Use to focus argument and illustrate strengths/weaknesses or proportionality standard.

Court of Appeal – Sir Thomas Bingham, Henry and Thorpe LJJ

Held, dismissing the appeals, that where an administrative decision was made in the context
of human rights, the court would require proportionately greater justification before being
satisfied that the decision was within the range of responses open to a reasonable decision-
maker, according to the seriousness of the interference with those rights; that in applying
the test of irrationality, which was sufficiently flexible to cover all situations, the court would
show greater caution where the nature of the decision was esoteric, policy-laden or
security-based; that, having regard to the changing professional and public attitudes to
homosexuality, the lawfulness of the applicants' discharge fell to be assessed as at the date
it occurred; that, since the policy was supported by Parliament and by those from whom the
ministry was entitled to seek advice, since no evidence before the ministry plainly
invalidated that advice and since changes outside the United Kingdom had been adopted
too recently for their effect to be evaluated, the existing policy and the decisions made
pursuant to it could not be stigmatised as irrational at the time the applicants were
discharged; that, having regard to the language and purpose of the E.E.C. Treaty and Council
Directive (76/207 E.E.C), it was plain that neither addressed the question of discrimination
on the ground of sexual orientation; and that, accordingly, the Divisional Court had rightly
rejected the applications.

In short overview:

Held, dismissing the appeal, that (1) the court must decide whether the decision was
unreasonable in the sense that it was beyond the range of responses available to a
reasonable decision maker. When there was a human rights issue involved there had to be
greater justification of the reasonableness. The policy could not be regarded as irrational at
the time the applicants were discharged. It was supported by both Houses of Parliament; (2)
the Treaty of Rome and Council Directive 76/207 did not apply to discrimination on the
grounds of sexual orientation and (3) the failure to consider Convention obligations did not
impugn the exercise of discretion. The question of whether the policy was contrary to the
Convention should be decided by the European Court of Human Rights.

REGINA V. SECRETARY OF STATE FOR DEFENCE, EX parte SMITH

By notice of motion, dated 14 March 1995, and pursuant to the leave to move granted by
Latham J., the applicant, Jeanette Smith, applied for judicial review, by way, inter alia, of
certiorari to quash the decision of the Royal Air Force to discharge her from the Royal Air
Force with effect from 25 November 1994 and by way of damages and a declaration that the
policy of the Secretary of State to dismiss homosexuals from the Royal Air Force was
unlawful. The grounds upon which relief was sought were, inter alia, that the policy of the
Secretary of State to dismiss homosexuals was irrational and amenable to judicial review
even though it was an exercise of the royal prerogative; that the policy was contrary to
Council Directive (76/207/E.E.C), the language of which was to be construed to include
homosexuals; that the decision was unreasonable (see Associated Provincial Picture Houses
Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223); that the decision had been made
subsequent to procedures that were at once unlawful and unreasonable; and that the
dismissal was contrary to public policy and irrational given the considerable public money
that had been devoted to training.

QUEEN’S BEACH DIVISION JUDGMENT

Simon Brown L.J -> overall agreed with the applicants but not the constitutional impact of
allowing their appeal.
 All four applicants had exemplary service records. Some of the reports before us are
truly in the most glowing terms. In none of these cases was it suggested that the
applicant's sexual orientation had in any way affected their ability to carry out their
work or had any ill effect on discipline.
 There is 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.
 The applicants contend in short that the services should cease to discriminate
against homosexuals and should replace the existing policy with a conduct based
scheme designed to regulate all inappropriate sexual behaviour including
harassment whether homosexual or heterosexual.
 On the evidence before us, indeed, the only countries operating the same blanket
ban as the United Kingdom are Turkey and G Luxembourg (and, possibly, Portugal
and Greece)
 The disadvantages of the blanket ban policy:
1. First and foremost, a grave invasion of the individual's freedom to live in
accordance with his or her sexual orientation. This freedom the respondent
accepts flows from article 8 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, providing as it does that
"everyone has the right to respect for his private and family life. . . ."
As the European Court of Human Rights observed in Norris v. Ireland (1988) 13
E.H.R.R. 186 repeating what had been said in Dudgeon v. United Kingdom (1981)
4 E.H.R.R. 149, when the U.K. was required to extend section 1(1) of the Sexual
Offences Act 1967 to Northern Ireland— sexual orientation
"concerns a most intimate aspect of private life."
Article 14 of the Convention for the Protection of Human Rights and
Fundamental Freedoms is also in point:
"The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any grounds 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."
Homosexuals, Mr. Pannick submits, have a clear prima facie right to serve their
country in the Armed Forces and not to be discharged merely on grounds of
orientation.
2. The prurient and degrading investigation of those alleged to be or admitting they
are homosexual, a practice demeaning to all who are involved in it. The present
 cases amply demonstrate the extreme lengths to which such investigations go
and how invasive they are of the individual's privacy and dignity.
3. The hardship and misery suffered by the individuals concerned, some of whom
would have been unaware of their true sexual orientation when they joined the
services. The very inflexibility of the policy (necessary though that is) will
inevitably produce a sense of injustice in many individual cases. "
4. The loss of many good men and women from the armed services, often, as here,
trained and well qualified personnel in whom the forces have invested
considerable sums of money.

Lord Scarman expressed the view, at p. 407:

"the controlling factor in determining whether the exercise of prerogative power is subject to
judicial review is not its source but its subject matter."

Mr. Richards's arguments on justiciability rest heavily on those passages: the present
challenge, he submits, is precisely that which Lord Diplock found it difficult to envisage and
which Lord Roskill thought could not be made the subject of judicial review: an irrationality
(unreasonableness) challenge to the exercise of prerogative power in relation to the
defence of the realm.

With regard to the super- Wednesbury approach I need cite only this passage from the
speech of Lord Bridge of Harwich in Reg. v. Secretary of State for the Environment, Ex parte
Hammersmith and Fulham London E Borough Council [1991] 1 A.C. 521, 597:
"Both the constitutional propriety and the good sense of this restriction [that the decision is
not open to challenge on the grounds of irrationality short of the extremes of bad faith,
improper motive or manifest absurdity] seem to me to be clear enough. The formulation and
the implementation of national economic policy are matters depending essentially on
political judgment. The decisions which shape them are for politicians to take and it is in the
political forum of the House of Commons that they are properly to be debated and approved
or disapproved on their merits. If the decisions have been taken in good faith within the four
corners of the Act, the merits of the policy underlying the decisions are not susceptible to
judicial review by the courts and the courts would be exceeding their proper function if they
presumed to condemn the policy as unreasonable."

Where, as here, such rights are in issue, the courts should, he submits, both accept the
justiciability of the issue and furthermore decline to raise the required level of challenge to
that of super-Wednesbury irrationality. Indeed, he goes further and submits that because
the policy here so substantially intrudes upon these applicants' fundamental freedoms, the
courts should be more rather than less ready to examine its merits and require its
justification by the Secretary of State for Defence. This is so, he submits, whether or not the
court can properly have regard to the "United Kingdom's obligations under the Convention
for the Protection of Human Rights and Fundamental Freedoms. If, of course, he is right in
his submission that it can, then clearly the minister is required to justify the ban to a yet
higher standard: as the Strasbourg jurisprudence amply demonstrates, he would then need
to establish that the policy "answers a pressing social need and in particular is proportionate
to the legitimate aim pursued:" see the Norn's case, 13 E.H.R.R. 186, 198.
Neill L.J. extracted from the speeches in Ex parte Brind : "the following principles as being
relevant to an application for judicial review of a decision of a government minister:
(1) Article 10 [the human right there in issue] is not part of English domestic law. It is
therefore not necessary for the minister when exercising an administrative decision
conferred on him by Parliament to exercise that discretion in accordance with the provisions
of article 10. Nor will a court when reviewing the decision of the minister interfere with it on
the ground that he did not have regard to the provisions of article 10 ...
(2) Nevertheless, where fundamental human rights including freedom of expression are
being restricted the minister will need to show that there is an important competing public
interest which is sufficient to justify the restriction.
(3) The primary judgment as to whether the competing public interest justifies the particular
restriction is for the minister. The court is only entitled to exercise a secondary judgment by
asking whether a reasonable minister, on the material before him, could reasonably make
that primary judgment. . .
(4) .. . As the law stands at present it seems to me to be clear that though the minister is
required to justify the restriction imposed by reference to an important and sufficient
competing public interest the court, when reviewing the minister's decision is not entitled (to
use Lord Lowry's phrase) to lower 'the threshold of unreasonableness.' "

As to proportionality, Neill L.J. said, at pp. 800-801: "In the light of the decision in Brind…I
am quite satisfied that it is not open to a court below the House of Lords to depart from the
traditional Wednesbury grounds when reviewing the decision of a minister of the Crown who
has exercised a discretion vested in him by Parliament. . . . The constitutional balance in this
country between the courts and the executive is a delicate one. The principle of
proportionality allows the decision-maker a 'margin of appreciation,' but I do not
understand that this 'margin of appreciation' covers so many degrees of latitude as that
afforded by the traditional Wednesbury doctrine. As the law stands at present, however, I
have no hesitation in saying that on the facts of this case I can see no basis whatever for
this court lowering the 'threshold of unreasonableness.' "

When the most fundamental human rights are threatened, the court will not, for example,
be inclined to overlook some perhaps minor flaw in the decision-making process, or adopt a
particularly benevolent view of the minister's evidence, or exercise its discretion to withhold
relief. As indeed Lord Ackner put it in Ex parte Brind [1991] 1 A.C. 696, 757: "In a field which
concerns a fundamental human right…close scrutiny must be given to the reasons provided
for interference with that right." But that did not stop him concluding, at p. 763, that:
"Unless and until Parliament incorporates the Convention into domestic law…there appears
to me to be at present no basis upon which the proportionality doctrine applied by the
European Court can be followed by the courts of this country."

In short, I respectfully conclude with Neill L.J. that even where fundamental human rights
are being restricted, "the threshold of unreasonableness" is not lowered. On the other
hand, the minister on judicial review will need to show that there is an important competing
public interest which he could reasonably judge sufficient to justify the restriction and he
must expect his reasons to be closely scrutinised. Even that approach, therefore, involves a
more intensive review process and a greater readiness to intervene than would ordinarily
characterise a judicial review challenge. Is that, however, the approach to be adopted here,
or, for the reasons given by Mr. Richards, ought we to eschew justiciability entirely or at
least heighten the threshold of unreasonableness? What seems to me distinctly unusual and
difficult about the present case is that it contains at one and the same time both a strong
human rights dimension and also a number of features generally thought to render cases
inappropriate for the court's review process. None of the other cited cases concerns, at any
rate in such extreme form, the same tension as exists here between the suggested defence
interests of the state and the fundamental human rights of the individuals affected.

Reference to other proportionality cases

In so far as Mr. Richards relies upon this being an irrationality challenge to the exercise of
the prerogative—which I am satisfied it is, the broad statutory framework being to my mind
immaterial in identifying the true source of this power—Mr. Pannick points to a series of
cases since Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 in
which, despite Lord Diplock's doubts, the courts have accepted the reviewability on
Wednesbury grounds of decisions taken in the exercise of prerogative power: see, in
particular, Reg. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Everett
[1989] Q.B. 811 (a Court of Appeal decision concerning passports); Reg. v. Secretary of State
for the Home Department, Ex parte Bentley [1994] Q.B. 349 (a decision of the Divisional
Court with regard to the prerogative of mercy) and Reg. v. Criminal Injuries Compensation
Board, Ex parte P. [1995] " 1 W.L.R. 845 (where the Court of Appeal by a majority found the
Criminal Injuries Compensation Scheme reviewable even though it involved the distribution
of "bounty" on behalf of the Crown). True, only in Ex parte Bentley did the applicant
succeed, and even then only on a narrow issue concerning the scope of the prerogative. But
it can no longer be suggested that the exercise of prerogative power is on that ground alone
outside the court's supervisory jurisdiction.

Simon Brown L.J conclusions

It is time to state my conclusions on these issues.

(1) I have no hesitation in holding this challenge justiciable. To my mind only the rarest
cases will today be ruled strictly beyond the court's purview—only cases involving
national security properly so called and where in addition the courts really do lack
the expertise or material to form a judgment on the point at issue. This case does
not fall into that category. True, it touches on the defence of the realm but it does
not involve determining "whether . . . the armed forces [should be] disposed of in a
particular manner" (which Lord Roskill in Council of Civil Service Unions v. Minister
for the Civil Service [1985] A.C. 374 thought plainly unreviewable—as indeed had
been held in China Navigation Co. Ltd. v. Attorney-General [1932] 2 K.B. 197). No
operational considerations are involved in this policy. Now, indeed, that the
"security implications" have disappeared, there appears little about it which the
courts are not perfectly well qualified to judge for themselves. The European Court
of Human Rights held in Vilvarajah v. United Kingdom (1991) 14 E.H.R.R. 248 that
judicial review, so long as the most anxious scrutiny is accorded when (as in Reg. v.
Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514)
 fundamental rights are in issue, satisfies the requirements of article 13: "While it is
true that there are limitations on the powers in judicial review proceedings the court
is of the opinion that these powers, exercisable as they are by the highest tribunals
in the land, do provide an effective degree of control over the decisions of the
administrative authorities in asylum cases and are sufficient to satisfy the
requirements of article 13." Were judicial review not to be available here, there
would be no domestic remedy whatever available to these applicants.

(2) Nor am I persuaded that any test more favourable to the executive than the
conventional Wednesbury approach should be adopted in the present context. It is
difficult to imagine an area of decision-making further removed than this from that—
national economic policy—under consideration in Reg. v. Secretary of State for the
Environment, Ex parte Hammersmith and Fulham London Borough Council [1991] 1
A.C. 521. Whilst I understand Mr. Richards's argument that the policy presently
impugned should properly be debated and considered on its merits in Parliament, I
cannot accept that it depends essentially on political judgment. In the Hammersmith
and Fulham case, moreover, there was no human rights dimension to the case; here
it is prominent, and in my judgment a powerful countervailing weight when
considering both the level at which the irrationality test should be fixed and the
intensity of review appropriate.

(3) I approach the case, therefore, on the conventional Wednesbury basis adapted to a
human rights context and ask: can the Secretary of State show an important
competing public interest which he could reasonably judge sufficient to justify the
restriction? The primary judgment is for him. Only if his purported justification
outrageously defies logic or accepted moral standards can the court, exercising its
secondary judgment, properly strike it down.
There can be no doubting the importance of the competing public interest advanced
by the Secretary of State as justifying this policy: the delivery of an operationally
efficient and effective fighting force. The real question becomes: is it reasonable for
the Secretary of State to take the view that allowing homosexuals into the forces
would imperil that interest? Is that, in short, a coherent view, right or wrong? I have
already said enough to indicate my own opinion that it is a wrong view, a view that
rests too firmly upon the supposition of prejudice in others and which insufficiently
recognises the damage to human rights inflicted. But can it properly be stigmatised
as irrational?
We live in changing times. That was expressly recognised both by the select
committee in its April 1991 report and by the Prime Minister in July 1991. It is only
recently that many of the other armed forces who do now admit homosexuals came
to adopt their present policies. Mr. Richards submits that the full impact of these
changes abroad is not yet apparent; their wisdom has still to be demonstrated.
When exactly can this policy be said to have become irrational?
The protection of human rights is, Mr. Pannick submits, a matter with which the
courts are particularly concerned and for which they have an undoubted
responsibility. So they do. But they owe a duty too 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 both of the military and of the government. If the
Convention for the Protection of Human Rights and Fundamental Freedoms 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 its benefits, then clearly the primary judgment (subject only
to a limited "margin of appreciation") 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, even though adjudicating in a human rights
context, 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.
What I have just said, of course, relates only to the domestic position. Overhanging
this lies Strasbourg. The Secretary of State does not accept that the policy would be
doomed under the Convention; in particular he would seek to rely upon the decision
of the European Commission of Human Rights in B. v. United Kingdom (1983) 34 D. &
R. 68, in which a homosexual soldier's complaint under articles 8 and 14 of the
Convention A was held inadmissible, the Commission expressing the opinion: "The
measures in question were taken in pursuit of a legitimate aim, namely the
protection of morals and prevention of disorder in the Armed Services, and were not
in the circumstances disproportionate. They were accordingly objectively and
reasonably justified and cannot be considered discriminatory. ... " That case,
however, was concerned with homosexual conduct rather than orientation, the
complainant there having had homosexual relations with a soldier junior in rank to
himself and under 21 years of age (then the legal limit).

Curtis. J judgment

In these cases, I for my part would decline to grant the relief sought. I will summarise why.

(1) The decision in effect is upon the advice of all armed forces based on their
professional assessment of the practical effects of removing the disqualification from
service upon the efficient operation of their forces in time of war as well as peace.
(2) The decision has recently been debated by Parliament and affirmed. It has also
recently been seen as unobjectionable by Parliament in legislation (Criminal Justice
and Public Order Act 1994, section 146(4)). We are told that Parliament is soon again
to turn its attention to this and other matters concerning the armed forces. I
consider that in the ultimate A analysis it is for Parliament to decide whether the
decision is to be revoked or continued.
(3) The decision has been taken for rational reasons, the relative weight of which is not
for this court. I do not accept that the respondents have actually to show that the
revocation sought will have the effects claimed by the armed forces upon their
efficiency: it is enough for it to be shown that there is a substantial risk that the
revocation will have that effect.

Overall, agreed and disagreed with Brown: “For my part the applications fail on their merits
as well as in law”.
Held -> challenge dismissed:
- Where a decision is challenged on the ground of irrationality in a human rights case
the classic Wednesbury test is sufficient to accommodate the requirements of the
European jurisprudence: see Vilvarajah v. United Kingdom, 14 E.H.R.R. 248
- The policy does not interfere with the right to respect for private life protected by
article 8 of the Convention since access to the armed forces is not a right guaranteed
by the Convention, and the absence of homosexual orientation is a necessary
qualification for a service post: see Glasenapp v. Germany (1986) 9 E.H.R.R. 25 and
Leander v. Sweden (1987) 9 E.H.R.R. 433. Different considerations may apply to
those developing a homosexual orientation after recruitment: see Vogt v. Germany
(1995) 21 E.H.R.R. 205. In any event any interference with a right under article 8(1)
is justified under article 8(2) as being necessary in a democratic society since a
member state is accorded a wide margin of appreciation in assessing a pressing
social need and in choosing the means to achieve the legitimate aim of national
security: see B. v. United Kingdom, 34 D. & R. 68 -> what type of right is Art 8??
Qualified? Qualified rights such as Article 8 may be interfered with by state
authorities if they can justify their actions in terms of the general framework of
principles set out in Article 8(2). These require that, in order to be legitimate, any
interference must satisfy the principles of legality and proportionality, as well as
pursuing one of a list of legitimate general policy aims.

COURT OF APPEAL

Lord Bingham’s judgment

IRRATIONALITY

(a) The test

Mr David Pannick QC (who represented three of the appellants, and whose arguments were
adopted by the fourth) submitted that the court should adopt the following approach to the
issue of irrationality:
'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 decisionmaker 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.'

It was argued for the ministry, in reliance on Nottinghamshire CC v Secretary of State for the
Environment [1986] 1 All ER 199, [1986] AC 240 and Hammersmith and Fulham London BC v
Secretary of State for the Environment [1990] 3 All ER 589, [1991] 1 AC 521, that a test more
exacting than Wednesbury was appropriate in this case (see Associated Provincial Picture
Houses Ltd v Wednesbury Corp.). The Divisional Court rejected this argument and so do I.
The greater the policy content of a decision, and the more remote the subject matter of a
decision from ordinary judicial experience, the more hesitant the court must necessarily be
in holding a decision to be irrational. That is good law and, like most good law, common
sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue, even
greater caution than normal must be shown in applying the test, but the test itself is
sufficiently flexible to cover all situations.

The present cases do not affect the lives or liberty of those involved. But they do concern
innate qualities of a very personal kind and the decisions of which the appellants complain
have had a profound effect on their careers and prospects. The appellants' rights as human
beings are very much in issue. It is now accepted that this issue is justiciable. This does not
of course mean that the court is thrust into the position of the primary decision-maker. It is
not the constitutional role of the court to regulate the conditions of service in the armed
forces of the Crown, nor has it the expertise to do so. But 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'.

The existing policy (THE BLANKET BAN) cannot in my judgment be stigmatised as irrational
at the time when these appellants were discharged. It was supported by both Houses of
Parliament and by those to whom the ministry properly looked for professional advice.
There was, to my knowledge, no evidence before the ministry which plainly invalidated that
advice. Changes made by other countries were in some cases very recent. The Australian,
New Zealand and Canadian codes had been adopted too recently to yield much valuable
experience. The ministry did not have the opportunity to consider the full range of
arguments developed before us. Major policy changes should be the product of mature
reflection, not instant reaction. The threshold of irrationality is a high one. It was not
crossed in this case.....

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 that exercise
of discretion. Mr. Stephen Richards, representing the ministry, indicated that it did not
accept that the existing policy interfered with any right of the applicants protected by the
Convention. If, contrary to that submission, there were an interference with the applicants'
right of privacy, he submitted that such interference was justified as being in accordance
with the law and necessary in a democratic society in the interests of national security.

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 me to show respect for that person's private and family life. There may also be room for
argument whether the interference in question "answers a pressing social need and in
particular is proportionate to the legitimate aim pursued:" see Norris v. Ireland (1988) 13
E.H.R.R. 186, 1. These are not, however, questions to which answers may properly or
usefully be proffered by this court which has seen none of the evidence which would be
relied on if it were this court, and not the European Court of Human Rights, with whom the
responsibility for deciding this issue lay. As it is it may be necessary for the applicants, if all
else fails, to incur the expense and endure the delay of pursuing their claim in Strasbourg.
It is evident from cursory consideration of this language that its terms extend well beyond
anything to be found in the E.E.C. Treaty or the Equal Treatment Directive. It is in my
judgment a misuse of authority to suggest that the language of either of the European
instruments can usefully be construed by reference to decisions on the construction of
article 26. P The Divisional Court rejected Miss Cox's argument, and in my judgment they
were right to do so. On all these grounds, I would dismiss these appeals.

Henry. LJ

This suggests that the majority of serving homosexuals were undetected and had a useful
and productive service life and that there had been nothing in their conduct which either
disclosed their sexual orientation or threatened the cohesion of their units. This experience
clearly should not be disregarded when considering the necessity for an absolute ban,
especially as that experience is replicated in the case histories of the applicants before us.

Additionally, over the years since the passing of the Sexual Offences Act 1967, there can be
no doubt that public opinion has moved a very long way towards toleration and acceptance
of homosexuals (as Lord Wolfenden himself commented as long ago as 1976 in his
autobiography "Turning Points," at pp. 144-146) We have seen a greater and greater C
public awareness and acceptance of homosexuality, together with a greater personal
openness in acknowledging it.

The plaintiffs here accept the legitimacy of the armed forces achieving their aim by a non-
discriminatory, conduct-based code restricting " expression or other manifestation of their
sexual orientation. What they challenge is the legitimacy of a status-based absolute
proscription of all homosexuals in the armed forces, however exemplary their service
conduct.

The sole question on the irrationality issue is, accepting the formulation as proposed by Mr.
Pannick and accepted by Sir Thomas Bingham M.R., whether it was irrational at the end of
1994, when these applicants were discharged, for the defendants still to have in place an
absolute proscription of all homosexuals. I agree with Sir Thomas Bingham M.R. it was not. I
would add only these remarks to his reasons. On the evidence before us, the issue between
a conduct-based code or status-based ban was a relatively new one. It does not seem to
have been raised before the Select Committee in 1986. It was raised in broad terms by the
Stonewall Group in 1991. The Select Committee recognised that there was much more
tolerance of differences in sexual orientation both without and (possibly) within the armed
forces. But they were not persuaded that the time had yet come to require the C armed
forces to accept homosexuals.

As Sir Thomas Bingham M.R. has said, it is inevitably common ground that the United
Kingdom's obligation under international law to respect and secure compliance with article
8 is not enforceable by domestic courts, and so its relevance is simply as "background to the
complaint of irrationality:". Our present constitutional role was correctly identified by Simon
C Brown L.J. as exercising a secondary or reviewing judgment. As it is, in relation to the
Convention, the only primary judicial role lies with the European Court of Human Rights at
Strasbourg. This is why, as Sir Thomas Bingham M.R. has said, questions relating to any
future liability under the Convention as Strasbourg "are not . . . questions to which answers
may properly or usefully be proffered by p this court:". Parliament has not given our judges
primary jurisdiction over the human rights issues contained in the Convention. Without such
jurisdiction, the court should not speculate.

Thorpe L.J

Agreed with other 2 CoA judges and the appeal was dismissed