R v Ministry of Defence ex p Smith [1996] QB 517

Four service personnel, including gay men and a lesbian, were discharged under the Ministry of Defence's policy excluding homosexual people from the armed forces. They challenged the policy and their dismissals, relying on irrationality and the importance of private life. European law arguments were also raised. The proceedings occurred before the Human Rights Act made Convention rights directly enforceable through its domestic scheme. The Court of Appeal therefore considered the policy principally through public-law rationality review, against the defence evidence and the seriousness of the personal interests affected.

Whether the armed-forces exclusionary policy was irrational under the domestic law then applicable, given its serious interference with the service personnel’s private lives.

The Court of Appeal dismissed the challenge. It accepted that decisions interfering with fundamental rights called for more substantial justification and closer scrutiny, but held that the policy had not been shown irrational on the evidence and legal framework then before it. The defence authorities' assessment of service needs and the policy's institutional support were material to that conclusion. The Convention did not at that time provide the domestic enforcement route later introduced by the Human Rights Act. The relevant European equal-treatment argument also did not establish the claimed protection against sexual-orientation discrimination. This historical domestic result must be distinguished from the subsequent Strasbourg findings against the UK and abandonment of the policy.

The intensity of rationality review increases where important human interests are affected, requiring stronger justification for interference. Ex parte Smith nevertheless upheld the military policy under the pre-Human Rights Act domestic framework; later Strasbourg proceedings reached an adverse Convention conclusion.

Ex parte Smith is studied both for anxious scrutiny and for the limits of pre-Human Rights Act judicial review. The Court of Appeal recognised that greater interference with fundamental interests required stronger justification, yet upheld the armed-forces policy under rationality review. Strasbourg later found Convention violations in the applicants' related cases, and the exclusionary policy was abandoned. The domestic decision must therefore be presented historically. It does not establish that exclusion from military service because of sexual orientation is a lawful contemporary policy.