R (Purja) v Ministry of Defence; R (Lama) v Same
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 21 February 2003 |
| Neutral Citation | [2003] EWHC 445 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2202/2002 and CO/3851/2001 |
| Date | 21 February 2003 |
[2003] EWHC 445 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
MR JUSTICE SULLIVAN
CO/2202/2002 and CO/3851/2001
MISS C BOOTH QC AND MISS K COOK appeared on behalf of the CLAIMANTS
MR R SINGH QC AND MR K MORTON appeared on behalf of the DEFENDANT
Friday, 21st February 2003
Introduction
The seven claimants in these proceedings are former members of the Brigade of Gurkhas, now resident in Nepal. The Gurkhas need no introduction. For nearly two centuries, since the 1815 peace treaty that ended the Anglo-Nepalese war of 1814 to 1815, Gurkhas have served the Crown, initially as soldiers in the (British) Indian Army, and following Indian Independence in 1947, as part of the British Army. During that time, they have established a reputation as front line troops which is second to none. In two world wars, and in countless other wars and lesser engagements before and since, the United Kingdom has had good reason to be grateful for the service given by hundreds of thousands of volunteers from a small mountainous kingdom many thousands of miles away on the other side of the world.
In 2003, the volunteers continue to come forward. In a normal year, some 28,000 potential recruits compete for the 230 places which are available in the 3,500 strong Brigade of Gurkhas ("the Brigade"). The Brigade is unique. It is not an operational brigade in the conventional sense. Rather, it is an administrative entity, an "umbrella" organisation which ensures that formed Gurkha units, into which all Gurkha soldiers are recruited and serve, mainly as infantry, but also as engineers and in signals and logistics units, are able to be integrated into, and form part of, other operational brigades in the British Army. By way of example, we read in this morning's newspapers that 300 men of the Second Battalion Royal Gurkha Rifles are to leave for Sierra Leone to assist in securing stability in that country.
Gurkhas are recruited in Nepal. They are Nepalese citizens and continue to be so during their period of service to the Crown. On retirement, they will return to Nepal and resume their place in Nepalese society. There is, therefore, no dispute between the parties that special arrangements are required to enable Gurkhas to serve in the British Army, whilst at the same time maintaining their distinct Nepalese identity and safeguarding their cultural, religious and ethnic heritage.
Preliminary Matters
When these proceedings commenced, the claimants were alleging that they were subject to "systemic and institutionalised discrimination", by comparison with other members of the British Army, on the grounds of their race and/or nationality. Various claimants made different complaints, but looking at their claim forms overall, it was being alleged that this "culture of discrimination" extended to:
(i) Religious Discrimination.
The claimants were required to practice the Hindu religion, despite the fact that they were not Hindus.
(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.
Gurkha soldiers (in this judgment, I will use the term "soldier" to refer to all soldiers, Non-Commissioned Officers and Warrant Officers below commissioned rank) must retire after 15 years' service, with the possibility of one or more yearly extensions. British soldiers are entitled to serve for 22 years, subject to satisfactory service, although in practice only about 17 per cent serve for the full 22 year period. By way of contrast, 99 per cent of Gurkhas serve for the full period of 15 years.
(ix) Discrimination in relation to pay.
A Gurkha solder's pay is made up of two components: basic pay, which is based on Indian Army rates of pay, and a universal addition ("UA"), which is paid whenever the Gurkha is serving overseas, that is to say outside Nepal. It is not in dispute that a Gurkha soldier's take home pay (basic pay, plus UA) is similar to the take home pay of a British soldier of comparable rank and experience. However, when Gurkhas return to Nepal on leave (they are entitled to five months' long leave every three years and to terminal leave at the end of their 15 years), they do not receive UA, but only basic pay, which now amounts to only 5 per cent of their daily net income.
(x) Discrimination in relation to pensions.
I will deal with this issue in more detail in due course. In summary, a Gurkha's pension is based upon Indian Army pension arrangements which differ considerably from the pension arrangements for British soldiers. These differences extend beyond the amounts paid each month. A Gurkha, for example, is entitled to an immediate pension after 15 years' service, whereas a British soldier has to serve for 22 years before becoming entitled to an immediate pension.
(xi) Discrimination in relation to the educational provision made for children of Gurkha soldiers.
(xii) Discrimination in relation to access to families.
Subject to considerations of security, operational effectiveness and the availability of infrastructure, all British soldiers are entitled to be accompanied by their families to those places where they are posted ("accompanied service"). Gurkhas are treated differently. Married quarters are provided for all Colour Sergeants and above, but for only 20 per cent of Sergeants and below. In practice, this means that soldiers below the rank of Colour Sergeant, and this includes all the claimants, will have been accompanied by their families for no more than three years of their 15 year service.
Since these allegations of widespread institutionalised discrimination attracted some publicity, it should be recorded in the interests of fairness to the defendant that the complaints numbered (i) to (viii) above were not pursued by Miss Booth, QC, in her submissions before me on behalf of the claimants. Moreover, complaint (ix) (pay) was pursued only in relation to the claimants' pay whilst they were on leave in Nepal. No complaint of discrimination is now made in respect of Gurkha soldiers' take home pay whilst they are serving outside Nepal.
In addition, it was accepted on behalf of the claimants that complaint (xi) (educational facilities) was simply an aspect of complaint (xii) (accompanied service), rather than a separate issue in its own right.
The Remaining Complaints
Thus, the complaints of discrimination are now confined to two issues:
(i) Pensions (and pay) on return to Nepal; and
(ii) Accompanied Service.
In fairness to the claimants, I should make it plain that these two complaints have always been their principal grievances. The parties have been able to resolve the many lesser grievances in correspondence. It is unnecessary, and would be wholly unprofitable, to examine the extent to which those grievances were based upon legitimate complaints, for example about the over restrictive interpretation of policies, which could have been more flexibly applied, or upon misunderstandings, perhaps compounded by a lack of timely explanation of the true position.
Race or Nationality
Before turning to the two outstanding issues, I should deal with one other aspect of the claimants' claims to have been discriminated against. It is not in dispute that Gurkha soldiers serving in the British Army are treated differently, so far as pensions and accompanied service are concerned, from British soldiers serving in the British Army. The claimants contend that these differences are the result of discrimination against them upon the basis of race and/or nationality.
The defendant accepts that it does discriminate between (not against) Gurkha soldiers and British soldiers serving in the British Army, but is most anxious to emphasise that this discrimination is based upon factors relating to nationality —Gurkhas are, and remain at all times, citizens of Nepal —and not race. National armies commonly discriminate on the ground of nationality. Although there is no legal impediment to a non-British citizen joining the British Army, as a matter of policy, aliens (which for this purpose excludes Commonwealth citizens, British protected persons and citizens of the Republic of Ireland) are not eligible to enlist unless they also have British citizenship and are therefore dual nationals. Unless special arrangements were made, citizens of Nepal, who are not dual nationals, could not in practice serve in the British Army.
It is important to stress the fact that a person of Nepalese origin, who is a British citizen, is entitled to enlist in the British Army on exactly the same terms as any other British citizen. Provided the recruit is a British citizen, no distinction whatsoever is made on the ground of his or her racial origin. The defendant's records show that since 1986 there has been one soldier, who is now a Colour Sergeant in the British Army, excluding the Brigade of Gurkhas, who was a British citizen on enlistment, even though he was a Nepalese national by birth.
At the commencement of this hearing, Miss Booth sought permission to produce a second witness statement from the President of the Gurkha Army Ex Serviceman's Organisation ("GAESO"), Padam Bahadur Gurung. He explains that Nepalese society is comprised of a number...
To continue reading
Request your trial
- R (Purja) v Ministry of Defence; R (Lama) v Same
-
M v Secretary of State for Work and Pensions; Langley v Bradford Metropolitan District Council and another
... ... She herself has since 1998 lived in a same-sex relationship, pooling incomes and sharing outgoings ... connection, Mr Sales relied on the reasoning in R (Purja and Others) Ministry of Defence [2004] 1 WLR 289 ... In ... ...
-
Campbell and Others v South Northamptonshire District Council and Another
...account as the rather lengthy 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......
-
British Gurkha Welfare Society v Ministry of Defence
...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 decisi......