CASE OF LUSTIG-PREAN AND BECKETT v. THE UNITED KINGDOM
Violation of Art. 8;No separate issue under Art. 14+8;Just satisfaction reserved
Nicolas Bratza;Simon Brown
11. Mr Lustig-Prean (the first applicant) joined the Royal Navy Reserve as a radio operator and in 1982 commenced a career in the Royal Navy. On 27 April 1983 he became a midshipman in the executive branch of the navy. His evaluation of November 1989 noted that he was an officer with “great potential” and the “sort of person that the Royal Navy needs to attract and retain”. His evaluation of December 1993 concluded that the applicant “is a balanced, enlightened and knowledgeable man who enjoys my complete trust in all matters. He is an outstanding prospect for early promotion to commander.” In 1994 the applicant attained the rank of lieutenant-commander. 12. For about thirty months prior to June 1994 the applicant had been involved in a steady relationship with a civilian partner. In early June 1994 the applicant was informed that the Royal Navy Special Investigations Branch (“the service police”) had been given his name anonymously in connection with an allegation of homosexuality and was investigating the matter. The applicant admitted to his commanding officer that he was homosexual. 13. The applicant was interviewed on 13 June 1994 by personnel from the service police about his sexual orientation for approximately twenty minutes. At the beginning of the interview, the applicant was cautioned that he did not have to answer questions and that any responses could be used in evidence later. He was also informed that he could obtain legal advice. The applicant confirmed his awareness of those rights and agreed to be interviewed without legal advice. He then confirmed that he was homosexual, acknowledging that he had been a practising homosexual since his teenage years. He was then asked, inter alia, whether he had had homosexual contact with service personnel (at least four questions on this subject), what type of sexual relations he had had with a particular person, when and where this had occurred, about his current relationship and whether his parents knew of his homosexuality. The applicant was asked repeatedly about who had tipped him off that he was the subject of an investigation by the service police and he was told that the question was put because the service police had “a lot of background knowledge about certain things” and there was somebody “providing information to us”. The applicant indicated that he was anxious to assist the service police to make sure that the issue was kept as “private and discreet as possible”. He was then informed that a search was normally completed but the search did not take place since, in anticipation, the applicant had already cleared his cabin of any incriminating evidence. 14. The applicant was again interviewed on 14 June 1994 for approximately ten minutes. It was explained to the applicant that the purpose of the interview was to ask him about an allegation, contained in an anonymous letter sent to the applicant’s commanding officer some time previously, that the applicant had had a relationship with a serviceman. The interviewer then explained that he was “attempting to keep the need to visit Newcastle and to investigate this matter to a minimum”, as the applicant wished. The applicant was then asked whether he had had the relationship as alleged in the letter. The anonymous letter was read. The writer claimed that he had recently had a relationship with the applicant, that the writer was HIV-positive and that he believed that the applicant was involved with a member of the armed forces. The applicant’s comments were requested, in particular, as to who would have written the letter. The interviewer also enquired of the applicant “purely as a matter of interest, although it’s a personal thing” whether the applicant was HIV-positive. In this context, it was indicated a number of times to the applicant that the purpose of the second interview was to avoid further investigations. He was also told that it would “come back” on the applicant’s interviewer if the latter did not properly follow up on the anonymous letter. 15. In a final evaluation dated 14 June 1994 the applicant’s commander noted that the applicant left the ship “with a well-deserved reputation for outstanding professional ability and admirable personal qualities”. He concluded that the applicant’s “loyal, dependable and always dignified service” would be “sorely missed”. 16. On 16 December 1994 the Admiralty Board informed the applicant that it had decided to terminate his commission and to discharge him, administratively, from the navy with effect from 17 January 1995. The ground for his discharge was his sexual orientation. The applicant’s commission was removed and most of the bonus which he had received with that promotion was recouped by the naval authorities (£4,875 out of £6,000). His term of service would otherwise have terminated in 2009, with the possibility of renewal. 17. On 20 February 1989 Mr Beckett (the second applicant) joined the Royal Navy, enlisting for twenty-two years’ service. In 1991 he became a substantive weapons engineering mechanic. The applicant’s report dated 27 November 1992 noted that he displayed potential in a number of areas essential to good leadership, that he had the ability to become an above-average leading hand and that if he applied his new skills wisely he could, with experience, be considered as a potential officer candidate. 18. In May 1993 the applicant had been refused time off to deal with a personal matter (he wished to collect his Aids test results) and consequently he spoke with the chaplain, to whom he admitted his sexual orientation. On 10 May 1993 the applicant was asked by his lieutenant-commander to repeat what he had told the chaplain and he again admitted his homosexuality to that officer. He was then called for interview by the service police. He was cautioned in the same terms as the first applicant and told that he would not be questioned on the above admissions prior to a search of his locker. His consent to the search was requested and given. The interview, which had lasted approximately five minutes, was suspended pending the search. During the search, slides (of himself, his partner and some of his service friends) and personal postcards were seized. 19. The applicant’s interview with the service police then resumed and lasted approximately one hour. The applicant immediately confirmed his homosexuality, later clarifying that he first had “niggling doubts” about his sexual orientation approximately two and a half years previously. He was then questioned about a previous relationship with a woman; he was asked the woman’s name and where she was from, when he had that relationship, why it ended, whether they had a sexual relationship, whether he enjoyed their relationship and whether “she was enough for you”. Details were sought as to how and what he did when he realised he was homosexual and, in this respect, he was asked what sort of feelings he had for a man, whether he had been “touched up” or “abused” as a child and whether he had bought pornographic magazines. The applicant was then questioned about his first and current homosexual relationship which began in December 1992 and, in this regard, he was asked about his first night with his partner, who was “butch” and who was “bitch” in the relationship and what being “butch” meant in sexual terms. Detailed questions were put as to how they had sex and whether they used condoms, lubrication and other sex aids, whether they ever had sex in a public place and how they intended to develop the relationship. He was also asked about gay bars he frequented, whether he had ever joined contact magazines, whether his parents knew about his homosexuality and whether he agreed that his secret life could be used as a basis to blackmail him and render him a weak link in the service. The personal slides and postcards which had been taken from his locker were examined and the applicant was questioned in detail about their contents. 20. The service police report completed after the applicant’s interview included several internal documents where it was noted that the applicant, in openly declaring his homosexuality and his relationship with a civilian, had effectively disposed “of any immediate potential security concern”. For that reason, it was considered in the report that “no cause was identified for conducting a security interview with Beckett”. That report also accepted that a case for fraudulent entry into the armed forces would be inappropriate given the date when the applicant had discovered his homosexuality. An officer, who advised the Admiralty Board on the applicant’s discharge, noted that the applicant’s reporting officers had commented on his “affability, intelligence, dedication and ambition” and pointed out that, had it not been for the applicant’s homosexuality, “his Royal Navy career would have blossomed”. 21. Prior to his discharge, the applicant completed his duties and remained in communal sleeping accommodation with no reported difficulties. On 28 July 1993 the applicant’s administrative discharge was approved on the basis of his homosexuality. The applicant then complained about the decision to discharge him to the Admiralty Board and on 6 December 1994 the Admiralty Board dismissed the applicant’s complaint. 22. Along with Ms Smith and Mr Grady (see paragraph 3 above), the applicants obtained leave to apply for judicial review of the decisions to discharge them from the armed forces. The applicants argued that the policy of the Ministry of Defence against homosexuals in the armed forces was “irrational”, that it was in breach of the Convention and that it was contrary to the Equal Treatment Directive. The Ministry of Defence maintained that the policy was necessary mainly to maintain morale and unit effectiveness, in view of the loco parentis role of the services as regards minor recruits and in light of the requirement of communal living in the armed forces. 23. On 7 June 1995 the High Court dismissed the application for judicial review, Lord Justice Simon Brown giving the main judgment of the court. He noted that the cases illustrated the hardships resulting from the absolute policy against homosexuals in the armed forces and that all four of the applicants had exemplary service records, some with reports written in glowing terms. Moreover, he found that in none of the cases before him was it suggested that the applicants’ sexual orientation had in any way affected their ability to carry out their work or had any ill-effect on discipline. There was no reason to doubt that, but for their discharge on the sole ground of sexual orientation, they would have continued to perform their service duties entirely efficiently and with the continued support of their colleagues. All were devastated by their discharge. 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.” 24. However, having considered arguments as to the test to be applied in the context of these judicial review proceedings, Simon Brown LJ concluded that the conventional Wednesbury principles, adapted to a human rights context, should be applied. 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. 25. Simon Brown LJ also found that the Equal Treatment Directive was not applicable to discrimination on grounds of sexual orientation and that the domestic courts could not rule on Convention matters. He also observed that the United States, Canada, Australia, New Zealand, Ireland, Israel, Germany, France, Norway, Sweden, Austria and the Netherlands permitted homosexuals to serve in their armed forces and that the evidence indicated that the only countries operating a blanket ban were Turkey and Luxembourg (and, possibly, Portugal and Greece). 26. In August 1995 a consultation paper was circulated by the Ministry of Defence to “management” levels in the armed forces relating to the Ministry of Defence’s policy against homosexuals in those forces. The covering letter circulating this paper pointed out that the “Minister for the Armed Forces has decided that evidence is to be gathered within the Ministry of Defence in support of the current policy on homosexuality”. It was indicated that the case was likely to progress to the European courts and that the applicants in the judicial review proceedings had argued that the Ministry of Defence’s position was “bereft of factual evidence” but that this was not surprising since evidence was difficult to amass given that homosexuals were not permitted to serve. Since “this should not be allowed to weaken the arguments for maintaining the policy”, the addressees of the letter were invited to comment on the consultation paper and “to provide any additional evidence in support of the current policy by September 1995”. The consultation paper attached referred, inter alia, to two incidents which were considered damaging to unit cohesion. The first involved a homosexual who had had a relationship with a sergeant’s mess waiter and the other involved an Australian on secondment whose behaviour was described as “so disruptive” that his attachment was terminated. 27. On 3 November 1995 the Court of Appeal dismissed the applicants’ appeal. The Master of the Rolls, Sir Thomas Bingham, delivered the main judgment (with which the two other judges of the Court of Appeal agreed). 28. As to the court’s approach to the issue of “irrationality”, he considered that the following submission was an accurate distillation of the relevant jurisprudence on the subject: “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 [1991] 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. 29. Prior to applying this test of irrationality, the Master of the Rolls noted that the case concerned innate qualities of a very personal kind, that the decisions of which the applicants complained had had a profound effect on their careers and prospects and that the applicants’ rights as human beings were very much in issue. While the domestic court was not the primary decision-maker and while it was not the role of the courts to regulate the conditions of service in the armed forces, “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’ …”. 30. He then reviewed, by reference to the test of irrationality outlined above, the submissions of the parties in favour of and against the policy, commenting that the applicants’ arguments were “of very considerable cogency” which called to be considered in depth with particular reference to past experience in the United Kingdom, to the developing experience of other countries and to the potential effectiveness of a detailed prescriptive code in place of the present blanket ban. However, he concluded that the policy could not be considered “irrational” at the time the applicants were discharged from the armed forces, finding that the threshold of irrationality was “a high one” and that it had not been crossed in this case. 31. On the Convention, the Master of the Rolls noted as follows: “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. 32. Henry LJ of the Court of Appeal agreed with the judgment of the Master of the Rolls and, in particular, with the latter’s approach to the irrationality test and with his view on the inability of the court to resolve Convention issues. He questioned the utility of a debate as to the likely fate of the “longstanding” policy of the Ministry of Defence before the European Court of Human Rights with which the primary adjudicating role on the Convention lay. The Court of Appeal did not entertain “hypothetical questions”. In Henry LJ’s view, the only relevance of the Convention was as “background to the complaint of irrationality”, which point had been already made by the Master of the Rolls. It was important to highlight this point since Parliament had not given the domestic courts primary jurisdiction over human rights issues contained in the Convention and because the evidence and submissions before the Court of Appeal related to that court’s secondary jurisdiction and not to its primary jurisdiction. 33. Thorpe LJ of the Court of Appeal agreed with both preceding judgments and, in particular, with the views expressed on the rationality test to be applied and on its application in the particular case. The applicants’ arguments that their rights under Article 8 had been breached were “persuasive” but the evidence and arguments that would ultimately determine that issue were not before the Court of Appeal. He also found that the applicants’ challenge to the arguments in support of the policy was “completely persuasive” and added that what impressed him most in relation to the merits was the complete absence of illustration and substantiation by specific examples, not only in the Secretary of State’s evidence filed in the High Court, but also in the case presented to the Parliamentary Select Committee in 1991. The policy was, in his view, “ripe for review and for consideration of its replacement by a strict conduct code”. However, the applicants’ attack on the Secretary of State’s rationality fell “a long way short of success”. 34. On 19 March 1996 the Appeals Committee of the House of Lords refused leave to appeal to the House of Lords. 35. In December 1995 Mr Lustig-Prean issued proceedings in the Industrial Tribunal claiming unfair dismissal and sexual discrimination contrary to the Sexual Discrimination Act 1975. Those proceedings were adjourned pending the above-described application for leave to appeal to the House of Lords. Further to the rejection of the application, he requested the withdrawal of his Industrial Tribunal proceedings and those proceedings were dismissed by the Industrial Tribunal on 25 April 1996. 36. In December 1997 Mr Beckett also issued proceedings in the Industrial Tribunal claiming sexual discrimination contrary to the 1975 Act. In the light of subsequent decisions of the ECJ and of the domestic courts, the second applicant subsequently requested the withdrawal of those proceedings which were, on 27 August 1998, dismissed by the Industrial Tribunal. 37. By virtue of section 1(1) of the Sexual Offences Act 1967, homosexual acts in private between two consenting adults (at the time meaning 21 years or over) ceased to be criminal offences. However, such acts continued to constitute offences under the Army and Air Force Acts 1955 and the Naval Discipline Act 1957 (Section 1(5) of the 1967 Act). Section 1(5) of the 1967 Act was repealed by the Criminal Justice and Public Order Act 1994 (which Act also reduced the age of consent to 18 years). However, section 146(4) of the 1994 Act provided that nothing in that section prevented a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of the armed forces. 38. On 30 April 1996 the ECJ decided that transsexuals were protected from discrimination on grounds of their transsexuality under European Community law (P. v. S. and Cornwall County Council [1996] Industrial Relations Law Reports 347). 39. On 13 March 1997 the High Court referred to the ECJ pursuant to Article 177 of the Treaty of Rome the question of the applicability of the Equal Treatment Directive to differences of treatment based on sexual orientation (R. v. Secretary of State for Defence, ex parte Perkins, 13 March 1997). Mr Perkins had been discharged from the Royal Navy on grounds of his homosexuality. 40. On 17 February 1998 the ECJ found that the Equal Pay Directive 75/117/EEC did not apply to discrimination on grounds of sexual orientation (Grant v. South West Trains Ltd [1998] Industrial Cases Reports 449). 41. Consequently, on 2 March 1998 the ECJ enquired of the High Court in the Perkins’ case whether it wished to maintain the Article 177 reference. After a hearing between the parties, the High Court decided to withdraw the question from the ECJ (R. v. Secretary of State for Defence, ex parte Perkins, 13 July 1998). Leave to appeal was refused. 42. As a consequence of the changes made by the Criminal Justice and Public Order Act 1994, updated Armed Forces’ Policy and Guidelines on Homosexuality (“the Guidelines”) were distributed to the respective service directorates of personnel in December 1994. The Guidelines provided, inter alia, as follows: “Homosexuality, whether male or female, is considered incompatible with service in the armed forces. This is not only because of the close physical conditions in which personnel often have to live and work, but also because homosexual behaviour can cause offence, polarise relationships, induce ill-discipline and, as a consequence, damage morale and unit effectiveness. If individuals admit to being homosexual whilst serving and their Commanding Officer judges that this admission is well-founded they will be required to leave the services. ... The armed forces’ policy on homosexuality is made clear to all those considering enlistment. If a potential recruit admits to being homosexual, he/she will not be enlisted. Even if a potential recruit admits to being homosexual but states that he/she does not at present nor in the future intend to engage in homosexual activity, he/she will not be enlisted. ... In dealing with cases of suspected homosexuality, a Commanding Officer must make a balanced judgment taking into account all the relevant factors. ... In most circumstances, however, the interests of the individual and the armed forces will be best served by formal investigation of the allegations or suspicion. Depending on the circumstances, the Commanding Officer will either conduct an internal inquiry, using his own staff, or he will seek assistance from the Service Police. When conducting an internal inquiry he will normally discuss the matter with his welfare support staff. Homosexuality is not a medical matter, but there may be circumstances in which the Commanding Officer should seek the advice of the Unit Medical Officer on the individual concerned and may then, if the individual agrees, refer him/her to the Unit Medical Officer. ... A written warning in respect of an individual’s conduct or behaviour may be given in circumstances where there is some evidence of homosexuality but insufficient ... to apply for administrative discharge ... . If the Commanding Officer is satisfied on a high standard of proof of an individual’s homosexuality, administrative action to terminate service ... is to be initiated, ... ." 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 44-55 below. However, paragraph 100 of this report indicated that investigation into homosexuality is part of “normal service police duties”. ) 43. The affidavit of Air Chief Marshal Sir John Frederick Willis KCB, CBE, Vice Chief of the Defence Staff, Ministry of Defence dated 4 September 1996, which was submitted to the High Court in the case of R. v. Secretary of State for Defence, ex parte Perkins (13 July1998), read, in so far as relevant, as follows: “The policy of the Ministry of Defence is that the special nature of homosexual life precludes the acceptance of homosexuals and homosexuality in the armed forces. The primary concern of the armed forces is the maintenance of an operationally effective and efficient force and the consequent need for strict maintenance of discipline. [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.” 44. Following the decision in the case of R. v. Ministry of Defence, ex parte Smith and Others 2 Weekly Law Reports 305, the Homosexuality Policy Assessment Team (“HPAT”) was established by the Ministry of Defence in order to undertake an internal assessment of the armed forces’ policy on homosexuality. The HPAT was composed of Ministry of Defence civil servants and representatives of the three services. The HPAT’s assessment was to form the basis of the Ministry’s evidence to the next Parliamentary Select Committee (as confirmed in the affidavit of Air Chief Marshal Sir John Frederick Willis referred to at paragraph 43 above). The HPAT was to consult the Ministry of Defence, the armed forces’ personnel of all ranks, service and civilian staff responsible for carrying out the policy together with members of the legal adviser’s staff. It was also to examine the policies of other nations (Annex D to the HPAT report). 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). 45. There were eight main areas of investigation (paragraph 28 of the report): (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 Marine 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). 46. The HPAT report defined “fighting power” (often used interchangeably with combat effectiveness, operational efficiency or operational effectiveness) as the “ability to fight” which is in turn made up of three components. These are the “conceptual” and “physical” components together with the “moral component”, the latter being defined as “the ability to get people to fight including morale, comradeship, motivation, leadership and management”. 47. The focus throughout the assessment was upon the anticipated effects on fighting power and this was found to be the “key problem” in integrating homosexuals into the armed forces. It was considered well established that the presence of known or strongly suspected homosexuals in the armed forces would produce certain behavioural and emotional responses and problems which would affect morale and, in turn, significantly and negatively affect the fighting power of the armed forces. 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). 48. The HPAT also assessed other matters it described as “subsidiary” (Section G and paragraph 177 of the report). It found that, while cost implications of changing the policy were not quantifiable, it was not considered that separate accommodation for homosexuals would be warranted or wise and, accordingly, major expenditures on accommodation were considered unlikely (paragraphs 95-97). Wasted training as regards discharged homosexuals was not considered to be a significant argument against maintaining the policy (paragraphs 98-99). Should the wider social and legal position change in relation to civilian homosexual couples, then entitlements for homosexual partners would have to be accepted (paragraph 101). Large amounts of money or time were unlikely to be devoted to homosexual awareness training, given that it was unlikely to be effective in changing attitudes. It was remarked that, if required, tolerance training would probably be best addressed as “part of an integrated programme for equal opportunities training in the military” (paragraph 102). There were strong indications that recruitment and retention rates would go down if there was a change in policy (paragraphs 103-04). 49. Concerns expressed about the fulfilment of the forces’ loco parentis responsibilities for young recruits were found not to stand up to close examination (paragraph 111). 50. Medical and security concerns were considered separately (Sections H and I, respectively, and paragraph 177 of the report). While it was noted that medical concerns of personnel (in relation to, inter alia, Aids) were disproportionate to the clinical risks involved, it was considered that these concerns would probably need to be met with education packages and compulsory Aids testing. Otherwise, real acceptance and integration of homosexuals would be seriously prejudiced by emotional reactions and resentments and by concerns about the threat of Aids. The security issues (including the possibility of blackmail of those suspected of being homosexual) raised in defence of the policy were found not to stand up to close examination. 51. The HPAT observed that there were a wide variety of official positions and legal arrangements evolving from local legal and political circumstances and ranging from a formal prohibition of all homosexual activity (the United States), to administrative arrangements falling short of real equality (France and Germany), to a deliberate policy to create an armed force friendly to homosexuals (the Netherlands). According to the HPAT, those countries which had no legal ban on homosexuals were more tolerant, had written constitutions and therefore a greater tradition of respect for human rights. The report continued: “But nowhere did HPAT learn that there were significant numbers of open homosexuals serving in the Forces … . Whatever the degree of official toleration or encouragement, informal pressures or threats within the military social system appeared to prevent the vast majority of homosexuals from choosing to exercise their varying legal rights to open expression of their active sexual identity in a professional setting. … It goes without saying that the continuing reticence of military homosexuals in these armed forces means that there has been little practical experience of protecting them against ostracism, harassment or physical attack. Since this common pattern of a near absence of openly homosexual personnel occurs irrespective of the formal legal frameworks, it is reasonable to assume that it is the informal functioning of actual military systems which is largely incompatible with homosexual self-expression. This is entirely consistent with the pattern of British service personnel’s attitudes confirmed by the HPAT.” 52. In January 1996 there were over 35,000 British service personnel (25% approximately of the British armed forces) deployed overseas on operations, more than any other NATO country in Europe (paragraph 43). 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). 53. Important differences were considered by the HPAT to exist between the armed forces and civilian disciplined services in the United Kingdom including the police, the fire brigade and the merchant navy which did not operate the same policy against homosexuals. It considered that: “None of these occupations involves the same unremittingly demanding and long-term working environment as the Armed Forces, or requires the same emphasis on building rapidly interchangeable, but fiercely committed and self-supporting teams, capable of retaining their cohesion after months of stress, casualties and discomfort …” (paragraph 203) 54. Alternative options were considered by the HPAT including a code of conduct applicable to all, a policy based on the individual qualities of homosexual personnel, lifting the ban and relying on service personnel reticence, the “don’t ask, don’t tell” solution offered by the USA and a “no open homosexuality” code. It concluded that no policy alternative could be identified which avoided risks for fighting power with the same certainty as the present policy and which, in consequence, would not be strongly opposed by the service population (paragraphs 153-75). 55. The HPAT found that: “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.” 56. The Defence Council’s “Code of Practice on Race Relations” issued in December 1993 declared the armed forces to be equal opportunity employers. It stated that no form of racial discrimination, harassment or abuse would be tolerated, that allegations would be investigated and, if proved, disciplinary action would be taken. It provided for a complaints procedure in relation to discrimination or harassment and it warned against the victimisation of service personnel who made use of their right of complaint and redress. 57. In January 1996 the army published an Equal Opportunities Directive dealing with racial and sexual harassment and bullying. The policy document contained, as a preamble, a statement of the Adjutant-General which reads as follows: “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. 58. Every five years an Armed Forces’ Bill goes through Parliament and a Select Committee conducts a review in connection with that bill. 59. The report of the Select Committee dated 24 April 1991 noted, under the heading “Homosexuality”: “That the present policy causes very real distress and the loss to the services of some men and women of undoubted competence and good character is beyond dispute. Society outside the armed forces is now much more tolerant of differences in sexual orientation than it was, and this may also possibly be true of the armed forces. Nevertheless, there is considerable force to the [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.” 60. The 1996 Select Committee report (produced after that committee’s review of the Armed Forces Act 1996) referred to evidence taken from members of the Ministry of Defence and from homosexual support groups and to the HPAT Report. Once again, the committee did not recommend any change in the Government’s policy. It noted that, since its last report, a total of 30 officers and 331 persons of other rank had been discharged or dismissed on grounds of homosexuality. The committee was satisfied that no reliable lessons could as yet be drawn from the experience of other countries. It acknowledged the strength of the human rights arguments put forward, but noted that there had to be a balance struck between individual rights and the needs of the whole. It was persuaded by the HPAT summary of the strength of opposition throughout the armed services to any relaxation of the policy. It accepted that the presence of openly homosexual servicemen and women would have a significant adverse impact on morale and, ultimately, on operational effectiveness. The matter was then debated in the House of Commons and members, by 188 votes to 120, rejected any change to the existing policy. 61. Prior to September 1995, applicants to the armed forces were informed about the armed forces’ policy as regards homosexuals in the armed forces by means of a leaflet entitled “Your Rights and Responsibilities”. To avoid any misunderstanding and so that each recruit to each of the armed services received identical information, on 1 September 1995 the armed forces introduced a Service Statement to be read and signed before enlistment. Paragraph 8 of that statement is headed “Homosexuality” and states that homosexuality is not considered compatible with service life and “can lead to administrative discharge”.