naval authorities (£4875 out of £6000). His term of service would have terminated in 2009 (with a possibility of renewal).

2. The second applicant

On 20 February 1989 the applicant joined the Royal Navy, enlisting for 22 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 that are essential to good leadership, that he had the ability to become an above average leading hand and that if the applicant applied his new skills wisely he could, with experience, be considered as a potential officer candidate. In late 1992 the applicant commenced his first homosexual relationship.

On 10 May 1993, after admitting his homosexuality to a Royal Navy Chaplain, the applicant was called by his divisional officer and questioned about his homosexuality. As part of the SIB investigation which ensued, the applicant's locker was searched (with his consent) and slides (of himself, his boyfriend and some of his service friends) and personal postcards were seized. The applicant was questioned by personnel from the SIB for approximately two and a half hours, to whom he immediately confirmed his homosexuality. At the beginning of the interview he was cautioned in the same terms as the first applicant.

He was then asked about a previous relationship with a woman including that 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 his sexual relationship with that woman and whether "she was enough for you". He was questioned in detail about how and what he did when he realised he was homosexual and, in this respect, he was asked whether he had been "touched up” or “abused” as a child and whether he had bought pornographic magazines. He was then questioned about his current relationship and, in this regard, he was asked about his first night with his boyfriend, who was " butch " and who was "bitch" in the relationship, what being " butch " meant in sexual terms, how they had sex and whether they used condoms and other sex aids, whether they ever had sex in a public place and how they intended to develop the relationship. He was also questioned 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 taken from his locker were examined and the applicant was questioned in detail about their contents.

During the applicant's investigation, he completed his duties and remained in communal sleeping accommodation as before with no reported difficulties. On 28 July 1993 the applicant's administrative discharge was approved on the ground of his homosexuality. On 9 June 1993 the applicant complained about the decision to discharge him. On 24 August 1994 the Ministry of Defence apologised for the delay and confirmed that the applicant's complaint would be put before the Admiralty Board. On 6 December 1994 the Admiralty Board dismissed the applicant's complaint.

3. The applicants’ judicial review proceedings (R v. Ministry of Defence ex parte Smith and Others 2 WLR 305 )

Along with Ms. Smith and Mr. Grady (Nos. 33985/96 and 33986/96, Dec. 23.2.99, as yet unpublished), 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 against homosexuals in the armed forces was "irrational", that it was in breach of the European Convention on Human Rights and that it was contrary to 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”).

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 also noted 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. The judge also found that the sexual orientation of two or three of the applicants had been known or suspected without it making the least difference to the relevant working relationships. 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. The judge considered that the balance of argument lay clearly with the applicants and was of the view that the tide of history was against the Ministry of Defence. He considered it improbable, whatever the High Court would say, that the policy could survive much longer and added “I doubt whether most of those present in court throughout the proceedings now believe otherwise."

However, applying the conventional Wednesbury principles of judicial review (adapted to a human rights context) the judge found that, although the justifications may have seemed to many to be unconvincing, the policy was not “outrageous in its defiance of logic” and, accordingly, not unlawful. The judge also found that the Equal Treatment Directive was not applicable to discrimination on grounds of sexual orientation and that the domestic court could not rule on Convention matters. He concluded, while expressing hesitation and regret, that he would refuse the applications for judicial review. He added, having referred to the Convention and its jurisprudence, that he strongly suspected that the days of the policy were numbered given the United Kingdom’s international obligations. He also noted that the United States, Canada, Australia, New Zealand, Ireland, Israel, Germany, France, Norway, Sweden, Austria and the Netherlands permit 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).

On 3 November 1995 the Court of Appeal dismissed the appeal. Sir Thomas Bingham M.R (who delivered the main judgment and with whose judgment the other two judges agreed) found that “irrationality” meant whether the decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision maker and, in judging whether this margin had been exceeded, the human rights context was important in that the more substantial the interference with human rights, the more the court would require by way of justification before it was satisfied that the decision was reasonable.

He observed that the present cases concerned innate qualities of a very personal kind, that the decisions of which the applicants complained 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 had no power to regulate the conditions of service in the armed forces, “it had 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’ …”.

Having noted the applicants’ challenge to the reasons offered by the Ministry of Defence, Sir Thomas Bingham M.R commented that the applicants’ arguments were “of very considerable cogency” and they called to be considered in depth with particular reference to the past experience of the United Kingdom to that of other countries, and to the development of a code of conduct instead of the blanket ban. He noted that such a reassessment of the existing policy was already in train referring, inter alia , to the quiquennial review of the Select Committee. However, he concluded that the policy could not be considered "irrational" at the time the applicants were discharged from the armed forces stating that “the threshold of irrationality is a high one”. He added:

“It is, inevitably, common ground that the United Kingdom’s obligation, binding in international law, to respect and ensure compliance with 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 was not persuaded by the Ministry’s argument that the policy did not interfere with the applicants Article 8 rights and that there was 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 specified that these were not questions which could be “properly or usefully proffered ” by the Court of Appeal but rather were questions for the European Court of Human Rights. He further accepted that the Equal Treatment Directive did not apply to complaints in relation to sexual orientation. Henry LJ expressly agreed with the statements of the Master of the Rolls as regards Convention issues before the Court of Appeal, observing that the Court of Appeal did not entertain “hypothetical questions”. Thorpe L.J. added that, while the applicants’ submissions as regards a breach of Article 8 of the Convention were ”persuasive”, the evidence and arguments that would ultimately determine that issue were not before the Court of Appeal. The policy was, in the latter’s view, “ripe for review and for consideration of its replacement by a strict conduct code”.

On 19 March 1996 the Appeals Committee of the House of Lords refused leave to appeal to the House of Lords.

4. The applicants’ Industrial Tribunal proceedings

In December 1995 the first applicant 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 latter application, the applicant requested the withdrawal of his Industrial Tribunal proceedings and those proceedings were dismissed by the Industrial Tribunal on 25 April 1996.

In December 1997 the second applicant also issued proceedings in the Industrial Tribunal arguing mainly sexual discrimination contrary to the 1975 Act. Given intervening and relevant decisions of the European Court of Justice (“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.

B. Relevant domestic law and practice

1. De- criminalisation of homosexual acts

Homosexual acts between two consenting adults (at the time meaning 21 years or over) in private ceased to constitute a criminal offence pursuant to section 1(1) of the Sexual Offences Act 1967. 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 old). However, section 146(4) of the 1994 Act provides, insofar as relevant, as follows:

"Nothing contained in this section shall prevent a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of Her Majesty's armed forces from the service .... ."

The rationale for section 146(4) of the 1994 Act was (as noted in the Armed Forces' Policy Guidelines on Homosexuality of December 1994) that there are certain circumstances in service life where all sexual behaviour is inappropriate and, in such circumstances, both heterosexual and homosexual behaviour would constitute an offence.

2. R v. the Secretary of State for Defence ex parte Perkins, judgments of 13 March 1997 and 13 July 1998 and related cases

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] IRLR 347).

On 13 March 1997, the High Court referred, inter alia , the question of the applicability of the Equal Treatment Directive to differences of treatment based on sexual orientation to the European Court of Justice (“ECJ”) pursuant to Article 177 of the Treaty of Rome (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.

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] ICR 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.

Claims to an Industrial Tribunal must be lodged within 3 months of the act of which the individual complains. However, this time may be extended in the case of sex discrimination allegations where the tribunal considers it “just and equitable” to do so.

3. Ministry of Defence Policy on homosexual personnel in the armed forces

In December 1994 updated Armed Forces' Policy and Guidelines on Homosexuality were distributed to the respective service directorates of personnel which document provides, 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 individual and the armed forces will be best served by formal investigation of the allegations or suspicion. Depending on the circumstances, the Commanding Officer will either conduct an internal inquiry, using his own staff, or he will seek assistance from the Service Police. When conducting an internal inquiry he will normally discuss the matter with his welfare support staff. Homosexuality is not a medical matter, but there may be circumstances in which the Commanding Officer should seek the advice of the Unit Medical Officer on the individual concerned and may then, if the individual agrees, refer him/her to the Unit Medical Officer. ...

A written warning in respect of an individual's conduct or behaviour may be given in circumstances where there is some evidence of homosexuality but insufficient ... to apply for administrative discharge ... . If the Commanding Officer is satisfied on a high standard of proof of an individual's homosexuality, administrative action to terminate service ... is to be initiated, .... ."

The affidavit of Air Chief Marshal Sir John Frederick Willis KCB CBE, Vice Chief of the Defence Staff, Ministry of Defence dated 4 September 1996 submitted to the High Court (in the case of R v. Secretary of State for Defence ex parte Perkins, 13.7.1998) read, insofar as relevant, as follows:

“The policy of the Ministry of Defence is that the special nature of homosexual life precludes the acceptance of homosexuals and homosexuality in the armed forces. The primary concern of the armed forces is the maintenance of an operationally effective and efficient force and the consequent need for strict maintenance of discipline. believes that the presence of homosexual personnel has the potential to undermine this.

The conditions of military life, both on operations and within the service environment, are very different form those experienced in civilian life. … The believes that these conditions, and the need for absolute trust and confidence between personnel of all ranks, must dictate its policy towards homosexuality in the armed forces. It is not a question of a moral judgement, nor is there any suggestion that homosexuals are any less courageous than heterosexual personnel; the policy derives from a practical assessment of the implications of homosexuality for fighting power.”

4. Report of the Homosexuality Policy Assessment Team - February 1996

Following the case of R v. Ministry of Defence ex parte Smith and Others (2 WLR 305), the Homosexuality Policy Assessment Team (“HPAT”), composed of armed forces' personnel, was established by the Ministry of Defence in order to undertake an internal assessment of the armed forces' policy on homosexuality.

Given these developments, a “desk level” consultation paper examining the policy was drafted by the service authorities and circulated to ‘management’ level in the services for comments prior to the commencement of the taking of evidence by the HPAT. The covering letter circulating this consultation paper, in referring to the HPAT assessment, pointed out that the “Minister for the Armed Forces had decided that evidence is to be gathered within the Ministry of Defence in support of the current policy on homosexuality…”.

The Report of the HPAT was published in February 1996 and ran to approximately 240 pages together with annexes. The Report assessed the evidence supporting the conclusion of the Ministry of Defence that the banning of homosexuals from the armed forces was a necessary practical military judgment based upon the implications of homosexuality for service life and the study focussed upon the anticipated effects on fighting power of the inclusion of homosexuals in the armed forces.

It considered, inter alia , advice from military commanders and serving personnel of all ranks in all three services (the opinions of the latter being obtained through, inter alia , questionnaires, postal surveys and interviews). The HPAT considered that the best predictors of the “reality and severity” of the problems of the integration of homosexuals would be the service people themselves. The investigations concluded that there was overwhelming support within all three services for a continuation of the existing policy. There was also an “overwhelmingly held view” that homosexuality was not normal or natural whereas, in contrast, women and ethnic minorities were ‘normal’ and, consequently, more acceptable (§ 65 of the Report).

(a) The key problem in integrating homosexuals into the armed forces remained an anticipated loss in fighting power. It was considered well established that certain matters were likely to significantly and negatively affect overall fighting power. These matters were controlling homosexual behaviour and heterosexual animosity, assaults on homosexuals, bullying and harassment of homosexuals, ostracism and avoidance, ‘ cliquishness ’ and pairing, leadership and decision making problems including allegations of favouritism, discrimination and ineffectiveness (but excluding the question of homosexual officers taking tactical decisions swayed by sexual preference), sub-cultural friction, privacy/decency issues, increased dislike and suspicions (polarised relationships), and resentment over imposed change especially if controls on heterosexual expression also have to be tightened (section F. II).

(b) The HPAT also assessed other matters it described as “subsidiary” (section G). It found that, while cost implications of changing the policy were not quantifiable, major expenditures on accommodation were considered unlikely. Wasted training as regards discharged homosexuals was not considered to be a significant argument against maintaining the policy. Should the wider social and legal position change in relation to civilian homosexual couples, then entitlements for homosexual partners would have to be accepted. Large amounts of money or time were unlikely to be devoted to homosexual awareness training, given that it was unlikely to be effective in changing attitudes. There were strong indications that recruitment and retention rates would go down if there was a change in policy.

The policy had not presented significant problems when working with the armed forces of allied nations. The HPAT remarked that British service personnel had shown a “robust indifference” to arrangements in foreign forces and no concern over what degree of acceptance closely integrated allies give to homosexuals - the average service person considers that those others “are not British, have different standards, and are thus only to be expected to do things differently.” It was observed that any change in the policy could present new difficulties for the UK in filling exchange and loan postings to friendly non-NATO countries, that personnel from different nations were usually accommodated apart, that the evidence from foreign armed forces was that homosexuals in those forces (although not formally banned) were not open about their sexual orientation, and that the chances of the few open homosexuals happening to be in a situation where their sexual orientation would become a problem with British service personnel was consequently small.

Concerns expressed about the fulfilment of the forces "loco parentis" responsibilities for young recruits were found not to stand up to close examination.

(c) Medical and security concerns were considered separately (sections H and I, respectively). While it was noted that medical concerns of personnel (in relation to, inter alia , HIV) were disproportionate to the clinical risks involved, it was considered that these concerns would probably need to be met with education packages and compulsory HIV testing. Otherwise real acceptance and integration of homosexuals would be seriously prejudiced by emotional reactions and resentments and about the threat of AIDS. The security issues (including the possibility of blackmail of those suspected of being homosexual) raised in defence of the policy were found not to stand up to close examination.

(d) The HPAT also assessed the practice in certain other countries (§§ 70-77 of the Report). The HPAT visited Australia, France, Germany, the Netherlands, Canada and the United States, together with interviewing an eminent Israeli military psychologist. It observed that there were a wide variety of official positions and legal arrangements evolving from local legal and political circumstances and ranging from a formal prohibition of all homosexual activity (USA) through administrative arrangements falling short of real equality (France and Germany), to a deliberate policy to create an armed force friendly to homosexuals (Netherlands). The Report continued:

“But nowhere did HPAT learn that there were significant numbers of open homosexuals serving in the Forces … . Whatever the degree of official toleration or encouragement, informal pressures or threats within the military social system appeared to prevent the vast majority of homosexuals from choosing to exercise their varying legal rights to open expression of their active sexual identity in a professional setting.  … It goes without saying that the continuing reticence of military homosexuals in these armed forces means that there has been little practical experience of protecting them against ostracism, harassment or physical attack.

Since this common pattern of a near absence of openly homosexual personnel occurs irrespective of the formal legal frameworks, it is reasonable to assume that it is the informal functioning of actual military systems which is largely incompatible with homosexual self-expression. This is entirely consistent with the pattern of British service personnel’s attitudes confirmed by the HAPT.”

(e) Alternative options were considered by the HPAT including a code of conduct applicable to all, a policy based on the individual qualities of homosexual personnel, lifting the ban and relying on service personnel reticence, the ‘don’t ask, don’t tell’ solution offered by the USA and a ‘no open homosexuality’ code. It concluded that no policy alternative could be identified which avoids risks for fighting power with the same certainty as the present policy and which, in consequence, would not be strongly opposed by the service population (§§153-175 of the Report).

(f) Important differences were considered by the HPAT to exist between the armed forces and other civilian disciplined services including the police, the fire brigade and the merchant navy who do not operate the same policy against those of homosexual orientation. It considered that:

“None of these occupations involves the same unremittingly demanding and long-term working environment as the Armed Forces, or requires the same emphasis on building rapidly interchangeable, but fiercely committed and self-supporting teams, capable of retaining their cohesion after months of stress, casualties and discomfort …” (§ 203 of the Report).

(g) The HPAT concluded that, while clearly hardship and invasion of privacy was involved, the risk to fighting power demonstrated why the policy was, nevertheless, justified. It considered that it was not possible to draw any meaningful distinction between the integration of homosexuals and of women and ethnic minorities into the armed forces - “homosexuality raised problems of a type and intensity that gender and race did not”.

The HPAT considered that, in the longer term, evolving social attitudes towards homosexuality might reduce the risks to fighting power inherent in change but that their assessment could “only deal with present attitudes and risks”. It went on:

“… certainly, if service people believed that they could work and live alongside homosexuals without loss of cohesion, far fewer of the anticipated problems would emerge. But the Ministry must deal with the world as it is. Service attitudes, in as far as they differ from those of the general population, emerge form the unique conditions of military life, and represent the current social and psychological realities. They indicate military risk from a policy change …

… after collecting the most exhaustive evidence available, it is also evident that in the UK homosexuality remains in practice incompatible with service life if the armed services, in their present form, are to be maintained at their full potential fighting power. ... Furthermore, the justification for the present policy has been overwhelmingly endorsed by a demonstrated consensus of the profession best able to judge it. It must follow that a major change to the Ministry's current Tri -service Guidelines on homosexuality should be contemplated only for clearly stated non-defence reasons, and with a full acknowledgement of the impact on Service effectiveness and service people's feelings."

5. Reports of the Parliamentary Select Committee

Every five years an armed forces bill goes through parliament and a select committee conducts a review in connection with that bill. Its report dated 24 April 1991 noted, under the heading "homosexuality",

"That the present policy causes very real distress and the loss to the services of some men and women of undoubted competence and good character is beyond dispute. Society outside the armed forces is now much more tolerant of differences in sexual orientation than it was, and this may also possibly be true of the armed forces. Nevertheless, there is considerable force to the argument that the presence of people known to be homosexual can cause tension in a group of people required to live and work sometimes under great stress and physically at very close quarters, and thus damage its cohesion and fighting effectiveness. It may be that this will change particularly with the integration of women into hitherto all-male units. We are not yet persuaded that the time has come to require the armed forces to accept homosexuals or homosexual activity."

The 1996 Select Committee Report (produced after that committee’s review of the Armed Forces Act 1996) refers to evidence taken from members of the Ministry of Defence and from homosexual support groups and to the HPAT Report. Once again, the Committee did not recommend any change in the Government’s policy. It noted that, since its last Report, a total of 30 officers and 331 persons of other rank had been discharged or dismissed on grounds of homosexuality. The committee was satisfied that that no reliable lessons could be as yet drawn from the experience of other countries. It acknowledged the strength of the human rights arguments put forward, but noted that there had to be a balance struck between individual rights and the needs of the whole. It was persuaded by the HPAT summary of the strength of opposition throughout the armed services to any relaxation of the policy. It accepted that the presence of openly homosexual servicemen and women would have a significant adverse impact on morale and, ultimately, on operational effectiveness. The matter was then debated in the House of Commons and members, by 188 votes to 120, rejected any change to the existing policy.

6. Information to persons recruited into the armed forces

Prior to September 1995 applicants to the armed forces were informed about the armed forces' policy as regards homosexuals in the armed forces by, inter alia , a leaflet entitled "Your Rights and Responsibilities". To avoid any misunderstanding and so that each recruit to each of the armed services received identical information, on 1 September 1995 the armed forces introduced a Service Statement to be read and signed before enlistment. Paragraph 8 of that statement is headed "Homosexuality" and states that homosexuality is not considered compatible with service life and "can lead to administrative discharge."

COMPLAINTS

Both applicants complain under Article 8 of the Convention, alone and in conjunction with Article 14 of the Convention, in relation to the investigation and inquiries made into a most intimate part of their private lives, namely their sexual orientation, and in relation to their subsequent discharge from the Royal Navy pursuant to the absolute policy against homosexuals in the armed forces.

PROCEDURE

The applications were introduced before the European Commission of Human Rights on 23 April and 11 July 1996 and registered on 7 May and 22 July 1996, respectively.

On 20 May 1997 the Commission decided to communicate the applications to the respondent Government. It was also decided to join the present applications with two other applications (Nos. 33985/96 and 33986/96, Smith and Grady v. the United Kingdom,  Dec. 23.2.99, as yet unpublished).

The Government’s written observations were submitted on 17 October 1997, after one extension of the time-limit fixed for that purpose. 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 ECJ, pursuant to Article 177 of the Treaty of Rome, by the High Court on the question of the applicability of the Equal Treatment Directive to a difference in treatment based on sexual orientation ( R v. Secretary of State for Defence ex parte Perkins, 13 March 1997 ).

On 23 January 1998 the Commission granted the second applicant legal aid.

On 13 July 1998 the High Court delivered its judgment withdrawing its reference of the above-noted question in light of intervening relevant jurisprudence of the ECJ ( R v. Secretary of State for Defence ex parte Perkins, 13 July 1998 ).

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the cases fell to be examined by the Court in accordance with the provisions of that Protocol.

On 23 February 1999 the Court decided to retain the joinder of the present cases and to disjoin them from the above-cited Smith and Grady cases.

THE LAW

Both applicants complain about the investigation and inquiries made into their sexual orientation and about their subsequent discharge from the Royal Navy pursuant to the absolute policy against those of homosexual orientation in the armed forces. Article 8 is invoked by the applicants both alone and in conjunction with Article 14 of the Convention. Article 8, insofar as relevant, read as follows:

“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 …, 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 relevant parts of Article 14 read as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, …, political or other opinion, … or other status.”

The Government accept that neither the applicants’ service records nor their conduct gave any grounds for complaint and that there is no evidence that, prior to the discovery of their sexual orientation, such orientation adversely affected the performance by them or by their colleagues of their duties. Nor is it contended by the Government that homosexuals are less physically capable, brave, dependable or skilled than heterosexuals. The Government also accept that there has been an interference with the applicants’ private lives and considers that the discharges were ‘in accordance with the law’.

However, the Government underlines the wide margin of appreciation which is properly open to a State in this context ( Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 25, § 59) by reference to four matters. In the first place, they refer to the intense debate in recent years in the United Kingdom on the subject. Secondly, given the national security dimension and the special nature of life and duties in the armed forces, the complaints are made in a special armed forces’ context to which different and more stricter rules can apply ( Engel v. the Netherlands judgment of 8 June 1976, Series A No. 22, , p. 24, § 57 and Kalaç v. Turkey judgment of 23 June 1997, Reports of Judgments and Decisions 1997-IV, no. 41, p. 1209, § 28). Thirdly, the Government point out that the applicants are requesting the Court to interfere in a field which risks damaging the operational efficacy of the armed forces. Finally, it is argued that the diverse legal and practical positions in other countries, as well as the comparatively recent legal changes in many of those countries, indicate that the treatment of this controversial issue is still in a transitional period.

The Government consider that the observations and conclusions in the HPAT Report of February 1996 demonstrate that the present policy is justifiable. The view that changing the policy at this time would involve a clear and unacceptable risk to fighting power and, consequently, to the effectiveness of the armed forces is, according to the Government, a reasonable and legitimate conclusion on a sensitive and controversial question. Further, it is a conclusion which is not undermined by the lack of a similar ban in other disciplined but civilian contexts in the United Kingdom or by the fact that certain other countries have changed their laws to admit homosexuals into their armed forces.

The Government also deals in their observations with certain of the applicants’ submissions to the domestic courts. The applicants had claimed that there was no evidence that their or others’ homosexual orientation caused the type of problems anticipated by the HPAT. The Government point out that the discharge of all persons of established homosexual orientation ‘before such damage results’ means that concrete evidence establishing the risks identified by the HPAT may not be available. In any event, the Government note that the risks envisaged “would result from the general relaxation of the policy, rather than its modification in any particular instance”. The applicants had also argued in favour of a conduct based code. The Government note that this option was rejected by the HPAT on the basis that any such code would not avoid the real risk to the effectiveness of the armed forces because the risk was not dependent on homosexual conduct but on the ‘presence in the armed forces of those of known or strongly suspected homosexual orientation”.

Finally, the Government explain that homosexuality will be investigated in order to ensure that personnel are not attempting to obtain early discharge on the basis of false representations of homosexuality. An investigation usually implies questioning the individual and seeking corroborative evidence and, given the nature of the subject matter, will necessarily cover intimate and personal issues. The Government also defend the conduct of the interviews pointing out that both applicants were informed at the outset that they did not have to say anything unless they wished to do so but they both, nevertheless, chose to co-operate. In addition, the interviews of the first applicant were short. He declined to give details of the sexual nature of the relationship with his partner and was not pressed to do so.

Accordingly, the Government submit that the interferences with the applicants’ private lives by the investigations and discharges were proportionate.

The Government further submit that there is either no separate issue arising under Article 14 (Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, pp. 25-26, §§ 64-70), or that any difference in treatment is justified for the same reasons submitted in the context of Article 8. In such circumstances, the Government submit that the applicants’ complaints are manifestly ill-founded (within the meaning of Article 35 § 3) or, in the alternative, do not give rise to a violation of the Convention.

The applicants note that the Government’s position, that the presence of openly homosexual servicemen and women would have a significant adverse impact on morale and ultimately on operational effectiveness, is unsustainable for three main reasons. In the first place, the applicants argue that the Government cannot, consistently with Article 8, rely on and pander to the perceived prejudice of other service personnel. Given the absence of any rational basis for armed forces’ personnel to behave any differently, the alleged risk of adverse reactions by service personnel is based on pure prejudice. Moreover, it is the responsibility of the armed forces to ensure that those they employ understand that it is not acceptable for them to act by reference to pure prejudice. The applicants consider that it is illustrative to follow the logic of the Government’s argument into the contexts of racial, religious and sexual prejudice, arguing that the Government cannot seriously suggest that, for example, pure racial prejudice by armed forces’ personnel would be sufficient to justify excluding coloured persons from those forces.

Moreover, Convention jurisprudence establishes that the Government cannot rely on pure prejudice to justify interference with private life (Dudgeon v. the United Kingdom judgment loc. cit ., pp. 23-24, § 60 and No. 25186/94 Sutherland v. the United Kingdom, Comm. Report 1.7.97, at §§ 56, 57, 62, 63 and 65). Furthermore, and as to the military context of the applications, the applicants point out that the Court’s jurisprudence provides that the demands of ‘pluralism, tolerance and broadmindedness’ apply to service personnel as to other persons, that fundamental rights must be tolerated in the army of a democratic State just as it must be in the society that such an army serves, and that it is for the Court to assess whether the Government have substantiated its concerns about the threat to military discipline by specific examples ( Vereinigung Demokratischer Soldaten  sterreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, p. 17, §§ 36 and 38).

Secondly, the applicants argue that such perceived prejudice would not have occurred but for the actions of the Government in adopting and applying a policy which investigated and revealed the private lives of the applicants. The Government accept that the applicants worked efficiently and effectively in the armed forces for years without any problems arising by reason of their sexual orientation. The Government’s concern relates to the presence of openly homosexual service personnel and the applicants’ private lives were indeed private and would have remained so but for the policy. There is, accordingly, no reason to believe that any difficulty would have arisen had it not been for the policy adopted by the Government.

Thirdly, the applicants consider that there is no objective evidence to support the Government’s assertion that prejudice exists to the extent that it would impact in a substantial and adverse manner on morale and operational effectiveness. The Government refer extensively to the HPAT Report but the applicants contest its reliability. They submit, inter alia , that the HPAT assessment was conducted against the background of the publicly voiced hostility of the armed service authorities and of the circulation of an army consultation document which suggested that senior army personnel thought that the purpose of the HPAT review was to gather evidence in support of the current policy on homosexuality. The Report contained no concrete evidence of specific problems caused by the presence of homosexual personnel in the armed forces of the United Kingdom or overseas. The HPAT were not independent consultants. The signal canvassing the views of all service personnel received a minimal response and those responding were not guaranteed anonymity. The majority of the questions in the HPAT questionnaire expressed hostile attitudes to homosexuality or suggested negative responses. The principal conclusion of the HPAT Report was that the degree of antipathy to homosexual personnel was such as would lead to insulting and violent behaviour towards homosexual personnel.

Furthermore, the applicants challenge the dismissal by the HPAT of the experience of other countries who do not ban homosexuals in from their armed forces. In this respect, the HPAT Report stated that service personnel of such other countries are more tolerant and the applicants consider that this is not supported by any evidence. The Report also observed that those countries have written constitutions and a greater respect for human rights and the applicants submit that this fails to take account of the United Kingdom’s Convention obligations. Moreover, the Report recorded that there are few openly homosexual personnel serving in the armed forces of those countries. The applicants point out that this ignores the fact that sexual orientation is a matter of a person’s private life and that no conclusions can be drawn from the fact that homosexuals serving in foreign armed forces may have chosen to keep their sexuality private as they are entitled to do.

Accordingly, the applicants submit that their applications are admissible and give rise to violations of their rights under Article 8 both, alone and in conjunction with Article 14 of the Convention.

In view of the submissions of the parties, the Court considers that the applications raise complex and serious issues under Articles 8 and 14 of the Convention which require determination on the merits. It follows that these complaints cannot be dismissed as manifestly ill-founded within the meaning of Article  35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATIONS ADMISSIBLE , without prejudging the merits of the case.

S. Dollé L. Loucaides

Registrar President

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