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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Purja & Ors v Ministry of Defence [2003] EWCA Civ 1345 (09 October 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/1345.html Cite as: [2003] EWCA Civ 1345, [2004] 1 WLR 289, [2004] WLR 289 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Sullivan)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE CHADWICK
and
LORD JUSTICE RIX
____________________
RAG PRASAD PURJA & OTHERS |
Appellant |
|
- and - |
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MINISTRY OF DEFENCE |
Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Public Interest Lawyers) for the Appellants
Rabinder Singh Esq, QC & Keith Morton Esq
(instructed by The Treasury Solicitor) for the Respondents
____________________
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Simon Brown:
"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."
"… 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."
"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."
"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).
"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."
"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 as follows. (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 theHuman Rights Act
1998)? (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 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."
"52. … It was only during the opening of the claimants' case that [counsel then instructed for the Gurkhas] made it clear that this was no longer their contention.
53 The significance of this concession should not be under-estimated. 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 etc) 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-soldier 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 [in Michalak] is 'No'. 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 which 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."
"60. … [I]t 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."
"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 [ie, one three-year period in 15 years] limitation on accompanied service until they reach the rank of Colour Sergeant)."
"91. … 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."
"94. I have accepted [Mr Singh's] submission that the circumstances of an ex soldier pensioner in Nepal are not analogous with the circumstances of an 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."
"102. … [T]he 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."
"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."
i) Does any discrimination as to (a) pensions and (b) pay on long leaves fall within the ambit of article 1P (Michalak question (i))? The judge below was content to assume the answer to this question in the claimants' favour. But Mr Rabinder Singh QC for the respondents submits that article 14 has no application here with regard to pensions and pay.
ii) Are Gurkhas treated differently from (ie less favourably than) British soldiers (the chosen comparators) with regard to (a) pensions and (b) pay (Michalak question (ii))? Mr Singh contends that the judge below wrongly understood there to be no dispute as to that and now wishes to contest it.
iii) Are British soldiers in an analogous situation to the appellants with respect to (a) pensions, (b) pay and/or (c) accompanied service (Michalak question (iii))? The appellants contend that the judge below was wrong to answer this question in the negative with respect to pensions and pay; the respondents contend that he was wrong to answer it in the affirmative with respect to accompanied service.
iv) Assuming questions (i), (ii) and (iii) are answered in the affirmative with regard to a) pensions, b) pay and/or c) accompanied service, does the respective difference in treatment have an objective and reasonable justification (Michalak question iv))?
v) Assuming (as seems logical) that the judge below decided with regard to accompanied service that the respondents had failed to discharge the burden upon them of establishing that the full difference in the allocation of family accommodation as between Gurkhas and British soldiers can be objectively and reasonably justified, was he nevertheless entitled in his discretion to refuse relief?
"61. … I have considerable sympathy with this approach expressed by Wilson J. A factor or circumstance which puts person X (the comparator) in a different case from person Y (the putative victim of discrimination) may be said to undermine any comparison or analogy between X and Y, and so promote a negative answer to Brooke LJ's question (iii); but the justification of discrimination – which only arises for consideration if question (iii) is answered affirmatively – will also often rest on the very demonstration of a factor or factors which put X in a different case from Y. There is, therefore, some fragility in the separation between (iii) and (iv) in Michalak, and it is to be noted that Brooke LJ himself observed at paragraph 22:
"It is important to stress that this is only a framework, …. There is a potential overlap between the considerations that are relevant when determining, at any rate, the last two, and possibly the last three, questions. There may sometimes, therefore, be a need for caution about treating the four questions as a series of hurdles, to be surmounted in turn. In Nasser -v- United Bank of Kuwait [2002] 1 WLR 1868, 1883, paragraph 56 Mance LJ observed, in effect, that questions (iii) and (iv) above tend to merge into [one] another."
However, it may be said that this leaves the true relation between questions (iii) and (iv) unresolved. A possible approach, as it seems to me, is to ask a compendious question in place of (iii): are the circumstances of X and Y so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X? This provides a relation between questions (iii) and (iv) and avoids any tight adherence to a rule requiring the "impugned characteristic" to be ignored."
Issue (i) - the application here of articles 1P and 14
"[T]he right to a pension which is based on employment can in certain circumstances be assimilated to a property right. This may be the case where special contributions have been paid. … This may also be the situation where an employer … has given a more general undertaking to pay a pension on conditions which can be considered to be part of the employment contract." (paragraphs 32 - 34)
Issue (ii) - are Gurkhas treated less favourably than British soldiers?
"[N]ot every difference in treatment will amount to a violation of [article 14]. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction.
Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law."
Issue (iii) - are Gurkha and British soldiers in an analogous situation?
"It seems to me that we would generate both conceptual and practical difficulties if a studied ignorance of the "impugned characteristic" were elevated into a general principle for the purpose of identifying relevant comparators in an Article 14 case, and I do not believe that the court in Aston Cantlow intended any such outcome."
"It is hereby declared that the policy applied to the Claimant during his military service with the Defendant after 2nd October 2000 and following his retirement from military service, that his pension and retirement gratuity were calculated on a different basis from the Armed Forces Pension scheme applicable to British soldiers, was contrary to Article 14 taken together with Protocol 1 Article 1 of the ECHR and therefore unlawful."
As the court pointed out, however, were each claimant's pension to be calculated in accordance with the Armed Forces Pension scheme, none of them would receive anything until the age of 60.
Issue iv) - are the differences in treatment between Gurkhas and British soldiers justifiable?
"The Court reiterates that the advancement of the equality of the sexes is today a major goal in the Member States of the Council of Europe; this means that very weighty reasons would have to be put forward before a difference of treatment on the sole ground of sex could be regarded as compatible with the Convention."
Issue v) - was the judge in his discretion entitled to refuse relief?
Lord Justice Chadwick:
Lord Justice Rix:
"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."
"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."
"I have accepted [Mr Singh's] submission that the circumstances of an ex soldier pensioner in Nepal are not analogous with the circumstances of an 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."
"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."
"The other two reasons…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."
However, he also emphasised (at paragraph 107) that "I have not concluded that the 25 per cent limit is justified in terms of Article 14". Nevertheless, he considered that it would not be appropriate on the present information to grant relief in declaratory terms.
"The MOD has always taken the view that it is justified in abiding by the TPA's "limit" of 25% in order to ensure that these linkages to Nepal, envisaged [in] the international agreement, were maintained."
ORDER: Appeal dismissed.
No order as to costs save for detailed assessment of the appellant's costs under the Community Legal Services Costs Regulations 2000.