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Discrimination the raison d'être of the Gurkha Brigade, High Court judge says

19 January 2010

Discrimination on the grounds of nationality is the raison d’être of the Gurkha Brigade, a High Court judge has ruled in the latest case involving the Nepalese soldiers.

The British Gurkha Welfare Society argued at judicial review that the MoD should increase the entitlement of Gurkha soldiers for periods of service before July 1997, when the Gurkhas were based in Hong Kong, to the level in place for service since they were transferred to the UK.

It argued that failure to do this amounted to discrimination on the grounds of age and nationality under article 14 of the ECHR and did not promote equality of opportunity and good relations between racial groups as required by section 71 of the Race Relations Act.

However, giving judgment in British Gurkha Welfare Society v Ministry of Defence [2010] EWHC 3 (Admin), Mr Justice Burnett said: “Discrimination on grounds of nationality is the founding principle, indeed the raison d'être, of the Gurkha Brigade.”

Burnett J said that Gurkhas were the beneficiaries of treatment denied to others in the British army, such as the ability to retire after 15 years with an immediate pension and extended paid leave in Nepal.

“So it is that the challenge before the court, in conformity with those that have come before, proceeds from the premise that any benefit accruing to the Gurkhas from their different treatment (including the very existence of the brigade) should be secure, but perceived disadvantages should be remedied.

“The claimants appear to regard discrimination on grounds of nationality as justified when it provides benefits but not when it gives rise to disadvantage.”

Mr Justice Burnett said that age discrimination was common in circumstances where few would find it offensive.

“Children occupy the same space on aircraft and other forms of transport as adults, but pay less. Rates of subscription payable for membership of many organisations vary depending upon age or years standing.

“The elderly benefit from numerous concessions denied to younger adults. All these may or may not be justified for various purposes, but few would suggest that the discrimination involved requires justification of the type needed to justify discrimination on grounds of race or sex for the purposes of article 14.”

Mr Justice Burnett said ECJ jurisprudence and the EU legislation relating to age discrimination provided “no real support for the proposition that age should be treated as a suspect ground”.

He said the decision of the ECJ in the Age Concern case made clear the wide margin accorded to member states in this area.

The judge rejected the claim by counsel for the Gurkhas that the pensions issue led to racial disharmony between serving and former Gurkha soldiers and the rest of the British population.

“The Gurkhas are held in the highest of esteem,” Burnett J said. “No suggestion was made that the Gurkhas have any grouse against the British people which is reflected in disharmonious relations.

“On the contrary, it is the reluctance of the British government, as distinct from the people, to provide the additional pension provision that causes resentment. Recent events have demonstrated the power of public opinion mobilised in support of the Gurkhas to deliver results, which provide eloquent evidence of the very harmonious relations between the Gurkhas and the British people.”

Mr Justice Burnett rejected the application for judicial review. The British Gurkha Welfare Society has since said it will appeal.

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Legal Aid Discrimination Pensions Vulnerable Clients