QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PURJA AND ORS||(CLAIMANTS)|
|MINISTRY OF DEFENCE||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR R SINGH QC AND MR K MORTON (Instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
Friday, 21st February 2003
MR JUSTICE SULLIVAN: Introduction
(i) Religious Discrimination.
(ii) Discrimination in relation to promotion.
(iii) Discrimination in relation to dress codes.
(iv) Discrimination in relation to segregated accommodation.
(v) Discrimination in relation to segregated dining arrangements.
(vi) Discrimination in relation to leave arrangements.
(vii) Discrimination in relation to baggage allowances.
(viii) Discrimination in relation to retirement age.
(ix) Discrimination in relation to pay.
(x) Discrimination in relation to pensions.
(xi) Discrimination in relation to the educational provision made for children of Gurkha soldiers.
(xii) Discrimination in relation to access to families.
The Remaining Complaints
(i) Pensions (and pay) on return to Nepal; and
(ii) Accompanied Service.
Race or Nationality
The 1947 TPA
"The Government of Nepal being generally satisfied in regard to the terms and conditions of employment of Gurkha troops and taking note of the agreement dated 7th November 1947 reached between His Majesty's Government in the United Kingdom and of the Government of Dominion of India hereby signify their agreement to the employment of Gurkha troops in the armies of the United Kingdom and of India.
5. In addition to the observations referred to above the Government of Nepal put forward certain suggestions connected with the employment of Gurkhas in the armies of the United Kingdom and of India ... The views of the two Governments thereon will be communicated to the Government of Nepal in due course".
" . . . that the basic rates of pay admissible to Gurkha Officers and soldiers serving HM Government shall approximate to those laid down in the present Indian pay code . . . and that a special allowance to compensate for permanent service overseas and high cost of living, shall in addition be admissible to Gurkha officers and soldiers serving HM Government Overseas".
"In all matters of promotion, welfare and other facilities the Gurkha troops should be treated on the same footing as the other units of the parent army so that the stigma of 'mercenary troops' may for all time be wiped out. These troops should be treated as a link between two friendly countries".
" . . . subject to the limitations of finance and supply, welfare facilities would be provided for Gurkha troops on similar lines to those provided to British (United Kingdom) troops.
In a tripartite meeting at Kathmandu on 7th November, attended by Indian representatives and by the Maharaja of Nepal, Mr Symon emphasised that the United Kingdom in no way regarded Gurkha troops as mercenaries, and that they would form an integral and distinguished part of the British Army".
"Gurkhas enlisted into the British Army are liable for service anywhere in the world, although it is the present intention to employ Gurkhas personnel mainly in Malaya".
"Accommodation in Malaya.
It should be made quite clear that in the early stages, accommodation for Gurkha Units in Malaya will not be good. They will be mostly in tented camps, but a large building programme is in hand and assurances may be given that in course of time all Gurkha Units in Malaya will be adequately housed in modern barracks".
"Family accommodation will be provided eventually for up to 25 per cent of Gurkha Officers and men allowed by unit establishment. All married Gurkha officers and Warrant Officers will be entitled to family accommodation, within the overall total 25 per cent establishment".
"It is unlikely that Malaya will be able to accept all 'entitled' Gurkha families until 1949. A token number of families will, however, be accepted with the Gurkha Units proceeding to Malaya in the spring of 1948; but owing to accommodation difficulties families of only six Officers and six other ranks per Battalion can be accepted at that time".
"The payment of Gratuities and Pensions will be admissible to Gurkha solders . . . with reckonable service in the Indian or British Armies under the Pension Regulations for the Army in India, 1940 . . . Entitlement to gratuities and pensions will be conditioned by that period of Colour Service which qualifies under the Pension Regulations for the Army in India, 1940".
Events Post 1947
"Married accompanied service is to be made available in the United Kingdom. In keeping with the tripartite agreement, which specifies that up to 25 per cent of the Gurkha officers and soldiers will be provided with family accommodation, sergeants and below will be granted one three year accompanied tour and the more senior ranks will be permanently accompanied. This reflects the basis upon which married accompanied service is available in Brunei and Nepal and was provided to those serving in Hong Kong".
"The present entitlement of Gurkha soldiers to long leave every three years will remain. This recognises the continuing importance we attach to keeping the Gurkha soldier in touch with his home culture and roots".
The Present Position
"The increase will be paid from 1 April 2000. All pensioners will receive a minimum 100 per cent increase but some will receive considerably more, reflecting the Indian Government Fifth Pay Commission's recommendations ...
Pensions have been examined to take into account, for the first time the Indian Government package of welfare benefits in kind available to Indian Army pensioners ...
Gurkha pensions and gratuities will continue to be reviewed in the normal way and will benefit from cost of living increases each year".
"Effectively, this means that Gurkha pensions are set at double the top rate of the Indian Army and now compare favourably to professional salaries in Nepal. Indeed, the British Embassy in Kathmandu advise us that a rifleman with 15 years' service has a higher pension than a bank clerk's salary, and a retired Corporal receives a pension only £3 a month less than the salary of a Royal Nepalese Army Captain".
"It appears to me that it will usually be convenient for a court, when invited to consider an Article 14 issue, to approach its task in a structured way. For this purpose I adopt the structure suggested by Stephen Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000). If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is No, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are:
(i) Do the facts fall within the ambit of one or more of the substantive convention provisions (for the relevant convention rights, see section 1(1) of the 1998 Act?
(ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other: (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved? The third test addresses the question of whether the chosen comparators were in a sufficiently analogous situation to the complainant's situation for the different treatment to be relevant to the question whether the complainant's enjoyment of his convention right has been free from article 14 discrimination".
"A potential overlap between the considerations that are relevant when determining, at any rate, the last two, and possibly the last three questions".
"That the policy adopted by the MoD in relation to the entitlement of Gurkha soldiers to have their families live with them is unlawful in that it breaches Articles 8 and 14 of the European Convention on Human Rights".
"Arrangements relating to the proportion of Gurkha soldiers who may be accompanied at any one time stem from the TPA. The 1947 Terms and Conditions of Service, in respect of which the Government of Nepal was 'generally satisfied', anticipated that family accommodation would be provided for 'up to 25 per cent of Gurkha officers and men'. Accordingly, family accommodation is provided for up to 25 per cent of Gurkha officers and soldiers". [my emphasis]
"Increasing the proportion of accompanied Gurkha soldiers would reduce the flexibility and effectiveness of the Brigade to deploy because Gurkhas tend to marry at a younger age and serve for longer than British soldiers and the proportion of married accommodation required for Gurkhas would be higher. This would also impact on the accommodation provided by the Sultan in Brunei over which the defendants have limited influence".
"These matters justify the differences in arrangements for accompanied service between Gurkha and non-Gurkha soldiers".
"Married accompanied service is to be made available in the United Kingdom. In keeping with the tripartite agreement, which specifies that up to 25 per cent of Gurkha officers and soldiers will be provided with family accommodation . . . " [my emphasis]
"The MoD has always taken the view that it is justified in abiding by the TPA's 'limit' of 25 per cent in order to ensure that [the] linkages to Nepal, envisaged in the international agreement, were maintained".
"The MoD recognises that its Gurkha accompanied service policy is not popular amongst junior ranks".
"The MoD is conscious that any major changes to Gurkha accompanied service policy would plainly raise awkward questions with regards to the TPA. Changes would bring with them enormous practical difficulties that would have a tangible impact on the Brigade's effectiveness and deployability. This is because Gurkhas tend to marry at a younger age than British solders. Proportionally, therefore, a Gurkha unit would require significantly more married quarters than a British one.
Moreover, there would also be implications for our bi-lateral relations with Brunei, given that approximately 23 per cent of the Brigade are at any one time stationed there, any major changes to our provisions would require changes to the Garrison estate which the Sultan would be expected to fund".
"In matters of promotion, welfare and other facilities, the Gurkha troops should be treated as any other units in the parent [British] Army. Subject to limitations of finance and supply, welfare facilities were to be provided for Gurkha troops on similar lines to those provided for the British".
"Arrangements for British soldiers in and about 1947.
The relevant regulations applicable from 1945 did not guarantee married accommodation but provided for the allocation of married accommodation in an order corresponding to the length of time of any particular establishment. By 1955 the basis upon which married accommodation was allocated had been changed to permit the allocation of married quarters to personnel over the age of 21 subject to priortisation determined in accordance with a "points scheme". It follows that at and about the time of the 1947 TPA not every British soldier eligible for a married quarter was allocated one, but there was no provision limiting the availability of married accommodation equivalent to that set out in Gurkha TACOS".
"In Brunei the limited number of British soldiers deployed there in support of the resident Gurkha Battalion are entitled to serve accompanied".
(1) The need to ensure that linkages with Nepal were maintained. To this end, Gurkhas are entitled to five months' long leave every three years and to terminal leave to help them resettle in Nepal.
(2) Because a greater percentage of Gurkhas are married, and they tend to marry at a younger age than British soldiers, a Gurkha unit would require significantly more married quarters than the British one, and because Gurkhas are deployed in formed units, this would have a "tangible impact on the Brigade's effectiveness and deployability".
"There is a near full take up of accompanied service by Colour Sergeant and above who are entitled to serve accompanied . . . and almost all those below the rank of Colour Sergeant entitled to serve accompanied elect to do so".
"Most Gurkha men are married by the age of 21. The average Gurkha soldier is 18 when he joins his regiment, and those who are not married on joining usually marry three years later during their first long leave in Nepal. About 75 per cent of Gurkhas below the rank of Colour Sergeant are married: above that rank almost every Gurkha is married. A recent figure for the Brigade as a whole was 79.5 per cent. This pattern has changed little over the last decade. For comparison, 71 per cent of British officers are married, and 52 per cent of British soldiers".
"This review has been carried out by the Ministry of Defence. HQHG has acted in an advisory role throughout. The review has balanced the provisions of the TPA, the need for Gurkhas to maintain close cultural and family links with Nepal, the modern circumstances of the Brigade, and the traditional and well proven system of manning and managing the Brigade as a discrete corps within the British Army".