No finding of discrimination for British Gurkha pension scheme
29 September 2016
British Gurkha Welfare Society and others v. The United Kingdom, Application no. 44818/11 – read the judgment here
The Court has rejected claims that the cut-off scheme for British Gurkha pensions was in violation of Article 14 in conjunction with Article 1 of Protocol 1, but leaves open space for future proceedings.
by David Scott
The Gurkha have a long and storied history within the British Army. Originally serving in the (British) Indian Army, Gurkha regiments have remained within the British armed forces since 1815. More than 200,000 Gurkha soldiers fought in the two world wars, and in the past fifty years they have served in Hong Kong, Malaysia, Borneo, Cyprus, the Falklands, Kosovo, Iraq and Afghanistan.
Today these soldiers form the Brigade of Gurkhas, an administrative entity that ensures that Gurkha units are able to be integrated into the British Army. Since July 1997 the Brigade’s home base has been in the United Kingdom, due to the completion that year of the handover of Hong Kong – its previous home base – to China.
In October 2004 the Immigration Rules were changed to permit Gurkha soldiers who retired on or after 1 July 1997 with at least four years’ service to apply for settlement in the United Kingdom. Approximately 90 per cent of the 2,230 eligible Gurkha soldiers have since applied successfully to settle in the UK with their qualifying dependants. A further amendment was introduced in May 2009, allowing former Gurkhas who had served in the British Army for at least four years to settle permanently in the UK. Approximately thirty-five per cent of those eligible have since applied for resettlement.
The case before the Court concerned the pension scheme afforded to retired Gurkhas. In 1999 the Gurkha pension rate was increased by over 100%, placing it higher than the scales set by the Indian Army, with the rationale that Gurkha’s retiring to Nepal would not have access to various benefit schemes available for regular retiring soldiers. This payment was equivalent to around 1/3 of the Armed Forces Pension Scheme given to retiring British soldiers.
A review of the Gurkhas’ Terms and Conditions of Service in 2004 noted that the move of the home base to the UK coupled with the changes to the immigration rules had altered the traditional assumption that British Gurkhas would retire to Nepal. The Review therefore recommended that the Gurkha Pension Scheme be brought into line with that available to the wider British Army. Thus in March 2007 the UK Government introduced the Gurkha Offer to Transfer, allowing Gurkhas who retired after 1 July 1997 to transfer their pension to the allowance for the British Armed Forces.
Two of the applicants before the Court were former Gurkha soldiers who had been adversely affected by the cut-off date of 1 July 1997. They alleged that the significantly lower pension entitlement for Gurkha who retired or served prior to July 1997 amounted to an unjustified differential treatment on the basis of nationality, race and age, in violation of Article 14 in conjunction with Article 1 of Protocol no. 1. The other applicant, the British Gurkha Welfare Society, is a non-governmental organisation that represents former members of the Brigade.
Before turning to the merits of the application, the Court noted the question of the victim status of the British Gurkha Welfare Society. While the Society had standing before domestic courts, the Court stated that the Society did not appear to be “directly affected”, as required by Article 34 of the Convention, and it was therefore doubtful whether it can claim to be a “victim” of the alleged violations before Strasbourg [paragraph 51]. However, the Court did not feel it necessary to conclusively rule on this point due to the wider outcome of the proceedings.
Considering the merits, it ruled first that the “race discrimination” portion of the complaint was inadmissible as this argument had not been pursued before the domestic courts [paragraph 59]. The case thus rested on whether the discrimination on the basis of nationality and age had been unjustified discrimination in violation of Article 14.
The Court noted that “the issue before it for consideration goes to the compatibility of the system with Article 14, not to the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation”, and that “the Court’s role is to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation” [paragraph 63]. In such cases the Court follows a three part test: was there a “difference in treatment” between “persons in relevantly similar situations” that was “objectively and reasonably unjustified” [paragraph 62].
The Court began with the question of discrimination on the grounds of nationality. It had no problem finding that there was a difference in treatment between the pension arrangements for Gurkha and non-Gurkha soldiers in the British Army [paragraphs 76-78] and that following the equalisation of the pension arrangements in 2007 these two groups were in a relevantly similar situation [paragraphs 79-80]. However, the Court found no violation of Article 14. While “very weighty reasons” are needed to justify differences in treatment on the grounds of nationality [paragraph 81], the cut-off point of July 1997 was justified due to the significance of this date as the point when the Brigade’s home base moved to the UK. Without the cut-off date, equalisation of the pension arrangements would have increased the cost to the Government from £320 million to £1.5 billion [paragraph 83]. Moreover, years of service prior to 1997 were at a time when soldiers would have had “no ties to the United Kingdom and no expectation of settling there following their discharge from the Army” [paragraph 85]. The July 1997 cut-off was thus objectively and reasonably justified [paragraph 87].
On the question of age discrimination, the Court held that differences in treatment between older and younger Gurkha soldiers was justified on the same grounds as the nationality distinction. Thus no violation could be found here either [paragraphs 88-89].
Two things of note. The first is the standing of the British Welfare Society before the Court. The Court’s case law is fairly established on this point, but those with an interesting in standing should see Michael Rhimes’ excellent post from last week on the CJEU’s rules.
The second is the question of race discrimination, rejected as inadmissible. While it might be tempting to ask if this would be a further avenue for domestic proceedings to begin again, both the applicant and the Court notes that the question of race is closely connected with that of nationality [paragraph 58]. Considering that the nationality distinction was held to be justified despite the “very weighty reasons” needed to defend such distinctions in treatment, its unlikely a race argument would be treated any differently.
The court’s decision is perverse.
The Gurkhas fought in the interests of the British State, under the British flag and therefore ought to have received the same considerations as any other soldier as this is only fair. The [arbitrary] cut-off date is very convenient to the State and it may be that the State would have faced a much higher bill but for this cut-off date. But this is irrelevant. The State knew, or ought to have known, that the Gurkhas sacrifices merited equal treatment to other soldiers serving in the same army for the same ends.
That the Gurkhas were subsequently based in the UK is again irrelevant. What difference can there be to the Gurkhas [individually or collectively] whether they are based in Hong Kong [but still under the British flag] or in the UK? They are still part of the same organisation and therefore deserve equal treatment.
One must imagine a foreign national living and working in the UK [or abroad] for any civilian organisation alongside domestic nationals doing the same thing but receiving vastly different treatment and wages. How would the courts treat this? Would the courts tolerate differential treatment to women for example? Would the courts tolerate differential treatment to female soldiers?
The soldiers’ nationality is again very convenient for the State. The State readily accepted the Gurkhas into its armed forces and therefore had, and has, a vicarious liability to treat all its service men equally. The Gurkhas could in no way alter their ethnicity/nationality than a woman could alter her gender.
The White Book’s first injunction is that cases must be treated justly/fairly. The court clearly failed to heed this.
The HRA also prohibits discriminatory treatment on the grounds of gender or race etc. Yet the court did preceisely the opposite [which it admits] and put forward weak or specious grounds for that discrimination and this despite the fact that the HRA and previous court judgements ruled that persons within the State’s jurisdiction were to be accorded human rights irrespective of race or nationality. Why, therefore, are the Gurkhas different?
Unfortunately, as David Pannick pointed out in his famous book ‘Judges’, our judicial system is sorely lacking and of highly variable ability.
God bless them!
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