Key Documents - The road to equality (history)

The text below was produced before 2 Nov 01, the last date on which the MOD website's Homosexuality section was updated; view also the Oct 2000 Review on the Armed Forces Policy on Homosexuality, part of a published MOD Briefing Pack.

Homosexuality and the Armed Forces - Background Information

The issue of homosexuality in the Armed Forces was last debated in Parliament in 1996 and a vote to retain the ban was carried in the House of Commons on 9 May. Much of the evidence for the debate was based on the findings of the Homosexual Policy Assessment Team (HPAT) report, commissioned in September 1995, to undertake and report on an internal assessment of attitudes within the Services towards homosexuality.

When the present administration assumed office in May 1997, it made clear that the policy would be reviewed in the lifetime of this Parliament. At that time it was anticipated that the Armed Forces Bill in 2000/01 would be a convenient framework for Parliamentary debate [and free vote on the issue]. However, following the announcement on 27 September 1999 of the judgement by the European Court of Human Rights (ECHR) against the MOD in the cases brought by four homosexual ex-Service personnel (Lustig-Prean, Beckett, Smith and Grady), there was an urgent need to review existing policy on the employment of homosexuals in the UK Armed Forces. The Court ruled that all four applicants had their rights violated in respect of Article 8, the right to respect for private life, and further ruled in the case of two of them that their rights had also been violated under Article 13, the right to an effective domestic remedy.

In response to the ECHR ruling on 27 Sep 99, the then Secretary of State stated that, "The UK Government, like all governments, has to accept the ruling of the European Court of Human Rights. The details of this complex judgement and its practical implications are being studied carefully. After consulting the Service Chiefs, Ministers will be making their recommendations in a timely manner. In the meantime, cases in the system will be put on hold." Despite previous Service concerns, the ECHR judgement made it clear that the bar against homosexuals serving in the Armed Forces was unsustainable and illegal under the Articles of the ECHR. Following advice from leading counsel, Ministers decided that there should be no appeal against the ECHR judgement.

As a result, the Chief of Defence Staff announced 30 September 1999, that a review of the current policy was to be commissioned, with a view to making recommendations to Ministers as soon as possible. It was emphasised that the review needed to identify a "… long term policy and sustainable code of conduct that retains our operational effectiveness and is within the law."

In considering the options for change it was paramount to ensure that whatever the final decision, the revised policy complies with the legal aspects of the ECHR ruling, is non-discriminatory (ie. takes no account of sexual orientation), so far as is possible preserves operational effectiveness, meets Service needs while, at the same time, protecting the rights of the individual under the HRA. A number of options were examined with the clear recommendation for a policy underpinned by a code of social conduct based on sexual behaviour which applies equally to heterosexuals and homosexuals without the need to refer to sexual orientation. The policy is founded on the need to maintain combat effectiveness, based on the principles of group cohesion and discipline, which are, in turn, underpinned by factors such as mutual trust and respect, and a requirement to avoid conduct which offends others.

The Code of Social Conduct firmly recognises the right to privacy, including sexual orientation. Accordingly the new policy lifting the ban on homosexuals, and firmly underpinned by the Code of Social Conduct, was considered the most appropriate solution for the UK Armed Forces.

The "Armed Forces Code of Social Conduct" sets out a policy based on behaviour and whether an individual’s conduct may impact adversely on the cohesion, efficiency or operational effectiveness of the Service. In setting out this policy, no account or distinction is made on the basis of the individual’s gender or sexual orientation, which is taken to be a private matter for the individual. The Code of Social Conduct is based on an assessment of the potential or actual impact of social conduct on operational effectiveness and, as a start point, operates on the principle that the Services will only interfere in an individual’s private life where the actions or behaviour of an individual have adversely impacted, or are they likely to impact, on the efficiency or operational effectiveness of the Service. It therefore recognises an individuals right to a private life in line with the intent of Article 8 of the HRA.

To summarise, the policy to bar homosexuals from the Armed Forces was not legally sustainable and has now been replaced with a new policy which recognises sexual orientation as a private matter. It was formulated with the full consultation and support of the three Service Chiefs and is firmly underpinned by a code of social conduct that applies to all regardless of their sexual orientation.