Smith and Grady v United Kingdom (1999) 29 EHRR 493

Key point

  • The traditional Wednesbury approach to judicial review was held to afford inadequate protection for rights under the ECHR
  • The ECtHR rejected a limitation on homosexuals in the army


  • The appellants were discharged from the army for being homosexuals
  • They challenged the policy barring against homosexuals in the army based on their article 8 of the ECHR (the right to respect for private and family life)
  • Their claim was dismissed by the Court of Appeal in R v Ministry of Defence ex parte Smith as the court found that the policy was not unreasonable under the heightened scrutiny test

Held (European Court of Human Rights)

  • The court held for the appellants, the policy is incompatible with Article 8


  • “the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court’s analysis of complaints under article 8 of the Convention.”: [143]
Irrationality Review cases
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