R (Purja) v Ministry of Defence; R (Lama) v Same
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Chadwick,Lord Justice Rix |
| Judgment Date | 09 October 2003 |
| Neutral Citation | [2003] EWCA Civ 1345 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 2003 |
| Docket Number | Case No: C1/2003/0637/QBACF |
[2003] EWCA Civ 1345
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
(Mr Justice Sullivan)
QUEEN'S BENCH DIVISION
Lord Justice Simon Brown
Lord Justice Chadwick and
Lord Justice Rix
Case No: C1/2003/0637/QBACF
Nicholas Blake Esq, QC, Ms Kate Cook & Ms Aileen McColgan (instructed by Public Interest Lawyers) for the Appellants
Rabinder Singh Esq, QC & Keith Morton Esq (instructed by The Treasury Solicitor) for the Respondents
Gurkhas have fought for the Crown for nearly 200 years. Their valour is legendary. Since 1947 they have formed an integral part of the British Army. In no way are they to be regarded as mercenaries. But they serve, and after service are pensioned, on terms wholly different from those applying to the rest of Her Majesty's Forces. It is to certain of these terms that the present challenge is directed: terms as to pension rights, pay whilst on long leave in Nepal, and accompanied service. These are said to discriminate against Gurkhas on the ground of their nationality. The claim is brought by seven (out of a total of over 26, 000) ex-British Army Ghurkha pensioners now resident in Nepal. It arises under the Human Rights Act 1998 and is based on article 14 of ECHR read with, variously, article 1 of the First Protocol (article 1P) and article 8. I need not set out article 1P or article 8. Article 14, however, lies at the very heart of these proceedings:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
On 21 February 2003 Sullivan J dismissed the challenge. I myself gave permission to appeal, describing the case as "clearly an important and difficult one". The appeal hearing has confirmed that view.
It is convenient in this judgment to refer to British soldiers as meaning all those in the British Army except for the Brigade of Gurkhas (presently some 3,500 strong) without overlooking the fact that the contrasts being struck are in truth between two groups within the same army.
With that briefest of introductions let me turn at once to sketch in the facts of the case. I shall do so as briefly as I can given that this judgment must in any event be somewhat lengthy. The interested reader can find further details in the admirable judgment below.
During the Second World War large numbers of Gurkhas served in the (British) Indian Army. After Indian independence in 1947, the future of the Gurkha regiments was decided at a conference between representatives of the United Kingdom, India and Nepal. This led to a tripartite agreement ("TPA") signed by all three governments on 9 November 1947. Nepal wished to maintain the Gurkha connection with the armies of the United Kingdom and the newly independent India, albeit at reduced strength. In the event, six regiments of Gurkha Rifles continued to serve in the Indian Army and four regiments transferred into the British Army to become the Brigade of Gurkhas.
Paragraph 4 of the TPA recorded the government of Nepal's general satisfaction in regard to the terms and conditions of employment of Gurkha troops and took note of an agreement dated 7 November 1947 between the United Kingdom and India, paragraph 11 of which provided:
"… 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."
Paragraph 5 of the TPA provided for the Nepalese government to make suggestions and the first of these was that:
"In all matters of promotion, welfare and other facilities the Gurkha troops shall 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 shall be treated as a link between two friendly countries."
The 1947 Terms and Conditions of Service for Gurkha troops serving in the British Army ("TACOS") referred to in paragraph 4 of the TPA included the following:
"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." (section II, paragraph 10)
"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." (section III, paragraph 2)
"Family accommodation will be provided eventually for up to 25% 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% establishment" (section III, paragraph 21)
"The payment of Gratuities and Pensions will be admissible to Gurkha soldiers … with reckonable service in the Indian or British Armies under the Pension Regulations for the Army in India, 1940 …" (section IV, paragraph 7).
Historically the Brigade of Gurkhas has been based in the Far East, initially in Malaya and then, following the UK's withdrawal from that country, in Hong Kong. Only in the run-up to the hand-back of Hong Kong to China in 1997 was the Gurkhas' base moved to the UK. Even now some 23% of the Brigade continues to be stationed in Brunei, by agreement with the Sultan who is responsible for the garrison costs.
In accordance with paragraph 11 of the November 1947 bipartite agreement between the UK and India (see paragraph 6 above), the Gurkha Brigade's basic pay has continued to be set in accordance with the Indian Pay Code albeit, consistently with that provision, cost of living allowances have been paid for service outside Nepal. Such allowances used to be calculated by reference to, for example, Hong Kong or Brunei living expenses. In 1997, however, a "universal addition" ("UA") was introduced to ensure that whenever a Gurkha soldier is serving outside Nepal his take home pay is similar to that of a British soldier of comparable rank and experience. Of that total take home pay only some 5% is basic pay; the remaining 95% represents UA.
Gurkha pensions too, in accordance with section IV of the 1947 TACOS (see paragraph 8 above), are based upon Indian Army rates, although these too are increased by substantial additions. A 1981 review linked Gurkha pensions to the top band provided for by the Indian regulations and uprated them annually by reference to Nepalese, rather than Indian, cost of living increases. More significantly still, a review in 1999 effectively doubled Gurkha pensions with effect from 1 April 2000 to take account of various benefits in kind, such as access to Indian military hospitals, which are available to Indian Army Gurkha pensioners. Gurkha pensions are now said to compare favourably with professional salaries in Nepal. Indeed, a Gurkha rifleman with 15 years of service has a higher pension than a bank clerk's salary, and a retired corporal receives a pension only £3 per month less than the salary of a Royal Nepalese Army captain.
That said, a Gurkha soldier's pension on retirement after 17 years' service (the position of four of the seven claimants in these proceedings) is only £91 per month compared to a pension of £625 per month payable to a British soldier after 22 years. And whereas that British soldier will receive a lump sum payment of £22,509, the Gurkha, having served only five years less, will receive by way of grant and retirement gratuity a total of only £4,756.
Gurkha soldiers, it is convenient to note at this stage (subject to the possibility, dependent on rank, of one or more yearly extensions), are required to retire after 15 years' service. Their pension thereupon becomes immediately payable, being annually uprated to reflect the increased cost of living in Nepal. Ninety-nine percent of Gurkha soldiers retire after completing those 15 (or more) years' service. British soldiers by contrast are entitled to serve for 22 years. If they complete 22 years they immediately become entitled to their pension (although without any UK cost of living increases until they reach the age of 55). In practice only 17% do so. The remaining 83% of British soldiers retire before 22 years' service become entitled (provided always that they have completed more than two years' service) only to a deferred pension payable at the age of 60.
There are, I may add, other significant differences too between the respective pension arrangements. On the death of a Gurkha pensioner, up to 120% of his pension can be transferred to his surviving spouse together with lesser amounts to dependent children up to the age of 25; UK widows receive a substantially lesser proportion of the pension. On the other hand, it appears that the 1% of Gurkhas who retire before completing 15 years' service enjoy no pension entitlement whatever.
I have said enough to indicate the general nature of the appellants' grievance as to their pension rights. I must explain now their other two complaints,...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2009-12-02, [2009] UKAIT 48 (ZQ (Serving soldier))
...indeed a basic ECHR principle. 77. As regards derogable human rights, in R.(on the application of Purja et al.) v. Ministry of Defence [2004] 1 WLR 289 the Court of Appeal has accepted that restrictions on the opportunity to live in married soldiers’ quarters might infringe the right to a p......
-
Upper Tribunal (Immigration and asylum chamber), 2018-06-20, HU/03655/2015
...for settlement. Gurkhas suffered greater separation from their family than soldiers of other British Army units (see R (Purja) v MOD) [2004] 1 WLR 289, including at [17]). I have also taken into consideration that the appellant has a degree of vulnerability in being blind in one eye. The ap......
-
M v Secretary of State for Work and Pensions; Langley v Bradford Metropolitan District Council and another
...of material difference in treatment. In that connection, Mr Sales relied on the reasoning in R (Purja and Others) Ministry of Defence [2004] 1 WLR 289. In that case, the Court of Appeal held that a claim under Article 14 by former Gurkha soldiers failed, on the grounds that there was no tr......
-
Campbell and Others v South Northamptonshire District Council and Another
...citation shows. 36 Mr Goudie suggests that Carson has itself been departed from by this Court in R (Purja) v Ministry of Defence [2004] 1 WLR 289. This was the claim concerning the pensions of Gurkha soldiers. Mr Goudie submitted that there was no contribution there. I do not agree. On the......