CASE EXAMPLE: Lawful interference with a qualified right A first step towards contesting that a right has been violated is for an individual or group to identify the right at issue and assert that there has been an interference with it. The burden then shifts to the state to justify its interference with the right. The Lustig-Prean case166 provides a useful example of how qualified rights work. While not directly related to terrorism, it demonstrates how the tests are applied, even within the context of national security. The applicants, who were homosexuals, were dismissed from the armed forces in the United Kingdom because of their sexual orientation. There was a blanket policy in the armed forces that anyone of a homosexual orientation could not serve, regardless of their rank or the functions that they carried out. As a matter of international human rights law, sexuality is protected under the right to respect for private life. This includes the recognition of a lesbian and gay identity.167 Criminalizing consensual sexual activity, or other punitive sanctions based upon sexual orientation, will therefore be likely to violate the right to respect for private life. The applicants in Lustig-Prean (altogether there were four cases brought under the ECHR) were therefore able to establish that the policy not only engaged their private life but also interfered with it. The fact that you could not be gay or lesbian in the armed forces was held to be a particularly serious interference with the applicants’ private life rights. The question was, therefore, whether the British Government could justify the interference with privacy protected by Article 8(1), ECHR by relying upon Article 8(2) and therefore establish that there had been a lawful interference with the applicants’ rights under the ECHR. To do this, the British Government had to satisfy the standard tests for interfering with human rights: legality, justification, necessity, proportionality, and non-discrimination. For the interference to be lawful, each of these tests has to be satisfied. 166 ECtHR, Lustig-Prean and Beckett v. UK, Applications nos. 31417/96 and 32377/96, 27 September 1999. 167 ECtHR, Dudgeon v. UK, Application no. 7525/76, 22 October 1981, paras. 41-63; see also HRC, Toonen v. Australia, Communication no. 488/1992, doc. CCPR/C/50/D/488/1992, 4 April 1994, paras. 8.1-8.7 (para. 8.6 reads: “The Committee cannot accept either that for the purposes of article 17 of the Covenant [right to privacy], moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee’s scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the ‘reasonableness’ test in the circumstances of the case, and that they arbitrarily interfere with Mr. Toonen’s right under article 17, paragraph 1”). On the issue see also op. cit., note 154, Nowak, CCPR Commentary, pp. 391392. 72 In Lustig-Prean the state was able to show that the policy had a clear legal basis by reference to various Acts of Parliament. It therefore passed the test of legality. The second test requires being able to justify the interference by reference to the recognized grounds for restricting rights within the Article itself. The state, therefore, had to be able to justify that the interference with the Convention right was authorized by one or more of the stated grounds in the article at issue. For example, in Lustig-Prean the state was able to rely upon national security as a justification, since the issue involved the management of the armed forces. The third test requires a balancing act to be made in assessing the rights of the individual on the one hand and state or community interests on the other. In order to satisfy this test, the government had to establish that its actions were “necessary in a democratic society”. To satisfy this test, restrictions must not just have a pressing social need; there must also be a good reason for them. In Lustig-Prean it was accepted that the purpose of the restrictions, which was to facilitate the smooth running of the armed forces, constituted a pressing social need, and the Ministry of Defence’s objective of ensuring morale and unit effectiveness was accepted as being a good reason for the blanket ban. The Court accepted the UK Government’s position that the British Army was not a conscript army but a professional army, and one that was required to maintain peace and stability around the world. Therefore, it recognized that how the armed forces were managed was a vital concern for the UK and the international community. However, even though the Court considered there to be a good reason for the interference with the applicants’ privacy rights and a pressing social need for that interference, the further test of proportionality also had to be satisfied. The state interference had to be proportionate in relation to the stated objectives for it. In Lustig-Prean, the Court held that the blanket ban on homosexuals serving in the armed forces was disproportionate to the UK Government’s legitimate public policy objective of ensuring that morale and unit effectiveness was maintained. In so finding, the Court held that less restrictive measures on the applicants’ Article 8 rights could have been adopted, such as a code of conduct forbidding sexual activity within the armed forces. The Court also was sensitive to the fact that most Council of Europe countries did not have comparable policies in relation to their armed forces. The Court often seeks to rely on evidence from other Council of Europe countries in relation to whether a restriction is proportionate or not. In Lustig-Prean, the Court was also particularly concerned about the arbitrary and prejudicial nature of the blanket policy, which targeted people in relation to conduct, behaviour and/or identity, which was Convention protected. Countering Terrorism, Protecting Human Rights