Purja & Ors, R (on the application of) v Ministry of Defence [2003] EWHC 445 (Admin)

CO/2202/2002 and CO/3851/2002[2003] EWHC 445 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 21st February 2003
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF PURJA AND ORSClaimant-v-
Between
MINISTRY OF DEFENCEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS C BOOTH QC, MISS K COOK & MS AILEEN MCCOLGAN (Instructed by Public Interest Lawyers, 50-54 St Paul’s Square, Birmingham, B3 1QS) appeared for CLAIMANTSMR R SINGH QC AND MR K MORTON (Instructed by The Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©Friday, 21st February 2003
[1]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.[2]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.[3]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[4]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.[5]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.[6]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.[7]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.[8]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.[9]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.[10]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.[11]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[12]Thus, the complaints of discrimination are now confined to two issues:(i) Pensions (and pay) on return to Nepal; and(ii) Accompanied Service.[13]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[14]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.[15]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.[16]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.[17]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 of different tribes, which are regarded as separate races. Gurkhas are hill tribesmen, and traditionally the British recruited from among the hill tribes because they were regarded as the "martial classes" of Nepali society.[18]I said that I would be prepared consider this evidence de bene esse, even though the defendant was given no prior opportunity to consider it and had no proper opportunity to produce any evidence in reply.[19]Whatever may have been the attitude in the past towards restricting recruitment to those citizens of Nepal falling within the "martial classes" (and the Maharaja of Nepal, during discussions between the Governments of Nepal and the United Kingdom in 1947, referred to the intention to recruit from such classes), there is no reason to believe that recruiting officers in 2003 do not apply objective criteria in deciding who should or should not be recruited into the British Army. Any citizen of Nepal who is able to meet the very stringent entry criteria may enlist. It is probably the case that, as Mr Gurung points out, those from the hill tribes are much more likely to be able to satisfy the Army's demanding criteria for enlistment because they are fitter and stronger as a result of their particular lifestyle. Their living conditions are harsh. They are used to hard physical work and generally live far from any road system, sometimes up to two weeks' walk away. Mr Gurung's reference to a walk of two weeks' duration gives some hint of the exceptional qualities of Gurkha soldiers. Tradition will also play a part, as sons follow fathers and grandfathers into the Brigade. But the fact remains that Gurkhas are treated differently from British soldiers not because they are members of particular hill tribes, but because they are citizens of Nepal and not British citizens. All Gurkhas, whatever tribe they may come from, and whether it is one of the hill tribes or not, are treated alike by the British Army. I therefore accept the submission of Mr Singh, QC, on behalf of the defendant that the differences between the Gurkhas' pensions and accompanied service arrangements and those made for British soldiers are based upon differences flowing from their nationality and are not based upon any consideration of race.[20]I have dealt with this issue relatively shortly because, as will be seen, the outcome of this case does not depend on any distinction between discrimination on racial grounds and discrimination on grounds of nationality. The 1947 TPA[21]During World War II, large numbers of Gurkhas served in the (British) Indian Army. The future of the Gurkha regiments, after Indian Independence in 1947, was decided by a tripartite conference between representatives of the United Kingdom, India and Nepal. This led to a Memorandum of Agreement, which was signed by representatives of the three Governments ("the TPA"). Nepal wished to maintain the Gurkha connection with the armies of the United Kingdom and the newly independent India, but also wished to see a reduction in the number of battalions employed to the peace time strength of 20 battalions, of which eight were to be allotted to the British Army. In the event, six regiments of Gurkha rifles continued to serve in the Indian Army and four regiments transferred into the British Army and became the Brigade of Gurkhas.[22]The words "into the British Army" are important because the Government of Nepal was most anxious that Gurkha regiments would "not be looked upon as distinctly mercenary".[23]Paragraph 4 of the Memorandum says this: "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".[24]Paragraph 6 refers to a memorandum embodying terms and conditions of service, which had been prepared by the United Kingdom Government, and states that it was "acceptable to the Governments of India and Nepal". The bipartite agreement between the United Kingdom and India dated 7th November 1947 provided in paragraph 11: " . . . 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".[25]The first of the Nepalese Government's suggestions, referred to in paragraph 5 of the Memorandum, was: "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".[26]The United Kingdom Government's representative, Mr Symon, responded in these terms, that: " . . . 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".[27]The 1947 Terms And Conditions Of Service for Gurkha troops serving in the British Army ("TACOS"), referred to in paragraph 5 of the Memorandum, included the following in Section II, paragraph 10: "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".[28]Section III, paragraph 2 said: "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".[29]Paragraph 21, dealing with Families, said: "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".[30]Having dealt with family travel, the TACOS contained the following note: "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".[31]Section IV, paragraph 7, under the heading Pensions and Gratuity, said:
"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[32]The Empire contracted, the British left Malaya. In anticipation of the hand-back of Hong Kong, where there was a substantial Gurkha presence, to China in 1997, there was a review of the Gurkha's role and their terms and conditions of service. The results of this review were announced to Parliament by the Minister of State for Defence, Mr Soames. Most of the Brigade was relocated to the United Kingdom. UA was introduced to replace the various overseas allowances, and to bring Gurkha take home pay broadly into line with that received by British soldiers. The Minister said this about accompanied service: "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".[33]When referring to the question of long leave, the Minister said: "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".[34]He then explained that the period of entitlement would be reduced from six to five months to take account of improved communications. The Present Position[35]While the bulk of the Brigade remains in the United Kingdom, about 23 per cent of Gurkhas are stationed in Brunei by agreement with the Sultan, who is responsible for paying the costs of the garrison there. The TACOS have been amended from time to time. They have always been approved by Ministers. The terms in the present TACOS relating to accompanied accommodation (see above) were approved by Ministers in 1997. The terms relating to pensions were reviewed by the Government in 1999. This review took account of representations from key ex servicemen's organisations, including GAESO. The 1999 review resulted in a substantial increase in Gurkha pensions which had, since an earlier review in 1981, been linked to the top band provided for in the Indian Army Pension Regulations. A press release explained: "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".[36]Although based on Indian Army pension rates, plus an allowance representing Indian Army welfare benefits, Gurkha pensions are increased in line with the cost of living increase in Nepal, rather than India. Mr Scott, the Deputy Command Secretary of the HQ Adjutant General (Personnel and Training Command) in the Ministry of Defence explains the practical effect of these arrangements for the 26,789 ex British Army Gurkha pensioners:
"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"
. Pensions[37]I refer simply to pensions, rather than pay, since it was not submitted on behalf of the claimants that a different approach should be adopted to the latter for those periods during which they were on leave in Nepal. Numerous authorities were cited in the parties' skeleton arguments. Copies of no fewer than 66 cases were submitted in three large volumes. Since this was felt to be insufficient, they were supplemented by eight further authorities. I have found it helpful to cite just two of those authorities for the purpose of deciding this aspect of the claimants' claims.[38]The claimants put their case in two ways. First, they say that their pensions are "possessions" for the purposes of Article 1 of Protocol 1 to the European Convention on Human Rights ("the Convention") which was incorporated into domestic law by the Human Rights Act 1998. Article 14 of the Convention provides that the enjoyment of a right protected by the Convention -- in this case, the right to the peaceful enjoyment of one's possessions -- must be secured without discrimination on the grounds of, inter alia, race and/or nationality.[39]It is submitted that the different pension arrangements for Gurkha soldiers in the British Army amount to unlawful discrimination in breach of Article 14, read together with Article 1 of Protocol 1. In the alternative, the claimants submit that it is irrational in a public law sense to distinguish on the grounds of race and/or nationality between soldiers who are performing the same tasks. Persons should be uniformly treated unless there is a valid reason to treat them differently. In practice, this alternative formulation adds nothing of substance to the argument based on Article 14. The relevant considerations are exactly the same. It merely expresses the same complaint in a slightly different way.[40]The first case is Wandsworth London Borough Council v Michalak 2003 All ER 1136 92002] EWCA Civ 271. The Court of Appeal was concerned with an allegation of unlawful discrimination in respect of the respondent's family life. Brooke LJ, with whom Mance LJ and Park J agreed, said this in paragraph 20 of his judgment: "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".[41]In paragraph 22, Brooke LJ noted that there was: "A potential overlap between the considerations that are relevant when determining, at any rate, the last two, and possibly the last three questions".[42]While contending that the differences between the pension arrangements for Gurkhas and for British soldiers serving in the British Army were justified on the merits, the defendant raised a number of preliminary legal objections to the claimant's claims on the basis that they had delayed in applying for judicial review and had failed to avail themselves of alternative remedies and that their (non-contributory) pensions were not in any event "possessions" within the scope of Article 1 of Protocol 1.[43]I am content to set those preliminary arguments to one side and proceed on the assumption in the claimant's favour that their pensions are possessions for the purposes of Article 1. Thus, I begin by assuming that the answer to Brooke LJ's first question in Michalak is in the affirmative. There is no dispute that, if that is the case, the answer to question (ii) is also in the affirmative. I therefore proceed to questions (iii) and (iv): are British soldiers in the British Army in an analogous situation to Gurkha soldiers, such as the claimants; if so, is there an objective and reasonable justification for the difference in their treatment in relation to pensions? For the reasons set out below, I am in no doubt that the answer to question (iii) is "No"; and even if that is wrong, that the answer to question (iv) is "Yes".[44]The claimants say that the starting point should not be the TPA. The world has greatly changed since 1947 and if different treatment is to be justified in 2003, it must be by reference to factors which are "of contemporary relevance and the difference must be proportionate".[45]Again, I am prepared to make an assumption, and I emphasise that it is purely an assumption, in the claimants' favour and adopt this as the proper starting point for the purposes of answering questions (iii) and (iv) above.[46]Setting the TPA entirely to one side, the MoD wishes to attract recruits to the British Army in 2003. Aliens (see above) living thousands of miles away and speaking no or very little English have no realistic prospect of being able to join the British Army. However, for historical reasons, there is still in 2003 a pool of eager recruits of a different nationality living thousands of miles away and with very limited educational opportunities and either no or very little command of the English language.[47]Despite these obstacles, they have a tradition of exemplary service to the British Army. Their Government is happy to permit them to be recruited into a foreign army, provided that they are not treated as mercenaries and the interests of their home country are protected.[48]If such volunteers are to be recruited at all, it is plainly necessary, and the claimants accept that it is necessary, to make special arrangements so that, for example, they can be formed into units commanded by their own NCOs, Warrant Officers and Officers, and by British Officers who can speak Nepali and who are conversant with Nepalese culture. Recruits are given English language courses, but the Gurkha command system enables Nepali to be spoken in all Gurkha units and it is important that this should continue to be so. Gurkhas must not be allowed to drain Nepal of talent. They remain Nepalese citizens and will return there upon retirement. Hence the continued importance in 2003 of making special arrangements to maintain their distinctive religious, cultural and ethnic heritage.[49]So far as pay is concerned, for so long as they are in an analogous situation to a British soldier whilst they are serving in the United Kingdom or abroad outside Nepal, elementary fairness would suggest that they should receive the same treatment, including the same take home pay. They will be undertaking the same duties in the same circumstances as their British counterparts. Since the introduction of UA in 1997, the TACOS have recognised this. But the position of the ex British soldier and the ex Gurkha soldier on retirement is not analogous. While there will be a few exceptions, the former will have been born in the United Kingdom and will expect to retire in the United Kingdom. He may choose to retire to a more or a less expensive country, but in that respect he would be no different from any other United Kingdom pensioner. By contrast, the Gurkha, born in Nepal and a citizen of Nepal, will retire to Nepal. It would be wholly irrational to fail to have regard to the very different circumstances that exist in Nepal and Great Britain when making provision for pensions on retirement.[50]Nepal is one of the poorest countries in the world. Welfare facilities are not well developed. Hence, it is important that a pension is payable immediately after 15 years. After 15 years' service, a British soldier is entitled to a deferred pension payable at the age of 60. That is entirely appropriate in a country with a well developed welfare system. It would be wholly inappropriate in Nepal.[51]On the figures from the WHO, produced by the claimants, the GDP per capita in the United Kingdom is about 20 times greater than that in Nepal. The claimants have not provided me with comparable figures for gross national income in the UK and Nepal, but in 2002 and 2003, the World Bank assessed the per capita gross national income in Nepal as US$240. By comparison, and subject to exchange rates, the claimants' pensions range from around $1,420 to $1,960 per annum. Since they retire at a relatively young age after 15 years, ex Gurkha soldiers have an earning potential in addition to their pensions.[52]Notwithstanding these obvious differences, the claimants' skeleton argument did not acknowledge that there was a proper basis for any difference between the pension arrangements for Gurkhas and those for British soldiers. Thus, it appeared that the claimants were seeking to be paid pensions at British rates in Nepal. It was only during the opening of the claimants' cases that Miss Booth made it clear that this was no longer their contention.[53]The significance of this concession should not be underestimated. The claimants are not contending that the pension arrangements for Gurkhas and British soldiers should be the same and acknowledge that the former can lawfully be tailored to conditions (cost of living, welfare facilities, et cetera) in Nepal. However, it is contended that there should be "equality of treatment" not in the sense that an ex soldier retiring to Nepal could reasonably be expected to have the same standard of living as an ex solider living in the United Kingdom, but that there should be an "equivalent standard of living".[54]This reformulation of the claim effectively acknowledges that the answer to Brooke LJ's third question is "No". The situations of British soldiers and Gurkha soldiers on retirement are not analogous. Some difference of treatment is justified. Therefore, question (iv) does not arise. There is no breach of Article 14 and one is left with a bare irrationality challenge.[55]I have no doubt that the claimants are right to acknowledge, even if belatedly, that it is lawful to make different arrangements for Gurkhas' pensions and that those arrangements should be tailored to the conditions in the country to where they will retire, Nepal, not to conditions in the United Kingdom. Put simply, Gurkhas on retirement are not in an analogous position to British soldiers, not because they are Nepalese citizens and the latter are British, but because as Nepalese citizens they will be leaving the United Kingdom and returning to Nepal, where their pensions will be paid, and conditions in Nepal are markedly different from those in the United Kingdom.[56]Once it is accepted that differential treatment is lawful, it is impossible to conclude upon the available evidence that the differences are so great that they can sensibly be described as disproportionate or irrational.[57]Mr Singh rightly reminded me that when the court is dealing with disputes concerning the allocation of resources, how monies raised by the Government by taxation are to be spent, it should give the greatest deference to the views of the legislature and the elected executive: see paragraph 68 of the decision of Stanley Burnton J in R (on the application of Carson) v Secretary of State for Work and Pensions (2002) 3 All ER 994 ([2002] EWHC Admin 978), a case concerned with expatriate pensioners.[58]The level of pensions paid to Nepalese citizens in Nepal will also be a matter of interest, if not concern, to the Nepalese Government. Foreign relations is another area where the court should tread very warily, if at all: see paragraph [70] of Carson.[59]There is no indication that the Nepalese Government is dissatisfied with the present pension arrangements for ex Gurkha soldiers and the claimants do not appear to have sought its views as to the merits of making any change to those arrangements.[60]In the present case, however, the defendant does not have to rely on judicial deference. Even if I was to cast deference aside and substitute my own judgment, my answer to the claimants' contention that the present arrangements are disproportionate or irrational would remain the same. The pensions of British soldiers are fixed by the Government in response to reports from the relevant Salaries Review Board. I have not been told that any such facility is available in Nepal. It would, of course, be possible to relate Gurkha pensions in Nepal to the pensions paid by the Royal Nepalese Army, but it is clear from Mr Scott's evidence that this would not benefit the claimants. In these circumstances, it would seem eminently sensible to use the rates for pensions paid under the Indian Army Pensions Regulations not because of what the TPA said in 1947, but because the Indian Army remains the best comparator in 2003: a large, professional army in a neighbouring country in which Gurkhas still serve.[61]No better comparator has been suggested on behalf of the claimants. It might be irrational to apply linkage with Indian Army pension rates in a wholly inflexible way, for example, if the cost of living in Nepal was markedly more expensive than in India, or if the welfare benefits available there were markedly inferior to those available in India. But the undisputed evidence shows that the linkage is not applied in an inflexible way. Gurkha pensions are linked to the top band of Indian Army pensions. Annual upratings are linked to cost of living increases in Nepal, not India, and a substantial welfare allowance is paid to reflect the availability of welfare facilities, such as access to Indian military hospitals, in India. There is simply no evidence to support the claimants' contention that the differences between their pensions and those of British soldiers are disproportionate or irrational, once it is acknowledged, as the claimants do now acknowledge, that it is lawful to make different arrangements for Nepalese citizens who will retire to Nepal.[62]Miss Booth mentioned the need to facilitate the transition to civilian life in Nepal of ex soldiers who would have been exposed for a period of at least 15 years to Western standards of living. It would not be realistic to expect such a person to adjust easily to a very much lower standard of living.[63]This argument might have had some force, although it would not have rendered the present arrangements disproportion or irrational, if Gurkha pensions were not effectively set at twice the top rate of Indian Army pensions. In any event, it is the kind of argument which can be raised by bodies such as GAESO, if it has not already been raised, when the TACOS are next reviewed.[64]I have deliberately dealt with this matter on the merits at some length, rather than dismissing it on narrow legalistic grounds, because I am aware of how strongly the claimants feel about their pension arrangements. I fear that the sweeping allegations of institutional discrimination made in their claim forms may have given rise to unrealistic expectations. If these are to be dashed, then the claimants deserve the fullest explanation. Accompanied Service[65]The claimants rely on Article 8 of the Convention, which provides that everyone has the right to respect for his family life. They acknowledge that Article 8 does not of itself require the defendant to provide facilities for accompanied service for soldiers serving in the British Army, but contend that once the State has voluntarily decided to make such provision, it is discrimination contrary to Article 14 to confer that favourable treatment on one group (British soldiers who are subject to the considerations referred to above entitled to be accompanied by their families) but to deny the same treatment to another group (Gurkhas, who are subject to the 20 per cent limitation on accompanied service until they reach the rank of Colour Sergeant).[66]Unlike their pensions, the limitation on accompanied service is no longer of any practical consequence to the claimants. They returned to their families in Nepal on various dates between September 2001 and January 2002 in the first case in which proceedings were lodged in May 2002; and between January 2002 and June 2002 in the second case in which proceedings were lodged on 16th August 2002. The only relief that they seek is a declaration in the most general terms: "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".[67]Although consequential relief was mentioned in the claimants' skeleton argument, it was not submitted before me that the court should exercise its discretion under section 8 of the Human Rights Act to give the claimants any further relief beyond that declaration.[68]Resolving this issue has been complicated by the fact that the parties did not identify the real area of disagreement in their written submissions. In its response to the claim that the limitation upon accompanied service was unlawful discrimination under Article 14, the defendant's detailed grounds of resistance said this: "Arrangements relating to the proportion of Gurkha soldiers who may be accompanied at any one time stemfrom 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][69]The effect of this limitation is then set out, and the detailed grounds of resistance continue as follows: "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".[70]Reference is then made to the arrangements for long leave and to the fact that British soldiers often have to spend extended periods away from their families in practice.[71]Paragraph 8.19 says: "These matters justify the differences in arrangements for accompanied service between Gurkha and non-Gurkha soldiers".[72]Unsurprisingly, the claimants understood this to mean that the defendant was primarily relying upon the terms of the TPA. In their skeleton argument, the claimants responded that the 1947 TPA could not provide a justification for the admittedly less favourable treatment given to Gurkha soldiers in 2003. They also submitted that the facts that Gurkhas tend to marry at a younger age and serve for longer, and so would require a greater proportion of married accommodation, did not justify rationing limited resources in such a way as to discriminate against Gurkhas.[73]It will be remembered that the Minister, in announcing the changes to the TACOS in 1997, had told Parliament that: "Married accompanied service is to be made available in the United Kingdom. In keeping with thetripartite agreement, which specifies that up to 25 per cent of Gurkha officers and soldiers will be provided with family accommodation . . . " [my emphasis][74]The claimants cannot be blamed for gaining the impression that the present arrangements were being justified by the defendant on the basis of an expression of general satisfaction by the Nepalese Government in 1947. In effect, the agreement reached in 1947 was simply being carried forward without any thought having been given as to whether its terms were still appropriate in 2003.[75]It is common ground that the present provision of married quarters for all Colour Sergeants and above, and for 20 per cent of those below the rank of Sergeant, is merely a different way of expressing the 25 per cent figure (including officers and warrant officers) referred to in the 1947 agreement. The percentage of Gurkha soldiers provided with married accommodation has not increased since 1947, and for convenience I will refer to it as "the 25 per cent limit".[76]Close analysis of Mr Scott's first witness statement might have suggested the possibility of a slight change of emphasis in the defendant's justification of the limit, moving away from reliance upon the terms of the TPA: "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".[77]Mr Scott says that: "The MoD recognises that its Gurkha accompanied service policy is not popular amongst junior ranks".[78]He continues in paragraphs 11.10 and 11.11: "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".[79]Mr Singh's skeleton argument faithfully reflected the terms of the defendant's detailed grounds of resistance and referred to the further matters mentioned by Mr Scott.[80]I have set out the relevant terms of the TPA. While the Government of Nepal expressed its satisfaction with the terms and conditions of employment put forward by the United Kingdom Government in 1947, that could hardly be a rational basis for continuing to adhere to such terms 56 years later. It is important to read the TPA as a whole and in context. The context in 1947 was that it was intended to employ Gurkhas mainly in Malaya. Accommodation there was very poor quality and very limited in quantity, but a large building programme was in hand. Against this background, the expectation was that eventually, but not immediately, family accommodation would be provided for up to 25 per cent of Gurkha officers and men. Gurkhas have not been stationed in Malaya for very many years. On no rational basis could the terms of the TPA be used to justify placing an upper "limit" of 25 per cent upon the provision of family accommodation in the United Kingdom or Brunei in 2003.[81]Firstly, there is nothing to indicate whether the Maharaja of Nepal would, in 1947, have been more or less satisfied if the proposed percentage of Gurkhas to be provided with married accommodation had been greater or less than 25 per cent.[82]Secondly, even if there had been such an indication, an expression of general satisfaction with a proposed level of provision in Malaya in 1947 could not on any rational basis justify the use of that level as an upper limit in the very different circumstances of 2003.[83]This view is reinforced when one has regard to the United Kingdom Government's response to the Nepalese Government's suggestion that: "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".[84]While there is no evidence on this particular aspect of the case, I would be very surprised if the welfare facilities for British soldiers have not markedly improved since 1947. It is very striking that in all respects other than accompanied service, the welfare arrangements made for Gurkha soldiers have, broadly speaking, kept pace with those provided for British soldiers. Thus, quality of food, quality of accommodation, et cetera, is all provided on similar lines.[85]Attitudes towards the importance of maintaining family life have changed substantially since 1947. Article 8 was incorporated into domestic law as from 2nd October 2000 by the 1998 Act. No sensible person would rely on a general expression of satisfaction by a British Minister as to proposals for the provision of married accommodation for British soldiers in 1947 as any kind of justification for maintaining such a level of provision as an upper limit in 2003.[86]In response to an enquiry from me as to what arrangements were made for accompanied service for British soldiers in 1947, Mr Scott kindly made enquiries and, at very short notice, was able to provide the court with the following information in a supplementary witness statement. "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".[87]Dealing with the position in Brunei of British soldiers, he says this: "In Brunei the limited number of British soldiers deployed there in support of the resident Gurkha Battalion are entitled to serve accompanied".[88]It is clear, therefore, that while the arrangements for accompanied service for British soldiers have improved since 1947, those for Gurkhas have not. They have remained frozen at the 1947 level. Reading the TPA as a whole, including the United Kingdom Government's response to the Nepalese Government's suggestions, and bearing in mind the position in Malaya in 1947, the terms of the TPA could not on any rational interpretation provide a justification for maintaining a 25 per cent limit in 2003.[89]Moreover, it is plain that whatever may be the shortage of married accommodation in Brunei, it is not sufficient to prevent British soldiers posted there from being accompanied by their families. Thus, the Brunei factor cannot be used to justify discrimination against Gurkhas. The different treatment there of Gurkha and British soldiers would have to be justified on other grounds if the defendant was not to rely upon its own discrimination against Gurkhas in the allocation of accommodation there.[90]Moreover, it is difficult to see how a shortage of married accommodation in Brunei could possibly justify a limit upon the percentage of Gurkha soldiers who are entitled to accompanied service in the United Kingdom, where the bulk of the Brigade is stationed. The accompanied service policy for British Soldiers takes account of the fact that there may be differences in the availability of married accommodation between different postings. The fact that facilities may be limited in e.g. the Falklands does not mean that a limit on accompanied service is imposed in Aldershot.[91]Since Mr Scott in his second witness statement mentions the cost implications of a change in the accompanied service policy, and says that sufficient family accommodation is simply not available, it is right though I should consider the issue of resources. While the availability of resources might well justify the adoption of a realistic timetable for ending a discriminatory practice, it cannot be a valid justification for deliberately perpetuating such a practice. The policy applicable to British soldiers takes into account such factors as the availability of infrastructure. If there is a shortage of accommodation in any location, that shortage cannot justify discrimination between British and Gurkha soldiers of equivalent rank and seniority. In order to avoid discrimination, accommodation which is in short supply must be fairly shared according to objective criteria and not rationed in such a way as to discriminate against Gurkhas. There would be no difference in principle between such a rationing policy and a policy which kept the best facilities for British soldiers and left Gurkhas with inferior accommodation or messing facilities.[92]I accept that detailed consideration of the infrastructure that is available in any particular location may lead to a conclusion that some difference of treatment is justified at that location. Taking the example mentioned in Mr Scott's supplementary witness statement, facilities to support non-English speaking families or to provide Gurkha children with education in the Nepali curriculum may not be available in certain locations, but detailed factors such as this are capable of being taken into account in the accompanied service arrangements for British soldiers. They are not, at least without much more detailed analysis, capable of justifying an overall "limit" of 25 per cent.[93]During the course of his submissions, Mr Singh, while not making any formal concession on behalf of the defendant, appeared to recognise the force of the arguments set out above, at least in relation to the TPA. He did not place particular weight on the situation in Brunei or upon the allocation of scarce resources, although he said that these factors were of relevance. While accepting that questions (i) and (ii) in Michalak had to be answered in the affirmative -- Article 8 was engaged, and there was different treatment -- he submitted that question (iv) might not arise because the claimants could not overcome the hurdle in question (iii), since the position of Gurkha soldiers was not truly analogous with that of British soldiers.[94]I have accepted his submission that the circumstances of an ex soldier pensioner in Nepal are not analogous with the circumstances of a ex soldier pensioner in the United Kingdom, but I unhesitatingly reject the submission that, while they are both serving soldiers working side by side performing the same duties and exposed to the same dangers, Gurkha soldiers and British soldiers are not in an analogous situation. Question (iii) in Michalak must be answered in the affirmative insofar as it relates to the accompanied service arrangements for serving Gurkha and British soldiers.[95]In answer to question (iv), there is a clear difference in treatment which cannot be justified by the terms of the 1947 agreement, the situation in Brunei, or scarce resources generally. If resources are scarce, they must be allocated in a non-discriminatory way. Faced with these difficulties, the emphasis in the defendant's case on justification appeared to shift to the other factors mentioned by Mr Scott:(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".[96]Miss Booth complained, with some justification, that these were very general assertions, but they are not to be lightly dismissed. In his second witness statement, Mr Scott says, in answer to a suggestion from the claimants that only a relatively small proportion of Gurkhas would elect to be accompanied: "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".[97]Up to date figures are not available to me, but when the Defence Committee reported on "The Future of the Brigade of Gurkhas" in 1989, it said this in relation to marriage: "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".[98]The importance of maintaining links with Nepal is not just a forensic afterthought on the part of the defendant. It was mentioned by the Minister in the context of extended leave, when he made his announcement to Parliament in 1997. A press release explaining the outcome of the 1997 review of the TACOS said this: "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".[99]That it is a point of substance, with obvious implications for the United Kingdom's foreign relations with the Government of Nepal, is borne out by one of the submissions made on behalf of the claimants. It was contended that relatively few Gurkhas would wish to be accompanied for lengthy periods because there was a long established tradition in Nepal's rural economy that the wives of Gurkha soldiers would remain in Nepal to look after the family property while their husbands served abroad and remitted money home. Any children of the family would remain with their mothers in Nepal and be educated there. That factor is of some importance, given that their adult lives will be spent in Nepal.[100]Once the claimants appreciated that there had been this shift of emphasis in the defendant's justification for maintaining a 25 per cent limit, it was conceded on their behalf that considerations of operational effectiveness in 2003, and the continued importance in 2003 of maintaining linkages between Gurkhas serving in the British Army and Nepal, were at least capable in principle of justifying some difference of treatment in the provision of accompanied service. However, it was contended that these factors did not justify the present 25 per cent "limit".[101]The end result of this somewhat laborious process of teasing out the parties' true positions is somewhat unsatisfactory. Once question (iv) in Michalak is reached, it is for the defendant to justify the difference in treatment. The defendant has put forward a number of reasons in an attempt to justify the 25 per cent limit. Some of those reasons, reliance on the terms of the 1947 agreement, the position in Brunei, and the scarcity of resources, are not capable of providing a rational justification for discriminating between Gurkha and British soldiers in 2003.[102]The other two reasons, the continuing need to maintain linkages between Gurkhas and Nepal, and the need to maintain the operational effectiveness of the Brigade, given that Gurkha soldiers are deployed in formed units, are capable of justifying at least some difference in treatment. What that difference should be is not for me to decide. This court is singularly ill-equipped to adjudicate upon matters relating to foreign affairs and military effectiveness.[103]Relief under section 8 of the Human Rights Act is at the discretion of the court. The defendant has argued that no relief should be granted because of the delay in making applications for judicial review and the claimants' failure to pursue alternative remedies. I do not accept that the alternative remedies suggested by the defendant would have been effective in relation to this issue. In particular, it is apparent from the response of the Army Board to the claimants' complaints made after these proceedings were commenced that the complaints procedure is not really suited to investigating the validity of the accompanied service policy. Rather, it is geared to considering complaints that established policies have been misapplied in individual cases.[104]I would be reluctant to refuse relief on the ground of delay alone, but in the present case, the delay has been such that the outcome of this complaint is only of academic interest to these seven complainants. They have all been reunited with their families in Nepal for some time. Moreover, the terms of the declaration sought on their behalf are unacceptably wide. To be of any practical assistance, it would be necessary to reformulate the declaration so as to identify the respects in which the accompanied service policy was in breach of Article 8, when read with Article 14.[105]For these reasons, I do not consider it "just and appropriate" (see section 8(1) of the Human Rights Act) to grant these claimants the particular form of declaratory relief that they seek. Having set out my views as to the lawfulness of the various considerations relied upon by the defendant, in particular its apparent reliance upon the precise terms of the TPA, as justifying a 25 per cent limit, I do not consider it necessary to grant an alternative form of declaratory relief, not least because during the course of his submissions Mr Singh appeared to recognise the difficulties of relying upon the terms of the TPA.[106]The defendant will have to consider whether it is sensible to review the justification for the 25 per cent limit in the light of this judgment. If it decides not to do so, and a claim is made by a serving Gurkha whose family life is being disrupted by the application of the 25 per cent limit, then it may well find that the court will require significantly more by way of detailed justification for the policy than has sufficed in the particular circumstances of the present case.[107]I emphasise the fact that I have not concluded that the 25 per cent limit is justified in terms of Article 14. I have merely concluded that, on the information presently available, it would not be appropriate to grant these retired claimants the particular form of declaratory relief that they have sought.[108]As with the claimants' complaint in respect of pensions, I have attempted to explain my reasoning on the merits in as much detail as possible. In particular, I have set out the way in which the arguments developed in the hope that this judgment may provide a basis for the parties to move closer together. When pressed during the course of submissions, each party felt able to recognise at least some force in parts of the other's arguments. In litigation between Gurkhas and the Ministry of Defence, there can be no winner. I conclude by expressing the hope that once the parties are freed from the demands of this adversarial litigation, they will be able to resolve their outstanding differences in a spirit of cooperation, rather than conflict.[109]For those reasons, the applications are dismissed.

Cited in 8 later judgments