British Gurkha Welfare Society & Ors v Ministry of Defence [2010] EWHC 3 (Admin)

Application for judicial review concerning pension arrangements for Gurkhas on the grounds that the arrangements are discriminatory under the Race Relations Act 1976. Application failed.

The claim arose from new arrangements for Gurkha pensions made in 2007 whereby pensions rights for time served after 1 July 1997 were to be calculated on the same basis as other British soldiers, a full year for year basis of service, but rights for service prior to that date was to be calculated on an actuarial value for service given. This hearing involved two individual claimants one who had retired in February 1997 after 15 years and who could not enhance his pensions rights and the second who retired in 2002 but who could not transfer his pre-1997 rights on an equivalent basis. The claim was under three main headings: i) that the policy is discriminatory on age and nationality grounds under the ECHR; ii) the orders implementing the policy were irrational and; iii) the MoD had failed to pay due regard to the need to promote equality of opportunity and good relations as required by s71 of the Race Relations Act 1976.

In this judgment, Burnett J dismissed the first two grounds, following Ouseley J in Gurung, the policy was justified and proportionate. He also states that the Gurkha Brigade only exists if the MoD applies a policy that discriminates against all nationalities other than Nepalese and that the "claimants appear to regard discrimination on grounds of nationality as justified when it provides benefits but not when it gives rise to disadvantage" He then finds that the the MoD had complied with their duty under the Race Relations Act, after reviewing the process undertaken, primarily because "there was nothing perfunctory or slipshod about the nature of the review exercise or in the extent of the consultation undertaken"

The full text of the judgment can be found on the BAILII website

Published: 15/01/2010 09:40

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