R v Ministry of Defence, Ex p. Smith [1996] QB 517 (CA)

Facts:

  • S and three others, a lesbian and three gay men, applied against the dismissal of their application for judicial review of the MoD policy which stated that homosexuality was incompatible with service in the armed forces. The policy had led to them being discharged.
  • S argued that the policy was irrational and contrary to the Treaty of Rome 1957 on equal treatment for men and women as regards access to employment and also the ECHR 1950.

 Issue:

  • Whether the policy was contrary to the Convention?


Ratio:

  • When there was a human rights issue involved there had to be greater justification of the reasonableness. The policy could not be regarded as irrational at the time the applicants were discharged. It was supported by both Houses of Parliament.
  • The Treaty of Rome did not apply to discrimination on the grounds of sexual orientation.
  • The failure to consider Convention obligations did not impugn the exercise of discretion.

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