Lustig-Prean and Beckett v. United Kingdom

Mr. Lustig-Prean and Mr. Beckett were discharged from the Royal Navy on the basis of their sexual orientation. In June 1994, Mr. Lustig-Prean was approached by military service police and, wanting to avoid further and less discrete investigations, Mr. Lustig-Prean admitted that he was homosexual. In May 1993, Mr. Beckett admitted to his superiors that he was homosexual. Both men had successful military backgrounds and were considered candidates for promotion, but were nonetheless discharged.

The applicants requested judicial review of the Ministry of Defence’s policy against homosexuals in the military. They argued that the policy was ‘irrational’ and that it violated Article 8 (right to respect of private life) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The request for judicial review was denied in both the United Kingdom (UK) High Court and the Court of Appeal.

Subsequently, they filed a complaint with the European Commission of Human Rights (“the Commission”) alleging that the investigation into their homosexuality and their discharge from the military was an unjustified interference of Article 8 of the Convention.

The UK Government’s position was that allowing homosexuals to join the military threatened national security by jeopardizing fighting power and unit cohesion. They argued that an internal review conducted by the Ministry of Defence (“HPAT review”) found little support among service personnel for the inclusion of homosexuals in the armed forces. The Government also argued that the investigations into sexual orientation of service personnel were necessary to detect those making false claims of homosexuality in order to be discharged from the military.

The applicants’ position was that the Ministry’s policy towards homosexuals contributed to the prejudice, and that instead of effectively dealing with the prejudice, the Ministry’s policy effectively punished the victims. They also argued that the Ministry failed to substantiate their claims that the inclusion of homosexuals was a threat to the military, and that the internal HPAT review was flawed and biased.

The Court found that there had been an interference with the applicants’ Article 8 rights, which was in accordance with law and for a legitimate aim (i.e., the interests of national security). However, the Court determined that the interference was not “necessary in a democratic society”—as would have been required for the United Kingdom to avoid a breach of the applicants’ Article 8 rights. To determine whether the interferences with the applicants’ Article 8 right were “necessary in a democratic society”, the Court weighed such interferences against the Government’s claim that the presence of homosexuals in the military seriously undermined operational effectiveness and fighting power.

The Court set out three reasons for why the interference with the applicants’ Article 8 right had been especially grave. First, the interview of the applicants conducted by the service police was ‘particularly intrusive and offensive.’ Second, the applicants’ discharge had a severe impact on their career prospects. Third, the discharge followed a finding of homosexuality regardless of the person’s service record or conduct.

The Court found the government did not establish that the policy against homosexuals in the military was justified. The Court had doubts as to the value of the HPAT report because of concerns with its independence and methodology. It was also determined that even if the negative attitudes towards homosexuals existed among the service people, as claimed by the HPAT review, this would not justify the interference with the applicants’ Article 8 right to respect for private life. The Court noted that the Ministry could not use the claim that there were negative attitudes among service people to exclude individuals based on race, origin or color. Also, the Court noted that the Government did not establish sufficient evidence to show that a change in the Ministry’s policy would engender damage to morale and fighting power.

The Court also found that the investigation into the applicants’ homosexuality was an unjustified violation of Article 8. The Court did not accept the Government’s submission that the continued questioning of the applicants was necessary to detect false claims of homosexuality. It was known at the time of the questioning that both applicants wished to remain in the military. Also, the Court determined that the applicants did not have any real choice but to cooperate with the investigation. If they had refused to do so, the service police would have continued the investigation in a much less discrete manner.

Judge Loucaides dissented in the decision by arguing that the interference by the Ministry was justified. He concluded that the communal accommodation arrangements of heterosexual and homosexual men would be problematic. Given the margin of appreciation allowed to States, Judge Loucaides  argued that the Court should only interfere when the measure taken was “patently disproportionate to the aim pursued,” which was not the case here.

“[T]he absolute and general character of the policy which led to the interferences in question is striking . . . . The policy results in an immediate discharge from the armed forces once an individual’s homosexuality is established and irrespective of the individual’s conduct or service record.” Para. 86.

“To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants’ rights outlined above, any more than similar negative attitudes towards those of a different race, origin or colour.” Para. 90.

“[T]he Court concludes that convincing and weighty reasons have not been offered by the Government to justify the policy against homosexuals in the armed forces or, therefore, the consequent discharge of the applicants from those forces.” Para. 98.