British Gurkha Welfare Society v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Burnett |
| Judgment Date | 11 January 2010 |
| Neutral Citation | [2010] EWHC 3 (Admin) |
| Docket Number | Case No: CO/2343/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 January 2010 |
[2010] EWHC 3 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : The Hon Mr. Justice Burnett
Case No: CO/2343/2008
Mr. D. O'Dempsey and Miss O. Dobbie (instructed by Russell Jones & Walker) for the Claimant
Mr. R. Singh QC and Mr. Grodzinski (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 27 th and 28 th October 2009
Mr. Justice Burnett :
Introduction
This application for judicial review is brought by the British Gurkha Welfare Society and two individual retired Gurkhas. It seeks to challenge the pension arrangements put in place for Gurkhas following a Government review, the results of which were published in December 2006. The results of that review were implemented by the 'Gurkha Offer to Transfer' [“the GOTT”] and Armed Forces (Gurkha Pensions) Order 2007 SI 2007/2608 [“the Order”]. Historically, pension arrangements for Gurkhas and others serving in the British Army were entirely separate and calculated on different bases. The effect of the changes made in 2007 was to enable Gurkhas to elect to transfer to the Armed Forces Pension Scheme [“AFPS”] from the Gurkha Pension Scheme [“GPS”] but only if they served after 1 July 1997. For time served after 1 July 1997, the transfer rights are calculated on a full year for year basis of service. The effect is that pension accrues for those years broadly in the same way as it does for other British soldiers. However, for time served prior to 1 July 1997, the transfer value is calculated on an actuarial value basis for service given. Thus accrued rights are transferred without the enhancement available for post 1 July 1997 service (save for some who joined after 1 January 1993). The precise impact of that difference varies as between different ranks of those who served in the Gurkha Brigade before 1 July 1997. For most it means that pension was accruing at a rate of between 23% and 36% of the equivalent available to others in the Army.
In substance the claimants challenge:
i) The decision that Gurkhas who retired prior to 1 July 1997 are not entitled to transfer their pension rights under the GPS into the AFPS, thereby denying them the right to enhance their existing pensions. The second claimant retired in February 1997 after 15 years' service and thus has been unable to enhance any of his pension rights;
ii) The decision for those Gurkhas who retired after 1 July 1997 and therefore can transfer their pension rights into the AFPS that the service before that date does not rank on a year for year basis but rather on an actuarial basis. The third claimant retired in July 2002 and thus falls into the category of ex-Gurkha who was able to transfer his pre-July 1997 accrued pension only on an actuarial basis.
The complaint in respect of both groups is that the MoD failed to equalise pension entitlement in respect of periods of service before 1 July 1997 as well as after.
The challenge is advanced under three headings. First, it is said that the terms of the GOTT and the Order discriminate against Gurkhas on the basis of age and nationality in the context of Article 1 of Protocol 1 of the European Convention on Human Rights [“ECHR”] in combination with Article 14. Secondly, it is argued that the GOTT and Order are irrational. Thirdly, it is contended that the MoD failed to pay due regard to the need to promote equality of opportunity and good relations between people of different racial groups, as required by section 71 of the Race Relations Act 1976 [“the 1976 Act”]. The claimants seek declaratory relief rather than quashing orders, in part to meet the defendant's argument that all relief should be denied because of the delay in starting these proceedings. They were not commenced until March 2008, fully a year after the GOTT was announced.
The MoD resist each of the arguments on their merits. Additionally, Mr Rabinder Singh QC submits that most, if not quite all, of the arguments have been decided by Sullivan J in the High Court and in the Court of Appeal in R (Purja & others) v Ministry of Defence, [2003] EWHC 445 (Admin) and [2004] 1 WLR 289 (CA) and by Ouseley J in the High Court in R (Gurung) v Ministry of Defence [2008] EWHC 1496 (Admin). The decision of the Court of Appeal is binding on this Court and those of the High Court should not be departed from. Those two earlier judicial reviews concerned challenges to the pension arrangements of Gurkhas. Mr Singh also submits that should any ground of challenge be made out no relief should issue on account of the delay in pursuing the claim.
The MoD has taken the point that the first claimant is not a victim for the purposes of the Human Rights Act 1998. However, Mr Singh QC was content that I should determine the issues of substance in this challenge without deciding that matter. He reserved his client's position for argument elsewhere, should it be necessary.
The challenge in Gurung was to precisely the same GOTT and Order as is challenged in these proceedings. Ouseley J concluded that both were rational and also did not discriminate unlawfully on grounds of age. Factually nothing has changed. In stating that, it is important to appreciate that this claim challenges decisions implemented in 2007. These proceedings were issued on 7 March 2008. It would be idle not to mention that in the last 9 months a campaign on behalf of retired Gurkhas persuaded the Government to extend to all retired Gurkhas the opportunity to settle in the United Kingdom which hitherto had been available only to those who had retired after 1 July 1997. That development is now agreed by the parties to be irrelevant for the purposes of this application for judicial review. These policy developments, reflected in changes to the Immigration Rules in the summer of 2009, cannot have any bearing on the order which was approved by Parliament in September 2007 or the earlier policy announcement made in the GOTT relating to pension provision. Although this development was referred to in the written material and orally by the parties, both Mr O'Dempsey who appeared for the claimants and Mr Singh QC readily accepted that it could not assist in determining the legality of the GOTT and the Order. It is particularly important to bear that in mind when considering the submissions advanced by Mr O'Dempsey to attack the rationality of the GOTT and Order together with age related discrimination. Whilst eventually disavowing in oral argument any reliance on the policy change made this year, it had been relied upon in the written argument as a basis for attacking the conclusions in the earlier decisions of this Court and the Court of Appeal.
The challenge in Purja was to the pension provision for Gurkhas based upon the 1947 Agreement between the United Kingdom, the newly independent state of India and Nepal. Such provision reflected in broad terms the pension paid in the Indian Army. Rates of pay in the Indian Army and thus pension provision were (and are) much lower than those paid to soldiers in the British Army but both pay and pension for Gurkhas were linked to Indian rates. Importantly, when the agreement was entered into, retired Gurkhas had no right to settle in the United Kingdom on their retirement from the Army. The expectation was that having been discharged in Nepal they would remain there. That was the factual background on which Sullivan J and the Court of Appeal determined the rationality of the pension policy and its lawfulness by reference to the ECHR and discrimination on grounds of nationality. It was rational and did not unlawfully discriminate on grounds of nationality.
Background Facts
The three judgments referred to in paragraph [4] above, between them set out a good deal of the history of the Brigade of Gurkhas and its status first in the British Indian Army and, since Indian independence, in the British Army. The high regard in which the Brigade is held by the British people is well known as is the admiration for the Gurkhas as individuals and the role they have played, and continue to play, in the defence of the interests of the United Kingdom. Whilst a full treatment of the background facts can be found in the judgment of Sullivan J between [21] and [36], the judgment of Simon Brown LJ between [1] and [21] and Ouseley J between [1] and [5], a summary will suffice to enable the arguments advanced in this application to be understood.
The Gurkhas have played a long and distinguished part in the service of the Crown. Since 1947 they have formed an integral part of the British Army by virtue of arrangements put in place under the tri-partite agreement to which I have referred. That agreement provided that six regiments of Gurkha rifles should serve with the Indian Army and four be transferred to the British Army, forming the Brigade of Gurkhas. Gurkhas are recruited from Nepal. All are Nepalese nationals on recruitment and remain so until retirement. Their terms and conditions of service have been different from those of others in the British Army, although there has been a gradual alignment in recent years. Before 1997 the Brigade of Gurkhas was based in the Far East, particularly in Hong Kong. There has also been a long standing arrangement whereby one regiment is based in Brunei. That arrangement continues. Before 1997 Gurkhas did serve from time to time in the United Kingdom at Aldershot but their base remained in Hong Kong. Pay and other conditions reflected the terms available to the Gurkhas serving in the Indian Army. Leave was taken in Nepal, much longer leave than allowed to others in the British Army, and the universal assumption was that Gurkhas would retire to Nepal. There were different...
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