Purja & Ors, R (on the application of) v Ministry of Defence

Differential treatment of Gurkha and British soldiers is not unlawful merely because they serve together. For pension purposes, retired Gurkha soldiers returning to Nepal are not in an analogous situation to British soldiers retiring in the United Kingdom. Pension arrangements may therefore reflect Nepalese costs, welfare provision and circumstances, provided they are not disproportionate or irrational.

Serving Gurkha and British soldiers performing the same duties are, however, in an analogous situation for accompanied-service purposes. Historical arrangements, general resource shortages and conditions in Brunei cannot by themselves justify a discriminatory limit. Operational effectiveness and the maintenance of links with Nepal may justify some difference, but the extent of any difference requires detailed justification.

Seven former members of the Brigade of Gurkhas, resident in Nepal, sought judicial review of Ministry of Defence arrangements concerning pensions and accompanied service. They alleged discrimination contrary to Articles 8 and 14 of the European Convention on Human Rights and irrationality in public law.

The pension claim concerned the different arrangements applied to Gurkha soldiers returning to Nepal. The accompanied-service claim concerned a policy limiting family accommodation for junior Gurkha soldiers to an overall proportion equivalent to 25 per cent. By the hearing, the claimants sought only general declaratory relief on accompanied service. The central issues were whether the relevant comparators were in analogous situations and whether the differences were objectively and reasonably justified.

1. Pensions. Applying the structured Article 14 approach in Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, the court assumed in the claimants’ favour that pensions were possessions within Article 1 of Protocol 1. The difference in treatment was accepted, but retired Gurkha soldiers returning to Nepal were not in an analogous situation to British soldiers retiring in the United Kingdom. The difference arose from their different retirement circumstances, not race.

2. Even if the comparators were analogous, the arrangements were objectively and reasonably justified. It was lawful to tailor pensions to Nepalese conditions. The use of Indian Army pension rates was rational because India remained the best comparator, while uprating by Nepalese cost of living and a welfare allowance prevented inflexible application. The claimants provided no evidence that the arrangements were disproportionate or irrational.

3. The court also applied the resource-allocation and foreign-relations considerations identified in R (on the application of Carson) v Secretary of State for Work and Pensions [2002] EWHC Admin 978. Those considerations reinforced the need for judicial restraint, although the court would have reached the same conclusion without deference.

4. Accompanied service. Serving Gurkha and British soldiers working side by side and performing the same duties were in an analogous situation. The 25 per cent limit could not rationally be justified by the 1947 agreement, conditions in Brunei or general scarcity of accommodation. Scarce accommodation had to be allocated by objective, non-discriminatory criteria.

5. The continuing importance of links with Nepal and the operational effectiveness of the Brigade, particularly because Gurkhas served in formed units and had higher marriage rates, were capable in principle of justifying some difference in treatment. The court was not equipped to determine what that difference should be. The judgment did not conclude that the 25 per cent limit was lawful; it concluded only that the retired claimants should not receive the broad declaration sought, given delay, the academic nature of the claim and the need for more precise relief.

6. The applications were dismissed.