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Regina v. Ministry of Defence  QB 517 (CA): A British case about discharge from armed force on ground of sexual orientation
Summarised by Linyue Zhong, Roselyn (Associate).
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The Ministry of Defence had the policy that homosexuals would be administratively discharged from the armed force because homosexuality was incompatible with the military service. The applicants were serving members of the military force who had been discharged solely because of their sexual orientation. They challenged the decision of the Ministry on the grounds that it was Wednesbury irrational and violated article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and article 2 of the Equal Treatment Directive (“the Directive”).
1) Whether the challenge, with human rights dimension yet involving military judgment and had been debated in the Parliament, was justiciable?
2) If justiciable, whether there is an important competing public interest which is reasonably sufficient to justify the restriction on human rights?
Holdings and rationale
The court dismissed the challenge:
1) The case was justiciable because it does not involve national security as it does not require the determination of how to dispose of the military force and therefore the court does not lack the expertise or material to judge on the case. Although the merits of the case are considered in the Parliament, it is not essentially a political judgment and its human rights dimension is prominent. Hence, the conventional Wednesbury approach should be adopted.
2) The public interest objective of the policy is to guarantee an efficiently-operating and effectively-fighting armed force. Because the court cannot trespass beyond the constitutional bounds on its function, it will only intervene in the issue which is within the discretion of the military and the government if there is no manifest impairment to the function of the armed force. Hence, the court is only exercising a secondary judgment and has to show judicial deference in regard to this issue, which touches upon national defence and involves continuous supervision from the Parliament.
3) From the plain and unambiguous language of the Directive, it only talks about gender discrimination rather than orientation discrimination.
As the court has recognized, none of the applicants had performed any worse because of their homosexuality. Therefore, the dismissal of application could be viewed as unjust to some extent. However, within the constitutional limit, the court did confirm the justiciability of this line of cases despite their political and military sensitivity. The court also hinted that “the days for the policy are numbered” and pointed out the need for Parliamentary review. As this case was decided more than 20 years ago, we could see that there had been a lot of progress in the polices concerning relevant issue in response to the changing societal attitudes towards homosexual people.
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