• In the case of R v Ministry of Defence ex p Smith [1996] qb 517, where a decision contravenes human rights, a greater degree of the scrutiny test shall be applicable.
  • Sufficiently significant justification would be paramount for the decision to succeed.

Facts of the Case

  • D, the Ministry of Defence, formed a decisive policy involving the dismissal of individuals involved in homosexual activities.
  • As a result of the policy, S and three others (involving a lesbian and three gay men) were dismissed.
  • The individuals sought judicial review of this policy on the basis that it was irrational and breached the right for private and family life, which amounted to Article 8 of the European Convention on Human Rights, the Treaty of Rome 1957, Council Directive 76/207 regarding the equal treatment of male and females to access work.


  • Was D’s policy on dismissing individuals involved in homosexual activity deemed reasonable?

Held by Court of Appeal

  • The Court of Appeal dismissed and found that the policy deployed by D could not be deemed as irrational during the time that individuals were dismissed and that the Treaty of Rome and the Council Directive were inapplicable to discrimination based on an individual’s sexual orientation.

Sir Thomas Bingham M.R

  • Sir Thomas Bingham M.R carefully considered both Houses of Parliament’s review before reaching a conclusive decision and accepted their seniority when concluding.
  • “The existing policy cannot in my judgment be stigmatised as irrational at the time when these applicants were discharged. It was supported by both Houses of Parliament and by those to whom the ministry properly looked for professional advice. There was, to my knowledge, no evidence before the ministry which plainly invalidated that advice.” [558]
  • Additionally, it was concluded that the European Convention on Human Rights is binding internationally, and therefore could not be controlled independently by the UK’s courts.  
  • “It is, inevitably, common ground that the United Kingdom’s obligation, binding in international law, to respect and secure compliance with this article 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 that exercise of discretion.” [558]

Editor’s Notes

  • This case strikes an interesting balance between the enforcement of human rights and public policy. From this decision, it is maintained that where human rights could be contravened, a greater degree of scrutinity is required to justifiably achieve a policy decision. As for complex public policy, judicial deference is a pre-requisite.