R v Ministry of Defence, ex parte Smith
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1995 |
| Date | 07 June 1995 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Divisional Court
Before Lord Justice Simon Brown and Mr Justice Curtis
Judicial review - armed forces - policy of dismissal - homosexuals
Endangering national security could hardly now be argued as a good ground for dismissing homosexuals from service in the armed forces. In the absence of issues of national security, the court had jurisdiction to grant judicial review of the policy of dismissing homosexuals, there being no trespass against the Crown's prerogative powers.
In conducting its review of such a policy the court would apply ordinaryWednesburyELR principles of reasonableness ((1948) 1 KB 223), particularly given the presence of considerations of human rights. However, the Secretary of State for Defence had not acted unreasonably in providing for the dismissal of homosexuals from the armed forces.
The Queen's Bench Divisional Court so held in refusing the applications of Jeanette Smith, Graeme Grady, John Beckett and Lieutenant-Commander Duncan Lustig-Prean for, inter alia, certiorari to quash decisions to dismiss them from the armed forces, for declarations that the policy of the secretary of state was unlawful and, in the case of John Beckett, for a declaration that clause 3624 of the Queen's Regulations for the Royal Navy (BR2) 1989 was unlawful.
Clause 3624 of the Queen's Regulations for the Royal Navy provides: "2 … Involvement in homosexual practices will normally result in discharge from the service either by disciplinary or administrative procedure…"
Mr David Pannick, QC and Mr Ramby de Mello for Smith; Mrs Laura Cox, QC and Mr Ben Emmerson for Grady; Mr David Pannick, QC and Mr John Bowers for Beckett; Mr David Pannick, QC and Mr Peter Duffy for Lustig-Prean; Mr Stephen Richards and Mr Richard McManus for the secretary of state.
LORD JUSTICE SIMON BROWN said that so far as security was concerned it was difficult to see how the state could survive now openly homosexual ambassadors and permanent secretaries and yet not homosexual service men or women. It was the fact that the jobs of service men and women depended on hiding their sexual orientation that exposed them to the risk of blackmail.
There could be no hesitation in finding the challenge justiciable. Only the rarest cases would today be ruled strictly beyond the court's purview: that is only those involving national security where the courts lacked the experience...
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