In the case of Smith and Grady v. the United Kingdom,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Sir Nicolas Bratza,
Mr L. Loucaides,
Mr P. Kuris,
Mr W. Fuhrmann,
Mrs H.S. Greve,
Mr K. Traja, judges,
and Mrs S. Dollé, Section Registrar,
Having deliberated in private on 18 May and 24 August 1999,
Delivers the following judgment, which was adopted on the last-mentioned date:
The first applicant, Ms Jeanette Smith, is a British national born in 1966 and resident in Edinburgh. Her application was introduced on 9 September 1996 and was registered on 27 November 1996 under file no. 33985/96. The second applicant, Mr Graeme Grady, is a British national born in 1963 and resident in London. His application was introduced on 6 September 1996 and was also registered on 27 November 1996 under file no. 33986/96. Both applicants were represented before the Commission and, subsequently, before the Court by Mr P. Leech, a legal director of Liberty which is a civil liberties group based in London.
The Government, represented by Mr M. Eaton and, subsequently, by Mr C. Whomersley, both Agents, Foreign and Commonwealth Office, submitted their observations on 17 October 1997.
In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Third Section. The Chamber constituted within that Section included ex officio Sir Nicolas Bratza, the judge elected in respect of the United Kingdom (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr J.-P. Costa, Acting President of the Section and President of the Chamber (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr L. Loucaides, Mr P. Kuris, Mr W. Fuhrmann, Mrs H.S. Greve and Mr K. Traja (Rule 26 § 1 (b)).
There appeared before the Court:
(a) for the Government
Mr C. Whomersley, Foreign and Commonwealth Office, Agent,
Mr J. Eadie, Counsel,
Mr J. Betteley,
Ms J. Pfieffer, Advisers;
(b) for the applicants
Mr B. Emmerson,
Ms J. Simor, Counsel,
Mr P. Leech,
Ms D. Luping, Solicitors,
Mr A. Clapham, Adviser.
The Court heard addresses by Mr Emmerson and Mr Eadie.
I. THE CIRCUMSTANCES OF THE CASE
A. The first applicant
The applicant confirmed that, while she had had "thoughts" about her sexual orientation for about six years, she had her first lesbian relationship during her first year in the air force. She was asked how she came to realise that she was lesbian, the names of her previous partners (she refused to give this information) and whether her previous partners were in the service (this question was put a number of times). She was questioned about how she had met her current partner and the extent of her relationship with that partner but she would not respond at first, at which stage her interviewer queried how else he was to substantiate her homosexuality. The applicant then confirmed that she and her partner had a full sexual relationship.
She was also asked whether she and her partner had a sexual relationship with their foster daughter (16 years old). The applicant indicated that she knew the consequences of her homosexuality being discovered and, while she considered herself just as capable of doing the job as another, she had come to terms with what was going to happen to her. The interviewers also wanted to know whether she had taken legal advice, who was her solicitor, what advice he had already given her and what action she proposed to take after the interview. She was also asked whether she had thought about HIV, whether she was being "careful", what she did in her spare time and whether she was into "girlie games" like hockey and netball. The applicant agreed that her partner, who was waiting outside during the interview, could be interviewed for "corroboration" purposes.
B. The second applicant
The applicant denied he was homosexual. He was asked numerous questions about his work, his relationship with the head of the BDILS(NA), his cycling holiday and about his female colleague. He was told that his wife had been interviewed in detail and he was informed from time to time by the interviewers if his answers matched those of his wife. He was asked to tell the interviewers about the break-up of his marriage, whether he had extra-marital affairs, about his and his wife's sex life including their having protected sex and about their financial situation. He was also questioned on the cycling holiday, about a male colleague and the latter's sexual orientation. They asked the applicant who he was calling since he had returned to the United Kingdom and how he was telephoning. He was told that he would be asked to supply his electronic diary which contained names, addresses and telephone numbers and was told that the entries would be verified for homosexual contacts. They informed the applicant that they had a warrant if he did not agree to a search of his accommodation. The applicant agreed to the search. The applicant also requested time to think and to take legal advice. The interview was adjourned at 3.14 p.m.
"… if you wish to change your mind and want to speak to me, while I'm still here, before I go back to Washington; because I'm going back to Washington. Because I'm going to see the Colonel tomorrow, that is the one in London, who is then going to see the General and we're going to get permission to speak to the Americans … and I shall stay out there, Graeme, until I have spoken to all Americans that you know. Expense is not a problem. Time is not a problem …"
The detailed evidence given by his wife to the investigators was put to the applicant, including information about his relationship with his son, his daughter and his mother-in-law, about matters relating to the family home of which the applicant was not aware and about his having protected sex with his wife. The interviewer returned again to the subject of the applicant having previously grown cold towards his wife but now declaring his love for her. The applicant continued to respond "no comment". It was explained to the applicant's solicitor that the service attitude in relation to investigations involving acts of alleged homosexuality did not warrant the provision of legal advice and that the applicant's solicitor was only delaying matters. The investigators also mentioned that it was a security matter which they would not detail further since his solicitor did not have security clearance, but that the applicant should not be surprised if some counter-intelligence people came to talk to him and that there would be no legal advice for that.
The applicant requested time to speak to his lawyer and the interview was interrupted at 8.10 p.m. The applicant then spoke to his lawyer and asked to think about matters overnight.
The applicant was questioned further about a person called "Randy", whether his wife knew he was homosexual, whether a male colleague was homosexual and when he had "come out". He was asked whether he was a practising homosexual, but he declined to give the name of his current partner, at which stage it was explained to him that the service had to verify his admission of homosexuality to avoid fraudulent attempts at early discharge. He was then questioned about his first homosexual relationship (he confirmed that it began in October 1993), his homosexual partners (past and present), who they were, where they worked, how old they were, how the applicant met them and about the nature of his relationship with them, including the type of sex they had.
During this interview, the personal items taken from the applicant were produced and the applicant was questioned about, inter alia, the contents of his digital diary, a photograph, a torn envelope and a letter from the applicant to his current partner. He was questioned further about when he first realised he was homosexual, who knew about his sexual orientation, his relationship with his wife (including their sexual relationship), what his wife thought about his homosexuality, his HIV status and again about the nature of his sexual relationships with his homosexual partners. The interview terminated at 4.10 p.m.
C. The applicants' judicial review proceedings (R. v. Ministry of Defence, ex parte Smith and Others 2 Weekly Law Reports 305)
Simon Brown LJ reviewed the background to the "age-old" policy, the relevance of the Parliamentary Select Committee's report of 1991, the position in other armed forces around the world, the arguments of the Ministry of Defence (noting that the security argument was no longer of substantial concern to the government) together with the applicants' arguments against the policy. He considered that the balance of argument clearly lay with the applicants, describing the applicants' submissions in favour of a conduct-based code as "powerful". In his view, the tide of history was against the Ministry of Defence. He further observed that it was improbable, whatever the High Court would say, that the policy could survive for much longer and added, "I doubt whether most of those present in court throughout the proceedings now believe otherwise."
Accordingly, where fundamental human rights were being restricted, the Minister of Defence needed to show that there was an important competing interest to justify the restriction. The primary decision was for him and the secondary judgment of the court amounted to asking whether a reasonable Minister, on the material before him, could have reasonably made that primary judgment. He later clarified that it was only if the purported justification "outrageously defies logic or accepted moral standards" that the court could strike down the Minister's decision. He noted that within the limited scope of that review, the court had to be scrupulous to ensure that no recognised ground of challenge was in truth available to an applicant before rejecting the application. When the most fundamental human rights are threatened, the court would not, for example, be inclined to overlook some minor flaw in the decision-making process, or to adopt a particularly benevolent view of the Minister's evidence, or to exercise its discretion to withhold relief. However, he emphasised that, even where the most fundamental human rights were being restricted, "the threshold of unreasonableness is not lowered".
It was clear that the Secretary of State had cited an important competing public interest. But the central question was whether it was reasonable for the Secretary of State to take the view that allowing homosexuals into the forces would imperil that interest. He pointed out that, although he might have considered the Minister wrong,
"… [the courts] owe a duty ... to remain within their constitutional bounds and not trespass beyond them. Only if it were plain beyond sensible argument that no conceivable damage could be done to the armed services as a fighting unit would it be appropriate for this court now to remove the issue entirely from the hands of both the military and of the government. If the Convention … were part of our law and we were accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown proportionate to the benefits then clearly the primary judgment … would be for us and not others: the constitutional balance would shift. But that is not the position. In exercising merely a secondary judgment, this court is bound to act with some reticence. Our approach must reflect, not overlook, where responsibility ultimately lies for the defence of the realm and recognise too that Parliament is exercising a continuing supervision over this area of prerogative power."
Accordingly, while the Minister's suggested justification for the ban may have seemed "unconvincing", the Minister's stand could not properly be said to be unlawful. It followed that the applications had to be rejected "albeit with hesitation and regret". A brief analysis of the Convention's case-law led the judge to comment that he strongly suspected that, as far as the United Kingdom's obligations were concerned, the days of the policy were numbered.
"the court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."
He went on to quote from, inter alia, the judgment of Lord Bridge in R. v. Secretary of State for the Home Department, ex parte Brind  1 Appeal Cases 696, where it was pointed out that:
"the primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment."
Moreover, he considered that the greater the policy content of the decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court had to be in holding a decision to be irrational.
"It is, inevitably, common ground that the United Kingdom's obligation, binding in international law, to respect and ensure compliance with [Article 8 of the Convention] is not one that is enforceable by domestic courts. The relevance of the Convention in the present context is as background to the complaint of irrationality. The fact that a decision-maker failed to take account of Convention obligations when exercising an administrative discretion is not of itself a ground for impugning the exercise of that discretion."
He observed that to dismiss a person from his or her employment on the grounds of a private sexual preference, and to interrogate him or her about private sexual behaviour, would not appear to show respect for that person's private and family life and that there might be room for argument as to whether the policy answered a "pressing social need" and, in particular, was proportionate to the legitimate aim pursued. However, he held that these were not questions to which answers could be properly or usefully proffered by the Court of Appeal but rather were questions for the European Court of Human Rights, to which court the applicants might have to pursue their claim. He further accepted that the Equal Treatment Directive did not apply to complaints in relation to sexual orientation.
D. The applicants' Industrial Tribunal proceedings
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Decriminalisation of homosexual acts
B. R. v. Secretary of State for Defence, ex parte Perkins, judgments of 13 March 1997 and 13 July 1998, and related cases
C. The Ministry of Defence policy on homosexual personnel in the armed forces
"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 ..."
One of the purposes of the Guidelines was the reduction of the involvement of the service police whose investigatory methods, based on criminal procedures, had been strongly resented and widely publicised in the past (confirmed at paragraph 9 of the Homosexual Policy Assessment Team's report of February 1996 which is summarised at paragraphs 51-62 below. However, paragraph 100 of this report indicated that investigation into homosexuality is part of "normal service police duties".)
"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. [The Ministry of Defence] 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 from those experienced in civilian life. … The [Ministry of Defence] 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."
D. The report of the Homosexuality Policy Assessment Team – February 1996
The report of the HPAT was published in February 1996 and ran to approximately 240 pages, together with voluminous annexes. The starting-point of the assessment was an assumption that homosexual men and women were in themselves no less physically capable, brave, dependable and skilled than heterosexuals. It was considered that any problems to be identified would lie in the difficulties which integration of declared homosexuals would pose to the military system which was largely staffed by heterosexuals. The HPAT considered that the best predictors of the "reality and severity" of the problems of the integration of homosexuals would be the service personnel themselves (paragraph 30 of the report).
2. The methods of investigation used
(a) The HPAT consulted with policy-makers in the Ministry of Defence. The latter emphasised the uniqueness of the military environment and the distinctly British approach to service life and the HPAT found little disagreement with this general perspective from the service people it interviewed (paragraph 37);
(b) A signal was sent to all members of the services, including the reserve forces, requesting any written views on the issues. By 16 January 1996 the HPAT had received 639 letters. 587 of these letters were against any change in the policy, 58 of which were multiply signed. Only 11 of those letters were anonymous (paragraphs 46-48);
(c) The HPAT attitude survey consisted of a questionnaire administered to a total of 1,711 service personnel chosen as representative of the services. The questionnaires were administered in examination-type conditions and were to be completed anonymously. The results indicated that there was "overwhelming support across the services" for the policy excluding homosexuals from the armed forces. Service personnel viewed homosexuality as clearly more acceptable in civilian than in service life (paragraphs 49-59 and Annex G);
(d) During the HPAT's visit to ten military bases in late 1995 in order to administer the above questionnaire, individual one-to-one interviews were conducted with personnel who had completed the attitude questionnaire. 180 interviewees randomly selected from certain ranks and occupational areas were selected from each of the ten units visited. Given the small number of interviewees, the responses were analysed qualitatively rather than quantitatively (Annex G);
(e) A number of single-service focus group discussions were held with randomly selected personnel from representative ranks and functions (Annex G refers to 36 such discussions whereas paragraph 61 of the report refers to 43). The purpose of the group discussions was to examine the breadth and depth of military views and to provide insights that would complement the survey results. The HPAT commented that the nature of the discussions showed little reticence in honestly and fully putting forward views; there was an "overwhelming view that homosexuality was not 'normal' or 'natural' whereas women and ethnic minorities were 'normal'". The vast majority of participants believed that the present ban on homosexuals should remain (paragraphs 61-69 and Annex G);
(f) One sub-team of the HPAT went to Australia, Germany and France and the other visited the United States, Canada and the Netherlands. The HPAT interviewed an eminent Israeli military psychologist since the Israeli military would not accept the HPAT visit (paragraphs 70-77 and Annex H). It is also apparent that the HPAT spoke to representatives of the police, the fire service and the merchant navy (paragraphs 78-82);
(g) Tri-service regional focus discussion groups were also held to examine the breadth and depth of the personnel's views. The groups were drawn from the three services and from different units. Three such discussion groups were held and overall the results were the same as those from the single-service focus groups (paragraphs 83-84 and Annex G);
(h) Postal single-service attitude surveys were also completed by a randomly selected sample of personnel stratified by rank, age and gender. The surveys were distributed to 3,000 (6%) of the Royal Navy and Royal Marines personnel, to 6,000 (5.4%) of the Army personnel and to 4,491 (6%) of the Royal Air Force personnel. On average over half of the surveys were returned (paragraphs 65-86 and Annex G).
3. The impact on fighting power
These anticipated problems included 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 had to be tightened (see Section F.II of the report).
4. Other issues
5. Medical and security concerns
6. The experience in other countries and in civilian disciplined services
"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 HPAT."
The HPAT concluded, nevertheless, that 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. This is because 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" and because personnel from different nations are accommodated apart. It was also due to the fact that homosexuals in foreign forces, where they were not formally banned, were not open about their sexual orientation. Consequently, the chances were small of the few open homosexuals happening to be in a situation where their sexual orientation would become a problem with British service personnel (paragraph 105).
"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 …" (paragraph 203)
7. Alternative options to the current policy
8. The conclusions of the HPAT (paragraphs 176-91)
"the key problem remains and its intractability has indeed been re-confirmed. The evidence for an anticipated loss in fighting power has been set out in section F and forms the centrepiece of this assessment. The various steps in the argument and the overall conclusion have been shown not only by the Service authorities but by the great majority of Service personnel in all ranks."
Current service attitudes were considered unlikely to change in the near future. While clearly hardship and invasion of privacy were involved, the risk to fighting power demonstrated why the policy was, nevertheless, justified. It considered that it was not possible to draw any meaningful comparison between the integration of homosexuals and of women and ethnic minorities into the armed forces since 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 from 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."
E. The armed forces' policy on sexual and racial harassment and bullying and on equal opportunities
"The reality of conflict requires high levels of teamwork in which individual soldiers can rely absolutely on their comrades and their leaders. There can, therefore, be no place in the Army for harassment, bullying and discrimination which will affect morale and break down the trust and cohesion of the group.
It is the duty of every soldier to ensure that the Army is kept free of such behaviour which would affect cohesion and efficiency. Army policy is clear: all soldiers must be treated equally on the basis of their ability to perform their duty.
I look to each one of you to uphold this policy and to ensure that we retain our acknowledged reputation as a highly professional Army."
The Directive provided definitions of racial and sexual harassment, indicated that the army wanted to prevent all forms of offensive and unfair behaviour in these respects and pointed out that it was the duty of each soldier not to behave in a way that could be offensive to others or to allow others to behave in that way. It also defined bullying and indicated that, although the army fosters an aggressive spirit in soldiers who will have to go to war, controlled aggression, self-sufficiency and strong leadership must not be confused with thoughtless and meaningless use of intimidation and violence which characterise bullying. Bullying undermines morale and creates fear and stress both in the individual and the group being bullied and in the organisation. The army was noted to be a close-knit community where team work, cohesion and trust are paramount. Thus, high standards of personal conduct and respect for others were demanded from all.
The Directive endorsed the use of military law by commanders. Supplementary leaflets promoting the Directive were issued to every individual soldier. In addition, specific equal opportunities posts were created in personnel centres and a substantial training programme in the Race Relations Act 1976 was initiated.
F. The reports of the Parliamentary Select Committee
"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 [Ministry of Defence's] 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."
G. Information to persons recruited into the armed forces
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
"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, … for the prevention of disorder …"
A. Whether there was an interference
The applicants argued that they were not complaining about being refused entry to the armed forces and that they had not been dismissed for lying during recruitment. In any event, the protection afforded by Article 8 could not depend on the degree of knowledge of the applicants of their sexual orientation when they were young men or women.
In these circumstances, the Court is of the view that the investigations by the military police into the applicants' homosexuality, which included detailed interviews with each of them and with third parties on matters relating to their sexual orientation and practices, together with the preparation of a final report for the armed forces' authorities on the investigations, constituted a direct interference with the applicants' right to respect for their private lives. Their consequent administrative discharge on the sole ground of their sexual orientation also constituted an interference with that right (see the Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41, and, mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 23, § 44).
B. Whether the interferences were justified
1. "In accordance with the law"
2. Legitimate aim
The Court has more doubt as to whether the investigations continued to serve any such legitimate aim once the applicants had admitted their homosexuality. However, given the Court's conclusion at paragraph 111 below, it does not find it necessary to decide whether this element of the investigations pursued a legitimate aim within the meaning of Article 8 § 2 of the Convention.
3. "Necessary in a democratic society"
(a) The Government's submissions
In such circumstances, the Government, while accepting that members of the armed forces had the right to the Convention's protection, argued that different, and stricter, rules applied in this context (see the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 24, § 57; the Grigoriades v. Greece judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, pp. 2589-90, § 45; and the Kalaç v. Turkey judgment of 1 July 1997, Reports 1997-IV, p. 1209, § 28). Moreover, given the national security dimension to the present case a wide margin of appreciation was properly open to the State (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 25, § 59). Accordingly, the narrow margin of appreciation which applied to cases involving intimate private-life matters could not be transposed unaltered to the present case.
In support of their argument for a broad margin of appreciation, the Government also referred to the fact that the issue of homosexuals in the armed forces has been the subject of intense debate in recent years in the United Kingdom, suggesting that the sensitivity and special context of the question meant that the decision was largely one for the national authorities. It was true that the degree of risk to fighting power was not consistent over time, given that attitudes and opinions, and, consequently, domestic law on the subject of homosexuality had developed over the years. Nevertheless, the approach to such matters in an armed forces' context had to be cautious given the inherent risks. The process of review was ongoing and the Government indicated their commitment to a free vote in Parliament on the subject after the next Parliamentary Select Committee review of the policy in 2001.
The Government considered that the choice between establishing a code of conduct and maintaining the present policy lay at the heart of the judgment to be made in this matter. However, the view in the United Kingdom was that such a code would not at present be sufficient to meet the risks identified because it was the knowledge or suspicion of the fact that a person was homosexual, and not the conduct of that person, which would cause damage to morale and effectiveness. Even assuming that the attitudes on which the HPAT report was based were at least in part based on a lack of tolerance or on insufficient broadmindedness, the reality of the risk to effectiveness remained. It was true that many European armed forces no longer excluded homosexuals but the relevant changes had been adopted in those countries too recently to yield any valuable lessons.
As to the applicants' submission about the alleged lack of evidence of past problems caused by the presence of homosexuals in the armed forces, the Government pointed out that the discharge of all persons of established homosexual orientation before such damage occurred meant that concrete evidence establishing the risks identified by the HPAT might not be available. In any event, the Government noted that the risks envisaged would result from the general relaxation of the policy, rather than its modification in any particular instance.
While the bulk of the questioning was, in the submission of the Government, justified by the reasons for the investigation outlined above, the Government did not seek to defend the question put to Ms Smith as to whether she or her partner had had a sexual relationship with their foster daughter. However, they argued that this indefensible, but specific, aspect of the questioning did not tilt the balance in favour of a finding of a violation.
(b) The applicants' submissions
The applicants added, in this context, that a blanket policy was not adopted by the armed forces in any other context. It was not adopted in the case of personal characteristics or traits such as gender, race or colour. Indeed, the Ministry of Defence actively promoted equality and tolerance in these areas. Nor was there a blanket policy against those whose actions could or did affect morale and service efficiency such as those involved in theft or adultery or those who carried out dangerous acts under the influence of drugs or alcohol. In the latter circumstances, the individual could be dismissed, but only after a consideration of all the circumstances of the case. Moreover, no policy against homosexuals existed in comparable British services such as the Merchant Navy, the Royal Fleet Auxiliary, the police, the fire brigade and the nursing profession.
Moreover, Convention jurisprudence established that the Government could not rely on pure prejudice to justify interference with private life (see, inter alia, application no. 25186/94, Sutherland v. the United Kingdom, Commission's report of 1 July 1997, unreported, §§ 56, 57, 62, 63 and 65). Furthermore, the applicants pointed out that the Court has found (in its Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, p. 17, §§ 36 and 38) that the demands of "pluralism, tolerance and broadmindedness" apply as much to service personnel as to other persons and that fundamental rights must be protected in the army of a democratic State just as in the society that such an army serves. They argued that the Court's reasoning in that case was based on a vital principle equally applicable in the present case – the armed forces of a country exist to protect the liberties valued by a democratic society, and so the armed forces should not be allowed themselves to march over, and cause substantial damage to, such principles.
In this respect, they argued that the HPAT report was inadequate and fundamentally flawed. The assessment was not carried out by independent consultants. It was, moreover, conducted against the background of the publicly voiced hostility of the armed forces' authorities to a change in the policy and followed 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. Indeed the majority of the questions in the HPAT questionnaire expressed hostile attitudes to homosexuality or suggested negative responses. In addition, 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. Furthermore, it was based on a statistically insignificant response rate and those responding were not guaranteed anonymity.
As to the assertion that investigations were necessary to avoid false declarations of homosexuality by those wishing to leave the armed forces, the applicants pointed to the lack of evidence of such false declarations presented by the Government and to the fact that they themselves had clearly wished to stay in the armed forces. In addition, they submitted that they felt obliged to answer the questions in the interviews because otherwise, as the Government accepted, their private and intimate affairs would have been the subject of wider and less discreet investigations elsewhere.
As to the Government's reliance on the Court's Kalaç judgment, the applicants pointed out that the case related to the sanctioning of public conduct and not of an individual's private characteristics.
(c) The Court's assessment
(i) Applicable general principles
Given the matters at issue in the present case, the Court would underline the link between the notion of "necessity" and that of a "democratic society", the hallmarks of the latter including pluralism, tolerance and broadmindedness (see the Vereinigung demokratischer Soldaten Österreichs and Gubi judgment cited above, p. 17, § 36, and the Dudgeon judgment cited above, p. 21, § 53).
When the core of the national security aim pursued is the operational effectiveness of the armed forces, it is accepted that each State is competent to organise its own system of military discipline and enjoys a certain margin of appreciation in this respect (see the Engel and Others judgment cited above, p. 25, § 59). The Court also considers that it is open to the State to impose restrictions on an individual's right to respect for his private life where there is a real threat to the armed forces' operational effectiveness, as the proper functioning of an army is hardly imaginable without legal rules designed to prevent service personnel from undermining it. However, the national authorities cannot rely on such rules to frustrate the exercise by individual members of the armed forces of their right to respect for their private lives, which right applies to service personnel as it does to others within the jurisdiction of the State. Moreover, assertions as to a risk to operational effectiveness must be "substantiated by specific examples" (see, mutatis mutandis, the Vereinigung demokratischer Soldaten Österreichs and Gubi judgment cited above, p. 17, §§ 36 and 38, and the Grigoriades judgment cited above, pp. 2589-90, § 45).
(ii) Application to the facts of the case
Anonymous telephone calls to Ms Smith and to the service police, and information supplied by the nanny of Mr Grady's commander, prompted the investigations into their sexual orientation, a matter which, until then, each applicant had kept private. The investigations were conducted by the service police, whose investigation methods were, according to the HPAT, based on criminal procedures and whose presence the HPAT described as widely publicised and strongly resented among the forces (see paragraph 49 above).
Once the matter was brought to the attention of the service authorities, Mr Grady was required to return immediately (without his wife or children) to the United Kingdom. While he was in the United Kingdom, detailed investigations into his homosexuality began in the United States and included detailed and intrusive interviews about his private life with his wife, a colleague, the latter's husband and the nanny who worked with his commander's family.
Both applicants were interviewed and asked detailed questions of an intimate nature about their particular sexual practices and preferences. Certain lines of questioning of both applicants were, in the Court's view, particularly intrusive and offensive and, indeed, the Government conceded that they could not defend the question put to Ms Smith about whether she had had a sexual relationship with her foster daughter.
Ms Smith's partner was also interviewed. Mr Grady's accommodation was searched, many personal items (including a letter to his homosexual partner) were seized and he was later questioned in detail on the content of these items. After the interviews, a service police report was prepared for the air force authorities on each applicant's homosexuality and related matters.
Prior to the events in question, both applicants enjoyed relatively successful service careers in their particular field. Ms Smith had over five years' service in the air force; she had been recommended for promotion, had been accepted for a training course which would facilitate this promotion and was about to complete the course final examinations. Her evaluations prior to and after her discharge were very positive. Mr Grady had served in the air force for fourteen years, being promoted to sergeant and posted to a high-security position in Washington in 1991. His evaluations prior to and after his discharge were also very positive with recommendations for further promotion. The Government accepted in their observations that neither the service records nor the conduct of the applicants gave any grounds for complaint and the High Court described their service records as "exemplary".
The Court notes, in this respect, the unique nature of the armed forces (underlined by the Government in their pleadings before the Court) and, consequently, the difficulty in directly transferring essentially military qualifications and experience to civilian life. The Court recalls in this respect that one of the several reasons why the Court considered Mrs Vogt's dismissal from her post as a schoolteacher to be a "very severe measure", was its finding that schoolteachers in her situation would "almost certainly be deprived of the opportunity to exercise the sole profession for which they have a calling, for which they have been trained and in which they have acquired skills and experience" (Vogt judgment cited above, p. 29, § 60). In this regard, the Court accepts that the applicants' training and experience would be of use in civilian life. However, it is clear that the applicants would encounter difficulty in obtaining civilian posts in their areas of specialisation which would reflect the seniority and status which they had achieved in the air force.
Although the Court acknowledges the complexity of the study undertaken by the HPAT, it entertains certain doubts as to the value of the HPAT report for present purposes. The independence of the assessment contained in the report is open to question given that it was completed by Ministry of Defence civil servants and service personnel (see paragraph 51 above) and given the approach to the policy outlined in the letter circulated by the Ministry of Defence in August 1995 to management levels in the armed forces (see paragraph 33 above). In addition, on any reading of the report and the methods used (see paragraph 52 above), only a very small proportion of the armed forces' personnel participated in the assessment. Moreover, many of the methods of assessment (including the consultation with policy-makers in the Ministry of Defence, one-to-one interviews and the focus group discussions) were not anonymous. It also appears that many of the questions in the attitude survey suggested answers in support of the policy.
The Court observes from the HPAT report that these attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants' rights outlined above any more than similar negative attitudes towards those of a different race, origin or colour.
The Government, nevertheless, underlined that it is "the knowledge or suspicion of homosexuality" which would cause the morale problems and not conduct, so that a conduct code would not solve the anticipated difficulties. However, in so far as negative attitudes to homosexuality are insufficient, of themselves, to justify the policy (see paragraph 97 above), they are equally insufficient to justify the rejection of a proposed alternative. In any event, the Government themselves recognised during the hearing that the choice between a conduct code and the maintenance of the policy lay at the heart of the judgment to be made in this case. This is also consistent with the Government's direct reliance on Section F of the HPAT's report where the anticipated problems identified as posing a risk to morale were almost exclusively problems related to behaviour and conduct (see paragraphs 53-54 above).
The Government maintained that homosexuality raised problems of a type and intensity that race and gender did not. However, even if it can be assumed that the integration of homosexuals would give rise to problems not encountered with the integration of women or racial minorities, the Court is not satisfied that the codes and rules which have been found to be effective in the latter case would not equally prove effective in the former. The "robust indifference" reported by the HPAT of the large number of British armed forces' personnel serving abroad with allied forces to homosexuals serving in those foreign forces serves to confirm that the perceived problems of integration are not insuperable (see paragraph 59 above).
The Court notes that the HPAT itself concluded that separate accommodation for homosexuals would not be warranted or wise and that substantial expenditure would not, therefore, have to be incurred in this respect. Nevertheless, the Court remains of the view that it has not been shown that the conduct codes and disciplinary rules referred to above could not adequately deal with any behavioural issues arising on the part either of homosexuals or of heterosexuals.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
"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."
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14
"No one shall be subjected to … degrading treatment or punishment."
It is also recalled that treatment may be considered degrading if it is such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see the Ireland v. the United Kingdom judgment cited above, pp. 66-67, § 167). Moreover, it is sufficient if the victim is humiliated in his or her own eyes (see the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 16, § 32).
IV. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …
2.. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, … for the prevention of disorder …"
Finally, the applicants maintained that the Government's submission as to their freedom to express their homosexuality was hardly credible. If the applicants had done so, they would have been immediately investigated and discharged; that was what effectively happened.
However, the Court notes that the subject matter of the policy and, consequently, the sole ground for the investigation and discharge of the applicants, was their sexual orientation which is "an essentially private manifestation of human personality" (see the Dudgeon judgment cited above, p. 23, § 60). It considers that the freedom of expression element of the present case is subsidiary to the applicants' right to respect for their private lives which is principally at issue (see, mutatis mutandis, the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 23, § 55, and the Larissis and Others v. Greece judgment of 24 February 1998, Reports 1998-I, p. 383, § 64).
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …"
It was, however, further emphasised that, notwithstanding any human rights context, the threshold of irrationality which an applicant was required to surmount was a high one. This is, in the view of the Court, confirmed by the judgments of the High Court and the Court of Appeal themselves. The Court notes that the main judgments in both courts commented favourably on the applicants' submissions challenging the reasons advanced by the Government in justification of the policy. Simon Brown LJ considered that the balance of argument lay with the applicants and that their arguments in favour of a conduct-based code were powerful (see paragraph 30 above). Sir Thomas Bingham MR found that those submissions of the applicants were of "very considerable cogency" and that they fell to be considered in depth with particular reference to the potential effectiveness of a conduct-based code (see paragraph 37 above). Furthermore, while offering no conclusive views on the Convention issues raised by the case, Simon Brown LJ expressed the opinion that "the days of the policy were numbered" in light of the United Kingdom's Convention obligations (see paragraph 31 above), and Sir Thomas Bingham MR observed that the investigations and the discharge of the applicants did not appear to show respect for their private lives. He considered that there might be room for argument as to whether there had been a disproportionate interference with their rights under Article 8 of the Convention (see paragraph 38 above).
Nevertheless, both courts concluded that the policy could not be said to be beyond the range of responses open to a reasonable decision-maker and, accordingly, could not be considered to be "irrational".
The present applications can be contrasted with the cases of Soering and Vilvarajah cited above. In those cases, the Court found that the test applied by the domestic courts in applications for judicial review of decisions by the Secretary of State in extradition and expulsion matters coincided with the Court's own approach under Article 3 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) reserves the said question;
(b) invites the parties to notify the Court of any agreement they may reach;
(c) reserves the further procedure and delegates to the President the power to fix the same if need be.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 September 1999.
S. Dollé J.-P. Costa
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly concurring, partly dissenting opinion of Mr Loucaides is annexed to this judgment.
I agree with the majority on all points except as regards the finding that there has been a violation of Article 8 of the Convention by reason of the applicants' discharge from the armed forces on account of their homosexuality.
In this respect I have been convinced by the argument of the Government that particular problems might be posed by the communal accommodation arrangements in the armed forces. The applicants would have to share single-sex accommodation and associated facilities (showers, toilets, etc.) with their heterosexual colleagues. To my mind, the problems in question are in substance analogous to those which would result from the communal accommodation of male members of the armed forces with female members. What makes it necessary for males not to share accommodation and other associated facilities with females is the difference in their sexual orientation. It is precisely this difference between homosexuals and heterosexuals which makes the position of the Government convincing.
I find the answer given by the majority regarding this aspect of the case unsatisfactory. The Court noted (at paragraph 103 of the judgment) that the HPAT considered that "separate accommodation for homosexuals would not be warranted or wise" and the Court found that, in any case, "it ha[d] not been shown that the conduct codes and disciplinary rules ... could not adequately deal with any behavioural issues arising on the part either of homosexuals or of heterosexuals". The fact that separate accommodation is not "warranted or wise" does not justify communal accommodation if such accommodation is really problematic. On the other hand, "conduct codes and disciplinary rules" cannot change the sexual orientation of people and the relevant problems which – for the purposes of the issue under consideration – in the analogous case of women makes it incumbent to accommodate them separately from male soldiers. It is the compulsory living together of groups of people of different sexual orientation which creates the problem. I should add here that if homosexuals had a right to be members of the armed forces their sexual orientation could become known either through them disclosing it or manifesting it in some way.
The aim of not allowing homosexuals in the armed forces was to ensure the operational effectiveness of the armed forces and to this extent the resulting interferences pursued the legitimate aims of "the interests of national security" and "the prevention of disorder". This was accepted by the Court. My disagreement with the majority relates to the question of whether the interference in the present case can be considered "necessary in a democratic society" for the aim in question. The majority underlined the principle that when the relevant restrictions to a Convention right concern a most intimate part of an individual's private life there must exist particularly
serious reasons before the interferences can satisfy the requirements of Article 8 of the Convention. However, I agree with the Government that the narrow margin of appreciation which is applied to cases involving intimate private-life matters is widened in cases like the present, in which the legitimate aim of the relevant restriction relates to the operational effectiveness of the armed forces and, therefore, to the interests of national security. This, I think, is the logical connotation of the principle that, in assessing the pressing social need in cases of interferences with the right to respect for an individual's private life from the standpoint of the protection of national security, the State has a wide margin of appreciation (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 25, § 59).
Regard must also be had to the principle that limitations incapable of being imposed on civilians may be placed on certain of the rights and freedoms of members of the armed forces (see the Kalaç v. Turkey judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1209, § 28).
I believe that the Court should not interfere simply because there is a disagreement with the necessity of the measures taken by a State. Otherwise the concept of the margin of appreciation would be meaningless. The Court may substitute its own view for that of the national authorities only when the measure is patently disproportionate to the aim pursued. I should add that the wider the margin of appreciation allowed to the State, the narrower should be the scope for interference by the Court.
I do not think that the facts of the present case justify our Court's interference. As I have already stated above, the sexual orientation of homosexuals does create the problems highlighted by the Government as a result of the communal accommodation with heterosexuals. There is nothing patently disproportionate in the approach of the Government. On the contrary, it was in the circumstances reasonably open to them to adopt the policy of not allowing homosexuals in the armed forces. This condition was made clear to the applicants before their recruitment. It was not imposed afterwards (cf. the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 25, § 62). In this respect it may be useful to add that the Convention does not guarantee the right to serve in the armed forces (see Marangos v. Cyprus, application no. 31106/96, Commission decision of 3 December 1997, p. 14, unreported).
In the circumstances, I find that the applicants' discharge on account of their homosexuality in pursuance of the Ministry of Defence policy was justified under Article 8 § 2 of the Convention, as being necessary in a democratic society in the interests of national security and the prevention of disorder.