An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’ After referring to changes of attitude in society towards same-sex relationships: ‘I regard the progressive development and refinement of public and professional opinion at home and abroad, here very briefly described, as an important feature of this case. A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z. Public and professional opinion are a continuum.’
Sir Thomas Bingham MR: ‘It is, inevitably, common ground that the United Kingdom’s obligation, [under article 8] 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.’
Judges:
Simon Brown LJ and Curtis J
Citations:
Times 13-Jun-1995, Independent 08-Jun-1995
Statutes:
European Convention on Human Rights 8
Citing:
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited by:
Appeal from – Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Cited – Cumming and others v Chief Constable of Northumbria Police CA 17-Dec-2003
The six claimants sought damages for wrongful arrest and false imprisonment. Each had been arrested on an officer’s suspicion. They operated CCTV equipment, and it appeared that tapes showing the commission of an offence had been tampered with. Each . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Manelfi Admn 25-Oct-1996
The applicant sought judicial review of the defendant’s refusal to employ him to work at GCHQ, which had a policy not to employ anyone with non-British parents save exceptionally. The claimant said this was racially discriminatory.
Held: The . .
Cited – Rogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Appeal from – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Lists of cited by and citing cases may be incomplete.
Employment, Administrative, Human Rights, Discrimination, Armed Forces
Updated: 17 May 2022; Ref: scu.87365