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Published: Fri, 02 Feb 2018
Conception Of The Rule Of Law
Explain the differences in the legal analysis of the same facts in the following related cases and analyse the conception/s of the rule of law which underlie/s their ratio: R v Ministry of Defense, Ex p Smith  QB 517) AND Smith and Grady v United Kingdom (2000) 29 EHRR, 493, ERHR.
This essay analysis looks at the two main issues – the differences in the legal analysis of the same facts in the R v Ministry of Defense, Ex p Smith  1 ALL E.R. 257 (or: QB 517) AND Smith and Grady v United Kingdom (2000) 29 EHRR, 493. Essentially, it will be underlying the conceptions of the rule of law. To firmly establish the conception of the rule of law it will be defined what are the definitions of the ratio and the rule of law.
To begin with, it should be briefly looked of the same facts in the following cases: R v Ministry of Defense, Ex p Smith  1 ALL E.R. 257 (or: QB 517) AND Smith and Grady v United Kingdom (2000) 29 EHRR, 493. As a matter of fact, in both cases the applicants, a lesbian and four homosexuals males, who were discharge from Royal Navy (Smith and Grady) and the armed forces (R v Ministry of Defense, Ex p Smith) on the sole ground of their homosexuality.  What is clearer, that the appeal was made of R v Ministry of Defense, Ex p Smith in 1996, on the contrary, Smith and Grady in 2000. Hence, it should be considered the history of the Humans Rights Act, as it only came into force in 1998.
According to H. Barnett  “the ravages of the Second World War was the formation of the Council of Europe. Under its authority the Convention on Human Rights and Fundamental Freedoms was drafted, designed to guarantee the protection of basic rights against the state. The majority of Member States – either had a written constitution which protected rights or they had incorporated the Convention rights into their law. The British government remained reluctant, until 1997, to make Convention rights directly enforceable before the domestic courts. Accordingly, until Human Rights Act 1998 Convention rights could only be enforced before the Court of Human Rights in Strasbourg. In addition, The Human Rights Act 1998 came into effect in Northern Ireland and Scotland in 1998, in England and Wales in 2000. In 1949, the Council of Europe was established and the Convention on Human Rights ratified by signatory states (formally High Contracting Parties) in 1951. Despite having been instrumental in the drafting of the text of the Convention, the British government had strong reservations about the Convention and its impact on British constitutional law. As a result of such reservations, it was not until 1965 that the government gave individuals the right o petition under the Convention. Applications may come from individuals, groups of individuals or non-governmental organizations. The applicant(s) must be personally affected by the issue. After all, with the Human Rights Act 1998 fully in force, individuals will only make an application to the Court of Human Rights if they fail to secure an effective remedy before the domestic courts. “
Before going into legal analysis of Smith and Grady and R v Ministry of Defence, Ex p Smith, it has to be considered the definitions the rule of law and ratio.
THE RULE OF LAW
According to Marinos Diamantides  as most textbooks will tell that the rule of law is a ‘pivotal ideal of constitutional government’.
For the rule of law to be respected and applied, the legal process – civil and criminal – must exhibit certain features. The features may be categorized as accessibility and procedural fairness. Accessibility – the right to a fair trial is protected under Article 6 of the European Convention on Human Rights, and includes the right of citizen:
…to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. Procedural fairness – Justice and the rule of law demand that, in the conduct of legal proceedings, procedural fairness is observed. Jury – The decision of the jury is regarded as conclusive and unimpeachable. Evidence – For the rule of law to be observed, it is of central importance that the evidence before the court be both complete and reliable. 
On the whole, there is a lack of authority to simply describe the definition of the ratio (ratio decidendi). However, C.F. Stychin states, that the ratio is the rule upon which the case is decided. “In broad terms, the conception of biding precedent refers to the following of the rules (ratio decidendi) laid down in previous decisions and its logical form and entailment are classically set out by Justice Parke in Mirehoue v Rennell  1 CL and F 527, in the following terms: Our common law system consists in the applying to new combinations of circumstances those rules which we derive from legal principles an judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied…It appears to me to be of great importance too keep this principle of decision steadily in view, not merely for the determination of particular case, but for the interests of law as a science.” 
In spite of the same facts there are the differences in the legal analysis. First of all, In Smith and Grady: “…discharge from the Royal Navy on the sole ground of their homosexuality, in pursuance of the Ministry of Defense policy of excluding homosexuals from the armed forces, constituted degrading treatment and violated their right to a private life. They also complained that they had no effective remedy, contrary to Article 13, and claimed just satisfaction under Article 41. Held unanimously:
that there had been a violation of Article 8 of the Convention;
that no separate issue arose under Article 14 of the Convention taken in conjunction with Article 8;
that there had been no violation of Article 3 of the Convention taken either alone or in conjunction with Article 14;
that it was not necessary to consider the applicants’ complaints under Article 10 of the Convention taken either alone or in conjunction with Article 14;
that there had been a violation of Article 13 of the Convention;
that the question of the application of Article 41 of the Convention was not ready for decision.” 
In R v Ministry of Defense, Ex p Smith, they sought judicial review on the basis:
of a breach of the ECHR;
of a breach of EEC Directive 76/207; and
that on any test of reasonableness the police was irrational.
Furthermore, there are different concerns and issues in both cases, in spite of the same facts. According to Common law constitutionalists believe that a principal function of judicial review is to enforce fundamental rights and the higher order of law of which they form a part. 
The main test (Wednesbury) which was undoubtedly reaffirmed in relation to a human rights issue (homosexuals in the armed forces) in R v Ministry of Defence ex parte Smith in which Sir Thomas Bingham said:
“The greater the policy contents of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or, security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations”.
In contract, the European Court of Human Rights later ruled against the United Kingdom in: Smith and Grady. 
R V MINISTRY OF DEFENCE, EX P SMITH
The legal analysis of R v Ministry of Defence, Ex p Smith related to sexual orientation. It mandated discharge even without there being any evidence of overt sexual conduct; nor any evidence of an individual’s ability to discharge responsibilities having been impaired. In fact all four servicemen were accepted to have exemplary service records. The appellants sought judicial review of the Ministry of Defence policy. The Divisional Court held the Ministry policy to be lawful. The appellants appealed to the Court of Appeal.” 
In accordance with J. Pool the main argument in the legal analysis: “The applicants had an argument that the policy violated their right to private life guaranteed by Article 8 of the European Convention and that the policy was unreasonable. The Ministry countered by arguing that the special nature of service life and its distinctive operational requirements meant that civilian norms should not apply. To permit practicing homosexuals to serve in the armed forces, the Ministry claimed, would have a deleterious effect on morale and operational effectiveness. The main legal argument focused on the standard of scrutiny that ought to be applied. The applicants argued that, since the police interfered with their fundamental rights, the ‘anxious scrutiny’ principle should apply. The court, in other words, ought to subject the policy to strict scrutiny. The Ministry argued, to the contrary, that the so-called ‘super-Wednesbury’ principle which entails a much less rigorous standard of review ought to e applied given the sensitive nature of the policy in question. Responding to these arguments, judges showed that they were thoroughly aware of the fundamental rights dimension of the case. At first instance, Simon Brown LJ commented that the Ministry’s policy was ‘ a grave invasion of the individual’s freedom to live in accordance with his or her sexual orientation. In the Court of Appeal, Thorpe LJ emphasized ‘the importance of the human rights context. Indeed, the judges indicated that had this been the only relevant or the most significant aspect of the case, the matter would have relatively simple to resolve. But the case was complicated because of the presence of another dimension of argument. This is how Simon Brown LJ expressed the dilemma faced by the court in his judgment in the Divisional Court. ” 
SMITH AND GRADY
Generally, relying on Articles 3 and 8 of the Convention, the applicants complained that investigations into their homosexuality and their subsequent discharge from the Royal Navy on the sole ground of their homosexuality, in pursuance of the Ministry of Defence policy of excluding homosexuals from the armed forces, constituted degrading treatment and violated their right to a private life. 
In Smith and Grady v United Kingdom (1999) 29 EHRR 493, the European Court held that the orthodox domestic approach of the English courts had not given the applicants an effective remedy for the breach of their rights under article 8 of the convention because the threshold of review had been set too high. 
In considering the specific issue of whether such interference during the investigation of the applicants’ lives pursued a legitimate, and therefore justifiable aim, the Court ruled that there was ‘ doubt’ that ‘ the investigations continued to serve any such legitimate aim once the applicants had admitted their homosexuality’. In Smith and Grady a central determining factor of the success of the applicants’ Article 8 claims was their readiness to ‘admit’ their homosexuality. This is clear because, although a blanket ban against homosexuals serving in the armed services was found to be a violation of the applicants’ Article 8 rights, the Court remained equivocal about the violation of Article 8 rights created by the investigations into the applicants’ private lives. 
However, the European Court of Human Rights came to the opposite conclusion: Smith and Grady. In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.” 
THE CONCEPTION OF THE RULE OF LAW
SMITH AND GRADY
The Strasbourg Court, held not only that the policy violated Article 8 E.C.H.R., the right of respect for private life, but also that the English court had denied the applicants the effective remedy required under Article 13. In assessing the policy’s legality the Court of Appeal had adopted a more rigorous test than that traditionally applied in English administrative law. 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. The Strasbourg Court was unimpressed by the Court of Appeal’s passing nod to the fundamentality of human rights. It held that the threshold of irrationality had nonetheless been set so high as to exclude 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 lay at the heart of a Strasbourg analysis of Article 8 complaints. Ironically the British Parliament had recently enacted the Human Rights Act 1998, section 2(1) of which instructs national courts merely to “ take into account” Strasbourg case law. Smith and Grady sounds a warning that unless national courts actually apply Strasbourg principles, they will attract the opprobrium of being held responsible for a human rights violation by their State. These judgments arose in consequence of a finding by the Court of Human Rights in September 1999 that there had been a violation of the rights of all four applicants to respect for their private life under Article 8. While the Court did not accept the Government’s contention that no award should be made in respect of future losses, given the large number of imponderables involved in its assessment, it did consider that the greater the interval since the discharge of the applicants the more uncertain the damage became. The Court noted the reasons why it had found that the discharge of the applicants had a profound effect on their careers and prospects, pointing out that the significant differences between civilian and service life and qualifications, together with the emotional and psychological impact of the investigations and of the subsequent discharges, rendered it difficult for the applicants to find equivalent civilian careers. It also noted the applicants’ service career prospects had they not been discharged and found the loss of a non-contributory pension to be significant”. 
R v MINISTRY OF DEFENCE, EX P SMITH
The question of ‘constitutional balance’ was at the forefront of deliberation in ex p Smith case. The judges in that case accepted that the substantive case for the applicants was strong, probably overwhelmingly so. This self-referential quality to the judicial review inquiry was a feature in each of the cases analysed earlier. It was readily apparent in Smith, where the case turned upon an assessment of which body—court or Parliament—had the requisite authority to make a determination about the Ministry of Defence’s ban on homosexuals. 
In Smith a rationality challenge had been made to the recruitment policy adopted by the Ministry of Defence. The point they understood that Lord Steyn wished to make was that:
“ although the Convention calls for a more exacting standard of review, it remains the case that the judge is not the primary decision-maker. It is not for him to decide what the recruitment policy for the armed forces should be.” 
The Government accepted that the applicants’ rights to privacy had been violated, but argued that the interference was necessary in the interests of national security and/or public safety. The argument was that the presence of overtly homosexual service personnel would have an adverse effect on morale and on the operational effectiveness of the armed forces. An important strand of this defence was the report of the Ministry of Defence’s Homosexual Policy Assessment Team (the H.P.A.T.). The E.C.H.R. was unpersuaded by both the methodology used and the conclusions drawn in the H.P.A.T.’s report. All applicants therefore succeeded in establishing a violation of Article 8. Claims under the non-discrimination provision of Article 14 were held to raise the same issues as determined by the Court in its decision on Article 8 and so were not considered. 
Overall, in this essay, it was looked at the two main issues: what are the differences in the legal analysis of R v Ministry of Defence, Ex p Smith and Smith and Grady. Apart from this, it was considered the conception/s of the rule of law which underlies their ratio. Finally, as L. Steyn states: “ even the heightened scrutiny test developed in R. v Ministry of Defence, Ex P Smith is not necessarily appropriate to the protection of Human Rights. It was recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. Therefore, the European Court of Human Rights came to the opposite conclusion: in Smith and Grady… In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.” 
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