## Facts

- The applicants were discharged from the Royal Navy and Royal Air Force solely because of their sexual orientation.
- At the time, a blanket policy prohibited homosexuals from serving in the armed forces.
- The applicants challenged this policy, arguing it infringed their right to privacy under Article 8 of the European Convention on Human Rights.
- The Ministry of Defence defended the policy as necessary for morale, discipline, and operational effectiveness.

## Issues

1. Whether the Ministry of Defence's blanket ban on homosexuals serving in the armed forces unlawfully infringed the applicants' fundamental rights, particularly the right to privacy.
2. Whether the court should apply a more intensive standard of judicial review when fundamental rights are at stake.
3. Whether the justifications provided by the Ministry of Defence were sufficient to uphold the policy in light of the rights involved.

## Decision

- The Court of Appeal upheld the Ministry of Defence's policy.
- The court recognised that decisions affecting fundamental rights require "anxious scrutiny" or heightened review.
- Evidence presented by the Ministry of Defence regarding operational risks was accepted as sufficiently compelling to justify the interference with the applicants' rights.
- While recognising the significance of the rights at stake, the court ultimately deferred to the Ministry of Defence's judgment.

## Legal Principles

- Judicial review intensity should correspond to the significance of the right at issue; where fundamental rights are affected, "anxious" or heightened scrutiny applies.
- Authorities must provide particularly compelling and proportionate justification for measures interfering with fundamental rights.
- The more substantial the interference, the more rigorous the required justification.
- The case clarified that general standards of review, such as Wednesbury unreasonableness, may be insufficient when rights are deeply engaged.

## Conclusion

R v Ministry of Defence, ex p Smith established that courts must apply heightened scrutiny to executive decisions infringing fundamental rights, requiring compelling justification from the public authority. Although the policy was upheld at the time, the case represented an important development in English judicial review, laying the basis for greater rights protection, especially following the Human Rights Act 1998.


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