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8 January 1995
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Except if you're openly gay. Martin Bowley QC examines the recent case upholding the ban on homosexuals in the military
The judgments in the recent gays in the military case (Regina v Ministry of Defence ex parte Smith and others) were delivered on 7 June 1995. Presumably they will be fully reported in due course, but so far most people have had to rely on a brief report in The Times and on the news pages of the national press - few of which will have found their way into any law library.
The short point on which the decision turned was that the four applicants failed to persuade the Divisional Court that the blanket ban on lesbians and gay men serving in the Armed Forces "outrageously defies logic or accepted moral standards" so that "no sensible person who had applied his mind to the question could have arrived at it" - the conventional Wednesbury test adapted to a human rights context.
The more interesting aspect is the evidence and the argument which persuaded Lord Justice Simon Brown, but not Mr Justice Curtis, that "the tide of history is against the Ministry" that "it seems improbable that the existing policy can survive for much longer" and that "so far as this country's international obligations are concerned the days of this policy are numbered".
There were two major affidavits before the court. One from Air Chief Marshall Sir John Willis - a member of the Defence Council - the other, in response, from Angela Mason, executive director of the Stonewall lobby group.
Putting to one side security implications - which the Lord Justice dismissed with the comment: "It is a little difficult to see how the State can survive homosexual ambassadors and permanent secretaries and yet not homosexual service personnel" - Sir John's affidavit focused on three areas: morale and unit effectiveness; the services in loco parentis; and communal living.
Under the first heading he argued that "service in Her Majesty's forces has no parallel in civilian life", that it "requires complete trust and respect between personnel of all ranks" and that "homosexual behaviour can cause offence to other service personnel" so "relations can become polarised and ill-discipline can be induced".
In reply Mason commented not only that Sir John provides no evidence to support that contention but also that British troops serve regularly alongside openly gay personnel from the many NATO and commonwealth countries which have no comparable ban.
She pointed out that there is no such ban in Canada, Norway, Denmark, Holland, Belgium, Spain, France, Germany, Australia, New Zealand, Ireland, Israel, Sweden, Austria and Switzerland.
As David Pannick QC submitted for the applicants: "Sir John's affidavit is full of assertion and opinion but bereft of factual evidence: his concerns are purely speculative."
On the in loco parentis issue Sir John pointed out that 35 per cent of new recruits to the Armed Forces are below the new age of consent for homosexual sex and submitted that if the ban were to be lifted "the confidence both of young people to join the Armed Forces, and their parents to permit them to join the Armed Forces, would be seriously damaged".
Again Mason ripostes that he produces no evidence from countries where lesbians and gay men do serve openly that there has been any consequent problem with homosexual abuse of young recruits.
As Pannick says: "It is absurd to assume that homosexuals will behave any more inappropriately towards young recruits than heterosexuals towards Wrens."
Finally, Sir John submitted that service personnel "live and work in close proximity to one another in predominantly single sex communities. Living accommodation is usually communal and shared sleeping facilities are by no means uncommon. Shared toilet and washing facilities are the norm."
Again Mason replies that no evidence is cited to suggest that the lesbians and gay men who have been discharged from the service have behaved in any way inappropriately or that their colleagues have had problems living in close quarters with them. Pannick submitted that any inappropriate behaviour can and should be regulated by a strict disciplinary code, any breach of which would result in disciplinary sanctions. "Sensitivity in the showers is hardly a sufficient basis for maintaining this outmoded policy," he says.
I cannot pretend to be entirely neutral on this issue, but I do believe that I have been fair in my presentation of the Ministry's arguments. If I have, the surprise is not that Lord Justice Simon Brown concluded that the Minister's view is wrong and "rests too firmly upon the supposition of prejudice in others and which insufficiently recognises the damage to human rights inflicted", but rather that Mr Justice Curtis felt unable to take a similar view of the merits of the application.
One thing both members of the Court agreed on was the need for the Minister "to examine the policy afresh in the light of changing attitudes" (Lord Justice Simon Brown) and for "a close review by Parliament of the Armed Forces decision" (Mr Justice Curtis). The Daily Telegraph in early July reported that, following a proposal from the Armed Forces Minister to the then Defence Secretary, it was likely that the Ministry of Defence would set up an independent review into the ban.
"Independent" is the key word, for as Lord Justice Simon Brown commented: "There is little in the papers before us to instil confidence that the fundamental human rights of these applicants and others like them will be fully and faithfully recognised elsewhere."
Two possible compromises floated by the Daily Telegraph were that a distinction should be drawn between homosexual orientation and activity; and that homosexuals should be allowed to serve in support areas but not in the front line. Neither would be satisfactory nor necessary. In her affidavit, Mason argued that there should be a code of conduct to which all members of HM forces are required to adhere, but also that existing regulations are more than adequate to cover inappropriate homosexual behaviour as well as inappropriate heterosexual behaviour.
The battle will continue, through the Court of Appeal, the House of Lords and if necessary to Europe. My own contribution would be a campaign slogan - one which I suggested for the age of consent campaign last year and which was lifted from the Clinton/Gore 1992 presidential campaign: 'It's equality - stupid!'
Martin Bowley QC is a barrister at 1 King's Bench Walk.