Raabe, R (on the application of) v Secretary of State for the Home Department

The Claimant, Dr Raabe, is a GP. On 13 January 2011 the Defendant appointed Dr Raabe as an unpaid member of the Advisory Council on the Misuse of Drugs (“the ACMD”), which was established under the Misuse of Drugs Act 1971. Shortly after his appointment and following criticism of it in the media, it came to the attention of the Defendant that Dr Raabe had co-written an article in 2005 called “Gay Marriage and Homosexuality: some medical comments (“the 2005 Paper”). Dr Raabe, who had been asked in interview if there was anything about his professional or personal history which, if brought into the public domain, might cause embarrassment or disrepute to the ACMD or the Home Office had not referred to the 2005 Paper. Following a number of exchanges between Dr Raabe and representatives of the Defendant, Mr James Brokenshire MP, the Parliamentary Under Secretary of State for Crime Prevention, revoked Dr Raabe’s appointment in a letter dated 4 February 2011.

In the letter the Minister stated that the emergence of Dr Raabe’s authorship of the 2005 Paper into the wider public domain, not disclosed by him in his interview and application, had raised concerns over his credibility to provide balanced advice on drug misuse issues affecting the lesbian, gay, bi-sexual and transgender (LGBT) community and impacts on the smooth running of the ACMD. He had therefore decided to revoke Dr Raabe’s appointment to the ACMD. He stated that the Department considered that his failure to disclose his authorship of the 2005 Paper raised serious issues of judgment and failure to appreciate that the views expressed in it could affect his credibility as an advisor on drug misuse issues.

In this application Dr Raabe seeks judicial review of the decision to revoke his appointment on four grounds. He alleges that (1) the principles of natural justice were infringed in that he was not given a fair opportunity to answer the charges against him; (2) the Defendant took into account irrelevant considerations; (3) the Defendant came to conclusions which were irrational; and (4) the decision was unlawful because Dr Raabe had not acted in breach of the terms and conditions of his appointment. Dr Raabe asserts that he has an absolute right to believe that “monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations between persons” and alleges that the Defendant’s decision to revoke his appointment because he held and others published those views was unlawful and also illiberal because the pluralism indissociable from a modern democratic society depends on persons who do not have mainstream views being entitled to participate in society.

The 1971 Act provided at the material time so far as relevant as follows:

The ACMD is an independent expert body established under the 1971 Act to advise the Government on drug related issues in the UK. In particular it makes recommendations to the Government on the control of dangerous or otherwise harmful drugs, including classification and scheduling under the 1971 Act and its regulations. It also carries out in-depth inquiries into aspects of drug misuse that are causing particular concern in the UK, with the aim of producing considered reports that will be helpful to policy makers and practitioners.

As appears from the extract of the 1971 Act cited above the remit of the ACMD includes giving advice to the Government on measures which in its opinion ought to be taken for preventing the misuse of drugs or dealing with social problems connected with their misuse, including in particular measures for promoting co-operation between the various professional and community services which in its opinion have a part to play in dealing with social problems connected with the misuse of drugs, for educating the public (and in particular the young) in the dangers of misusing drugs, for giving publicity to those dangers and for promoting research into or otherwise obtaining information about any matter which in its opinion is relevant for the purpose of preventing the misuse of drugs or dealing with any social problems connected with their misuse.

In a witness statement served in these proceedings Dr Iain Williams, the Head of Science Secretariat within the Home Office which manages the Secretariat for the ACMD, gave evidence as to some of the issues considered by the ACMD. He said that it considers the issues of drug misuse in a variety of social contexts, for which it is important that it maintains a balanced and objective view of the evidence base to advise the government. One important aspect of that work is that the ACMD needs to consider minority populations that may be particularly vulnerable sectors of society or may have a particular profile in relation to drug misuse and thus particular needs in addressing such misuse. He gave as an example of a sector of the population which the ACMD has given particular attention to the LGBT community where there appear to be patterns of drug misuse which are quite particular to that community.

For example for its work on polysubstance use (the simultaneous or consecutive consumption of two or more substances where their acute effects are still apparent), the ACMD in July 2011 convened an evidence-gathering session which considered the current evidence base of patterns of polysubstance use in the LGBT community. Representatives of London Friend (Antidote), a drug and alcohol service for the LGBT community and The Lesbian and Gay Foundation presented emerging trends covering issues including trends being seen at Antidote in LGBT polysubstance use, trends having an impact on NHS Services, how LGBT clients can be assisted toward recovery, specific advice for LGBT communities and developing a resource to address the particular needs of LGBT drug and alcohol users.

One issue discussed at the evidence gathering meeting was that it was considered by presenters that there might be an association between the social exclusion experienced by some members of the LGBT community and patterns in recreational drug use.

Dr Williams said that the ACMD also considers specific substances for control under the 1971 Act, for some of which there appears to be a higher level of use amongst LGBT communities relative to the baseline population. Those substances include gamma-Hydoxybutyric acid in 2001, methylamphetamine (“Crystal Meth”) in 2005 and 2006 and both gamma-Butyrolactone (“GBL”) and 1, 4-Butanediol in 2008.

The ACMD planned service visits shortly before the date of his witness statement in November 2011 to a branch of London Friend (Antidote) which were part of the ACMD’s work on polysubstance and cocaine use.

On 25 October 2010 ministers were asked to approve the recruitment processes for three of the Home Office Advisory bodies including the ACMD. At that time the ACMD had 27 members, 10 of whom were due to stand down on 1 January 2011. Ministers were recommended to advertise for individuals to ensure that an appropriate balance of expertise was maintained. The recruitment included the position of Chair of the ACMD and eight other members. In particular ministers were recommended to advertise for individuals with the following areas of expertise: one GP, two in psychology/psychiatry, one in enforcement, one in chemistry, two in social sciences and one in law.

The recruitment of the GP was noted to be required as it was a statutory position on the Council pursuant to Schedule 1, paragraph 2(a) of the 1971 Act. Ministers were asked according to the guidelines published by the Office for the Commissioner for Public Appointments to nominate individuals to be considered for the post. Ministers approved the approach for the recruitment process on 1 November 2010 and the posts were advertised in the Sunday Times and on the Cabinet Office and ACMD websites on 2 November 2010.

There were 64 applications for ACMD member positions including that of Dr Raabe who was one of two applicants for the position of GP member. On 22 November 2010 a sift of applications was held by a panel comprising Dr Williams, Professor Les Iversen FRS, then acting Chair of the ACMD and Mr Tony Swabe, an OCPA accredited Independent Public Appointment Assessor.

The panel agreed that Dr Raabe should be invited for interview and he was interviewed on 13 December 2010 by the same panel as had conducted the sifting exercise.

During the interview Dr Raabe, in common with all candidates and as agreed with the OCPA accredited Independent Public Appointment Assessor, was asked: “Is there anything about your professional personal history which, if brought in to the public domain may cause embarrassment or disrepute to the organisation?” Dr Williams stated that Mr Swabe, who asked that question, clarified for all candidates that in that context the “organisation” applied both to the ACMD and the Home Office.

Dr Williams stated that Dr Raabe did not declare anything in response to that question. He started to refer to the political interests which he had held but was stopped short by Mr Swabe on the basis that, in line with OCPA guidelines, political affiliation played no part in the selection process. Dr Raabe confirmed that there was nothing he could think of which would cause embarrassment. This account was not challenged by Dr Raabe.

Dr Raabe is a practising general practitioner, who holds qualifications for the Royal College of General Practitioners, the Royal College of Physicians and the Diploma Examination for the Royal College of Obstetricians and Gynaecologists. He has a long standing interest in substance misuse and in 2003 obtained the Royal College of Practitioner’s Certificate (RGCPC) in the Management of Drug Misuse.

He was born in Germany 1964 and is a Christian of Catholic denomination. After moving to Leigh near Manchester in 1999 he became involved with the Maranatha community, which in his first witness statement he described as a dispersed community of men and women from all churches including Catholic, Protestant and Orthodox Christians. He stated that its work has been endorsed by a number of senior Church leaders of different denominations and by politicians from both Houses of Parliament.

Dr Raabe became involved in a Christian homeless charity in Manchester and said that he was very disturbed to see the grave toll which drug and alcohol addiction took on so many homeless people.

Dr Raabe said that in 2001 during an ongoing debate within the UK government to reclassify cannabis from a Class B to a Class C drug he became very concerned about the possible downgrading of cannabis. In association with the Maranatha community he organised a number of parliamentary consultations on drugs and drug policies in both Houses of Parliament and had been invited to speak in Parliament on drugs on drug misuse issues on a number of occasions. In conjunction with the Maranatha community he also started writing submissions to government and Parliamentary Select Committees on drugs and drug-related issues.

In 2005 whilst living in Toronto Dr Raabe co-authored the 2005 Paper. In his witness statement Dr Raabe stated that the main focus of the Paper was to preserve traditional marriage. He said that it was written because at that time in Canada there was an ongoing political debate to re-define marriage. That redefinition he said would involve a compete redefinition of traditional marriage. Because he considered traditional marriage as the basic building block of society he said that he was concerned about the impact on society in general and on families and children in particular should marriage be re-defined. In his view traditional marriage has been the predominant societal form for bringing up children for many centuries and throughout many including non-Christian societies. To redefine marriage therefore would lead to a serious change in the social fabric of society and to disregard the experiences of many societies throughout the world throughout time. He said that that was the starting point of the Paper and asserted that a significant proportion of it focussed on the benefits of traditional marriage and the adverse societal effects of family and marriage breakdown, especially on children.

Dr Raabe stated that the Paper was essentially a summary of peer-reviewed studies on various issues connected to the main topic of “gay marriage” and traditional marriage. In addition a number of, homosexual writers were quoted. He stated that all of the evidence quoted in the Paper had been in the public domain for many years. The Paper itself had been in the public domain since 2005. He had never published it himself but others had published it on various websites. It was sent by a Canadian women’s rights organisation called Real Women of Canada, an organisation which I was told at the hearing was in favour of preserving the status quo, to Canadian MPs who were debating a Bill in 2005 to change the definition of marriage and legalise same-sex marriage.

Dr Raabe said in his witness statement that his views had not affected his advice or the treatment which he had given anyone regardless of their practice or views.

The Paper was headed ‘Gay Marriage’ and Homosexuality – Some medical comments. There were seven co-authors including Dr Raabe. The other six were respectively a radiologist, a cardiologist, a paediatric neurologist, a family physician, a neurologist and a dermatologist.

The Paper was four pages long. It comprised the following seven headings: Background, Health risks of the Homosexual lifestyle, Homosexuality and paedophilia, ‘Gay marriage’, Biological evidence regarding gender development, Benefits of traditional marriage and Adverse effects of family breakdown. The format of the Paper was the making of a number of statements under each heading followed in each case by a series of bullet points apparently designed to support the statements. Some of them quoted sources, others made further statements and others expressed opinions. A number of statements or passages were highlighted in bold for emphasis.

In the Background section it was stated that despite the impression given by the media the actual number of homosexuals is quite small. “Essentially all surveys show the number of homosexuals to be only 1 – 3% of the population…The pressure for introducing same-sex marriages comes from a very small section of society”.

Under the heading “Health Risks of Homosexual Lifestyle” the Paper stated:

There were four sub-points under the heading “Health Risks of the Homosexual Lifestyle as follows:

Among homosexuals, highly risky sexual practices such as anal sex are very common.

Homosexuals have very high rates of sexually transmitted infections such as HIV which pose a major burden to the health service.

There are increased rates of mental ill health among the homosexual population compared to the general population. Many studies show much higher rates of psychiatric illness, such as depression, suicide attempts and drug abuse among homosexuals than among the general population. The homosexual lifestyle is associated with a shortened life expectancy of up to 20 years.”

Under A there were five bullet points, each of which referred to a source but some of which were couched in language asserting a proposition of universal application, rather than summarising the findings of the particular study or source cited. Thus for example, having referred to a study of homosexual men said to show that more than 75% of homosexual men admitted to having sex with more than 100 different males in their lifetime, the second bullet point stated:

The first sentence purported to be a general statement which on its face was not proved and did not follow from the third sentence which was presumably based on the cited source.

The third bullet point asserted that “Far higher rates of promiscuity are observed even within “committed” gay relationships than in heterosexual marriage”. However although two studies were cited, one showing that gay men have an average of 8 partners a year outside of their supposedly “committed” relationships and the other that gay men have sex with someone other than their primary partner in 66% of relationships within the first year, no sources or figures were quoted to show comparable figures in relation to promiscuity within heterosexual marriage. The fourth bullet point cited an online survey among nearly 8,000 homosexuals showing that 71% same-sex relationships lasted less than 8 years. No comparable figures were given for heterosexual relationships.

The fifth bullet point was in these terms:

This latter point, although quoting a source, was not based on a scientific or statistical study or analysis. Rather it expressed an opinion and extrapolated from a single source what purported to be a general historical fact based on what was described as an admission by “gay authors” as to the basis on which “gay liberation was founded”.

Under B the first bullet point asserted a general statement of fact as follows:

The source quoted for this proposition was a study of “Increasing Prevalence of Male Homosexual Partnerships and Practices in Britain 1990 – 2000. AIDS. 2004: 18: 1453-8.” Thus the findings of a geographically and chronologically confined study were cited in support of a factual assertion of apparently universal application.

The final bullet point made the point that while “always” condom use reduces the risk of contracting HIV by about 85% condoms even when used 100% of the time fail to give adequate levels of protection against many non-HIV STDs and that “the only safe sex is, apart from abstinence, mutual monogamy with an uninfected partner.” This point did not distinguish between homosexual and heterosexual practice but was cited as a point in support of the general bullet point that among homosexuals highly risky sexual practices such as anal sex is very common.

Under D the third and fourth bullet points were as follows:

I observe that no source was made for the latter proposition, which was couched in general terms. I also observe that both points give the impression of being deployed as arguments in support of an objection in principle to same-sex marriage on the basis that for a variety of reasons it is undesirable.

The bullet points under the heading “Homosexuality and Paedophilia” were as follows:

One well known historic example on the link between homosexuality and paedophilia is found in ancient Greece. Greek mythology is saturated with stories of paedophilia and ancient Greek literature praises paedophilia. The age group of boys that were used for “sexual pleasure” was probably in the range of 12 – 17. Male prostitution was very common with brothels in which boys and young men were available. There is evidence of an extensive trade in boys. (Churchill W. Homosexual Behaviour among Males. Hawthorn. New York. 1967)

There are links between paedophilia and homosexuality. The political scientist Prof. Mirkin wrote in a paper that: “ paedophile organisations were originally a part of the gay/lesbian coalition… ”. (Mirkin H. The pattern of sexual politics: Feminism, homosexuality and paedophilia. Journal of Homosexuality 1999: 37:1 – 24.). There is an overlap between the “gay movement” and the movement to make paedophiliaacceptable through organisations such as the North American Man/Boy Love Association (NAMBLA), as admitted by David Thorstad, Co-founder of NAMBLA writing in the Journal of Homosexuality. (Thorstad D. Man/Boy Love and the American Gay Movement. Journal of Homosexuality. 1990; 20: 251 – 74).

The number of homosexuals in essentially all surveys is less than 3%. (Statistics Canada found only 1% of the population who described themselves as homosexuals.) However, the percentage of homosexuals among paedophiles is 25%. (Blanchard R et al. Fraternal Birth order and sexual orientation in paedophiles. Archives of Sexual Behaviour 2000; 29: 463-78). Therefore, the prevalence of paedophiliaamong homosexuals is about 10 – 25 times higher than one would expect if the proportion of paedophiles were evenly distributed within the (hetero – and homosexual) populations.”

I comment on this section of the Paper below.

Under the heading “Gay Marriage” there were the following bullet points:

In a review of all the studies that purport to find no difference between children raised in families by same-sex parents and parents of different sex, major methodological flaws have been noted. For example, the studies have very small sample sizes, biased sample selection, or lack of control groups. (P. Morgan, Children as Trophies? Christian Institute. Newcastle upon Tyne, 2002).

Despite the limitations of the studies of same-sex parenting some differences are found. Children raised in same-sex parents are more likely to become sexually promiscuous and are more likely to become homosexual themselves. (Riggs SC. Co-parent or Second Parent Adoption by Same-sex Parents. (Letter) Paediatrics 2002; 109: 1193 – 4).

However, the main concern remains the inherent instability of same-sex marriages. In the above mentioned Dutch survey, the average length of a “committed” homosexual partnership was only 1.5 years. In the mentioned survey of nearly 8,000 gays 71% of relationships did not last a year. Furthermore, violence amongst homosexual partnerships is two to three times as common as in heterosexual relationships. Such an environment does not provide the stability required for raising children. Former homosexual Stephen Bennett who is married to his wife and has two children states: “ Granting homosexuals the right to marry or adopt children is deliberately creating dysfunctional families.” ”

Under the heading “Biological Evidence Regarding Gender Development” the following bullet points were made:

A recent review by authors sympathetic to the gay movement shows clearly that homosexual development cannot be only determined by genes. Evidence from biology shows clearly that gays are not simply born that way. Environmental influences play a significant role in the development of gender identity and sexual behaviour (Bailey JM. Biological Perspectives on Sexual Orientation. In: Garnets LD and Kimmell DC: Psychological Perspectives on Lesbian, Gay and Bi-sexual Experiences. Columbia University Press, New York. 2003).

There is no convincing evidence for a “gay gene”. Indeed, if there were a “gay gene” those who carry it would probably be at a disadvantage in the natural selection process of evolution: “ If there was a gene” this gene would cause a significant problem : homosexuality is associated with low fertility, indeed if a homosexual has only sex with same-sex persons he will have no offspring. (Bailey JM. Biological Perspectives on Sexual Orientation. 2003)

One way of finding out whether a condition is genetically determined is to examine the behaviour of identical twins (who have the same genetic material) and comparing them with non-identical twins. It is assumed, that twins grow up in the same environment. There have been several studies investigating whether the identical twin brothers of homosexual men are also homosexual. Concordance (both identical twins being homosexual) was found in only 25 – 50% of identical twin pairs. “Genes” therefore cannot entirely explain homosexual orientation and behaviour. (Pillard RC and Weinrich JD. Evidence of Familial nature of male homosexuality. Archive of General Psychiatry. 1986: 42; 808 – 12. King and McDonald E. Homosexuals who are Twins. A study of 46 probands. British Journal of Psychiatry. 1992; 160: 407 – 9).

Recently, a study was published by Professor Spitzer, a prominent psychiatrist. He is viewed as a historic champion of gay activism by playing a key role in removing homosexuality from the psychiatric manual of mental disorders in 1973. In his study he examined whether a predominantly homosexual orientation will, in some individuals, respond to therapy. He examined two hundred respondents of both genders who reported changes from homosexual to heterosexual orientations lasting five years or more. He writes: “ Although initially sceptical, in the course of the study, the author became convinced of the possibility of change in some gay men and lesbians .” Although examples of “complete” change in orientation were not common, the majority of participants did report change from a predominantly or exclusively homosexual orientation before therapy to a predominantly or exclusively heterosexual orientation in the past year as a result of reparative therapy. These results would seem to contradict position statements of the major mental health organisations in the United States, which claim there is no scientific basis for believing psychotherapy effective in addressing same-sex attractions. (Spitzer RL. Can some gay men and lesbians change their sexual orientation? 200 participants reporting a change from homosexual to heterosexual orientation. Arch Sex Behav 2003; 32: 403 – 17; discussion 419 – 72. – further evidence see www.narth.com.).”

Under the heading “Benefits of Traditional Marriage” the following bullet points were made:

In reviews by Professor Oswald, Professor of Economics at Warwick University, UK it was found that marriage reduces mortality. The excess mortality of men who are not married is similar to the excess mortality by smoking. Marriage has a much more important effect on longevity than income does. For men, the effect is positive and substantial. It almost exactly offsets the large (negative) consequences of smoking. For women, the effect is approximately half the size of the smoking effect.

Marriage is associated with greater happiness, less depression, less alcohol abuse and less smoking. Marriage gives a beneficial effect in terms of reducing alcohol abuse especially for men and reducing depression for both men and women.

Health benefits of marriage appear to be limited to marriage. Co-habitation does not confer the same degree of benefit than marriage. Formal marriage itself seems to matter. In the few studies that compare marriage and co-habitation, the result end to show a beneficial effect from being married. (Gardner J, Oswald A, Is It Money or Marriage that Keeps People Alive?) August 2002. Wilson CM and Oswald AJ: How Does Marriage Affect Physical and Psychological Health? A Survey of the Longitudinal Evidence (January 2002: both papers available on Prof Oswald’s website – see “further reading”.”

I observe that this section of the Paper was silent on the question of what if any evidence existed or what if any inferences could be drawn as to the equivalent benefits or lack thereof of homosexual marriage.

Under the heading “Adverse Effects of Family Breakdown” the following bullet-points were made:

At the root of many of the problems we see in children and young adults – such as emotional and behavioural difficulties, poor school performance, substance misuse, precocious teenage sexuality including teenage pregnancy and juvenile delinquency – is the dramatic increase in family break-up and “relationship turnover” of parents, adversely affecting their children (for an overview see: Rebecca O’Neill. Experiments in living. CIVITAS. 2002)

As a result of family breakdown, children have on average more ill-health including higher mortality, emotional problems (including a higher suicide rate).

Children from broken families have poorer school performance including poorer performance in maths, reading and writing.

Children from broken families are more likely to live in poverty. As a result of family breakdown, many single parent families live in poverty.

Children from broken families are also more likely to have problems with substance misuse and poor sexual health including teenage pregnancy.

Furthermore, children from broken homes are more likely to be engaging in criminal activity and are disproportionally over-represented in the prison population.

In a study of more than 170 US cities, a clear link between divorce rate and crime was found. Low rates of divorce were associated with reduced crime rates. (Sampson RJ, Crime in Capital Cities. Tonry and Morris Eds, Crime and Justice Chicago 1992)”

The 2005 Paper concluded with a section headed Further reading listing the following:

Dr Raabe was invited to become a member of the ACMD by Mr Brokenshire in a letter dated 10 January 2011. The letter said that the appointment would be for three years in the first instance commencing 1 January 2011 and ending 31 December 2013 unless terminated before that date for any reason. Dr Raabe accepted the invitation by letter dated 12 January 2011.

The Home Office issued a press release on 19 January 2011 announcing the appointment of a new chairperson and nine new members including Dr Raabe to the ACMD. It stated in notes to editors that:

On 20 January 2011 Dr Raabe’s appointment attracted comment in the media. Mark Easton, the BBC’s home editor posted a blog on the BBC news website under the headline “Another ACMD member threatens to quit”. He said that he understood that at least one member of the ACMD was so incensed by the appointment of Dr Raabe that he was considering resigning. The Home Office, which prompted seven resignations when it sacked ACMD Chair Professor David Nutt, might find itself facing yet more as it tried to replace those who had gone.

Mr Easton referred to the fact that Dr Raabe had long argued that the ACMD had been dominated by “groups and organisations that promote “liberal” drug policy or may even support the legalisation of drugs”. However he said that it was less Dr Raabe’s views on narcotics and more his opinions on homosexuality that were causing fury. He said that in 2009 Dr Raabe had stood as MEP candidate in the North West region for the Christian Party/Christian Peoples Alliance Party and was a leading light in what he described as the Manchester-based Maranatha Community which was dedicated to “re-establishing Christian values in society”. He said that it was an organisation with very strong anti-gay views and had briefed MPs against measures for homosexual rights. He said that one member of the ACMD had told him that afternoon: “The Council prides itself on basing its views on evidence. This man put his name to documents which included very questionable views … his appointment makes me extremely uncomfortable.”

Mr Easton quoted from a pamphlet which he said Dr Raabe had helped to write a few years earlier in which the Maranatha Community warned that drug problems were part of “a morally self-destructive society”. He said that the views of the Maranatha Community could lead to some frosty moments inside the ACMD committee room. Existing members were avowed “harm-reductionists” and regarded Dr Raabe’s appointment as provocative. However he said that he was informed that more than one member of the committee was gay or lesbian and it was Dr Raabe’s views on homosexuality which might lead to an ACMD member quitting.

Dr Williams said that after Dr Raabe’s appointment had been agreed by the selection panel he, as Chair of the panel, received the political activity declarations from the Home Office science recruitment team so as to inform Ministers. In accordance with OCPA Code of Practice they were held separately from the applications and had not been seen by the interview panel. Due to the contents of Dr Raabe’s declaration form in which he disclosed that he had previously stood for election for the Christian Party/Christian Peoples Alliance Party in European elections an internet search on his political activities was undertaken to inform ministers. It identified web pages relating to his activities for the Christian Party/Christian Peoples Alliance Party and evidence provided to a parliamentary committee on abortions. However it had not revealed the 2005 Paper or the views expressed within it. The advice on appointments to the ACMD provided to Ministers on 16 December 2010 had included Dr Raabe’s declared political activity.

On 20 January 2011 Dr Williams said that Dr Raabe contacted him to alert him to the fact that the Times newspaper had been in contact with him regarding his association with the Maranatha Community. On the same afternoon the Home Office had been alerted via the Press for the first time to Dr Raabe’s authorship of the 2005 Paper. At that point for the first time the existence of the Paper on the website of the Catholic Education Resource Center was established and a copy downloaded.

Dr Williams said that he contacted Dr Raabe by telephone later that day to notify him of the increasing media coverage. He said that Dr Raabe informed him at that stage that he did not consider his views on homosexuality relevant to drug misuse.

Dr Williams said that he provided an urgent briefing to Ministers regarding the 2005 Paper by email late on 20 January 2011. The email was marked for the attention of the Defendant and copied among others to Mr Brokenshire. It said that Dr Raabe’s appointment had “caused some controversy in the media … as he has been linked with at least one religious group (Maranatha Community) that are associated with strong opinions about homosexuality.” It was said that it had been reported in the press that one member of the ACMD was threatening to resign over the appointment. It was said that Dr Raabe’s opinions were not known at the time of his appointment. He had declared activity for the Christian Party/Christian Peoples Alliance Party. Along with other interviewees Dr Raabe had been asked in accordance with OCPA guidelines if there was anything in his personal history which could if brought into the public domain bring the Council into disrepute and he had advised that there was not, over and above his political activity. In the email Dr Williams said that he had spoken to Dr Raabe, who was currently in Germany and that he had indicated that he considered his views not relevant to drug misuse and that when on the Council he would only speak on issues relating to drug misuse.

Dr Williams proposed to ask Professor Les Iversen to canvass the opinion of ACMD members to see if Dr Raabe’s appointment was likely to disrupt the smooth running of the ACMD and its ability to provide advice and also to gather further information about Dr Raabe’s views in order to make a fuller assessment of them and their compatibility with the role of ACMD. That approach was said to be informed by the consideration that there was no clear breach of the appointment process and that there did not appear to be a clear basis to demonstrate that Dr Raabe had breached the Nolan Principles which govern the behaviour of advisory committee members. Therefore removing Dr Raabe from the ACMD without evidence that his appointment would adversely affect the function of the Council was highly problematic.

On 21 January 2011 in an internal Home Office email Mr Brokenshire’s Assistant Private Secretary stated that her Minister had made the following comments regarding the advice that Dr Williams had provided the previous evening:

This was followed also on 21 January 2011 by a formal submission to Mr Brokenshire, the Minister for Crime Prevention and the Defendant. The submission was from Professor Bernard Silverman, Chief Scientific Advisor. The issue was described as follows:

The timing was said to be urgent and in a section headed “Summary and Consideration” reference was made to the fact that Dr Raabe had been judged by the appointment committee to be the only appointable candidate in the statutory category as a member with wide and recent expertise in the practice of medicine. Reference was made to Mr Easton’s blog concerning Dr Raabe’s connections with the Maranatha Community which was described as a religious group associated with strong opinions on homosexuality and to the report in the blog that one member of the ACMD was considering resignation over his appointment. Reference was made to Dr Raabe’s disclosure of his candidacy for MEP in the North West region for the Christian Party/Christian Peoples Alliance Party both in his application and at interview. It was said that Dr Raabe’s opinions on homosexuality were not known at the time of his appointment. The 2005 Paper was described as fairly obscure and as not having been found on a Google search carried out in the light of his declared political activity by the Chair of the interview panel.

The submission attached as an annex the 2005 Paper published on-line by the Catholic Education Resource Center with an associated note to the reader stating that the article sought to further understanding and not to expose gays and lesbians to hatred or intolerance. That note did not appear in what appeared to be the original version of the 2005 Paper exhibited by Dr Raabe.

The contents of the 2005 Paper were summarised as follows:

Professor Silverman wrote that at interview all candidates were asked if there was anything in their past which, if brought into the public domain, would cause embarrassment to the ACMD or the Home Office. Dr Raabe had stated that there was not, only referring to his political activity which had already been declared. He had not disclosed his authorship of the article described or any association with the views contained therein. Reference was made to the conversation between Dr Williams and Dr Raabe on 20 January 2011 in which Dr Raabe had indicated that he considered that any views he might have on homosexuality were not relevant to drug misuse and that when on the ACMD he would only speak on issues relating to drug misuse.

Professor Silverman identified two options: immediate dismissal and “actively investigate and consult further, in particular allowing Dr Raabe to make his own representations, with further advice to follow to enable you to make a decision by 31^st January.” He identified arguments for and against both options.

For immediate dismissal it was said that the assessment of officials was that there were very strong grounds for saying that Dr Raabe’s co-authorship of the 2005 Paper was wrongly not disclosed by Dr Raabe at his interview. The Department could reasonably take the view that the appointment was not based on material facts and it should properly be terminated.

Against immediate dismissal there was a risk of legal challenge. Dr Raabe had not been approached to confirm whether he continued to endorse the content of the 2005 article. It could be expected that he at least be asked whether he endorsed the comments published and attributed to him. Next any immediate decision without consulting the ACMD could provoke a negative reaction from its members or others. Next there was a strong public movement which believed that the views of certain Christian groups were being unfairly marginalised and that could lead to negative media attention and could also be taken by those groups as a cause célèbre or even evidence of religious discrimination. Finally Dr Raabe held a statutory position within the ACMD. His instant dismissal without immediate replacement could mean that it could be regarded as not being properly constituted.

As to the second option the arguments identified in favour were that it provided Dr Raabe with an opportunity to clarify his position and allowed time for consultation with OCPA and the Cabinet Office Propriety and Ethics Team. It also allowed, if the Minister agreed consultation with the ACMD itself to establish if they were content to work with Dr Raabe giving him an opportunity to put his case to the Department that he could be a functioning member of the Council. The effective functioning of the ACMD could be considered to be implicit in the exercise of the Defendant’s duty under the 1971 Act and consultation with the ACMD on the issue was in line with the way that Government and the ACMD intended to work together under the protocols currently in draft.

The Department through the recruitment process had satisfied itself that Dr Raabe had the required expertise to fulfil the position and went through a competitive process of selections.

Against the second option it was said that it might appear that the Ministers were absolving themselves of the responsibility of making a ministerial appointment. In addition it should not be for the ACMD to make decisions on appointments to the ACMD. That responsibility was held by the Defendant. In addition the second option did not deal immediately with the issue that Dr Raabe held the views described, especially in the context of the Defendant’s position as Minister for Equality.

Professor Silverman recommended the second option. There should be further active investigation and consultation by officials with the expectation that the Minister would be provided with further advice within a week. In addition he recommended that the Minister should agree to officials consulting appropriately with the ACMD through its Chair.

There then followed a lengthy section of the submission under the heading “Handling”. Reference was made to an article in the Times and Mr Easton’s blog and it was stated that the claim of the media coverage was that Dr Raabe’s views on homosexuality and his membership of the Maranatha Community were incompatible with his appointment to the ACMD. It was stated that the media could potentially push “us” to take one of three decisions in coming days – to dismiss Dr Raabe immediately, to suspend him pending further enquiries or to keep him in post and take the view that his personal opinions were a private matter and did not affect his ability to give advice on drug misuse. It was said that any action taken would be scrutinised and questioned by the media and as such it would be important to demonstrate due process.

It was said that an immediate dismissal could appear reactionary. A considered approach where clarification from Dr Raabe was invited and there was consultation within ACMD would be preferable and would help to build a strong narrative “when we come to explain our actions publicly”. Should the outcome of enquiries result in Dr Raabe’s dismissal it was likely to provoke familiar debate around traditional values verses the liberal elite. Elements of the media could represent it as a further attack on Christian values but the severity of the publications to which Dr Raabe had put his name including linking homosexuality with paedophilia would mitigate that point.

It was said that if Dr Raabe were to remain in post his views on a range of other issues were likely to be reported on. In addition to the 2005 Paper it was said that another publication to which he was believed to be linked could attract attention. It was a leaflet entitled “The State of The Nation” which had been attributed to Dr Raabe by Mark Easton in his blog. The content was said to describe the UK as morally and socially bankrupt and to include the phrase “the holocaust of abortion”. It was said that leaving Dr Raabe in post could precipitate actions by ACMD members unhappy about his continuing presence on the committee and consequently negative commentary in the press. Reference was made to Mr Easton’s claim that a member of the ACMD was considering stepping down as a result of Dr Raabe’s appointment. It was said that the question might therefore be raised about whether the ACMD could continue to function should he remain in post and were no action to be taken.

While the link had yet to be made by the media it was said that the fact that Dr Raabe was appointed by the Defendant could anger equality groups given her dual role as Equalities Minister. Such groups could seek to generate further publicity in an effort to get Dr Raabe removed from the Council. It was worth noting that that followed the Home Office recently being named by Stonewall as top employee for gay people in the UK.

It was said that the Press Office recommended that, given that no decision was likely to be taken until the following week, the following holding line should be used over the weekend in the event of any media calls: “A Home Office spokesperson said: ‘We are currently looking into this matter’”. In offering that brief line it was said that “‘we’ are attempting neither to indicate one preferred course of action over another” but that “‘we’ are actively engaged in discussions on this matter.”

On 23 January 2011 there were two internal emails in the Home Office. The first noted that Dr Raabe was the only appointable GP on the basis of expertise as a GP. The second responded by stating that there were only two candidates for the statutory place for a GP and that it was understood that on the basis of the expertise and experience of the candidates Dr Raabe was the only candidate found suitable at interview.

Also on 23 January 2011 there was further media coverage in the form of an article in the Observer containing quotes from Dr Raabe. Late on 23 January 2011 Dr Raabe emailed Dr Williams expressing concern over media comment and stating “I realise that you’re having a potentially serious public relations problem here and I am sorry that it has come to this situation.” He said that he would write to Professor Iversen to clarify the position and to “apologise for the distress caused”.

On 24 January 2011 there was a further written submission to the Defendant and Mr Brokenshire. Two versions appeared in the papers, one of which may have been a draft. One version repeated the statement that media reports had brought to light Dr Raabe’s involvement with a publication on homosexuality which contained views inconsistent with those of the Government. It recorded that following the 21 January submission the Ministers had asked for further advice on the immediate termination of Dr Raabe’s appointment. It was reported that Dr Raabe had indicated that he considered any views he might have on homosexuality not relevant to drug misuse and that when on the Council he would only speak on issues relating to drug misuse. Reference was made to an email from Dr Raabe to the Department stating that “quite a few of the very negative press comments I really don’t recognise in that things are being attributed to me that I never said or wrote” and that “some of the “evidence” … is based on documents that were written several years ago, some even five or one I am sure more than ten years ago”. It was reported that Dr Raabe had requested that he speak with officials that day.

It was stated that Dr Raabe held a statutory position within the ACMD and that if he were dismissed since there was no other appointable candidate with such expertise a further recruitment process would need to take place.

It was recommended that if Ministers decided immediately to terminate Dr Raabe’s appointment they consider the handling approach which followed.

In a section headed “Handling” reference was made to coverage in the Daily Mail and the Observer, the former welcoming Dr Raabe’s appointment and suggesting that his supportive family values and hard line on drugs would benefit the ACMD, the latter reporting Dr Raabe’s views on homosexuality and saying that his appointment had been met by surprise from the drugs sector.

It was then said that if Ministers moved to dismiss Dr Raabe without consultation with the ACMD there was a risk of media reporting it as the government interfering with the Council, calling into question its independence. It continued:

It is not clear to me whether the version of the 24 January 2011 submission which contained this passage was a draft or the final version. I am bound to say that on its face I found this a troubling passage. On one reading it might be taken as suggesting that consideration should be given to dressing up any decision on the part of ministers to dismiss Dr Raabe as having been prompted by a request from the ACMD which in fact itself would have been solicited by the Department. Whether or not that is the correct reading of the passage, nothing turns on it because in the event it did not lead to any action. The ACMD did not call on ministers to dismiss Dr Raabe and there is no evidence that ministers or officials sought to persuade them to do so.

There was a repetition of the point previously made that any decision to remove Dr Raabe was likely to provoke a familiar debate around traditional values verses the liberal elite. Elements of the media could represent it as a further attack on Christian values, possibly criticising the Government for “policing” people’s private views. However the severity of the publications he had put his name to, which included linking homosexuality with paedophilia, would mitigate that point. In addition given the coverage in that day’s Daily Mail, it would also be said that the ACMD were unhappy with a “hardliner” being on the Council.

It was said that should Ministers decide to dismiss Dr Raabe immediately it would be helpful to find out, ahead of any decision, if reports by Mr Easton the previous week that another member of the ACMD was planning to step down as a result of Dr Raabe’s appointment were correct. Should a member threaten to step down “we” could also argue that Dr Raabe’s presence on the Council meant that they were unable to do their job effectively.

It was said that leaving Dr Raabe in post could precipitate actions by the ACMD’s members unhappy about his continuing presence on the committee and consequent negative commentary in the press. Reference was again made to Mr Easton’s claim that a member of the ACMD was considering stepping down as a result of Dr Raabe’s appointment. The question might therefore be raised whether the ACMD could continue to function should Dr Raabe remain in post and no action was taken.

Dr Williams stated in his witness statement that further advice was provided to Mr Brokenshire on 24 January 2011 in which the option of revoking Dr Raabe’s appointment due to his non-disclosure of the 2005 Paper was raised. He said that that advice was discussed at a meeting between officials and the Minister during which the Minister made it clear that a full and proper process should take place and that Dr Raabe should have the opportunity to state his case and for the facts of the case to be firmly established. The Minister requested that a telephone conversation take place between Dr Raabe, Dr Williams and Professor Silverman, the purpose of which was to confirm that Dr Raabe had co-authored the 2005 Paper, to understand his current position and to establish whether he still held the views expressed in the Paper.

Later that day Dr Williams said that he contacted Dr Raabe in accordance with the Minister’s wishes. He said that during the conversation Dr Raabe confirmed that he was co-author of the 2005 Paper. He said that he did not retract any of the statements made in the Paper but said that he thought that “the tone was in retrospect, a bit harsh” and that he acknowledged that “certain people would find themselves attacked by it.” He said that Dr Raabe also said that he “struggled” to see what this issue had to do with drugs policy. He said that a summary of the telephone conversation and a transcript was provided to Ministers for consideration.

The transcript of the conversation between Dr Williams, Professor Silverman and Dr Raabe contained the following passages:

In a supplemental witness statement dated 10 June 2011 Dr Raabe said that the transcript was incomplete. He said that he was asked whether he would retract the 2005 Paper and said that he said that he could not retract scientific evidence or statements made by others that were quoted in the Paper. He denied having been asked if he would distance himself from the statements or views expressed in the 2005 Paper.

He said that he said in the conversation that the Paper was “a bit harsh” or “could be seen as offensive” because he was aware that some would view the Paper in that way. He said that he said that in order to show that he fully understood that it was a controversial subject (albeit on an unrelated topic to the work of the ACMD) and to reassure the Home Office that it would not affect his judgment when dealing with drug related issues relating to the homosexual community and his sincere willingness to cooperate with the ACMD.

On 24 January 2011 a written submission was sent to the Defendant and Mr Brokenshire reporting on Dr Williams’ telephone conversation with Dr Raabe. Under the heading “Summary and Consideration” the following was stated:

The recommendation in the submission was that the ministers should note the summary of the conversation and if they chose to terminate the appointment or to forewarn Dr. Raabe of their intention of giving him a chance to put his case a handling advice would be prepared in line with that provided in the earlier submission.

On 25 January 2011 Dr. Raabe wrote a long e-mail headed “In Confidence” to Dr. Williams to clarify certain points arising out of their telephone conversation. He said that at his interview he was genuinely not aware of anything that would cause embarrassment to the Home Office regarding his appointment as advisor on drugs. He said that what now appeared to cause “embarrassment” were his personal beliefs and views which were essentially orthodox views held by the traditional Christian teaching of all the major Churches as it would be held by Jews or Muslims who have “orthodox” views of their faith. He said that if Christian views were not acceptable to the Home Office or if those views caused embarrassment that started being dangerous ground in that the Home Office position could be perceived as discriminating on the basis of belief.

He said that drug policy had nothing to do with views on homosexuality as it applies to all people equally irrespective of race, religion, beliefs and sexual orientation. If drugs policy had something to do with homosexuality “you need to ask the other ACMD members of their views on this subject too – would you agree? The reason I am writing this – and forgive me if I am being paranoid here – is that, reading between the lines, you/the Home Office are examining whether there is any way in which you can annul my appointment. If I am completely wrong in this and am being paranoid please forgive me. However it would be good to have reassurance that I am wrong in my impression. ……I have been working as a doctor for 18 years and have never had any complaints or concerns expressed towards me that I would be discriminating against gay or transsexual patients. Indeed I would say that I always treat gay or transsexual people with special respect. I would do exactly the same on the ACMD. …….my views regarding homosexuality are based mostly on reading “gay writers”. It was “gay authors” who first acknowledged (and I could provide you with many citations from “gay authors”) the link between the “gay movement” and the movement to further paedophilia. If now – so it appears – gay people are offended by what other gay people have written about the “gay movement” then I respectfully suggest that this is not really my problem.

I however accept that to mention this link in a paper regarding “gay marriage” in Canada was probably not helpful in this context and I could offer to say that I would, if I could turn the clock back and were to be involved in a similar publication in a similar context (please remember this was a political context discussing proposed legislation to legalise same sex marriage in Canada in early 2005) that I would not mention this particular issue. …..”

Also on 25 January 2011 Dr. Williams said that following consideration of the summary and transcript of the telephone conversation provided to him Mr. Brokenshire requested that a letter to Dr. Raabe be prepared allowing him to have a further and full opportunity to make representations regarding his position. He said that it was agreed that the letter should come from someone not involved in Dr. Raabe’s recruitment or in communications until that point to ensure that the seriousness of the communication was clear to Dr. Raabe. Accordingly Mr. Alan Pratt, the Director of Science, Engineering and Technology of Home Office Science was identified as the appropriate individual.

A draft letter to Dr. Raabe was sent to the minister for clearance. The letter was attached to a written submission from Dr. Williams dated 26 January 2011. It repeated for the third time under the heading “Issue” that media reports had brought to light Dr. Raabe’s involvement with a publication on homosexuality that contained views inconsistent with those of the Government. Dr. Williams recorded that following the submission of Professor Silverman on 24 January and the discussion regarding the telephone conversation with Dr. Raabe Mr. Brokenshire had asked for a letter to be sent from the Department asking Dr. Raabe formally to communicate his views on the issues raised following his appointment.

Dr. Williams highlighted that the draft letter stated that because of Dr. Raabe’s failure to declare the 2005 Paper and because of its contents the Home Office was minded to reconsider his appointment to the ACMD and asked if he would like to comment in response. The letter also asked if, in light of the position and embarrassment caused to date, Dr. Raabe wished to inform the Department if there was anything else that could cause embarrassment that he would wish the Department to take into account.

Dr. Williams recorded that it had been agreed that Mr. Pratt would sign the letter. He had not previously been in contact with Dr. Raabe during the recruitment process or subsequently and did not ordinarily work with the ACMD and therefore should Dr. Raabe remain on the ACMD it would not adversely affect working relationships. It also signalled an escalation of the issues.

Dr. Williams said that by sending the letter it allowed for due process should Dr. Raabe be dismissed from the ACMD. He said that the letter gave Dr. Raabe until Tuesday 1 February 2011 to reply. He said that was slightly less than a week which would be ideal but should allow for an assessment of his response and a decision to be made and communicated before the Minister met the ACMD on 7 February.

Dr. Williams said that there was a risk that Dr. Raabe would put the letter in the public domain before responding to it. However he said that it took care to specify the grounds that Dr. Raabe was being questioned on and did not bring into question his professional competence.

Under the heading “Handling” Dr. Williams reported that the issue continued to generate coverage which had been broadly speaking critical of Dr. Raabe’s appointment pointing out that it was incompatible given the Home Secretary’s equality brief. However he had received some support specifically from the Daily Mail who had welcomed the appointment of someone with traditional Christian beliefs onto the ACMD. It was worth noting that Dr. Raabe appeared to have provided a quote to a right wing American news website stating that his views on homosexuality were irrelevant and that the ACMD was in danger of believing that “if you are a Christian you are unfit for public office.”

As in a previous submission there was reference to the likelihood that any decision to remove Dr. Raabe would provoke further debate around traditional values versus the liberal elite. Should the Minister decide to dismiss Dr. Raabe Dr. Williams said that “we will need to be clear he failed to disclose information in his interview that could bring the Government or the Council into disrepute. Conversely should he remain in post “we can expect considerable criticism from the gay lobby and left wing media for employing someone with such extreme views as an official advisor to the Government”.

In his witness statement Dr. Williams said that on 27 January 2011 the Minister agreed to the letter being sent but asked for the deadline to be put back a day from that which had been proposed to ensure that Dr. Raabe had as long as possible to consider and present his case. It was agreed to give him six days to respond. The letter was accordingly sent to Dr. Raabe at 9.49 a.m. by e-mail and followed by a hard copy on 27 January 2011.

The letter, signed by Mr. Pratt sought further information relating to Dr. Raabe’s appointment to the ACMD. It referred to the fact that since Dr. Raabe’s appointment it had, as he was aware, been brought to wide public attention that, as he had acknowledged in his telephone conversation with Dr. Williams on 24 January, he co-authored the 2005 Paper. It said that the Paper expressed controversial opinions, inter alia around the issue of homosexuality and paedophilia and its emergence into public prominence had caused embarrassment to the Department.

The letter referred to the fact that in interview Dr. Raabe in common with all other candidates had been asked whether there was anything about his professional or personal history which might cause embarrassment or disrepute to the Home Office or ACMD. It said that he did not declare his authorship of the 2005 Paper nor was it listed on his curriculum vitae submitted in his application.

The letter continued:

Dr. Raabe replied to Mr. Pratt in a letter dated 2 February 2011. He started by stating that there was no suggestion that any disrepute to the Home Office had been caused. The issue therefore was whether he made proper disclosure of matters in his professional and personal history and whether the Home Office had justifiable cause to revoke his appointment to the ACMD.

Dr. Raabe said that he had not referred to the 2005 Paper in his curriculum vitae or at interview for 4 reasons:

it had no relevance to matters which fell within the remit of the ACMD;

whilst some might not be prepared to accept the factual evidence cited in the Paper that did not make it wrong;

neither the Home Office nor the ACMD should be embarrassed by factual evidence or brought into disrepute by upholding it; and

Dr. Raabe was asked whether anything would come to light that would cause embarrassment. The Paper was in no way hidden from view. It had been in the public domain for 5 years, would readily be disclosed by an internet search and could have been easily and quickly assessed by those responsible for vetting his application.

He asserted that a complaint about failure to disclose the Paper or about its contents could only be substantiated after a proper evaluation of both the Paper itself and the evidence on which it was based. The mere fact that some might not like the factual evidence set out in it or dispute the conclusions drawn on it ought to form no basis for revoking his appointment to the ACMD for in that event the Home Office would be acting on mere hearsay and without regard to the facts. That would be a flagrant breach of the principles of natural justice. He noted that those aspects of the Paper that were said to be objectionable or wrong had nowhere been specified so that he had no opportunity to address such points. He was sure that objective and dispassionate assessment of the Paper would show no just cause for revoking his appointment.

As to embarrassment, Dr. Raabe said that in his conversation with Dr. Williams on 24 January 2011 he had specifically asked him what was meant by “anything that could cause embarrassment”. As Dr. Williams had been unable to give him a clear answer he said that he would be grateful if Mr. Pratt would list the issues on which there might be embarrassment to the Home Office so that he could address his enquiry with greater precision.

He asserted that the principles of natural justice suggested that any embarrassment which was said to have been caused must result from proven failures on his part either in not making proper disclosure or with regard to the contents of the 2005 Paper. He repeated that there had been no failure on his part so that there was no legitimate reason for revoking his appointment to the ACMD. He asserted that the Home Office was seeking to review his membership of the ACMD on grounds which were not relevant to membership of the Council.

He said that the same principles required embarrassment to be objectively defined and determined. Nobody should be embarrassed by research evidence or legitimate opinion. He asserted that the 2005 Paper was essentially a summary of research. It drew on scientific papers that were in the public domain which had been subject to peer review. It would be surprising to find that the Home Office could possibly conceive scientific research date of that kind to be embarrassing. He asked Mr. Pratt to specify exactly which sentences, statistics, quotations and data in the Paper were said to be the cause for embarrassment.

Dr. Raabe said that Mr. Pratt’s letter raised a number of matters of concern which, given their seriousness, must necessarily be addressed with due particularity. In order to formulate his response he sought clarification of the identity of the person or persons by whom the review was being conducted, whether it was anticipated that the review was to be conducted by examination of documents or following a meeting with him, if he was to be given access to all documentary information relied on for the purposes of the review if it was to be conducted on paper, if the review was to take the form of a hearing whether he had the right to be accompanied or represented at such a meeting and whether it was envisaged that he would be granted a right of appeal.

Dr. Raabe asserted that he should not be discriminated against on the basis of his personal beliefs or opinions, especially those having no bearing on his remit as a member of the ACMD. In that context he asked whether other members of the ACMD had been or would be asked to state their position in relation to matters concerning homosexuality.

Dr. Raabe said that as a consequence of these issues being raised he had recently been subjected to the most vicious and hate-filled personal abuse which he had ever known in his life.

Dr. Raabe referred Mr. Pratt to the Maranatha Community website and asserted that it was a mainstream and respected Christian movement with thousands of members and close links to national Christian leaders.

On 3 February 2011 Professor Silverman sent a submission to Mr. Brokenshire copied to the Defendant attaching a copy of Dr. Raabe’s letter of 2 February 2011.

Under the heading “Issue” the reference to the 2005 Paper which in the three earlier submissions described it as containing views inconsistent with those of the Government now described it as containing views “that have caused some embarrassment to Government”.

The timing was described as urgent. If the Minister took a decision by Thursday 3 February it could be communicated ahead of his meeting with the ACMD on 7 February. Under the heading “Summary and Consideration” Dr. Raabe’s letter was described as written in terms which were naturally aggrieved but also measured and polite and expressing a willingness to work cooperatively with “us”. The following points in the letter were highlighted. Dr Raabe had:

agreed that he did not refer to the 2005 Paper in his application or interview but disputed (giving several arguments) that that was a failure of proper disclosure

sought a more objective definition of “embarrassment” as it might apply to the Home Office

asked for detail and transparency of the way that his case was being considered and requested a much more detailed and formal process than the current exchange of correspondence

fully recognised and accepted the need for ACMD members to be known to have both integrity and ability

explicitly requested that his letter be placed before the Parliamentary Under Secretary of State.

The points raised in the letter were addressed in an annex. It was stated that any decision to remove Dr. Raabe was likely to provoke further public debate around the issues of “traditional values” and freedom of expression. His dismissal could attract criticism both from those who saw it as an attack on “Christian” or “traditional” values and from those who even if they disagreed with him would see it as an affront to religious freedom or freedom of speech.

It was noted that his dismissal could be interpreted as giving in to a “harm reductionist” agenda. “We” had good reason to believe that Dr. Raabe was very happy to engage politely in discussion with those of different views from his own and that he had no intention of being personally disruptive on the Council.

Reference was made to the assertion in the media that some ACMD members could resign as a protest against the appointment. It was reported that a small number of ACMD members had held informal discussions with the chair of the ACMD and it was understood that they had raised concerns over both that and one of the other new appointments. There might be at least a letter from some ACMD members on the matter but as yet there had been no formal representation.

Should Dr. Raabe remain in post there might be further criticism for appointing someone with his views to an advisory body to the Government. The Department had received about 500 e-mails opposing the appointment.

At the time of writing the media attention had died down and dismissing Dr. Raabe would re-ignite the issue. In addition no formal objection to Dr. Raabe’s or any other new appointments had been received from members of the ACMD. If Dr. Raabe were dismissed and subsequently took legal action, regardless of its outcome, it could significantly adversely affect the smooth functioning of the ACMD and its ability to provide timely advice to Government. In addition as a holder of a statutory position on the Council for which there was currently no immediately appointable alternative, dismissing Dr. Raabe would result in the requirement to commence a further recruitment campaign during which the ACMD would not be statutorily constituted. Retaining Dr. Raabe on the ACMD might cause some internal friction within the ACMD and the possibility that one or more members might resign in protest but that possibility also existed if he were dismissed. The Chair had informally expressed the view that he believed the situation could be managed and Dr. Raabe himself had stressed his willingness to work with all members of the ACMD for example explicitly stating in the telephone conversation that he was not in any way offended by the presence of gay colleagues.

Professor Silverman wrote that some aspects of Dr. Raabe’s past publications which had now come to light might cast some doubt on his strength as a scientist. However it was not in that capacity that he was appointed.

Whatever decision was taken it was important to note that the appointment was to a statutory position on the ACMD required to be filled by a GP. It had not yet been disclosed that the other candidate was found by the appointing committee not to satisfy the minimum requirement. Dr Raabe’s expertise as a GP with practical knowledge and experience of drug-related issues had been explored carefully by the appointing committee and was not in doubt.

If the minister decided to retain Dr Raabe on the ACMD it was proposed that Professor Silverman would write to him reminding him of the importance of upholding the Nolan Principles. If he determined that the appointment should be terminated further legal advice would be provided following further consideration of the points raised in Dr Raabe’s letter.

Professor Silverman recommended that the Minister consider two options. The first was that Dr Raabe should remain on the ACMD and that a letter be sent to him emphasising the importance of that hearing to the Nolan Principles. The second was that his appointment be terminated with immediate effect. Dr Raabe’s letter asked for a fuller and more transparent review before any action of that kind was taken. Dr Raabe had now had a reasonable period in which to explain himself and it was unclear what further purpose a review would serve. Dr Raabe had given no reason to think that there were additional facts relevant to his article or his failure to disclose it which were currently unknown by the Department and which would, if known, materially affect its decision. In reaching a decision in either direction the Department was entitled to balance the need to have a full knowledge of relevant facts against the need to act with reasonable speed to avoid Dr Raabe and the ACMD being mired in a protracted controversy.

On balance Professor Silverman’s recommendation was to retain Dr Raabe on the ACMD to minimise the risk of significant disruption to the ACMD’s smooth functioning.

In a section headed “Handling” it was stated that should the minister decide to dismiss Dr Raabe “we” would need to be clear that he had failed to disclose information in his interview that could bring the government or the Council into disrepute. Conversely should he remain in post “we” could expect considerable criticism from gay lobby groups and elements of the media for employing someone with such extreme views as an official advisor to the Government. Should “we” extend the deadline of “our” decision media might note that the minister was due to meet with the ACMD, including Dr Raabe, on 7 February. Although it was a closed meeting the fact that it was taking place was public knowledge and there was a chance that the content of the meeting could be briefed to media.

Annex C to the submission addressed points raised by Dr Raabe in his 2 February 2011 letter. It included the following:

it has no relevance to matters which fall within the remit of the ACMD

Whilst some might not be prepared to accept the factual evidence cited in the Paper, that does not make it wrong.

Neither the Home Office nor the ACMD should be embarrassed by factual evidence or brought into disrepute by upholding.

I was asked whether “anything would come to light” that would cause embarrassment: the Paper was in no way hidden from view – it has been in the public domain for five years, would readily be disclosed by an internet search and could have been easily and quickly accessedby those responsible for vetting my application.

In an internal Home Office email addressed to Dr Williams and Mr Brokenshire and copied to the Defendant Mr Brokenshire’s Private Secretary stated:

the non-disclosure of the information, and

the impact on the smooth running of the Committee and the ability of Dr Raabe to be able to respond to provide balanced advice on drugs issues affecting the LGBT community.

Dr Williams in his witness statement stated that ‘the Ministers’ response to the advice from officials which had been submitted on 3 February 2011 was received on 4 February 2011. ‘The Minister’ indicated that Dr Raabe’s appointment should be revoked due to his non-disclosure of the 2005 Paper, the potential impact on the smooth running of the ACMD and the ability of Dr Raabe to provide balanced advice on drugs issues affecting the Lesbian Gay and Bi-Sexual and Transgender (“LGBT”) community.

The draft letter was prepared to be sent to Dr Raabe revoking his appointment and was then amended by the Minister prior to being sent to Dr Raabe. On 4 February 2011 Mr Brokenshire sent a letter to Dr Raabe, approved by him and signed in his absence, informing him that he had decided to revoke his appointment to the ACMD. The letter was in the following terms:

Mr Dingemans QC, who appeared for Dr Raabe with Ms Crowther, submitted that the decision to revoke Dr Raabe’s appointment was in breach of the principles of natural justice. Dr Raabe was not given a fair opportunity to respond to the points made against him. Had such an opportunity been provided he had a complete answer to the charges.

First it was procedurally unfair to take into account the fact that the Government did not share the views on homosexuality expressed in the 2005 Paper. That issue was never put to Dr Raabe. Furthermore the appointment was advertised as non-political and therefore the government’s views on homosexuality were irrelevant to the application and appointment process. This point featured again as one of the allegedly irrelevant factors taken into account in the decision.

Second the matters raised in the 4 February 2011 letter had not been put to Dr Raabe before the revocation of his appointment. The two specific matters which according to the letter led to the revocation of Dr Raabe’s appointment were (a) that the 2005 Paper “raised concerns over your credibility to provide balanced advice on drug misuse issues affecting … the LGBT community” and (b) that the Paper was “polemical and assembles material in a way which disparages gay people and their lifestyles and relationships”. They had not been put to Dr Raabe before they were formulated in the letter and Dr Raabe had not had an opportunity to answer them. He had an answer to those charges, namely that whatever his personal beliefs about the rights or wrongs of homosexual sexual relations he would advise, treat and serve, and had advised, treated and served, everyone equally. The 2005 Paper had been written in a specific context of the same sex marriage debate in Canada. It was based on scientific evidence and was not polemic. It relied on peer-reviewed materials. The Defendant’s attitude appeared to be based on a discriminatory and stereotyped assumption that persons holding Dr Raabe’s relevant religious belief are unable or unwilling to work with the LGBT community, which is wrong.

Next Mr Dingemans submitted that the decision to revoke was unlawful in that it took into account irrelevant considerations. He relied on the well-known principle enunciated by Lord Slynn in R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23, [2003] 2 AC 295 at paragraph 50 that: “If the Secretary of State … takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside”.

The allegedly irrelevant considerations allegedly taken into account in the decision to revoke Dr Raabe’s appointment were said to be (1) the fact that the Minister was also responsible for Equalities (2) that the Defendant wished to promote itself as a potential or actual employer of LGBT groups and (3) that Dr Raabe held views not consistent with those of the Government.

It was submitted that the Defendant displayed a misunderstanding of Equalities legislation, which protects the absolute freedom of individuals to hold beliefs and makes both sexual orientation and religious beliefs protected characteristics. The Defendant’s considerations were influenced by irrelevant considerations such as political embarrassment caused by media scrutiny of the decision in respect of Dr Raabe’s religious beliefs and the views expressed in the 2005 Paper. They were not relevant considerations to Dr Raabe’s appointment. They had no bearing on his ability to act on an advisory council as a GP with up-to-date experience of drugs misuse issues.

Mr Dingemans further submitted that the decision to revoke Dr Raabe’s appointment was irrational in the sense of not being reasonably open to the Defendant. Given that the effect of the decision was to interfere with Dr Raabe’s fundamental human right to hold and manifest religious beliefs any interference must satisfy the test of “anxious scrutiny” – see Preddy v Bull [2012] EWCA Civ 83; [2012] 1 WLR 2514 at paragraphs 56, 58 and 59 and R (Carson) v Secretary of State for Work and Pensions[2005] UKHL 37, [2006] 1 AC 173 at paragraph 58.”

The following matters were relied on under this head. First no one had suggested or could reasonably suggest that Dr Raabe’s views represented those of the Defendant and it was irrational to formulate the issue in those terms. Second, holding the views in the 2005 Paper or publishing the Paper either in the context of the debate about same-sex marriage in Canada in 2005 or generally could not be contended to be a bar to being a member of the ACMD. Reliance was placed on Redfearn v The United Kingdom (European Court of Human Rights, 6 November 2012) which noted that the provisions of the ECHR were “applicable not only to persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb”.

Third the Defendant’s decision that there would be disruption to the smooth running of the ACMD was said to be impermissible. The evidence advanced to the Minister was that such disruption was just as likely as a result of dismissal of Dr Raabe as through his retention. There was no lawful basis on which the Defendant could have relied on disruption of the smooth running of the ACMD given the evidence that there would be no greater disruption and the Defendant should not have taken that into account and made it a basis for the decision. That is particularly so in circumstances where it was noted that Dr Raabe was the only appointable GP.

Fourth the Defendant applied a standard of disclosure against the criterion of “embarrassment” which no reasonable decision-maker could have applied. The criterion was vague, the Defendant refused to define it and (whatever its proper meaning) it was not infringed on the facts of this case. The 4 February 2011 letter suggested that the failure to disclose the 2005 Paper raised serious issues of judgment and thereby concluded that it constituted a material non-disclosure of “embarrassing” facts. The section of the letter headed “embarrassment” addressed matters which were wholly irrelevant to the question of what objectively and properly constitutes “embarrassment in this context”.

Under the heading “unlawful” Mr Dingemans submitted that the Defendant did not have a right to terminate the appointment of Dr Raabe unless he was in breach of the terms and conditions of his appointment. The Defendant had not suggested and could not sensibly suggest that Dr Raabe had breached the terms of his appointment. In those circumstances the decision to revoke was not open to the Defendant and was unlawful.

In his written submissions Mr Dingemans submitted that the decision to revoke was further unlawful because it took into account discriminatory views regarding Dr Raabe’s religious beliefs which were based on incorrect assumptions about his ability to advise, treat and serve members of the LGBT community. In fact his ability to do so was not adversely affected either by his membership of the Marantha Community or by his religious beliefs, as proved by his successful practice as a GP. At the hearing Mr Dingemans accepted and clarified that Dr Raabe was not advancing a claim under the Human Rights Act or the Equalities Act. This was not advanced as a separate ground of challenge but rather as part of the irrationality challenge.

On behalf of the Defendant Mr de la Mare submitted that the 2005 Paper was not, as contended by Dr Raabe, “factual” “scientific research” or a balanced review of research material but was, or was reasonably considered by the Defendant to be, “polemical” and “assembling material in a way which disparages gay people and their lifestyles and relationships.” In particular the 2005 Paper advanced the assertion that “it is of grave concern that there is a disproportionately greater number of homosexuals among paedophiles and an overlap between the gay movement and the movement to make paedophilia acceptable.” The purpose of such linkage was clear: to demonstrate for political lobbying purposes the unsuitability of gay couples to marry and have a family. Such comments in the 2005 Paper were made without balance, context or a relevant review of all of the relevant strands of scientific literature/studies.

Mr de la Mare submitted that the capacity of the 2005 Paper to cause grave offence and generate distracting controversy was not only self-evident, particularly when presented as “medical opinion”, but was also demonstrated by the fact that, upon Dr Raabe’s appointment and the discovery of his role in co-authoring the 2005 Paper shortly thereafter, an entirely predictable storm of controversy descended. After giving Dr Raabe an adequate opportunity to be heard, the Defendant decided on 4 February 2011 to revoke his appointment to the ACMD, essentially on the basis that his failure to disclose his authorship of the 2005 Paper deprived the Defendant of information material to his suitability for appointment (as well as being an error of judgment in its own right) and had Dr Raabe’s views expressed in the 2005 Paper been known at the time of the appointment decision they would have “prevented or inhibited [his] appointment”.

In summary the challenge on the basis of fairness failed because Dr Raabe was given every chance to explain whether he wrote the 2005 Paper, which he admitted, whether he stood by the views articulated in it, which he did and defended at the time as “factual” or “scientific”, and whether the 2005 Paper was relevant to his appointment, particularly whether it might cause embarrassment or offence by its tone or content.

As to the allegedly irrelevant considerations taken into account into the decision to revoke, they were abstracted from isolated passages from civil service submissions taken out of context and represented no part of the revocation decision itself or even the path to it.

As to the rationality challenge, it was entirely reasonable to revoke Dr Raabe’s appointment to a public office position requiring engagement with, amongst others, the LGBT community which has particular patterns of drug misuse on learning of Dr Raabe’s co-authorship of the 2005 Paper. The Defendant was more than entitled to conclude that he should have disclosed his authorship of the Paper and that the original decision to appoint was flawed, because it was taken without this relevant consideration being taken into account. That was enough to invalidate the original appointment decision.

If, as he submitted they were, the contents of the 2005 Paper were a consideration relevant to Dr Raabe’s suitability for the post, the contention that the Defendant had no power to revoke the appointment was hopeless. Like any public law decision it could be revoked or withdrawn if there were public law grounds for doing so.

Mr de la Mare submitted that there was no basis for the suggestion, albeit not one articulated as a separate ground of challenge, that Dr Raabe was being impermissibly penalised for expressing his religious views. Article 9 of the ECHR guarantees only absolute entitlement to hold religious views. It does not guarantee absolute protection to the manifestation of them. In any event the 2005 Paper could not fairly be called a manifestation of religious beliefs. For instance it is no part of any Christian belief system that gay people are more prone to paedophilia or have a higher incidence of mental illness. The Article 9 ECHR right does not create a right to make public statements that cause offence with immunity simply because the making of them is in some way religiously motivated. The relevance of such past public positions to civil service or public appointments where the public as a whole must be served and be willing to be served was self-evident.

Further at the time of the revocation decision Dr Raabe did not advance or defend the views in the 2005 Paper on the grounds of religious expression but rather on the basis that they were “actual” or “scientific” and founded upon research, which they were plainly not in any sensible understanding of the term. The Defendant was fully entitled to take into account the embarrassment/offence stemming from the expression of disparaging or polemical opinions in an article that purported to be medical in nature particularly when appointing to a medical post.

Central to Mr de la Mare submissions was the proposition that the fact of Dr Raabe’s co-authorship of the 2005 Paper was relevant, indeed highly relevant, to the original decision whether to appoint him to the ACMD. If it was and the Defendant would have been entitled to take it into account when deciding whether to appoint Dr Raabe in the first place, he was entitled to revoke the appointment on the basis that (i) it should have been disclosed by Dr Raabe (ii) if it had been disclosed he would not have been appointed and (iii) the fact of him not having disclosed it was itself a reason justifying revocation of the appointment. Indeed the question was not whether the fact of Dr Raabe’s co-authorship was relevant to the initial decision to appoint him and should have been disclosed but rather whether that fact could reasonably be considered by the Defendant to be relevant to the initial appointment decision and a matter which should have been disclosed.

Mr de la Mare submitted that the revocation decision proceeded on the following bases:

Mr de la Mare submitted that the 2005 Paper was an ostensibly scientific or medical article. That he submitted was borne out by the title, which expressly indicated that it contained “medical comments” and by the prominent display of Dr Raabe’s and his co-authors’ medical qualifications. That he submitted was a stance maintained by Dr Raabe in his Amended Grounds of Claim which described it as “based on scientific evidence”, in his second witness statement in which he described it as “a scientific review of the relevant research available in 2005” and as “setting out scientific research” and in Mr Dingemans’ skeleton argument where it was described as “relying on peer reviewed material.”

By contrast the Defendant’s decision was premised on the basis that, viewed objectively, the 2005 Paper was a polemical, disparaging or, more bluntly, anti-gay opinion piece. It sought to link supposed scientific “facts” with a thesis that gay people are not suited to marry or to have a family. If that view of the Defendant was at the lowest a reasonable one, based on an objective reading of the 2005 Paper, then that must have a bearing both on (a) the nature and scope of any opportunity to be heard which was required, once Dr Raabe’s authorship was admitted and the views expressed in the 2005 Paper were not retracted – on that basis the fairness issue is simply whether Dr Raabe had a fair opportunity to explain whether he should have and/or why he did not disclose the 2005 Paper – and (b) the rationality of the Defendant’s subsequent judgement about the embarrassing nature of the 2005 Paper, the relevance of its non-disclosure and the implication of its contents for Dr Raabe’s ability to work within the ACMD and with the groups with whom ACMD must cooperate.

Mr de la Mare submitted that even on superficial scrutiny the 2005 Paper was anything other than factual or scientific in method. The clearest example he submitted was the section on homosexuality and paedophilia. He submitted that the purported link between homosexual orientation and child abuse is a highly controversial topic as Dr Raabe himself recognised in the telephone interview on 24 January 2011, not least for the offence that suggesting any such linkage undoubtedly causes to the homosexual community as also recognised by Dr Raabe.

Mr de la Mare submitted that, whereas neither the revocation decision nor these proceedings are the place for a scientific or final resolution of whether or not there is any such linkage, such a conclusive investigation is not necessary in order to see the obvious deficiencies of the 2005 Paper.

Thus the contents of the first two bullet points in this section were demonstrably non-medical in nature and unscientific in the way that they reached their conclusions. They were no more than vehicles for a pre-conceived and controversial opinion.

As for the third bullet point it employed a statistical argument to demonstrate a supposed linkage between homosexual orientation and paedophilia: if, say, 25% of reported incidents of child sexual abuse involve a male abuser and a male child victim in circumstances where, say, 3% of the male population is homosexual such shows, so it was argued, a substantially higher prevalence of paedophilia amongst homosexuals.

Mr de la Mare submitted that such an argument breaks down if sexual abuse and paedophilia are not the same thing, for example because sexual abuse may occur to inflict humiliation or confer a feeling of power rather than sexual arousal or gratification and/or in fact knowing the sex of molester and victim was no proper basis to infer the adult or normal sexual orientation of the molester.

Mr de la Mare submitted that the unsafe nature of that statistical argument was evident from materials which Dr Raabe himself put before the court. The study, Sex offending against Children: understanding the risk by Don Grubin (Police Research Paper 99) cited by Dr Raabe to support the contention that “approximately 20-33% of child sexual abuse is homosexual in nature” in fact demonstrated, when fairly read, only the complexity of the situation and the false nature of the statistical argument advanced by the 2005 Paper. It did so by distinguishing between sexual abuse and the narrower condition of paedophilia, the term employed by the 2005 Paper and by expressly pointing out that the sex of the victim of child sexual abuse “does not appear to reflect, however, sexual orientation towards adults” noting that a study that showed that even in a pool of offenders who had victimised exclusively boys between the age of five and ten, two thirds of the offenders had adult heterosexual preferences.

Such highly contestable statistical claims of a linkage between homosexuality and paedophilia, particularly ones not attempting to engage with the full complexities of sexual orientation in this context, were for that reason viewed by the gay community as based upon a false premise and, as such, a recurrent smear premised upon a recurrent false inference as to the sexual orientation of a child molester from his or her sex and the sex of their victim.

No balanced, fair or responsible treatment of such a sensitive topic, under the guise of medical opinion or a review of scientific research, could approach the matter in the way which section 3 of the 2005 Paper did. If there are rival analyses supported by evidence, a scientific paper would reflect that fact as well as areas of uncertainty in moderate language, rather than using the unequivocal and adjectival language employed by the 2005 Paper. Mr de la Mare submitted that it was in truth as, he submitted, Dr Raabe’s current case now made clear, the concealed expression of a religious opinion under a thin scientific veneer, which was neither balanced in its selection of material nor in its tone nor its conclusions. As Dr Williams put it in his witness statement:

Mr de la Mare submitted that it requires little explanation as to why linkage of homosexuality with a supposed increased predilection to be paedophilia is liable to cause grave offence as is the supposed overlap “between the gay movement and the movement to make paedophilia acceptable”, a claim introduced in the 2005 Paper without, as Mr de la Mare submitted, any attempt to identify or qualify the materiality of the supposed overlap. He submitted that that was merely the most striking example of a paper which provoked in similar fashion in a number of respects. The material commenting on his paper provided by Dr Raabe gave an idea of the controversy engendered by the opinions expressed in it.

The Defendant was thus right to conclude or at the very least was entitled reasonably to conclude that the 2005 Paper was polemical and disparaging of gay people. The defects with the Paper as a piece of balanced and responsible science were manifest and the views it expressed, even if religiously motivated, were self-evidently likely to cause substantial offence.

As regards natural justice Mr de la Mare submitted that the answer to the complaint that it was procedurally unfair to take into account the fact that the government did not share the views on homosexuality expressed in the 2005 Paper because that issue was never put to Dr Raabe is that that formed no part of the reasoning in the revocation decision or the process leading up to it. What was taken account of was the manner of expression of Dr Raabe’s views, namely a polemical/disparaging opinion attack of an offensive nature under the guise of science, the relevance of those views to the work of the ACMD and the fact that those views had not been disclosed.

In response to the complaint that Dr Raabe had been given no notice of the Defendant’s view that his authorship of the 2005 Paper affected his ability to work with the LGBT community and that it was polemical and/or disparaging Mr de la Mare made the following submissions. The first point was said to have arisen in response to Dr Raabe’s contention in his telephone conversation with Dr Williams on 24 January 2011 that he struggled to see what the 2005 Paper had to do with advising on drug policy. Dr Williams had responded to that that some of the concerns “we” had “here” were that the ACMD provided advice considering issues on certain drugs, for example GBL which was prevalent in the LGBT community and had asked Dr Raabe whether some of the views expressed in the article would prejudice his advice. Dr Raabe had also contended in his letter dated 2 February 2011 that no reference was made to the 2005 Paper in his Curriculum Vitae or at interview because it had no relevance to matters which fell within the remit of the ACMD.

Mr de la Mare submitted that the Defendant was entitled to conclude that Dr Raabe’s expression of views was a relevant consideration because they bore upon his suitability for appointment to a public-facing office which required periodically to work with amongst others the LGBT community, of which sections had their own distinct patterns of recreational drug misuse and innovation. He referred to the points made by Dr Williams in his witness statement that an important aspect of the work of the ACMD was to consider the issue of drug misuse in the particular context of the LGBT community, and that if the ACMD included a member with the views expressed in the 2005 Paper which were considered unacceptable to and highly offensive by many members of the LGBT community, there would be cause for concern as to whether it would still receive the co-operation from the LGBT community necessary for it to obtain evidence to carry out its functions. A further cause for concern might be that advice emanating from the ACMD would not have credibility within that community.

Mr de la Mare submitted that the LGBT community was one whose trust and confidence needed to be maintained and to whom the Defendant owed duties pursuant to the Equality Act 2010 . He was entitled so to conclude and state in the revocation decision by way of response to Dr Raabe.

In any event Mr de la Mare submitted that the entire process of reconsidering the appointment decision because of the 2005 Paper was self evidently relevant because of the embarrassment it caused in the form of lost trust on the part of the LGBT community with which the ACMD had to work. That was specifically addressed in the telephone interview with Dr Williams in which Dr Williams adverted to the concerns as to the impact the 2005 Paper coming to light might have upon the ACMD’s ability to provide advice to and work with the LGBT community. That had been in response to Dr Raabe’s claim that his views were of no relevance. Dr Williams had given as an example the issues surrounding the drug GBL, which he said was a drug of choice in the LGBT clubbing community. He submitted that it was clear from that telephone conversation that Dr Raabe was well aware that at issue was the offence caused to the LGBT community and the consequences it entailed for the ACMD’s work, as his comments showed.

As to the point made in the revocation letter that the 2005 Paper was polemical and/or disparaging Mr de la Mare submitted that Dr Raabe was well aware of the fact that the content and tone of the 2005 Paper were considered unacceptable, particularly the passages dealing with paedophilia. The essence of the Defendant’s particular concerns about the passages in the 2005 Paper dealing with paedophilia was self evident from the letter dated 27 January 2011 giving Dr Raabe notice that the Home Office was minded to reconsider his appointment to the ACMD and giving him the opportunity to make any comments he wished in response. The nature of those concerns was already evident from the telephone interview of 24 January 2011 in which Dr Raabe had made realistic concessions about the tone and capacity to cause offence of the 2005 Paper, particularly the paedophilia section.

As to the contention that, if he had been given an opportunity to answer the allegedly new points raised in the revocation letter, Dr Raabe had a complete answer to it Mr de la Mare submitted that the answer suggested by Dr Raabe was nothing of the sort. That answer was said to be that whatever his personal beliefs about the rights or wrongs of homosexual relations Dr Raabe would advise, treat and serve and had advised, treated and served everyone equally.

Mr de la Mare submitted that that argument had in fact been advanced in his email of 25 January 2011. It had not been pursued and did not persuade because if gay people saw themselves as disparaged and were unwilling to work with Dr Raabe/the ACMD in consequence of his appointment, which was the risk detected by the Defendant, the fact that Dr Raabe considered himself willing and able to work with gay people was not a complete answer to the Defendant’s concerns. The Defendant’s concerns were not based upon a discriminatory and stereotyped assumption that persons holding Dr Raabe’s relevant religious belief are unable or unwilling to work with the LGBT community, an allegation which Mr de la Mare submitted was made for the first time in Mr Dingemans’ skeleton argument, but rather on the view that an offended/disparaged community or other ACMD members would not work with the person who was the cause of the offence or would cease to see the ACMD as a working partner or source of credible advice. Mr de la Mare referred to the extract from Dr Williams’ witness statement referred to above in support of the submissions that that was the Defendant’s concern.

Further and in any event Mr de la Mare submitted that the 2005 Paper constituted the presentation of ostensibly scientific conclusions which were in fact grounded in or motivated by Dr Raabe’s and no doubt his co-authors’ beliefs about homosexual people. Such an evident failure to separate personal beliefs from ostensibly scientific/medical method would affect the confidence of the LGBT community in Dr Raabe’s medical advice or judgements on questions concerning drug abuse.

As to the contention that irrelevant considerations were taken into account in the decision to revoke Mr Raabe’s appointment Mr de la Mare made the following detailed responses to the three allegedly irrelevant considerations asserted by Dr Raabe. All three were said to be based on a number of statements taken out of fair context which had nothing to do with the actual basis for the decision.

As to the allegation that it was a motivating factor for consideration in the revocation decision that the Defendant was also responsible for Equalities, that was said to be based on two passages in the initial written submission to the Minister dated 21 January 2011. In commenting on the option of investigation and consultation it was said that that did not immediately deal with the issue that Dr Raabe held the views described especially in the context of the Defendant’s position as Minister for Equalities. It was also said that while the link had yet to be made by the media the fact that Dr Raabe was appointed by the Defendant could anger equality groups given her dual role as Equalities Minister.

Mr de la Mare submitted that those remarks were plainly directed at a potential case for immediate dismissal without further consultation, an option which was rejected by the Defendant. Similar reasoning he submitted played no further part in any later submission. The other references relied on by Mr Dingemans in his skeleton argument were all dealing with media handling. Moreover the comments were directed at the potential for media controversy to escalate and mutate. It was for that reason that the statement appeared in the section of the submission entitled “Handling” which meant “Media Handling”. Mr de la Mare submitted that there was no trace of any such reasoning either in the revocation decision as drafted, or in the Defendant’s short explanation of the reasoning which preceded it or in the third submission which was the final basis for the Defendant’s decision.

As to the second alleged irrelevant consideration, namely a desire on the part of the Defendant to promote itself as a potential or actual employer of LGBT groups, Mr de la Mare submitted that the basis for that alleged irrelevant consideration was nowhere explained. It did not appear anywhere in the three submissions to ministers or in the decision itself in any form.

As to the assertion that the decision took into account the fact that Dr Raabe held views inconsistent with the Government, Mr de la Mare submitted that Dr Raabe had taken out of context a phrase in the first submission to ministers which was repeated in the second but not the third submission that “media reports on the BBC website have brought to light his involvement in the publication on homosexuality that contains views inconsistent with those of Government” (emphasis added). He submitted that that was self evidently a short hand for “views causing some embarrassment to Government” or “views bringing disrepute upon the Government” as was made plain by the changes in the formulation of that point as it appeared in the third submission.

Mr de la Mare submitted that Dr Williams was merely trying by that phrase to capture or describe the emerging problem. The suggestion that anything more lay behind that, such as Dr Raabe’s submission that what was being said was that everyone had to agree with the Government’s views and that such wider meaning somehow fed into the revocation decision, was said to be unreal, particularly in circumstances where the third submission better explained that issue before going on to recommend that Dr Raabe should in fact be retained.

As to Mr Dingemans’ submission that the Defendant’s considerations were influenced by irrelevant considerations such as political embarrassment caused by media scrutiny of the decision in respect of Dr Raabe’s religious beliefs and the views expressed in the 2005 Paper, Mr de la Mare submitted that that was too broad and unsupported by the careful and focused documentation and reasoning process which led up to the decision to revoke the appointment. The 2005 Paper was a polemic which caused offence, was not disclosed and was rightly thought to be relevant to Dr Raabe’s ability to work for a body which of necessity had to work effectively with LGBT groups.

In response to the contention that the decision to revoke was irrational Mr de la Mare made the following detailed submissions. The contention that it was irrational to formulate the issue in terms of a concern that it could be suggested that Dr Raabe’s views represented those of the Defendant, was a straw man. It was no part of the Defendant’s case that Dr Raabe’s views must represent those of the Defendant or that there was a concern that it might be thought that in fact they did. That was no part of the basis on which the decision was made.

As to the case of Redfearn in that case the Claimant’s Article 9 case based on the protection of freedom of thought and religion was rejected by the ECHR because his freedom to think was not impacted on by his dismissal from his job as a bus driver driving a largely Asian client group because he was a member of the BNP. By parity of reasoning nothing in the Defendant’s actions impacted on Dr Raabe’s freedom to hold the religious beliefs which he did or to “manifest his religion…in worship, teaching, practice and observance”. Writing a public political lobbying document which presented itself as “medical opinion” did not fall within the scope of Article 9.1 because it was not a manifestation of religious belief. It was no tenet of Dr Raabe’s faith that gay men are more likely to be paedophiles or to have greater incidence of mental illness. Still less was taking account of such offensively expressed views an interference with Article 9.1 rights. There is a difference between acts that are a manifestation of religious belief and acts which are motivated by it. This case was squarely in the latter category and Article 9 offers no protection to such acts. Offensively expressed views which would undoubtedly be of relevance if held independently of religious belief are not rendered irrelevant or immune from comment by their religious motivation. Mr de la Mare submitted that this ground of challenge illustrated an inconsistency in Dr Raabe’s case. He simultaneously sought to characterise the 2005 Paper as “science” or “factual” when contending that it was not polemical or disparaging and was irrelevant to his appointment to the ACMD while also characterising it as a manifestation of his religious beliefs. It could not simultaneously be both.

As to the argument that there was no evidence to support the conclusion that Dr Raabe’s appointment against the backdrop of his known views would affect the smooth running of ACMD, even in the period between the appointment and the revocation decision his putative appointment was plainly disrupting the smooth operation of the ACMD and was controversial amongst other ACMD members even if no formal objection had been received. The third submission noted that Dr Raabe’s retention might cause “internal friction within the ACMD” and the possibility that one or more ACMD members might resign in protest.

As to the contention that the disruption caused by the dismissal of Dr Raabe was evidenced by the fact that the statutory requirement for GP members on the ACMD was abolished because of this affair, that was without foundation. The Bill which led to the Police Reform and Social Responsibility Act 2011 which made the relevant amendments to the 1971 Act removing the requirement for a GP member of the ACMD was introduced to Parliament on 1 December 2010 before Dr Raabe was even appointed to the ACMD and on introduction already contained those amendments. Moreover a GP, Dr Linda Harris, was subsequently appointed to the ACMD in July 2011.

As to the contention based on the vagueness of the criterion of embarrassment and the contention that the Defendant applied a standard of disclosure against that criterion which no reasonable decision maker could have applied, Mr de la Mare submitted that the purpose of the question asked of candidates was to require an applicant for a post to identify any feature not disclosed by the application process which might, if known, be thought to diminish their suitability for appointment. Even if that was not clear it would not alter the fact that the 2005 Paper having come to light the Defendant was entitled to consider that it was a relevant consideration which should have been taken into account in the appointment decision and to revoke it accordingly.

As to the contention that the Defendant did not have a right to terminate Dr Raabe’s appointment unless he was in breach of the terms and conditions of appointment, that failed to address the right of the Defendant to revoke an appointment which was invalidated by the non-disclosure of a material consideration. If an LGBT group had wished to challenge Dr Raabe’s appointment on the ground that the Defendant had failed to take into account a relevant consideration, namely the views expressed in the 2005 Paper which would impede the gay community’s willingness to work with him, they could have done so. The revocation decision was premised on the same logic. The non-disclosure of a material consideration invalidated the original appointment and entitled the Defendant to revoke it. Were it otherwise there would be a bizarre lacuna in the ability of appointers to deal with non-disclosure and even cases of concealment or fabrication of qualifications.

In his skeleton argument Mr Dingemans submitted that the decision to revoke was unlawful for the additional reason that it took into account discriminatory views about Dr Raabe’s religious beliefs which were based upon incorrect assumptions about his ability to advise, treat and serve members of the LGBT community. In fact his ability to do so was not adversely affected either by his membership of the Maranatha community or by his religious beliefs as proved by his successful practice as a GP. At the hearing Mr Dingemans confirmed that although that challenge appeared under the heading of unlawfulness rather than irrationality it was not intended to be a free standing claim based on a breach of the Human Rights Act or the Equalities Act but rather an additional reason why the decision was irrational.

Mr de la Mare’s response to that submission was that the assertion that the revocation decision was based on stereotypical assumptions about the ability of Christians holding religious views hostile to homosexuality to be effective in treating and serving the LGBT community had no foundation in fact. The problem stemmed not from Dr Raabe’s beliefs or his ability to advise, treat and serve LGBT members despite those beliefs but rather from the views which he expressed in the 2005 Paper which were not religious beliefs, from the impact such views would have on the ACMD’s ability to work well with the LGBT community and to secure its co-operation and from Dr Raabe’s failure to disclose such views.

I am not persuaded that in taking the decision to revoke Dr Raabe’s appointment to the ACMD irrelevant considerations were taken into account as alleged. In particular I am not satisfied that any of the four matters relied on by Mr Dingemans formed part of the decision or were taken into account.

None of the four matters is referred to in the decision dated 4 February 2011 or in the email dated 4 February 2011 from Mr Brokenshire’s Private Secretary which identified what ministers found to be the key factors or, if and in so far as it was intended to be other than a reference to the contents of that email, in the description given by Dr Williams in his witness statement of the reasons given by the Minister in the Ministers’ response received on 4 February 2011 to the advice given as to why Dr Raabe’s appointment should be revoked.

As to the allegation that the decision to revoke was influenced by or took into account the fact that the Defendant was also responsible for Equalities, the two references relied on by Dr Raabe were in Professor Silverman’s first submission to the Defendant and Mr Brokenshire dated 21 January 2011. The first reference was one of the two matters identified as being against the option of investigating further and allowing Dr Raabe to make his own representations as distinct from the first option of immediate dismissal. The reference was:

The second reference was under the heading “Handling” and stated:

As to the first reference in so far as it could be interpreted as Professor Silverman suggesting that a reason in favour of immediate dismissal of Dr Raabe was that the fact that he held the views described could be embarrassing or difficult for the Defendant by reason of her position as Minister for Equalities, not only is there no evidence that either the Defendant or Mr Brokenshire agreed that that was a factor arguing in favour of immediate dismissal but the fact is that not only did Professor Silverman in that submission recommend that Dr Raabe should not be immediately dismissed but that recommendation was accepted by the Defendant and/or Mr Brokenshire. Dr Raabe was not immediately dismissed. It follows that the initial decision not immediately to revoke Dr Raabe’s appointment either did not take into account any impact on the Defendant’s position as Minister for Equalities or positively rejected it as a reason for revocation. Thereafter there was no further reference to that matter as a factor arguing in favour of the revocation of Dr Raabe’s appointment in the subsequent submissions to ministers and no reference to it in any of the three places referred to above where the reasons for the 4 February 2011 revocation were set out or referred to.

The second reference appeared in the section of Professor Silverman’s 21 January 2011 submission headed “Handling”. I broadly accept Mr de la Mare’s submission that the sections of the submissions headed “Handling” were broadly directed to “media handling” and although they identified recent or anticipated reactions either in the media or among the interested groups they were not designed to identify arguments for or against optional courses of conduct, although arguably there were exceptions to that. In any event there is no evidence that this reference, any more than the earlier one, was taken into account or formed part of the basis for the 4 February 2011 decision to terminate Dr Raabe’s appointment.

As to the contention that the decision to revoke Dr Raabe’s appointment took into account the fact that the Defendant wished to promote itself as a potential actual employer of LGBT groups, there was no evidence that that was in fact taken into account in the making of the decision. There was no reference to it in the revocation letter, the email from Mr Brokenshire’s Assistant Private Secretary or Dr Williams’ description of the reasons given by the Ministers for the decision. Nor was it referred to in the third and final submission from officials which immediately preceded the decision. The allegation appeared to have been based on the comment that “it is worth noting that this follows the Home Office recently being named by Stonewall as top employee for gay people in the UK” in the “Handling” section of Professor Silverman’s first submission dated 21 January 2011. In my judgment that comment was made in the context of alerting Ministers to possible adverse reactions to Dr Raabe’s appointment. It was not advanced as an argument in favour of revoking his appointment. In any event as already mentioned there was no evidence to suggest that this was a factor taken into account in the decision to revoke.

The contention that the decision to revoke took into account the suggestion that Dr Raabe held views not consistent with those of the Government was based on the description of the issue in the first two written submissions dated respectively 21 and 24 January 2011. Although by the time of the third and final written submission dated 3 February 2011 the language describing the 2005 Paper had changed from a publication on homosexuality “that contains views inconsistent with those of Government” to one that contained views “that have caused some embarrassment to Government”. Mr Dingemans submitted that despite the rewording the latter language still betrayed the same thinking that everyone had to agree with the Government’s views.

The original language was without question unfortunate, insofar as it was capable of giving the impression that the sharing the views of the Government was a prerequisite to appointment to the ACMD. However I am inclined to accept Mr de la Mare’s submission that it was intended as a short hand for “views causing some embarrassment to the Government” or “views bringing disrepute upon Government” as reflected in the changed language in the third submission.

In any event there was no evidence that the decision to revoke took into account the fact that Dr Raabe held views not consistent with those of the Government. The revocation letter stated that it was readily apparent that the 2005 Paper was polemical and assembled material in a way which disparaged gay people and their lifestyles and relationships. It was not suggested that what was objected to or objectionable in that fact was that the disparaging of gay people and their lifestyles and relationships was not consistent with the views of Government. Rather it was the fact that it raised concerns over Dr Raabe’s credibility to provide balanced advice on drug misuse issues affecting the LGBT community, its potential to undermine the credibility of the ACMD’s advice and its impact on the smooth running of the ACMD. It may very well have been that disparaging gay people and their lifestyles and relationships in a polemical way was not consistent with the views of Government but I am not persuaded that that was a matter taken into account in the making of the decision to revoke.

As to the wider contention that the Defendant’s “considerations” were influenced by irrelevant considerations such as political embarrassment caused by media scrutiny of the decision in respect of Dr Raabe’s religious beliefs and the views expressed in the 2005 Paper again in my judgment that is not supported by the evidence. There was undoubtedly reference in the written submissions, particularly in the sections headed “Handling”, to actual and anticipated response to the growing affair both within the media and from different parts of the political spectrum. However it does not follow from that that the decision to revoke was influenced or based in part on a concern by Ministers that leaving Dr Raabe in post would cause the Government political embarrassment.

It is true that the revocation letter under the heading “embarrassing” stated that the emergence of the 2005 Paper was embarrassing. However as the immediately following words “and to have an advisor who holds views expressed within the Paper could impact on the effective functioning of the ACMD” made clear, the word embarrassing was not being used in the narrow sense of political embarrassment alleged by Dr Raabe. Rather it was being used in the sense that because part of the work of the ACMD involved working with the LGBT community the hostility and suspicion likely to be engendered within that community by the presence on the ACMD of a member who had expressed such disparaging and polemical views had the potential for undermining the effectiveness of the ACMD.

For these reasons I reject this ground of challenge to the decision to revoke Dr Raabe’s appointment.

I unhesitatingly reject this ground of challenge.

Mr Dingemans submitted that the decision to revoke Dr Raabe’s appointment was not reasonably open to the Defendant. Before addressing the particular arguments deployed in support of this submission it is convenient to stand back and, having identified the reasons given for the decision, to consider whether they were reasonably open to the Defendant.

An important part of the work of the ACMD was to consider and give particular attention to the LGBT community where there appeared to be patterns of drug misuse which were quite particular to that community whose trust and confidence needed to be maintained. In order for the ACMD to obtain evidence to carry out its functions it needed to engage with and receive the co-operation of the LGBT community, whose trust and confidence needed to be maintained. It was also important that the ACMD maintained a balanced and objective view of the evidence base in order to advise the Government. At least those are views which the Defendant and Mr Brokenshire were reasonably entitled to have.

In common with all the other candidates who had applied to become members of the ACMD Dr Raabe was asked if there was anything about his professional or personal history which, if brought into the public domain, might cause embarrassment or disrepute to the organisation, which was explained to be a reference to the ACMD and the Home Office. The posing of that question was agreed with the OCPA Accredited Independent Public Appointment Assessor. It was a standard question asked of candidates for such appointments and in my judgment there is nothing intrinsically unreasonable in it being asked. It reflects the information asymmetry inherent in a situation in which a person applies for a sensitive public appointment and is designed to enable the decision whether to appoint to be made in the light of information known to the applicant but not to the appointer which might have a bearing on the suitability of the applicant for the post, the ability of the applicant to perform his or her duties if appointed and any adverse consequences for the body to which the candidate applied flowing from any information unknown to the appointer.

In answer to the question Dr Raabe made no reference to his co-authorship of the 2005 Paper. In the revocation letter Mr Brokenshire stated that the Department considered that his failure to disclose his authorship of the 2005 Paper raised serious issues of judgement and a failure to appreciate that the views expressed in it could affect his credibility as an adviser on drug misuse. He stated that he considered that it was readily apparent that his Paper was polemical and assembled material in a way which disparaged gay people and their lifestyles and relationships. The emergence of his authorship of the Paper had raised concerns over his credibility to provide balanced advice on drug misuse issues affecting the LGBT community and impacted on the smooth running of the ACMD. The views expressed in the Paper were such that if they had been known of at the time of his interview they would have prevented or inhibited his appointment. The emergence of the Paper was embarrassing and to have an adviser who held the views expressed in the Paper could impact on the effective functioning of the ACMD.

These reasons reflected the reasons identified in the email from Mr Brokenshire’s Private Secretary sent on 4 February 2011 which immediately preceded it, namely “the non-disclosure of the information and the impact on the smooth running of the Committee and the ability for Dr Raabe to be able to respond to provide balanced advice on drugs misuse affecting the LGBT community”. They also reflected the very important statement by Mr Brokenshire, referred to in the 21 January 2011 email from his Assistant Private Secretary, that if the Department had known the details which had now been made public he would not have agreed to Mr Raabe’s appointment.

It is a standard requirement of applications for such posts that candidates declare matters about themselves that would potentially cause embarrassment or invite distracting criticism were they to be appointed. This is reflected in paragraph 2.08 of the Code of Practice for Ministerial Appointments to Public Bodies published by the Commissioner for Public Appointments, which provided that all members of public bodies must comply with the Principle of Probity. Accordingly candidates for public appointments must demonstrate that they are committed to and have an understanding of the value and importance of the Seven Principles of Public Life (the Nolan Principles). One of the Nolan Principles is Objectivity. In carrying out public business holders of public office should make choices on merit. Paragraph 2.08 of the Guideline provided that in practice this means departments must “ensure that all candidates are asked to disclose information or personal connections which, if they were to be appointed, could be misconstrued or cause embarrassment.”

I accept Mr de la Mare’s submission that at the heart of this claim lies the question whether the fact that Dr Raabe had co-authored the 2005 Paper could reasonably be considered to have been a relevant consideration to the initial decision whether he should be appointed to the ACMD. In my judgment the answer to that question is plainly yes.

If Dr Raabe had disclosed the 2005 Paper in the course of his application in answer to the question posed, in my judgment the Defendant would have been entitled to decide that the contents of the Paper were such as to justify rejecting Dr Raabe’s application to be a member of the ACMD and a claim for judicial review of such a decision on the ground that it was unreasonable or irrational would have failed. Before giving my reasons for reaching this conclusion I add that in my judgment it follows that, in the absence of any satisfactory explanation by Dr Raabe for his failure to disclose his co-authorship of the 2005 Paper or reasons why, had he done so, it would have been unreasonable or irrational for the Defendant to have rejected his application, it cannot be said that a decision to revoke the appointment once the fact of his co-authorship of the Paper had become known was unreasonable or irrational. If it would not have been unreasonable to reject Dr Raabe’s application by reason of his co-authorship of the Paper it did not become irrational or unreasonable to revoke the appointment once his co-authorship became known to the Home Office.

I accept Mr de la Mare’s submission that the capacity of the 2005 Paper to cause grave offence and generate distracting controversy is self-evident, particularly given that it was presented as “medical opinion”, and that it was entirely predictable that, upon his appointment and the discovery of his role in co-authoring it, a storm of controversy would descend, as in fact happened. At the very least that was a reasonable view for Mr Brokenshire to have reached.

Dr Raabe described the Paper as essentially a summary of peer-reviewed studies on various issues connected to gay marriage and traditional marriage. In his second witness statement he asserted that statements made in it were based on other scientific papers and that it was a scientific review of the relevant research available in 2005 as well as statements made by homosexual writers. He said that he did not believe that he should be excluded from public office for setting out scientific research on this matter. In my judgment that is a wholly unrealistic description of the 2005 Paper which ignores the forensic characteristics and purpose of the Paper, a purpose indeed which Dr Raabe himself acknowledged. It was Dr Raabe who said that the Paper was written in the context of a debate about same-sex marriage which was taking place in Canada at the time and who subsequently asserted that it was a manifestation of his religious beliefs.

It is true that the Paper cited a number of papers and studies which appear to have been scientific. However it did not do so in a manner which one would expect of a dispassionate objective scientific paper whose purpose was to provide a balanced and detached analysis even by way of summary of scientific research.

The impression given by the Paper, or at the very least the impression which it would have been reasonable for a decision maker to consider that it gave, was that the authors were strongly opposed to same-sex marriage and were seeking to persuade the reader of the dangers of allowing homosexuals to marry and in particular to become parents and that both the scientific and non-scientific sources relied on were deployed as ammunition in support of the pre-conceived proposition that homosexuals are unsuitable and potentially dangerous people to be allowed to get married and become parents. As was said in the annex commenting on Dr Raabe’s letter dated 2 February 2011 it could be considered that the Paper selectively cited research work to demonstrate a point.

It is in my judgment a matter of obvious common sense that in a number of respects the 2005 Paper was likely to cause grave offence to homosexuals and that the very fact that it was entitled “some medical comments” when in reality it expressed political or moral views was likely to exacerbate such offence or at the very least that such a view could reasonably be reached.

It is striking that in his conversation with Dr Williams on 20 January 2011 Dr Raabe himself accepted that some of the statements in the 2005 Paper were “somewhat strident” and recognised that they could be seen as offensive to some people. He described the tone in retrospect as a bit harsh and said that he could see that certain people would find themselves attacked by it. He also acknowledged that the aim or focus of the paper was on a political discussion and that he had been looking at a political decision on whether or not to legalise same-sex marriage.

Asked about the section about homosexuals and paedophiles he said that that was a very very problematic and hot topic. He remembered that the authors quoted a paper which found a disproportionate number of gays among sexual offenders including paedophiles and that they quoted “an overlap between the lesbian and gay movement and the movement for paedophiles written by someone who is sympathetic to paedophiles”. He said that was what was quoted based on a forensic psychiatrist and an activist within the movement and accepted that that was a very problematic thing and could easily be misunderstood.

Given the obviously sensitive nature of the subject matter of the Paper it would in my judgment have been an entirely reasonable conclusion that the Paper would or at least might cause offence in particular to members of the LGBT community and that were Dr Raabe to be appointed to the ACMD it might adversely affect the smooth running of the ACMD. That could occur in a number of ways including by raising concerns over Dr Raabe’s willingness or ability to provide balanced advice on drug misuse issues affecting the LGBT community, by making it more difficult to secure the co-operation of members of the LGBT community in the work of the ACMD, by risking the resignation(s) of member(s) of the ACMD and by provoking distracting and unhelpful public controversy.

In my judgment the conclusion reached by Mr Brokenshire in his 4 February 2011 revocation letter that the 2005 Paper was polemical and assembled material in a way which disparaged gay people and their lifestyles and relationships was one which was reasonably open to him to reach. In reaching that view I do not accept, nor do I consider it necessary to accept, Mr de la Mare’s characterisation of the 2005 Paper as “more bluntly anti-gay”.

I do however broadly accept his critical analysis of the 2005 Paper. The fact that it cited scientific papers does not mean that it was itself a scientific or medical paper in the sense of presenting a balanced or objective summary of all relevant learning or research on the topics which it addressed. It was, as Mr de la Mare described it, an opinion piece and was plainly designed to advance a number of reasons why same-sex marriage would be a bad thing. The thread which tied together the various points made and bits of research referred to appeared to be the identification of a number of alleged characteristics of homosexuals and their lifestyle which expressly or by implication made them unfit or unsuitable for marriage and parenthood and even meant that they might represent a danger to children of whom they were allowed to become parents or in some cases, not obviously related to their suitability to become parents, (such as the major burden to the health service said to be posed by homosexuals’ very high rates of sexually transmitted diseases) the identification of alleged characteristics which were generally negative.

In addition to the points made by Mr de la Mare and those which I have myself already mentioned I would draw attention to the following further features of the Paper.

The Paper made a number of what purported to be general statements of fact which were not or did not appear to be supported by the sources cited in support. Thus “the actual number of homosexuals is quite small. Essentially all surveys show the number of homosexuals to be only 1 – 3% of the population” (emphasis added). In fact this was supported by only six cited studies, two from the US and one each from Canada, Britain, Holland and New Zealand.

The statement “the number of homosexuals living in ‘common-law partnerships’ is even less, only 0.5% of all couples” was based on a single example, the 2001 Canadian census which was said to be the first to provide data on same-sex partnerships.

The statement that “there are very high risks of sexual promiscuity among the homosexual population with short duration of even ‘committed relationships’ cited four studies. The statement that promiscuity among lesbian women is higher than among heterosexual women cited a single source in support. No figures were given as to rates of sexual promiscuity among heterosexual men from which a comparison could be made as to the rates of sexual promiscuity among homosexual men cited in the Paper.

The statement that “many ‘committed’ homosexual relationships only last a few years. This raises doubts to whether children raised in same-sex households are being raised in a protective environment” appeared to imply that it was not the case that many committed heterosexual relationships only last a few years. However no sources or figures were supplied to support such a proposition.

The statement that “the majority of homosexual men (60%) engage in anal sex, frequently without condom and even if they know that they are HIV positive” although presented as a general statement of fact was based on only one study. The statement that “the only safe sex is, apart from abstinence, mutual monogamy with an uninfected partner” on its face was equally applicable to heterosexuals as to homosexuals. No explanation was given as to its relevance.

I accept Mr de la Mare’s submissions in relation to the critical section on homosexuality and paedophilia. I would make the following additional observations.

The statement that “it is of grave concern that there is a disproportionately greater number of homosexuals among paedophiles and an overlap between the gay movement and the movement to make paedophilia acceptable” presented as an apparent fact that there is a disproportionately greater number of homosexuals among paedophiles. The only source cited for this general proposition was a single study by Blanchard R et al which appeared to be cited in support of the general statement that “the percentage of homosexuals among paedophiles is 25%.” Even if the Blanchard study found that 25% of the paedophiles examined in that particular study were homosexuals it does not follow that the percentage of homosexuals among all paedophiles is 25% or that there is generally a disproportionately greater number of homosexuals than heterosexuals among paedophiles.

The statement that “violence among homosexual partnerships is two to three times as common as in heterosexual relationships”, presented as a statement of fact, was entirely unsupported by any source or evidence.

The statement that “former homosexual Stephen Bennett who is married to his wife and has two children states “Granting homosexuals the right to marry or adopt children is deliberately creating dysfunctional families”” did not identify Mr Bennett or provide any explanation as to what if any general significance should be attributed to his opinion.

As to the reference to Greek mythology as a well-known historic example of the link between homosexuality and paedophilia I would observe that it is not difficult to see how a decision-maker might reasonably conclude that such a reference in a Paper purporting to be based on medical comments might cause offence and raise doubts as to the credibility of a co-author of the Paper to give balanced and objective advice. The same is true of the statement that it was of grave concern that there is an overlap between the gay movement and the movement to make paedophilia acceptable. No explicit explanation was provided as to the relevance of that asserted overlap and the undesirability of same-sex marriage.

Finally the statement that “homosexuality is neither an entirely innate condition nor is it unchangeable” is to say the least controversial. It was said to be supported by the no less unequivocal statement that “evidence from biology shows clearly that gays are not simply born that way”. In fact only one source was cited for that assertion and only two more for the first assertion, neither of which on their face purported to go anything like as far as the general statement made in the 2005 Paper.

I emphasise that in making these observations I express no opinion on the merits or demerits of same-sex marriage or on the views expressed in the 2005 Paper. Nor was it suggested by Mr Brokenshire or the Defendant that Dr Raabe was not entitled both to hold and to express the opinions set out in the Paper. My observations are intended to explain why, together with the submissions made by Mr de la Mare which I have indicated I accept, I have reached the clear conclusion that Dr Raabe’s co-authorship of the 2005 Paper was a matter which could reasonably have been taken into account when deciding whether to appoint him to the ACMD, which he should have disclosed and which, together with his non-disclosure of it, Mr Brokenshire was reasonably entitled to conclude justified revoking the appointment.

As to Mr Dingemans’ submission that no one had suggested or could reasonably suggest that Dr Raabe’s views represented the views of the Defendant and that it was irrational to formulate the issue in those terms, as I have already explained I do not accept the submission that it was any part of the decision to revoke that the Defendant or Mr Brokenshire considered that Dr Raabe’s views must represent those of the Defendant.

As to the contention that the decision that there would be disruption to the smooth running of the ACMD was impermissible because the evidence showed that such disruption was just as likely as a result of the dismissal of Dr Raabe as through his retention that is in my judgment based on a non-sequitur. It was submitted that given the evidence that there would be no greater disruption from his dismissal than from his retention, particularly because he was the only appointable GP, there was no lawful basis on which the Defendant could have relied on disruption to the smooth running of the ACMD.

As already mentioned the removal of the statutory requirement for a GP member of the ACMD followed a Bill introduced to Parliament on 1 December 2010 before Dr Raabe was appointed to the ACMD and in fact another GP was subsequently appointed to the ACMD following the revocation decision in July 2011.

It is true that ministers’ attention was drawn to the fact that there was a statutory requirement for a GP member and that the only other GP candidate had been considered unsuitable. However it does not follow in my judgment from the fact that revoking Dr Raabe’s appointment might lead to logistical problems that a reasonable decision maker could not decide that retaining Dr Raabe would or might cause greater disruption to the smooth running of the ACMD than dismissing him. The third submission to ministers noted that Dr Raabe’s retention might cause internal friction within the ACMD and the possibility that one or more ACMD members might resign in protest. That was a matter which a decision taker could reasonably take into account and, coupled with the other respects in which the controversy caused by the publicity generated by the emergence of Dr Raabe’s co-authorship of the 2005 Paper might reasonably be feared to interfere with the smooth running of the ACMD, including by putting at risk the continued co-operation of the LGBT community, and generating distracting controversy, this was a factor to which a decision-maker was in my judgment reasonably entitled to give such weight as he considered appropriate. It is in my judgment unrealistic to suggest that no reasonable decision-taker could have concluded that these concerns, particularly taken together with the other matters taken into account, justified revoking the appointment. The minister was entitled to reach a different view to that expressed by an official.

As to the contention that the Defendant applied a standard of disclosure against the criterion of “embarrassment” which no reasonable decision-maker could have applied, that the criterion is vague and was not infringed on the facts of this case, the reference in the revocation letter to the Paper being embarrassing and to the conclusion that to have an advisor who holds views expressed within the Paper could impact on the effective functioning of the ACMD was, as Mr de la Mare submitted, in my judgment in context a reference to the question asked at interview whether there was anything about his professional or personal history which, if brought into the public domain, might cause embarrassment or disrepute to the organisation. The purpose of that question was to require an applicant for a post to identify any feature not disclosed by the application process which might if known be thought to diminish their suitability for appointment. It is a standard question and, as I have held, a reasonable one to ask of an applicant for a post such as that for which Dr Raabe applied. For the reasons given in the decision letter in my judgment it was not unreasonable to conclude that Dr Raabe’s co-authorship of the 2005 Paper could cause embarrassment in the sense contemplated by the Code of Practice. I also accept Mr de la Mare’s submission that in any event the 2005 Paper having come to light the Defendant was entitled to consider that it was a relevant consideration that should have been taken into account in the appointment decision and to revoke the appointment by reason of its non-disclosure and its content.

Finally Dr Raabe belatedly advanced a submission that a decision to revoke his appointment to the ACMD was irrational and one that was not reasonably open to the Defendant because the effect of the decision was to interfere with his fundamental human right to hold and manifest religious beliefs and the decision failed to satisfy the test of “anxious scrutiny” referred to by the Court of Appeal in Preddy v Bull. I do not accept that submission. Dr Raabe’s Article 9 rights to freedom of religion, including his right to manifest his religion and beliefs, are of course a matter of great importance. However in my judgement the issue of Dr Raabe’s religious beliefs and his right to manifest them is a red herring in this case and I note that it was not advanced as a claim that his Article 9 rights were breached.

It is striking that neither in his telephone conversation with Dr Williams nor in his letter dated 2 February 2011 responding to the “minded to terminate” letter dated 27 January 2011 did Dr Raabe raise this suggestion. On neither occasion did he assert that the 2005 Paper was an expression of his religious beliefs or that a termination of his appointment would have the effect of interfering with his right to hold and manifest his religious beliefs. To the contrary in his letter dated 2 February 2011 Dr Raabe said that it was worth emphasising that the Paper was essentially a summary of research drawing on scientific papers in the public domain which had been subject to peer reviews. The only reference to his religious beliefs was in the separate context of his volunteering the information that he was a member of the Maranatha community where he had contributed some publications. That was said not in the context of justifying or explaining the views expressed in the 2005 paper or complaining that termination of his appointment for having co-authored it would have the effect of interfering with his religious beliefs but rather it was in the context of pre-empting any suggestion that he was withholding any further potentially embarrassing facts about himself.

Indeed in his first witness statement dated 28 April 2011 in support of his claim for Judicial Review although he referred to his membership of the Maranatha community and to the fact that he had written submissions in conjunction with it on drugs and drug related issues and other issues, and although he had a separate section describing his religious beliefs, it is again striking that he did not assert that the 2005 Paper set out any of his religious views. Although he referred to his view that traditional marriage has been the predominant societal form of for bringing up children for many centuries, he said that that was the case throughout many including non-Christian societies. He said that the starting point of the Paper was that to redefine marriage would lead to a serious change in the social fabric of society and to disregard the experiences of many societies throughout the world throughout time.

When addressing the implications of the decision to revoke his appointment he said that he believed that it would “have serious implications for freedom of opinion of speech etc but also implications for research. If “controversial” research can lead to a revocation of office or a bar to selection it will have a chilling effect on academics putting their name to papers which contain controversial or unpopular reviews”. Again there was no allegation that the revocation interfered with his right to manifest his religious beliefs.

It is in my judgment clear that the decision to revoke his appointment was not taken because the 2005 Paper opposed the legalisation of same sex marriage. The concerns which were raised resulted from the fact that there were various features of the Paper which were considered to be polemical and to assemble material in a way which disparaged gay people and their lifestyles and relationships. In particular in the “minded to revoke” letter dated 27 January 2011 attention was drawn to the controversial opinions expressed around the issue of homosexuality and paedophilia. As pointed out by Mr de la Mare, it was not suggested by Dr Raabe that it is a tenet of his religious faith that gay men are more likely to be paedophiles or to have greater incidences of mental illness.

If, as I have found to be the case, it was reasonably open to the decision maker to conclude that some aspects of the Paper could reasonably be considered to be such as might cause offence to members of the LGBT community by reason of the manner in which views were expressed and assertions were presented as uncontroversial facts, the decision to revoke the appointment did not in my judgment become unreasonable by reason only of the fact, if fact it be, that Dr Raabe’s co-authorship of the Paper was motivated by his religious beliefs. In fact as I have indicated he did not assert that it was. Although nothing turns on it in this case, there is in my judgment a difference between acts which are a manifestation of religious belief and acts which are motivated by such religious belief. I accept Mr De La Mare’s submission that the present case is in the latter camp and that Article 9 of the ECHR offers no protection to such acts. Offensively expressed views which it would undoubtedly be reasonably open to a decision maker to consider to be relevant to a decision whether to make an appointment if they were held independently of religious belief are not rendered irrelevant by their religious motivation.

It is of course true as Mr Dingemans rightly pointed out that in Redfearn v The UK the European Court of Human Rights stated that the provisions of the ECHR are “applicable” not only to persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb. However that of itself does not assist Dr Raabe. Indeed it did not assist Mr Redfearn, the bus driver dismissed from his job on the basis that he was member of the BNP, in his Article 9 case, which was dismissed, the court finding that his dismissal did not give rise to a breach of his rights to freedom of thought including his right to manifest his beliefs.

In Preddy v Bull Rafferty LJ stated:

In that case the trial judge held that the defendant hotel owners held the genuine religious belief that homosexual sexual relations and heterosexual sexual relations outside marriage are sinful and Sir Andrew Morritt C held that the restriction on the letting of the hotel’s double bedded rooms applied by the defendants in the management of the hotel was a manifestation of their religious belief within Article 9.2. Nonetheless the Court of Appeal held that the Equality Act (Sexual Orientation) Regulations 2007 which prohibited discrimination on the grounds of sexual orientation in so far as they affected the defendants’ right to manifest their religious belief was a necessary and proportionate intervention by the state to protect the rights of others. (paras 56, 58, 59 ,62, 65 and 66).

If I had concluded that Dr Raabe’s co-authorship of the 2005 Paper constituted a manifestation of his religious beliefs I would not have concluded that for that reason the decision to revoke his appointment was irrational. Dr Raabe was not by the decision to revoke his appointment prevented from expressing the views set out in the 2005 Paper or indeed from repeating them. Nor was he prevented from practicing his profession as a GP. Rafferty LJ cited Lord Hoffmann’s comment in R(SB) v Governors of Denbigh High School Sparacus 2007 [1] AC 100 para 50 that:

Rafferty LJ on the facts of Preddy v Bull stated that she did not consider that the defendants faced any difficulty manifesting their religious beliefs. They were merely prohibited from so doing in the commercial context they had chosen. (para 56).

As I have said, there is in my judgment nothing to suggest that if Dr Raabe had expressed his opposition to same sex marriage and set out any religious basis for that opposition, that would have been considered by the Defendant or Mr Brokenshire to be a reason for revoking his appointment. In fact he did not set out any religious basis for the views expressed in the 2005 Paper and there is no reason to suppose that the revocation of his appointment would inhibit or deter any person who opposes same sex marriage on religious grounds from publicly expressing such views for fear of being rejected for a similar appointment in the future. Mr de la Mare pointed out the most obviously offensive features of the Paper did not form part of any religious belief.

Related to this final ground of challenge on irrationality was Mr Dingemans’ submission that the decision to revoke was unlawful because it took into account discriminatory views regarding Dr Raabe’s religious beliefs which were based upon incorrect assumptions about his ability to advise treat or serve members of the LGBT community. He submitted that Dr Raabe’s ability to do so was not adversely affected either by his membership of the Maranatha community or by his religious beliefs as proved by his successful practice as a GP. In my judgment there is no evidential basis for this submission. There is no evidence that account was taken of any discriminatory views regarding Dr Raabe’s religious beliefs. The 2005 Paper made no reference to any religious beliefs of Dr Raabe or the co-authors. There is nothing in the papers to suggest that a different decision would have been made if it had been known or believed that, as might as well have been the case, Dr Raabe was an agnostic or an atheist. Nor is there any evidence to suggest that his appointment would have been revoked if it had emerged that he had written an opinion piece arguing against same sex marriage in balanced terms which were not considered to be offensive to the LGBT community upon whose co-operation the work of the ACMD in part depended.

There was no evidence to suggest that his membership of the Maranatha played any role in his decision. As to his ability to advise treat and serve members of the LGBT community the submission failed to address the potential and, as it turned out the actual impact of the 2005 Paper on the LGBT community.

For all these reasons in my judgment this ground of challenge also fails.

As with some of the other submissions advanced by Mr Dingemans in his skeleton argument and at the hearing some of the arguments advanced under this head of challenge were not raised until a late stage in the proceedings. In my judgment there is no substance to them. As appears from the narrative of the events between the 2005 Paper first coming to the attention of the Home Office on 20 January 2011 and the decision to revoke Dr Raabe’s appointment on 4 February 2011 set out earlier in his judgment, Mr Brokenshire made a point of insisting that Dr Raabe be given a reasonable opportunity to respond to the concerns raised by the 2005 Paper. Dr Williams said that on 24 January 2011 at a meeting between officials and Mr Brokenshire to discuss whether Dr Raabe’s appointment should be terminated immediately, Mr Brokenshire had made it clear that a full and proper process should take place and that Dr Raabe should have the opportunity to state his case and for the facts of the case to be firmly established. He asked that a telephone conversation take place between Dr Raabe and Dr Williams and Professor Silverman to confirm that Dr Raabe had co-authored the 2005 Paper, to understand his current position and to establish whether he still held the views expressed in the Paper. Pursuant to that instruction Dr Williams did contact Dr Raabe and in the course of the telephone conversation was asked to confirm that he was a co-author of the 2005 Paper, and was asked whether he stood by the statements made. The Department’s particular concerns about the ACMD giving advice on GBL which was prevalent in the LGBT community was put to him and he was asked to comment on whether some of the views expressed in the Paper prejudiced his advice.

On 25 January 2011 Dr Raabe wrote a long email to Dr Williams about the 2005 Paper. That same day following consideration of the transcript and summary of Dr Williams’ telephone conversation with Dr Raabe, Dr Williams said that Mr Brokenshire requested that a letter to Dr Raabe be prepared allowing him to have a further and full opportunity to make representations regarding his position. That was duly done in the form of Mr Pratt’s letter dated 27 January 2011 in which Dr Raabe was warned that the Home Office was minded to reconsider his appointment to the ACMD and asked if he would like to comment in response. The letter gave Dr Raabe until 1 February 2011 to reply. Dr Williams stated that Mr Brokenshire agreed to the letter being sent but asked for the deadline to be put back a day from that which had been proposed to ensure that Dr Raabe had as long as possible to consider and present his case. It was agreed to give him six days to respond. The letter said that the 2005 Paper had expressed controversial opinions inter alia around the issue of homosexuality and paedophilia and said that because of his failure to declare the 2005 Paper and because of its contents the Home Office was minded to reconsider his appointment and was giving him the opportunity to make any comments he wished in response. It specifically said that the Department’s concern was irrespective of his religious beliefs, views on drug misuse or declared political activities.

Dr Raabe responded in his letter dated 2 February 2011. His response was considered in detail in a written submission which addressed various of the points he had made and it was in the light of that advice and Dr Raabe’s response that the decision to revoke was taken. It is clear that Mr Brokenshire himself amended the draft revocation letter which he had asked to be prepared. Not least given the pressure to make a quick decision by reason of the storm of controversy generated by the emergence in the media of the 2005 Paper, in my judgment the evidence shows that scrupulous care was taken in affording to Dr Raabe a fair opportunity to respond to the concerns which had been generated by the discovery by the Home Office of the 2005 Paper and Dr Raabe’s co-authorship and his failure to refer to it during the application process and in particular in response to the question whether there was anything in his personal or professional past which might cause embarrassment to the ACMD or to the Home Office.

As to the particular complaints advanced by Mr Dingemans, in my judgment none of them demonstrates a breach of the principles of natural justice, largely for the reasons identified by Mr de la Mare to which I have referred. As to the contention that it was unfair to take into account the fact that the Government did not share Dr Raabe’s views on homosexuality expressed in the 2005 Paper, I have already indicated that I do not accept that that matter was in fact taken into account in the making of the decisions. What was taken into account was the manner of the expression of Dr Raabe’s and his co-authors’ views which were considered to be polemical and to disparage gay people in an offensive way under the guise of science, the relevance of the nature and contents of the 2005 Paper and its capacity to offend members of the LGBT community and the fact that his co-authorship of the Paper had not been disclosed.

The core of Dr Raabe’s complaint under this head appeared to be that he had not had an opportunity to answer the specific charges which led to the revocation according to the 4 February 2011 letter and that he had a complete answer to those charges.

The charges were that the 2005 Paper raised concerns over his ability to provide balanced advice on drug misuse issues affecting the LGBT community and that the paper was polemical and assembled material in a way which disparaged gay people and their lifestyles and relationships. His complaint was that these matters had not been put to him before they were formulated in the letter dated 4 February 2011. The complete answer to those charges which he had and would have given was that whatever his personal beliefs about the rights or wrongs of homosexual sexual relations he would advise, treat and serve and had advised, treated and served everyone equally.

In my judgment these complaints are unrealistic and are not supported by the evidence. Not only had the substance of both these concerns been raised with Dr Raabe but this so-called complete answer had not only already been raised by Dr Raabe but was in any event not, or could reasonably be considered not, in fact a complete or any answer to one of the main concerns which led to the revocation of his appointment.

In the telephone conversation on 24 January 2011 Dr Williams specifically alerted Dr Raabe to the fact that some of the concerns raised were that the ACMD provided advice considering issues on certain drugs for example GBL which was prevalent in the LGBT community and he was asked whether some of the views expressed in the 2005 Paper would prejudice his advice. He was also specifically asked what he thought about what was said in the 2005 Paper in the section about homosexuals and paedophiles which had been picked up in the Observer. In addition in the 27 January 2011 letter he was specifically put on notice that the fact that the Paper expressed controversial opinions inter alia around the issue of homosexuality and paedophilia and its emergence into public prominence was considered to have caused embarrassment to the Department. Thus both the points were raised with Dr Raabe as was the fact that he had not referred to the 2005 Paper.

Moreover it is clear from Dr Raabe’s own comments in the 24 January 2011 telephone conversation that he was aware that one of the points referred to in the 2005 Paper was a very problematic thing and could easily be misunderstood. He explicitly recognised that some of the statements in the 2005 Paper could be seen as offensive to some people and accepted that some of the statements were probably somewhat strident and that the general tone was harsh and that he could understand that some people would take issue with certain points. He even offered in his email to Dr Williams dated 25 January 2011 to say that he would not make them again,

It is in my judgment in those circumstances quite unrealistic to suggest that Dr Raabe was unaware that one of the concerns in the Home Office was that the 2005 Paper had the potential to cause and indeed already had caused offence to members of the LGBT community. Moreover it was made clear in the 27 January 2011 letter that the Home Office was considering revoking his appointment because of his failure to disclose his co-authorship of the Paper and because of its content.

As to Dr Raabe’s so-called complete answer, he did in fact make that very point both in the telephone conversation and in his letter dated 2 February 2011. In the former he said that the views expressed in the 2005 Paper would not have any effect at all on his judgment and that he could very clearly differentiate between medical evidence without letting any personal views he had on a subject interfere with it. In his supplemental witness statement dated 10 June 2011 Dr Raabe said that in that telephone conversation he had sought to reassure the Home Office that the 2005 Paper would not affect his judgment when dealing with drug related issues relating to the homosexual community and his sincere willingness to cooperate with the ACMD. This was reported to the Defendant and Mr Brokenshire in the submission dated 24 January 2011 which recorded that Dr Raabe had told Dr Williams that his views would have no impact on the advice or his contribution to the ACMD and that he would only comment on the pharmacology, toxicology and medical aspects of the substance without reference to his personal views.

In his letter dated 2 February 2011 Dr Raabe asserted that he did not consider that the 2005 Paper had relevance to matters which fell within the remit of the ACMD. Moreover in his email to Dr Williams dated 25 January 2011 Dr Raabe made the point that he had been working as a doctor for 18 years and had never had any complaints or concerns expressed towards him that he would be discriminating against gay or transsexual patients and said that he had always treated them with special respect and would do exactly the same on the ACMD. He also accepted that to mention the link between the gay movement and the movement to further paedophilia in the Paper regarding marriage in Canada was probably not helpful and said that he could offer to say that he would if he could turn the clock back and were he to be involved in a similar publication in a similar context that he would not mention that particular issue.

Dr Raabe’s point, citing his own treatment of LGBT patients, that his views were irrelevant and would not influence his judgment were recorded and addressed in the Annex to the 3 February 2011 submission to Mr Brokenshire. However it was pointed out that the point was arguable because the ACMD frequently considered the misuse of substances which appeared to be used largely within nightclubs favoured by the LGBT community

It is in my judgment clear that Dr Raabe was not only alerted to but took on board the nature of the concerns which ultimately led to the revocation of his appointment. In particular he was aware that one of the concerns related to the perception of the 2005 Paper and his co-authorship of it by members of the LGBT community. It was simply no answer to that concern for Dr Raabe to assert that the views expressed in the Paper would not affect the way in which he addressed issues arising in the ACMD. In any event although it was in my judgment open to Mr Brokenshire reasonably to conclude that it was not a complete or indeed an effective answer it was clear that he had made this point and that it was taken on board by the Department.

For all these reasons in my judgment this ground of challenge also fails.

On behalf of Dr Raabe it was submitted that the Defendant did not have a right to terminate his appointment unless he was in breach of the terms and conditions of his appointment, something which had not been suggested by the Defendant. I do not accept that submission. If, as I have held to be the case, Dr Raabe’s co-authorship of the 2005 Paper was a matter which the Defendant was entitled to take into account when deciding whether to appoint him to the ACMD and which Dr Raabe should have disclosed in answer to the question whether there was anything about his professional or personal history which, if brought into the public domain, might cause embarrassment or disrepute to the ACMD or the Home Office, his failure to disclose it invalidated the original appointment and the Defendant was entitled to revoke the appointment on the ground that it was relevant to the original decision, that it should have been disclosed and that both the contents of the Paper and the fact of non-disclosure justified revocation.

For the reasons which I have given in my judgment there is no merit to any of the grounds on which Dr Raabe seeks to challenge the decision to revoke his appointment to the ACMD and his claim for judicial review fails.