Dost Mohammed, R (on the application of) v Secretary of State for Defence

Direct discrimination requires a factual inquiry into why less favourable treatment occurred and whether the operative ground was racial. The decision-maker’s intent may assist that inquiry, although a benign motive does not excuse treatment on racial grounds. A criterion with racial origins may nevertheless operate on grounds of nationality if nationality is the scheme’s operative basis. Racial undertones in the historical background do not necessarily alter that conclusion. A ministerially announced scheme may constitute arrangements under section 41(2)(d) of the Race Relations Act 1976 where it sufficiently clearly mandates the relevant distinction. The scheme was therefore based on nationality and was protected by the statutory exception.

The appellant, a Pakistani citizen, had served in the Indian Army during the Second World War and had been captured by Japan. The Government’s 2000 ex gratia scheme made payments to specified surviving former service personnel, including certain former Indian and Burmese Army personnel who had received payments under Article 16 of the San Francisco Treaty. The scheme was extended in 2003 following Gurung.

The appellant accepted that he did not satisfy the express criteria, but argued that the criterion discriminated directly on racial grounds because the earlier treaty payments had been based on the distinction between European and non-European personnel. Langstaff J dismissed the application, finding that the operative distinction was nationality and that section 41(2)(d) applied. The appeal concerned the correct approach to direct discrimination, the burden of proof, and whether the ministerial statements constituted sufficiently clear statutory arrangements.

The appeal was dismissed unanimously. Latham LJ gave the principal judgment, with Sir Peter Gibson and Ward LJ agreeing.

1. For direct discrimination under section 1(1)(a) of the Race Relations Act 1976, the essential question is why the claimant received less favourable treatment and whether it was on racial grounds. This is a factual inquiry. The alleged discriminator’s intent may be relevant, including where the decision-making was unconscious. Motive, purpose or a benign reason for acting on racial grounds does not prevent discrimination. The passages from Nagarajan and Khan were therefore correctly applied, while the observations in Birmingham City Council and James concerned underlying motive rather than the statutory grounds question.
2. The original criterion used in compiling the 1950s lists had a racial origin. However, Article 16 contemplated distribution through national agencies, and the ultimate lists were intended to identify former Indian Army personnel for whom the United Kingdom was responsible as British nationals. Indian nationals were excluded because India was not an Allied Power and had made a separate treaty, while Pakistan was responsible for its own nationals. The operative distinction was therefore nationality, not race.
3. The burden-of-proof argument based on Article 8 of Council Directive 2000/43 did not arise for determination. The judge’s finding necessarily meant that, on the evidence, the discrimination was not on racial grounds.
4. Section 41(2)(d) protected the scheme. The original scheme and its 2003 amendment were formal organisations of practical measures announced by Ministers and were arrangements made by, or at least approved by, a Minister of the Crown. The arrangements were sufficiently clear to mandate the exclusion of Pakistani nationals. The irrationality identified in Gurung concerned the treatment of Gurkhas and had been remedied by the amended scheme.

• Court of Appeal (Civil Division): dismissed the appeal against Langstaff J’s decision, holding that the scheme discriminated on grounds of nationality and was protected by section 41(2)(d) of the Race Relations Act 1976.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Langstaff J dismissed the appellant’s application for judicial review.