Gurkhas' new pension battle

Gurkhas ask High Court for pension parity

Last year's decision by the Ministry of Defence to give them equal pension rights is not as good as it looked

By Frances Gibb, Legal Editor of The Times. 13/03/08.

They have fought and died in the British Army over centuries and taken part in every significant conflict since 1947 including the Falklands, Afghanistan and Iraq. But today the Gurkhas are embroiled in a new battle — this time with the Ministry of Defence.

The Gurkhas — who are held in high public esteem and have won numerous decorations including 13 Victoria Crosses — are to serve judicial review proceedings over the pensions deal the MoD offered them last year, the climax of a long and hard-fought campaign to secure equal pension rights with fellow soldiers.

Last year that victory appeared to have been won when the Army announced equal pension rights — along with the news that women would, in future, be serving in the Gurkhas. Their pensions, the Nepalese soldiers were told, would be brought into line with those for the rest of the British Army and they would have the option of transferring into the armed forces pension scheme and their retirement income would increase fivefold.

In a country where the average income is 60p a day, soldiers who had served for 16 years can now expect their pensions to rise from £1,200 to £6,600 a year. Senior ranks will receive £7,000 and more — depending on the time they have served.

But the deal was not as good as it looked. First, it was not available to the 22,000 Gurkhas who retired before July 1997. Secondly, for those who could apply, there was a discrepancy in how years of service were valued — with time spent before July 1997 calculated in a way that was disadvantageous.

Chhatra Rai, general-secretary of the British Gurkha Welfare Society, said: “We think this could affect between 15,000 to 20,000 Gurkhas. We are seeking the same pension payments for those who retired before and after July [1997].” In a letter to go out to MPs, the society chairman, Major Tikendra Dai Dewan, who is retired, says: “The Gurkha plight remains unresolved.” The terms of the offer are “illogical and unfair” and amount to “unjust treatment of a dedicated group of ex-service men and women”.

Edward Cooper, its lawyer with Russell Jones & Walker, said: “These proceedings affect the position of about 5,000 Gurkhas resident in the UK, of which our clients represent the majority. The proceedings allege that the approach of the Ministry of Defence is contrary to the Human Rights Act and EU discrimination law on grounds of age and race.”

The case, he added, was “the culmination of a long campaign for equality of treatment by those who have fought alongside other members of the British Army — to achieve parity in recognition of what Gurkhas have been prepared to sacrifice”.

The society will argue a breach of human rights on the ground of differential treatment (unlawful discrimination) and seek a declaration that the deal is unlawful and should be quashed or declared incompatible with the European Convention on Human Rights.

Ministers have defended their decision on the ground that extending the deal to those affected by the 1997 cut-off point would cost billions — and carry implications for workers in other sectors.

A Ministry of Defence spokesman said that the reasons for the July 1997 cut-off were that circumstances before then were different and the pensions were designed for retirement in Nepal. “Gurkhas expected to retire in Nepal after leaving the Army. The Government changed the immigration rule in October 2004, backdating the effect to July 1, 1997 when the brigade became UK-based. The change allowed Gurkhas the choice of settlement in the UK after leaving the Army instead of returning to Nepal,” he added. “Gurkha pensions are designed for retirement in Nepal where the cost of living is significantly lower than in the UK.”

Meanwhile, thousands of retired soldiers who fall the wrong side of the cut-off point live on small pensions in poverty. Today in a first step towards rectifying that injustice, the British Gurkha Welfare Society will serve judicial review proceedings in the High Court and if granted leave, a hearing will take place within months. At the same time, MPs will be asked to back a rally at 10am in Parliament Square on Wednesday, March 19.

Public opinion is on their side and is summed up by Menzies Campbell, the former leader of the Liberal Democrats: “These soldiers have served our country well and we have a moral obligation to give them a fair pension and citizenship.” It now falls to the courts to decide the justice of their case.

From The Times, 13 March 2008  © Copyright 2008 Times Newspapers Ltd.