This paper compares the decisions of the Divisional Court and the Court of Appeal in R v Ministry of Defence ex parte Smith
<1996> 2 WLR 305 with that of the European Court of Human Rights in Lustig-Prean v UK (2000) 29 EHRR 548. It discusses how the
different outcomes in these cases can be chiefly explained by the approaches available to the courts in terms of reviewing State policy. It looks at why the test of 'irrationality' employed by the English courts meant that the
discriminatory government policy could not be overturned and then examines why the test of 'proportionality' available to the Court of Human Rights allowed a fundamentally different outcome to be reached.