Purja & Ors v Ministry of Defence

Gurkhas have fought for the Crown for nearly 200 years. Their valour is legendary. Since 1947 they have formed an integral part of the British Army. In no way are they to be regarded as mercenaries. But they serve, and after service are pensioned, on terms wholly different from those applying to the rest of Her Majesty’s Forces. It is to certain of these terms that the present challenge is directed: terms as to pension rights, pay whilst on long leave in Nepal, and accompanied service. These are said to discriminate against Gurkhas on the ground of their nationality. The claim is brought by seven (out of a total of over 26,000) ex-British Army Ghurkha pensioners now resident in Nepal. It arises under the Human Rights Act 1998 and is based on article 14 of ECHR read with, variously, article 1 of the First Protocol (article 1P) and article 8. I need not set out article 1P or article 8. Article 14, however, lies at the very heart of these proceedings:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

On 21 February 2003 Sullivan J dismissed the challenge. I myself gave permission to appeal, describing the case as “clearly an important and difficult one”. The appeal hearing has confirmed that view.

It is convenient in this judgment to refer to British soldiers as meaning all those in the British Army except for the Brigade of Gurkhas (presently some 3,500 strong) without overlooking the fact that the contrasts being struck are in truth between two groups within the same army.

With that briefest of introductions let me turn at once to sketch in the facts of the case. I shall do so as briefly as I can given that this judgment must in any event be somewhat lengthy. The interested reader can find further details in the admirable judgment below.

During the Second World War large numbers of Gurkhas served in the (British) Indian Army. After Indian independence in 1947, the future of the Gurkha regiments was decided at a conference between representatives of the United Kingdom, India and Nepal. This led to a tripartite agreement (“TPA”) signed by all three governments on 9 November 1947. Nepal wished to maintain the Gurkha connection with the armies of the United Kingdom and the newly independent India, albeit at reduced strength. In the event, six regiments of Gurkha Rifles continued to serve in the Indian Army and four regiments transferred into the British Army to become the Brigade of Gurkhas.

Paragraph 4 of the TPA recorded the government of Nepal’s general satisfaction in regard to the terms and conditions of employment of Gurkha troops and took note of an agreement dated 7 November 1947 between the United Kingdom and India, paragraph 11 of which provided:

“… that the basic rates of pay admissible to Gurkha officers and soldiers serving HM Government shall approximate to those laid down in the present Indian Pay Code … and that a special allowance to compensate for permanent service overseas and high cost of living shall in addition be admissible to Gurkha officers and soldiers serving HM Government overseas.”

Paragraph 5 of the TPA provided for the Nepalese government to make suggestions and the first of these was that:

“In all matters of promotion, welfare and other facilities the Gurkha troops shall be treated on the same footing as the other units of the parent army so that the stigma of ‘mercenary troops’ may for all time be wiped out. These troops shall be treated as a link between two friendly countries.”

The 1947 Terms and Conditions of Service for Gurkha troops serving in the British Army (“TACOS”) referred to in paragraph 4 of the TPA included the following:

“Gurkhas enlisted into the British Army are liable for service anywhere in the world, although it is the present intention to employ Gurkhas personnel mainly in Malaya.” (section II, paragraph 10)

“It should be made quite clear that in the early stages, accommodation for Gurkha units in Malaya will not be good. They will be mostly in tented camps, but a large building programme is in hand and assurances may be given that in course of time all Gurkha units in Malaya will be adequately housed in modern barracks.” (section III, paragraph 2)

“Family accommodation will be provided eventually for up to 25% of Gurkha officers and men allowed by unit establishment. All married Gurkha officers and warrant officers will be entitled to family accommodation, within the overall total 25% establishment” (section III, paragraph 21)

“The payment of Gratuities and Pensions will be admissible to Gurkha soldiers … with reckonable service in the Indian or British Armies under the Pension Regulations for the Army in India, 1940 …” (section IV, paragraph 7).

Historically the Brigade of Gurkhas has been based in the Far East, initially in Malaya and then, following the UK’s withdrawal from that country, in Hong Kong. Only in the run-up to the hand-back of Hong Kong to China in 1997 was the Gurkhas’ base moved to the UK. Even now some 23% of the Brigade continues to be stationed in Brunei, by agreement with the Sultan who is responsible for the garrison costs.

In accordance with paragraph 11 of the November 1947 bipartite agreement between the UK and India (see paragraph 6 above), the Gurkha Brigade’s basic pay has continued to be set in accordance with the Indian Pay Code albeit, consistently with that provision, cost of living allowances have been paid for service outside Nepal. Such allowances used to be calculated by reference to, for example, Hong Kong or Brunei living expenses. In 1997, however, a “universal addition” (“UA”) was introduced to ensure that whenever a Gurkha soldier is serving outside Nepal his take home pay is similar to that of a British soldier of comparable rank and experience. Of that total take home pay only some 5% is basic pay; the remaining 95% represents UA.

Gurkha pensions too, in accordance with section IV of the 1947 TACOS (see paragraph 8 above), are based upon Indian Army rates, although these too are increased by substantial additions. A 1981 review linked Gurkha pensions to the top band provided for by the Indian regulations and uprated them annually by reference to Nepalese, rather than Indian, cost of living increases. More significantly still, a review in 1999 effectively doubled Gurkha pensions with effect from 1 April 2000 to take account of various benefits in kind, such as access to Indian military hospitals, which are available to Indian Army Gurkha pensioners. Gurkha pensions are now said to compare favourably with professional salaries in Nepal. Indeed, a Gurkha rifleman with 15 years of service has a higher pension than a bank clerk’s salary, and a retired corporal receives a pension only £3 per month less than the salary of a Royal Nepalese Army captain.

That said, a Gurkha soldier’s pension on retirement after 17 years’ service (the position of four of the seven claimants in these proceedings) is only £91 per month compared to a pension of £625 per month payable to a British soldier after 22 years. And whereas that British soldier will receive a lump sum payment of £22,509, the Gurkha, having served only five years less, will receive by way of grant and retirement gratuity a total of only £4,756.

Gurkha soldiers, it is convenient to note at this stage (subject to the possibility, dependent on rank, of one or more yearly extensions), are required to retire after 15 years’ service. Their pension thereupon becomes immediately payable, being annually uprated to reflect the increased cost of living in Nepal. Ninety-nine percent of Gurkha soldiers retire after completing those 15 (or more) years’ service. British soldiers by contrast are entitled to serve for 22 years. If they complete 22 years they immediately become entitled to their pension (although without any UK cost of living increases until they reach the age of 55). In practice only 17% do so. The remaining 83% of British soldiers retire before 22 years’ service become entitled (provided always that they have completed more than two years’ service) only to a deferred pension payable at the age of 60.

There are, I may add, other significant differences too between the respective pension arrangements. On the death of a Gurkha pensioner, up to 120% of his pension can be transferred to his surviving spouse together with lesser amounts to dependent children up to the age of 25; UK widows receive a substantially lesser proportion of the pension. On the other hand, it appears that the 1% of Gurkhas who retire before completing 15 years’ service enjoy no pension entitlement whatever.

I have said enough to indicate the general nature of the appellants’ grievance as to their pension rights. I must explain now their other two complaints, respectively as to pay whilst on long leave and as to accompanied service.

Gurkha soldiers are entitled to five months’ long leave in Nepal every three years and to terminal leave in Nepal for the final six months of their engagement. (Long leave too used to be for six months but was reduced to five months to reflect the increased speed of modern transportation). Gurkha soldiers accordingly receive substantially more leave than their British counterparts: statistics before us indicate that in a three-year period a Gurkha soldier can expect to receive 235 days leave compared to 117 days leave (plus relocation leave of between one and ten days) available to British soldiers. The Gurkha soldiers’ complaint, however, is that during their long leaves and terminal leave they receive only their basic pay and not the UA which is paid only during service outside Nepal. In short, on long leaves in Nepal they receive only 5% of their pay whilst serving abroad.

So far as accompanied service is concerned, the Gurkha Brigade remains entitled to family accommodation in conformity with the assurance given in section III of the 1947 TACOS that all married Gurkha officers and warrant officers would be accommodated within an overall total of 25% (see paragraph 8 above). The effect of this is that married Gurkha soldiers below the rank of warrant officer are likely to be accompanied by their wives only for one three-year period during their 15 years of service. This is in striking contrast to British soldiers who are generally entitled to be accompanied by their families throughout their service. Naturally, even British soldiers are not always on accompanied service: this depends principally upon security considerations, operational effectiveness and whether the necessary infrastructure exists. When unaccompanied, however, British soldiers are paid a separation allowance.

These three central complaints notwithstanding, there is no shortage of candidates for recruitment to the Gurkha Brigade. Quite the contrary. In a normal year some 28,000 potential recruits compete for the 230-odd places available. But then Nepal is one of the poorest countries in the world. The World Bank recently assessed its gross national income per capita as US$ 240. Compare that to the claimants’ pensions of between the equivalent of US$ 1,420 and US$ 1,960 per annum. The GDP per capita in the UK is some 20 times greater than that in Nepal.

Let me at this stage indicate something more of the differences between the Brigade of Gurkhas and the rest of the British Army. The Brigade of Gurkhas is in many ways unique. It is not a brigade in any conventional sense but rather the collective title given to all Gurkha units serving in the British Army. English not being the first language of Gurkha soldiers, all Gurkha units operate a command structure that enables Nepali to be spoken. This, and indeed the provisions of the TPA, make it necessary for Gurkhas to serve in formed Gurkha units which precludes their being interchangeable with British soldiers.

Gurkhas are both recruited and discharged in Nepal. They remain, throughout their service, citizens of Nepal. With few exceptions they are the only foreign nationals in the British Army. The government of Nepal retains a measure of control over them: in particular it must be informed before Gurkhas are deployed on operations and it has the right to recall Gurkhas from service if Nepal becomes involved in war. Unlike British soldiers, Gurkhas have no reserve liability and cannot be recalled to the army after their discharge.

Although substantial changes to the terms and conditions of Gurkhas’ service have been made since 1947, the TPA remains the basic instrument permitting their recruitment into the British Army and its continued application necessarily depends upon the goodwill of the governments of Nepal, India and the UK. It is only by virtue of the TPA that the Brigade is able actively to recruit Nepalese citizens as Gurkhas. Their enlistment gives them no right of residence in the UK and no right to remain in the UK after their discharge. The arrangements made for their service in the Brigade have always been designed to ensure that their linkages with Nepal are maintained. As Mr Christopher Soames, the Armed Forces Minister, said in the House of Commons in February 1997 when introducing the Gurkhas’ revised conditions of service (including UA):

“The present entitlement of Gurkha soldiers to long leave every three years will remain. This recognises the continuing importance we attach to keeping the Gurkha soldier in touch with his home culture and roots.”

The same thinking underlies the grant of terminal leave before discharge in Nepal: the Gurkha soldier is thereby reintegrated into his own society. Professional resettlement training (by Coutts) is also provided. Given their comparative youth on discharge (some as young as 33), Gurkha soldiers, besides enjoying an immediate pension, have excellent prospects for a second career.

Although I shall have to return later to explore the law in rather more detail, it is convenient at this stage, before turning to the judgment below, to refer to the first important Court of Appeal authority on Article 14, Wandsworth London Borough Council -v- Michalak [2003] 1 WLR 617 (an authority which Buxton LJ later observed, in Ghaidan -v- Godin-Mendoza [2003] 2 WLR 478, paragraph 6, contains “guidance as to the reach and application of article 14 … guidance [which] binds us”). The court in Michalak was concerned with an allegation of unlawful discrimination in respect of the respondent’s family life. Brooke LJ, with whom the other members of the court agreed, said at paragraph 20:

“It appears to me that it will usually be convenient for a court, when invited to consider an article 14 issue, to approach its task in a structured way. For this purpose I adopt the structure suggested by Stephen Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000). If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is ‘No’, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are as follows. (i) Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see section 1(1) of the Human Rights Act 1998)? (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison (‘the chosen comparators’) on the other? (iii) Were the chosen comparators in an analogous situation to the complainant’s situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved? The third test addresses the question whether the chosen comparators were in a sufficiently analogous situation to the complainant’s situation for the different treatment to be relevant to the question whether the complainant’s enjoyment of his Convention right has been free from article 14 discrimination.”

I come now to the proceedings below. As Sullivan J’s judgment makes clear, the allegations of discrimination had originally ranged much wider than were eventually pressed before him. It was said that the Gurkhas had been subjected to “systemic and institutionalised discrimination” and that this was so on grounds of race as well as nationality. In the end, however, the claimants pursued only the three complaints I have already identified. Moreover, the complaint as to pay when in Nepal was treated by the judge as part and parcel of the complaint as to pensions “since it was not submitted on behalf of the claimants that a different approach should be adopted to [pay] for those periods during which they were on leave in Nepal”. Sullivan J rejected the contention that the differences in treatment between Gurkha soldiers and British soldiers were based on race rather than nationality and that finding the appellants do not now seek to contest.

With regard to the pensions complaint, Sullivan J noted that the claimants’ skeleton argument had sought the payment of pensions at British rates in Nepal and continued:

“52.

… It was only during the opening of the claimants’ case that [counsel then instructed for the Gurkhas] made it clear that this was no longer their contention.

53

The significance of this concession should not be under-estimated. The claimants are not contending that the pension arrangements for Gurkhas and British soldiers should be the same and acknowledge that the former can lawfully be tailored to conditions (cost of living, welfare facilities etc) in Nepal. However, it is contended that there should be ‘equality of treatment’, not in the sense that an ex-soldier retiring to Nepal could reasonably be expected to have the same standard of living as an ex-soldier living in the United Kingdom, but that there should be an ‘equivalent standard of living’.

54.

This reformulation of the claim effectively acknowledges that the answer to Brooke LJ’s third question [in Michalak] is ‘No’. Situations of British soldiers and Gurkha soldiers on retirement are not analogous. Some difference of treatment is justified. Therefore, question (iv) does not arise. There is no breach of Article 14 and one is left with a bare irrationality challenge.

55.

I have no doubt that the claimants are right to acknowledge, even if belatedly, that it is lawful to make different arrangements for Gurkhas’ pensions and that those arrangements should be tailored to the conditions in the country to which they will retire, Nepal, not to conditions in the United Kingdom. Put simply, Gurkhas on retirement are not in an analogous position to British soldiers, not because they are Nepalese citizens and the latter are British, but because as Nepalese citizens they will be leaving the United Kingdom and returning to Nepal, where their pensions will be paid, and conditions in Nepal are markedly different from those in the United Kingdom.”

As to the “bare irrationality challenge” referred to in paragraph 54 of his judgment the judge found nothing disproportionate or irrational about the basis of calculating Gurkha pensions.

“60.

… [I]t would seem eminently sensible to use the rates for pensions paid under the Indian Army Pensions Regulations not because of what the TPA said in 1947, but because the Indian Army remains the best comparator in 2003: a large, professional army in a neighbouring country in which Gurkhas still serve.

61.

No better comparator has been suggested on behalf of the claimants. It might be irrational to apply linkage with Indian Army pension rates in a wholly inflexible way, for example, if the cost of living in Nepal was markedly more expensive than in India, or if the welfare benefits available there were markedly inferior to those available in India. But the undisputed evidence shows that the linkage is not applied in an inflexible way. Gurkha pensions are linked to the top band of Indian Army pensions. Annual upratings are linked to cost of living increases in Nepal, not India, and a substantial welfare allowance is paid to reflect the availability of welfare facilities, such as access to Indian military hospitals, in India. There is simply no evidence to support the claimants' contention that the differences between their pensions and those of British soldiers are disproportionate or irrational, once it is acknowledged, as the claimants do now acknowledge, that it is lawful to make different arrangements for Nepalese citizens who will retire to Nepal.”

Turning to the complaint with regard to accompanied service, Sullivan J said this:

“65.

The claimants rely on Article 8 of the Convention, which provides that everyone has the right to respect for his family life. They acknowledge that Article 8 does not of itself require the defendant to provide facilities for accompanied service for soldiers serving in the British Army, but contend that once the State has voluntarily decided to make such provision, it is discrimination contrary to Article 14 to confer that favourable treatment on one group (British soldiers who are, subject to the considerations referred to above, entitled to be accompanied by their families) but to deny the same treatment to another group (Gurkhas, who are subject to the 20 per cent [ie, one three-year period in 15 years] limitation on accompanied service until they reach the rank of Colour Sergeant).”

The judge then discussed the various reasons which the respondents had advanced by way of explanation and justification for the difference in treatment between the two groups. Three of these he rejected: First, the respondents’ reliance on the 1947 TPA which, the judge said, could not rationally “be used to justify placing an upper ‘limit’ of 25% upon the provision of family accommodation in the United Kingdom or Brunei in 2003”. Second, the “implications for our bilateral relations with Brunei” given that the Sultan would be expected to fund any changes in the garrison’s state there; the judge was unimpressed by this, not least given that all British soldiers deployed in Brunei in support of the Gurkha battalion serve accompanied. Third, the general scarcity of resources, as to which the judge said:

“91.

… If there is a shortage of accommodation in any location, that shortage cannot justify discrimination between British and Gurkha soldiers of equivalent rank and seniority. In order to avoid discrimination, accommodation which is in short supply must be fairly shared according to objective criteria and not rationed in such a way as to discriminate against Gurkhas. There would be no difference in principle between such a rationing policy and a policy which kept the best facilities for British soldiers and left Gurkhas with inferior accommodation or messing facilities.”

The respondents advanced two other reasons, however, and these were accepted by the judge as capable in principle of justifying some difference in treatment with regard to the provision of accompanied service to the two groups. The first of these is “the need to ensure that linkages with Nepal [are] maintained”. The claimants themselves, the judge noted, had spoken of “a long established tradition in Nepal’s rural economy that the wives of Gurkha soldiers would remain in Nepal to look after the family property while their husbands served abroad and remitted money home”. Any children of the family would remain with their mothers in Nepal and be educated there. “That factor”, said the judge, “is of some importance, given that their adult lives will be spent in Nepal”.

The second of the respondents’ reasons which the judge thought might justify a difference in treatment between the two groups was their contention that the provision of very considerably more married quarters for Gurkhas would have a “tangible impact on the Brigade’s effectiveness and deployability”. Gurkhas marry at a younger age than British soldiers and a greater percentage are married (79.5% for the Brigade as a whole, compared to 71% for British officers and 52% for British soldiers). More married accommodation would in turn require a substantial supporting infrastructure of welfare and educational services in respect of each formed unit of Gurkhas. Such units would thereby become less easily deployable.

On this part of the case the judge held that Michalak questions (i) and (ii) clearly fell to be answered in the affirmative. With regard to question (iii) he said:

“94.

I have accepted [Mr Singh’s] submission that the circumstances of an ex soldier pensioner in Nepal are not analogous with the circumstances of an ex soldier pensioner in the United Kingdom, but I unhesitatingly reject the submission that, while they are both serving soldiers working side by side performing the same duties and exposed to the same dangers, Gurkha soldiers and British soldiers are not in an analogous situation. Question (iii) in Michalak must be answered in the affirmative insofar as it relates to the accompanied service arrangements for serving Gurkha and British soldiers.”

As to question (iv) the judge said:

“102.

… [T]he continuing need to maintain linkages between Gurkhas and Nepal, and the need to maintain the operational effectiveness of the Brigade, given that Gurkha soldiers are deployed in formed units, are capable of justifying at least some difference in treatment. What that difference should be is not for me to decide. This court is singularly ill-equipped to adjudicate upon matters relating to foreign affairs and military effectiveness.”

The judge then turned to consider how to exercise his discretion under s8(1) of the Human Rights Act - to “grant such relief … as [the court] considers just and appropriate” - given that the claimants were seeking a bare declaration that the respondents’ policy in relation to their entitlement to accompanied leave breached articles 8 and 14. He pointed to the claimants’ delay in bringing the proceedings, such that the outcome of the complaint could only be of academic interest to them, and noted that “to be of any practical assistance, it would be necessary to reformulate the declaration so as to identify the respects in which the accompanied service policy was in breach [of ECHR].” In the result he thought it unnecessary to grant any form of declaratory relief but concluded:

“106.

The defendant will have to consider whether it is sensible to review the justification for the 25 per cent limit in the light of this judgment. If it decides not to do so, and a claim is made by a serving Gurkha whose family life is being disrupted by the application of the 25 per cent limit, then it may well find that the court will require significantly more by way of detailed justification for the policy than has sufficed in the particular circumstances of the present case.

107.

I emphasise the fact that I have not concluded that the 25 per cent limit is justified in terms of Article 14. I have merely concluded that, on the information presently available, it would not be appropriate to grant these retired claimants the particular form of declaratory relief that they have sought.”

Following Sullivan J’s judgment, I should note, the Under Secretary of State for Defence on 4 June 2003 announced in a written ministerial statement that there would be a full review of arrangements for Gurkha accompanied service, the aim of which would be to ensure that any difference in treatment between Gurkha and British personnel is both necessary and proportionate.

At an early stage of his submissions before us, Mr Blake QC (who did not appear below) recognised the need to withdraw his predecessor’s concession that it was appropriate to have regard to the cost of living in Nepal in determining Gurkhas’ pension rates if the appellants were to have any chance of success on that part of the case. But for that, Mr Blake himself conceded, Sullivan J’s conclusion in paragraph 54 of his judgment (see paragraph 25 above) was clearly correct. Having heard argument on the point, we allowed the concession to be withdrawn. The appellants were accordingly able to submit that the cost of living in Nepal should be no more relevant to the calculation of a Gurkha’s pension than the cost of living in the north of Scotland is to a Highlander’s pension (I summarise the argument).

In the result the issues arising for decision on the appeal are these:

Since Sullivan J’s judgment below, this court decided Carson& Reynolds -v- Secretary of State for Work and Pensions [2003] 3 All ER 577, an authority closely in point on a number of the issues now arising. Let me at this stage cite just that part of Laws LJ’s judgment (with which Rix LJ and I simply agreed) which addressed the actual formulation of the Michalak questions. Having noted, in paragraph 61 of his judgment, a passage in Wilson J’s judgment below in Reynolds, Laws LJ continued:

“61.

… I have considerable sympathy with this approach expressed by Wilson J. A factor or circumstance which puts person X (the comparator) in a different case from person Y (the putative victim of discrimination) may be said to undermine any comparison or analogy between X and Y, and so promote a negative answer to Brooke LJ’s question (iii); but the justification of discrimination – which only arises for consideration if question (iii) is answered affirmatively – will also often rest on the very demonstration of a factor or factors which put X in a different case from Y. There is, therefore, some fragility in the separation between (iii) and (iv) in Michalak, and it is to be noted that Brooke LJ himself observed at paragraph 22:

“It is important to stress that this is only a framework, …. There is a potential overlap between the considerations that are relevant when determining, at any rate, the last two, and possibly the last three, questions. There may sometimes, therefore, be a need for caution about treating the four questions as a series of hurdles, to be surmounted in turn. In Nasser -v- United Bank of Kuwait [2002] 1 WLR 1868, 1883, paragraph 56 Mance LJ observed, in effect, that questions (iii) and (iv) above tend to merge into [one] another.”

However, it may be said that this leaves the true relation between questions (iii) and (iv) unresolved. A possible approach, as it seems to me, is to ask a compendious question in place of (iii): are the circumstances of X and Y so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X? This provides a relation between questions (iii) and (iv) and avoids any tight adherence to a rule requiring the “impugned characteristic” to be ignored.”

Carson has much to teach on this part of the case too. Although Laws LJ was “driven to confess to a good deal of unease at [the Strasbourg] line of authority” (which he thought “represent[ed] an extension of the scope of article 14” beyond what its language indicated was intended), he concluded that it consistently “favours the longer reach” and that it would be “quite wrong to depart from the Strasbourg learning on the subject”. So much Mr Singh accepts and he accepts too that complaints about contributory pension schemes (see Carson itself) or other contributory benefits schemes such as Jobseekers’ Allowance but not Income Support (see Reynolds itself and see too Gaygusuz -v- Austria (1996) 23 EHRR 364 with regard to emergency assistance) fall “within the ambit of” article 1P so as to bar, by virtue of article 14, status-based discrimination as to the conditions of entitlement to these benefits.

Mr Singh accepts also that even a non-contributory benefit can fall within the ambit of article 1P if the complainant had a legitimate expectation of receiving it - see, for example, Azinas -v- Cyprus [2002] ECHR 56679/00 where the ECtHR held:

“[T]he right to a pension which is based on employment can in certain circumstances be assimilated to a property right. This may be the case where special contributions have been paid. … This may also be the situation where an employer … has given a more general undertaking to pay a pension on conditions which can be considered to be part of the employment contract.” (paragraphs 32 - 34)

But Mr Singh points out that the complaint in Azinas was not under article 14 but rather under article 1P itself, because the pension had been forfeited for disciplinary reasons. Gurkhas, he submits, are not being deprived of anything but rather will be paid all they were ever promised; they have no legitimate expectation of more.

Mr Singh also seeks to rely on two decisions of the European Commission of Human Rights, Coke -v- United Kingdom (Application No 38696/97) and Neill -v- United Kingdom (Application No 56721/00). Coke concerned a complaint by the widows of a number of servicemen about certain terms of the Armed Forces Pension Scheme which the Commission ruled inadmissible on the ground that the complainants had never paid contributions and, under the scheme’s rules, had never had an expectation of becoming entitled to a pension (ie there were no property rights under article 1P so that article 14 was never engaged). Neill raised similar issues to Coke, but there the Commission allowed the complaints (by the servicemen themselves) to go ahead, noting that “although the scheme is described as non-contributory, there is an abatement applied in the calculation of military salaries to allow for the comparative worth to servicemen of their pensions, currently seven percent”. Mr Singh points out that there is no such abatement involved in the calculation of Gurkha salaries since their non-contributory pension entitlement is based rather on the pension rates payable to Indian servicemen.

For my part I would reject these arguments. Even if one were to accept that Gurkhas’ salaries are not abated like those of British soldiers to allow for the value of their pensions - and Mr Blake advances the telling contrary argument that following the introduction of UA the abatement must surely now be reflected also in the Gurkha Brigade’s pay - the plain fact remains that the Gurkhas’ entitlement to a pension is clearly part of the overall payment package under which they are engaged. If, for example, the British Army agreed to pay or pension Church of England recruits at one rate and all other denominations at some lesser rate, could it seriously be doubted that this lesser rate would be regarded as a property right such as to engage the non-discriminatory requirements of article 14? True, the non-Church of England soldiers would not have contributed to their entitlement and would never have had a legitimate expectation of more. I would nonetheless hold their complaints to be “within the ambit of” article 1P read with article 14.

As the ECtHR put it in Stubbings -v- United Kingdom (1997) 23 EHRR 213, paragraph 70:

“[N]ot every difference in treatment will amount to a violation of [article 14]. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction.

Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law.”

With regard to pensions Mr Singh submits that the court could not properly conclude that British soldiers enjoy preferential treatment without detailed evidence, including expert actuarial evidence, that an immediate pension at, say, the age of 33 is in fact worth less than a (larger) deferred pension at the age of 60. The pension arrangements for Gurkhas and British soldiers are not, he argues, directly comparable as they reflect different career structures and different terms of engagement. So too, with regard to Gurkhas’ pay during long leaves; these leaves are not only spent in Nepal where the cost of living is much cheaper, but in any event are granted over and above those enjoyed by British soldiers. (I recognise, of course, that commitments may be entered into based on the Gurkhas’ normal level of pay overseas, but these surely can and should be planned for, given the known incidence of long leaves). The argument seems to me to highlight the “need for caution” of which Brooke LJ spoke in paragraph 22 of his judgment in Michalak (see paragraph 37 above) in treating Michalak questions (ii), (iii) and (iv) as a “series of hurdles”, each logically discrete.

Of course, if one takes each of the three matters of complaint in isolation and out of context it is plain that British soldiers are receiving “preferential treatment” (the phrase used in Stubbings): the very much lower cost of living in Nepal compared to the UK is not a factor relevant to the calculation of British, as opposed to Gurkha, soldiers’ pension rates so that, whatever might be established by actuarial evidence, British pensions taken across the board must inevitably be greater. Similarly, if one considers simply the rate of pay received by Gurkhas during their long leaves, British soldiers, whether on leave or not, are being paid 20 times as much. (Mr Singh does not dispute that Gurkhas are treated less favourably with regard to accompanied service).

Such an approach, however, necessarily overlooks certain undoubted benefits enjoyed by Gurkhas in respect both of their pension entitlement and their entitlement to long periods of leave which are not available to British soldiers. Are the respondents, one cannot help wondering, vulnerable to a challenge by British soldiers on the basis that they are denied long leaves and must wait till 60 for their pensions?

Although, no doubt, as Brooke LJ observed in Michalak (at the beginning of paragraph 20 of his judgment set out in paragraph 23 above), “it will usually be convenient” to approach article 14 cases in a structured way, to adopt such an approach here would seem to me not merely inconvenient, but positively misleading. Indeed, the difficulty of separating out the individual Michalak questions becomes yet more acute when one turns, as I do now, to issue (iii).

The appellants’ central argument is that during their service in the British Army, Gurkhas and British soldiers carry out similar duties and face similar risks. Their essential tasks are the same. So too, runs the argument, should be their rewards, on retirement no less than during their years of service. Once it has been decided to engage them in the British Army, the principle of equal treatment comes into play and applies for all purposes. The appellants argue too that the various factors to which the respondents point in seeking to distinguish between the two groups (such as the longer periods of service available to British soldiers) are factors which themselves discriminate between the claimants and the comparators and so cannot be taken into account in determining whether they are analogously situated.

As to this latter argument I derive no help in the present context from James -v- Eastleigh Borough Council [1990] 2 AC 751 (where the House of Lords applied domestic discrimination law to strike down a scheme providing free entry to local authority swimming pools for those of pensionable age). I would note too that the House of Lords’ recent reversal of this court’s decision in Aston Cantlow -v- Wallbank [2002] Ch 51 can only serve to reinforce the correctness of Laws LJ’s observation in Carson, at paragraph 60:

“It seems to me that we would generate both conceptual and practical difficulties if a studied ignorance of the “impugned characteristic” were elevated into a general principle for the purpose of identifying relevant comparators in an Article 14 case, and I do not believe that the court in Aston Cantlow intended any such outcome.”

We are left, therefore, with Mr Blake’s core argument that because Gurkhas and British soldiers live and die together in the field, there should be no distinction made between them as to the amenities and benefits of their service.

It is convenient at this stage to take brief note of the domestic legislation governing both the recruitment of foreign nationals to the British Army and any discriminatory treatment of such nationals.

Section 21 of the Army Act 1955 qualified s3 of the Act of Settlement 1701 (which had prevented foreigners from “enjoy[ing] any office of trust either civil or military”) and permitted the recruitment of aliens (defined as those who are not British citizens, citizens of a Commonwealth country, British protected citizens or citizens of the Republic of Ireland) up to a total not exceeding ¹/₅₀^th of the aggregate number in the armed forces. In reckoning the number of aliens serving, those enlisted outside the UK and serving in a prescribed unit are excluded. The Brigade of Gurkhas is the only such unit ever prescribed. As a matter of policy the only (non-Gurkha) aliens considered for enlistment are British citizens of dual nationality and they are required to provide written confirmation from the other government that they are not liable for national service or recall to military service. Exceptionally the nationality rules may be relaxed in the case of officers.

Aliens who enlist or are commissioned in accordance with these rules are recruited and serve on the same terms and conditions as other members of the regular forces. They are, of course, both recruited and discharged in the United Kingdom. There is one such soldier, now a colour sergeant in the British Army, who was a British citizen on enlistment though a Nepalese national by birth.

Section 75(5) of the Race Relations Act 1976 (“the 1976 Act”) provides that “nothing in this Act shall ‘(a) invalidate any rules … restricting employment in the service of the Crown … to persons of particular nationality …”.

Section 41(2) of the 1976 Act provides that nothing in the relevant Parts of the Act “shall render unlawful any act whereby a person discriminates against another on the basis of that other’s nationality … if that act is done (a) in pursuance of any arrangements made … by or with the approval of … a Minister of the Crown”. All relevant arrangements made with regard to the Gurkhas’ terms of service have been approved by a Minister of the Crown.

Domestic legislation cannot, of course, override the UK’s obligations under ECHR. In the final analysis the decision for this court is whether, the 1976 Act notwithstanding, it is unlawful to engage soldiers on two quite different bases, the consequence of which is that in various respects British soldiers enjoy certain advantages over the Nepalese nationals who comprise the Gurkha Brigade.

With that thought in mind let me return to Michalak question iii), or rather to Laws LJ’s reformulation of that question in Carson: “Are the circumstances of X and Y so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X?”

If one asks this question in relation to British and Gurkha soldiers’ respective pension entitlements I am in full agreement with Sullivan J’s conclusion at paragraph 55 of his judgment (see paragraph 25 above). Indeed not only are Gurkhas, as the judge there observed, “leaving the United Kingdom and returning to Nepal, where their pensions will be paid, and conditions in Nepal are markedly different from those in the United Kingdom”, but it must be borne in mind too that these pensions are generally payable from a much earlier age. Whether that consideration - that the Gurkhas’ pensions become payable immediately after 15 years whereas British soldiers only receive theirs after 22 years or (in 83% of cases) at the age of 60 - is to be regarded as a) demonstrating that the two groups are not “in an analogous or relatively similar situation” or b) providing “reasonable or objective justification” for the distinction between their respective pension rates, or perhaps even c) suggesting that British soldiers are not after all enjoying “preferential treatment” (all these phrases being taken from Stubbings - see paragraph 43 above), seems to me a matter of choice and ultimately immaterial.

The question directly raised by article 14 is whether the Gurkhas’ pension rights are “secured without discrimination on [the] ground [of] national … origin”, which to my mind translates into the question whether, in regard to their pension rights, they have been unjustifiably less well treated than others because of their being Nepalese.

It can of course be said that it is only because they are Nepalese that the Gurkhas will be retiring to Nepal and living there more cheaply than their British counterparts. But I reject entirely the proposition that they are therefore to be regarded as unjustifiably less well treated on the ground of their nationality. It is, of course, only because they are Nepalese that they are recruited into the Gurkha Brigade in the first place. Nor am I impressed by Mr Blake’s argument that because, say, an Irish or Jamaican (dual) national will be discharged from the British Army with a pension calculated without reference to wherever he may be intending to retire, so too should a Gurkha. I simply cannot recognise the two groups as being in “an analogous or relevantly similar situation” looking at the nature of the Gurkha Brigade as a whole - the basis and circumstances of the Gurkhas’ recruitment, service and discharge. From first to last Mr Blake found it impossible to draft a satisfactory form of declaration with regard to the appellants’ pensions. His final formulation was this:

“It is hereby declared that the policy applied to the Claimant during his military service with the Defendant after 2^nd October 2000 and following his retirement from military service, that his pension and retirement gratuity were calculated on a different basis from the Armed Forces Pension scheme applicable to British soldiers, was contrary to Article 14 taken together with Protocol 1 Article 1 of the ECHR and therefore unlawful.”

As the court pointed out, however, were each claimant’s pension to be calculated in accordance with the Armed Forces Pension scheme, none of them would receive anything until the age of 60.

The same conclusion must inevitably follow with regard to the Gurkhas’ rate of pay whilst on long leaves. British soldiers are simply not in a comparable situation: sabbaticals, paid or unpaid, are not, as I understand it, a concept known to Her Majesty’s Forces.

What, then, of accompanied service? This I find an altogether more difficult question. The judge below “unhesitatingly reject[ed]” the submission that the two groups were not in an analogous position as to this (see paragraph 31 above). I am not so sure. In the first place, it seems to me to some extent artificial to separate out the different terms of service complained of so as to decide Michalak question (iii) (as reformulated in Carson) separately in respect of each. Take here the position as to long leaves and accompanied service. There seems to me some obvious inter-relation between these two provisions. The very fact that Gurkhas return to Nepal for five months’ long leave every third year surely makes it to some extent more tolerable for them to be separated from their families for the bulk of their service overseas. Of course I am not suggesting that these leaves wholly make up for the deprivation. But it does tend to illustrate that Gurkhas and British soldiers are not in identical case in respect of either feature of their terms of service.

More fundamental than this, however, is that even if one does come to consider the Gurkhas’ grievance as to accompanied service in isolation, as the judge below did, there are certain features of the case which indicate that the position of the two groups is not “so similar as to call for a positive justification for the [Gurkhas’] less favourable treatment” (taking the Carson formulation). There are the two factors (see paragraphs 29 and 30 above) which the judge considered “capable of justifying at least some difference in treatment” (see paragraph 32 above). True, the judge below considered these factors in relation to Michalak question iv) (justification) rather than question (iii) (analogous situation). But having regard to his earlier conclusion in respect of pensions (see paragraph 54 of his judgment set out at paragraph 25) it is not entirely clear to me why he should have done so. If question iv) did not arise as to pensions because “some difference of treatment is justified” (on the basis that pensions could properly be tailored to conditions in Nepal so that the answer to question (iii) was “No”), why should not that be so too with regard to accompanied service given his conclusion that “at least some difference in treatment” could be justified there too?

I understand Mr Blake’s answer to this question to be that to recognise merely that some difference in treatment between two groups is justified is not to recognise that the two groups can never therefore be said to be in an analogous situation. But I have difficulty with this answer. Say that the judge had been satisfied that it was appropriate for Gurkhas to enjoy, say, half as much accompanied service as is enjoyed by British soldiers (I do not of course say that he was so satisfied), should he properly conclude that the two groups are in an analogous situation and, because the respondents cannot justify the full difference in treatment between them, that the article 14 claim accordingly succeeds? This seems to me a (perhaps the) critical question in this case and, for my part, I think the answer to it is “No”. No complaint is made here that the limited provision of married accommodation to Gurkhas breaches article 8 itself (see paragraph 27 above). Rather what is said is that in a relevant area of human rights, the enjoyment of family life, Gurkhas are unjustifiably being less well treated than British soldiers because of their nationality. The complaint is that they should be treated in the same way and, indeed, would be, but for their nationality. I know of no case, and counsel were unable to refer the court to any, in which it has been held that some difference in treatment between the two groups is justifiable but because not all of it is, the decision maker is required by article 14 to modify his policy, not to eliminate the difference, but rather to reduce the degree of preference shown to the favoured group.

For my part, therefore, I would hold that Gurkha and British soldiers are not in an analogous position, not only with regard to pensions and pay, but also with regard to accompanied service.

On this part of the case I would add just this. Despite my reservations about too readily separating out the various individual terms complained of for each to be considered in isolation, I am far from saying that it may not sometimes be possible to sustain one article 14 complaint but not another and to do so by reference to whether the complainant and the chosen comparator are or are not in an analogous situation - take, for example, Sullivan J’s illustration below of a policy of keeping the best facilities for British soldiers and leaving Gurkhas with inferior accommodation or messing facilities (set out in paragraph 28 above). I do not, however, accept that the two groups are analogously placed with regard to any of the three matters of complaint here.

If I am right in my conclusions thus far, this issue does not strictly arise for decision. Rather, as Sullivan J observed with regard to the pension complaint (see paragraph 54 of his judgment set out in paragraph 25): “There is no breach of Article 14 and one is left with a bare irrationality challenge” - a challenge which, with regard to pensions, he then rejected on the basis (see paragraph 61 of his judgment set out in paragraph 26 above) that: “There is simply no evidence to support the claimants' contention that the differences between their pensions and those of British soldiers are disproportionate or irrational …”.

This in my judgment is the correct approach also with regard to the difference in treatment as to accompanied service: again, it is for the claimants on an irrationality challenge to make good their case that to some demonstrable extent the difference in treatment is disproportionate. Note that the burden of proof in such a challenge lies on the claimants and contrast this with the position which is said to arise here given Sullivan J’s finding that with regard to accompanied service the two groups are in an analogous situation. The whole thrust of Mr Blake’s argument on this part of the appeal is that in the light of that finding the burden of proof lay upon the respondents to satisfy the court that the full difference in treatment between the two groups was justifiable, a burden which on the judge’s own finding they plainly failed to discharge. It was on that basis alone that Mr Blake contended that the judge, having “not concluded that the 25% limit is justified” (see paragraph 107 of his judgment set out in paragraph 33 above), ought properly to have granted a declaration that the respondents are in breach of article 14. No irrationality claim is pursued under this head.

True it is that under both domestic and Strasbourg law the burden is placed on the state to justify discriminatory treatment on grounds of status. Take, for example, this Court’s recent judgment in Hooper -v- Secretary of State for Work and Pensions [2003] EWCA Civ 813, recognising at paragraph 63 that although “a very considerable margin of discretion must be accorded to the Secretary of State … [a]t the end of the day, however, the burden must lie on the Secretary of State to provide objective justification for what was, without question, discrimination in favour of women.”. Note too the ECtHR’s comment in Berghartz -v- Switzerland (1994) 18 EHRR 101 at paragraph 27 (cited at paragraph 60 of Hooper):

“The Court reiterates that the advancement of the equality of the sexes is today a major goal in the Member States of the Council of Europe; this means that very weighty reasons would have to be put forward before a difference of treatment on the sole ground of sex could be regarded as compatible with the Convention.”

One cannot but reflect, therefore, that in cases like the present where the evidence as to justification is at best incomplete, much may turn, if one follows the structured approach favoured by Michalak, on the precise inter-relationship between questions (iii) and (iv). But perhaps the problem is after all soluble within the Carson formulation: by recognising that since the answer to question (iii) will dictate whether or not the burden of proof shifts, that very consequence ought properly to be in the mind of the notional “rational and fair-minded person”. (There was, I should note, no shortage of evidence and thus no problem regarding the burden of proof in Carson itself).

The closer the similarity of circumstances between X and Y, of course, the more likely is it that any difference in treatment between them will call for justification. And no less clear is it that, if justification is called for, the closer the comparison the more difficult will it be to justify the difference in treatment. All this surely is obvious. But, I repeat, if, as here, some (other than minimal) difference of treatment is justifiable, that of itself necessarily indicates that the two groups are not in an analogous situation and accordingly defeats a claim based (as this one now is) solely on article 14. I therefore reject the appellants’ argument that, because the respondents could not justify the full extent of their preferential treatment of British soldiers with regard to accompanied service, the article 14 claim should have been upheld.

This issue too, of course, only arises if I am wrong in all my conclusions thus far. But even on that basis I would not be inclined to interfere with the exercise of the judge’s discretion here, still less given the ministerial statement referred to in paragraph 33 above. What advantage would there be in making a bare declaration of non-compliance with article 14 given, as Mr Blake recognises, that it would still remain for the Secretary of State to re-formulate his policy, that he could still properly seek to justify a substantially smaller allocation of married quarters to Gurkhas than to British soldiers (although not proportionally as little as at present), and that any new scheme would inevitably need to be phased in rather than implemented in full overnight. Mr Blake’s answer is that the actual grant of declaratory relief would itself vindicate the sense of hurt and injustice suffered by the appellants during their years of service and that the Strasbourg jurisprudence demands no less. He submits that a declaration that a complainant’s rights have been violated affords “just satisfaction” for the breach. Without such official recognition of the past violation of their rights, he argues, whether by the respondents themselves or by the court, the appellants remain victims within the meaning of the Convention.

None of this do I find in the least persuasive. If in fact the judge found the respondents to be in breach of article 14 (which seems to me the necessary postulate underlying this issue), that can as well appear from the judgment as from any declaration. Very often the court allows its judgment to speak for itself rather than grant express declaratory relief. Why should that not be so here? True, one might have expected the claimants’ success in this regard, limited though it was, to be reflected in the court’s order - rather than, as here, to find the claim dismissed in its entirety. But it is not essentially that to which the appellants appear to object. In any event the issue is now academic so I propose to say no more about it.

I do, however, by way of footnote, add this. Nothing that I have said in the course of this judgment is intended to suggest that the appellants do not have a genuine grievance about the limited amount of married accommodation made available to them. My conclusion is simply that this grievance does not sound under article 14: the article 14 complaint fails once it is recognised that Gurkhas are not in the same situation as British soldiers. Their grievance is rather a free-standing one: not that they are discriminated against on the ground of their nationality but rather than they should in all fairness be provided with more married accommodation than at present. It is greatly to be hoped that the “full review” now promised by the Under Secretary of State will be speedily implemented and that its outcome will improve the married Gurkhas’ lot in future.

For all the reasons given earlier, however, in my judgment this appeal fails and should be dismissed.

The appellants are Nepalese citizens who formerly served in Ghurkha units within the British Army. They did so, together with all other Ghurkha soldiers serving in such units, commonly described as “the Brigade of Ghurkhas”, on terms and conditions of service ( “Ghurkha TACOS”) which differ from the terms and conditions of service applicable to soldiers serving in the British Army in non-Ghurkha units (“non-Ghurkha soldiers”). In particular, there are important differences in respect of basic pay, pensions and accompanied service. The appellants seek declarations that, following the coming into force on 2 October 2000 of the Human Rights Act 1998, it has been and is unlawful for the respondent to require Ghurkha soldiers to accept the differential treatment in those three areas to which service under Ghurkha TACOS gives rise. The reason, it is said, is that the differential treatment constitutes discrimination on the grounds of national origin, contrary to article 14 of the European Convention on Human Rights, in the enjoyment of Convention Rights.

The starting point for an inquiry whether differential treatment on the grounds of national origin (or on any other grounds outlawed by article 14 of the Convention) constitutes an infringement of that article, as this Court pointed out in Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617, 625, at paragraph [20], is to ask whether the treatment impinges upon the enjoyment of other rights and freedoms set forth in the Convention. In the present case the other rights or freedoms on which the differential treatment are said to impinge are, in respect of pay and pensions, the right to the peaceful enjoyment of possessions (article 1 of the First Protocol) and, in respect of accompanied service, the right to respect for family life (article 8) There is no dispute that the differential treatment in respect of accompanied service impinges upon the right to respect for family life. But, for my part, I find it hard to understand why the differential treatment in respect of pay and pensions should be regarded as impinging on the Convention right to the peaceful enjoyment of possessions. But that point is said to have been determined (at least in respect of pensions) by this Court in Carson & Reynolds v Secretary of State for Work and Pensions [2003] EWCA Civ 797, [2003] 3 All ER 577; and it was not submitted that there is any material distinction between the right to a pension and the right to basic pay on the facts in the present appeals. In the circumstances that the other two members of this Court (who were, themselves, party to the decision in Carson) are satisfied that the appellants are correct – and that Carson precludes the conclusion that basic pay and pensions are not within “the ambit of” article 1 of the First Protocol read with article 14 of the Convention – I do not pursue my own misgivings. I am satisfied that, whether or not the appellants are correct on this point, their appeal must fail on other grounds.

Differential treatment as between one person or group of persons (say X) and another person or group of persons (say Y) does not, of itself, constitute discrimination contrary to article 14; notwithstanding that X and Y are of different sex, race, colour, religion or national origin. What is required is that the characteristics of X and Y relevant to the matter in question are so closely analogous that differential treatment cannot be justified; and can only be explained on the basis that legally irrelevant, or outlawed, characteristics – such as sex, race, colour, religion, national origin, etc. – have been taken into account.

In those cases in which the characteristics of X and Y relevant to the matter in question are the same – and where the only difference between them lies in some characteristic or characteristics which, by virtue of article 14, is or are legally irrelevant – differential treatment in relation to that matter will, as it seems to me, necessarily be discriminatory. That is because, if the characteristics of X and Y relevant to the matter in question are the same – that is to say, indistinguishable in any material respect – it is difficult to see how there can be an objective and reasonable justification for differential treatment. In such cases the only answer to Michalak question (iii) is ‘yes’; and the only answer to question (iv) is ‘no’.

The more difficult cases are those in which the characteristics of X and Y relevant to the matter in question are not the same, but are closely analogous. One question, in those cases, is whether the characteristics of X and Y relevant to the matter in question are so closely analogous that, as Lord Justice Laws put it in Carson, “the circumstances . . . call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X”. That, as it seems to me, is the test which Michalak question (iii) demands. An affirmative answer to that question leads naturally to the further question – Michalak question (iv). Do such differences as there are between the characteristics of X and the characteristics of Y, relevant to the matter in question and when viewed in the light of the positive justification advanced, lead to the conclusion that there is some objective and reasonable basis why the treatment of X differs from the treatment of Y? As Lord Justice Laws explained in Carson, question (iii) – as formulated in Michalak – must be addressed in conjunction with question (iv). The questions are not logically discrete. The considerations which lead to the conclusion that there is some objective and reasonable basis why the treatment of X differs from the treatment of Y – question (iv) – may themselves answer the question whether the characteristics of X and Y relevant to the matter are, indeed, closely analogous - question (iii). It is, I think, important to keep in mind that the underlying question – to which the structured approach suggested in Michalak is addressed – is whether the characteristics of X and Y relevant to the matter are so closely analogous that differential treatment can only be explained on the basis that outlawed characteristics – sex, race, colour, religion, national origin, etc – have been taken into account.

A further question arises in those cases in which it is found that the characteristics of X and Y relevant to the matter are closely analogous, but not so closely analogous that, on an objective and rational analysis, no difference in treatment could be justified; that is to say, cases in which it has to be recognised that such differences as there are between the characteristics of X and the characteristics of Y relevant to the matter do justify some differential treatment as between X and Y. Is it necessary, in such cases and in the context of an enquiry whether there has been a violation of article 14 of the Convention, to go on to consider whether the less favourable treatment to which (on this hypothesis) Y is actually subject is justified on objective and rational grounds? To my mind that is what Michalak question (iv) requires; and, if I may say so, that is the approach which article 14, itself, requires.

I have suggested that what is required – in order to constitute a violation of article 14 - is that the characteristics of X and Y relevant to the matter in question are so closely analogous that differential treatment cannot be justified; and can be explained only on the basis that outlawed characteristics have been taken into account. A more precise formulation, I think, is that the characteristics of X and Y relevant to the matter in question are so closely analogous that the manner in which the treatment of Y differs from the treatment of X can only be explained on the basis that such legally irrelevant characteristics have been taken into account. If an objective and rational analysis leads to the conclusion that some difference in treatment – but not the difference in treatment to which Y is actually subject – would be justified, the court must still ask itself whether the difference in treatment to which Y is actually subject can be explained only on the basis that outlawed characteristics have been taken into account. That approach, as it seems to me, is consistent with the form in which this Court posed question (iv) in Michalak: “did [the difference in treatment] pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?”.

There will be cases in which the margin between such differential treatment as could be justified on an objective and rational analysis and the differential treatment actually in question is such that the court will be driven to infer that that margin can be explained only on the basis that outlawed characteristics have, indeed, been taken into account. But I do not accept that the court will be driven to that conclusion in every case where there is a margin between such differential treatment as could be justified and the differential treatment actually in question. There will be cases, as it seems to me, where the court can identify some flaw in the process of reasoning which has led the decision-maker to decide how Y should be treated which has not involved taking the outlawed characteristics into account; or where the margin can be explained on the basis that undue weight, or too little weight, has been given to some relevant factor; or where some other irrelevant factor (not being an outlawed characteristic) has been taken into account. In such cases the decision may well be vulnerable to challenge on the grounds of irrationality. But there will be no violation of article 14 of the Convention.

The manner in which the treatment of the appellants under Ghurkha TACOS differed from the treatment of non-Ghurkha soldiers serving in the same Army - and the manner in which the characteristics of Ghurkha soldiers relevant to terms and conditions of service differ from the characteristics of non-Ghurkha soldiers - have been fully set out both by the judge and in the judgment of Lord Justice Simon Brown. It is unnecessary for me to rehearse those matters in any detail. It is enough to draw attention to the following: (i) Ghurkha soldiers are recruited, exclusively, from Nepal, under arrangements to which the governments of Nepal and India have given approval; (ii) Ghurkha soldiers are, invariably, discharged in Nepal at the end of their service, and have no right of abode in the United Kingdom; (iii) Ghurkha soldiers will, almost invariably, complete 15 years service and retire on pension (payable with immediate effect) at or about the age of 35 years; (iv) there is an obvious, and recognised, need in those circumstances to foster and maintain links between Ghurkha soldiers while in service and the country (Nepal) to which they will return on retirement; and (v) that need is enhanced by the wide social, economic and cultural differences between Nepal and the United Kingdom - and between Nepal and the other countries throughout the world in which Ghurkha soldiers have been, or are likely to be, required to serve.

Taking those matters into account I find it impossible to reach the conclusion that the characteristics of soldiers serving in Ghurkha units in the British Army are so closely analogous to the characteristics of soldiers serving in non-Ghurkha units in the same Army that the circumstances call for a positive justification for the different treatment, in relation to basic pay and pensions, for which Ghurkha TACOS provide. Once it is appreciated that there are good reasons for the payment of an immediate pension to Ghurkha soldiers after 15 years service – as, plainly, there are, given the fact that Ghurkha soldiers will return to Nepal on completion of their service - rather than a deferred pension payable at age 60 on retirement after less than 22 years service, or an immediate pension only after 22 years service, it seems obvious that the amount of the immediate pension payable to Ghurkha soldiers will differ from the immediate, or the deferred, pension payable to non-Ghurkha soldiers. Further, once it is appreciated that there are good reasons for Ghurkha soldiers to enjoy periods of extended home leave during service – as, plainly, there are, given the need to maintain the links with Nepal – it seems obvious that the amount of pay during those periods of extended leave will be different from the amount paid to non-Ghurkha soldiers in respect of the substantially shorter periods of paid leave to which those soldiers are entitled. It is important to keep in mind that the difference in basic pay has practical effect only during periods of extended home leave, when no “universal addition” is payable. It follows that I am satisfied that, in relation to the challenge to basic pay and pensions, the judge was entitled to answer Michalak question (iii) in the negative. In relation to basic pay and pensions the judge was correct to reject a challenge based on article 14.

I share the view, expressed by Lord Justice Simon Brown in his judgment, that the differential treatment in relation to accompanied service to which Ghurkha soldiers are subject raises more difficult questions. Plainly there are differences between the characteristics of Ghurkha soldiers and non-Ghurkha soldiers which are relevant to the need for accompanied service and to the operational consequences of providing facilities for accompanied service. These have already been identified. They include the fact that Ghurkha soldiers tend to marry earlier than those in non-Ghurkha units – which (if Ghurkha and non-Ghurkha soldiers were treated in the same manner in respect of accompanied service) would lead to a need for a disproportionate number of married quarters in those locations in which Ghurkha units were deployed and to the consequent restrictions on the flexibility of deployment; the need to maintain links with Nepal by encouraging the soldier’s wife to remain within the extended family unit; and the availability of extended home leave. The judge thought that the first two of those factors were “capable of justifying at least some difference in treatment”. But he gave an affirmative answer to Michalak question (iii).

For my part, I do not think that the judge’s conclusion that there were factors capable of justifying at least some difference in treatment should, necessarily, have led him to answer Michalak question (iii) in the negative. As I have said, in the light of the observations of Lord Justice Laws in Carson, the question to be answered is whether the characteristics of X and Y relevant to the matter in question are so closely analogous that the circumstances call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X. It seems to me that the judge was entitled to take the view that the circumstances in which the respondent operated a policy of restricting family accommodation for Ghurkha units within an overall total of 25% did require positive justification.

But the enquiry does not end there. In order to reach the conclusion that there had been a violation of article 14 the judge needed to satisfy himself that the policy of restricting family accommodation for Ghurkha units within an overall total of 25% could be explained only on the basis that legally irrelevant characteristics – sex, race, colour, religion, national origin, etc – had been taken into account. He might, perhaps, have reached the conclusion that the margin between such differential treatment as could be justified and the treatment to which Ghurkha soldiers were subject in respect of accompanied service was so wide that it could only be explained on that basis. But he did not address that question. He expressly declined to decide what the difference in treatment should be – paragraph 102 of his judgment. As he put it: “This court is singularly ill-equipped to adjudicate upon matters relating to foreign affairs and military effectiveness”.

The judge’s observations give encouragement to a challenge, on grounds of irrationality, to the policy of restricting family accommodation for Ghurkha units within an overall total of 25% - as he, himself, recognised at paragraph 106 of his judgment. But there was no such challenge before him. The only challenge was that based on an alleged violation of article 14. For my part, I doubt whether the judge was in a position to reach a conclusion that there had been a breach of article 14 in respect of accompanied service; and I am not persuaded that he did so. As he emphasised, at paragraph 107 of his judgment, the material before him did not enable him to conclude that there had been no violation; but, when read in the context of his observations in paragraph 106, that seems to me to stop short of a positive finding that there had been a violation.

In the circumstances I have no doubt that the judge was right to refuse to grant the declaratory relief sought in relation to accompanied service. But I share the concern, expressed by Lord Justice Simon Brown, that the decision of this Court should not be taken to suggest that Ghurkha soldiers do not have a legitimate grievance about the limited provision of married accommodation; and I share his hope that the promised review will address this grievance.

I, too, would dismiss this appeal.

I am grateful to the Lord Justice Simon Brown for his judgment, with all of which I agree save on the issue of accompanied service where I have the misfortune of disagreeing with his conclusions.

In my judgment, Sullivan J was right to reject the submission that in the matter of accompanied service Gurkha soldiers and British soldiers were not in an analogous situation (Michalak question (iii)) and right as well to conclude that the Ministry of Defence (“MoD”) had failed to justify the difference in their treatment (Michalak question (iv)). He was in my opinion wrong, however, to go on to withhold a declaration that in this respect there was a breach of article 14 taken together with article 8.

The effect of the present regime on accompanied service for Gurkha soldiers is that there is an overall limitation on the provision of married quarters for Gurkha officers and men to 25 per cent of their number, and that within that limit all colour sergeants and above obtain married quarters whereas only 20 per cent of those below the rank of colour sergeant do so at any one time. This is referred to as the “25 per cent limit”. That limit goes back to the TPA of 1947, with which the Nepalese Government expressed its general satisfaction.

There is no artificial limit on the provision of married quarters to British soldiers, although there are circumstances in which the exigencies of service prevent soldiers in general being accompanied by their families.

Sullivan J investigated the question of what arrangements had been made in 1947 for accompanied service for British soldiers and was told in effect that whereas there was no formal limit there was a need for practical rationing by prioritisation determined in accordance with a “points scheme”. He concluded that “while the arrangements for accompanied service for British soldiers have improved since 1947, those for Gurkhas have not. They have remained frozen at the 1947 level” (paragraph 88, my emphasis).

The essence of the judge’s reasoning on this issue is contained in the following passages of his judgment. He referred to the UK Government’s response in 1947 to the Nepalese Government’s concern that “In all matters of promotion, welfare and other facilities the Gurkha troops should be treated on the same footing as the other units of the parent army”. The UK response was that “subject to the limitations of finance and supply, welfare facilities would be provided for Gurkha troops on similar lines to those provided to British troops” (see paragraphs 25/26 and 83). At that time, of course, this assurance was expressly subject to the 25 per cent limit in respect of accompanied service. Nevertheless, the judge pointed out (at paragraph 84) that –

“It is very striking that in all respects other than accompanied service, the welfare arrangements made for Gurkha soldiers have, broadly speaking, kept pace with those provided for British soldiers. Thus, quality of food, quality of accommodation, et cetera, is all provided on similar lines.”

He then observed (see above) that the arrangements for accompanied service for British soldiers have improved since 1947, whereas those for Gurkhas had not. He rejected a suggestion that the cost implications in a change from the 1947 policy could justify its maintenance today (at paragraph 91):

“In order to avoid discrimination, accommodation which is in short supply must be fairly shared according to objective criteria and not rationed in such a way as to discriminate against Gurkhas. There would be no difference in principle between such a rationing policy and a policy which kept the best facilities for British soldiers and left Gurkhas with inferior accommodation or messing facilities.”

He then proceeded swiftly to deal with Michalak question (iii) in these terms (at paragraph 94):

“I have accepted [Mr Singh’s] submission that the circumstances of an ex soldier pensioner in Nepal are not analogous with the circumstances of an ex soldier pensioner in the United Kingdom, but I unhesitatingly reject the submission that, while they are both serving soldiers working side by side performing the same duties and exposed to the same dangers, Gurkha soldiers and British soldiers are not in an analogous situation.”

As for Michalak question (iv), the majority of the judge’s discussion of the accompanied service issue (paragraphs 65/107) is devoted to the question of justification. His consideration of this issue falls into two halves, the first dealing with the MoD’s original justification, the second with an alternative development in its position. Thus the original justification is rejected in these terms (at paragraph 95):

“In answer to question (iv), there is a clear difference in treatment which cannot be justified by the terms of the 1947 agreement, the situation in Brunei, or scarce resources generally. If resources are scarce, they must be allocated in a non-discriminatory way.”

The judge then went on to deal with the submission that the difference in treatment could be justified by two further factors, namely first the need to ensure that linkages with Nepal are maintained, and secondly the impact on the Gurkha brigade’s effectiveness and deployability of the fact that a Gurkha unit would require significantly more married quarters than a British one because Gurkhas marry younger and in percentage terms in greater number than British soldiers. As to these factors, he concluded (at paragraph 102):

“The other two reasons…are capable of justifying at least some difference in treatment. What that difference should be is not for me to decide. This court is singularly ill-equipped to adjudicate upon matters relating to foreign affairs and military effectiveness.”

However, he also emphasised (at paragraph 107) that “I have not concluded that the 25 per cent limit is justified in terms of Article 14”. Nevertheless, he considered that it would not be appropriate on the present information to grant relief in declaratory terms.

It would seem from the judgment below that although Mr Singh did not concede that Gurkha soldiers were in an analogous situation for the purpose of the accompanied service issue, submissions were very much more concentrated on the question of justification. So much so that Sullivan J clearly felt able to deal with Michalak question (iii) in effect in a single paragraph. This may have simply reflected the development of argument below. On this appeal, however, Mr Singh has returned in greater detail to that question and in persuasive terms which have borne fruit in my Lords’ judgments. Lord Justice Simon Brown has demonstrated how questions (iii) and (iv) are linked, for instance in Laws LJ’s reformulation in Carson (“so similar … as to call for a positive justification”), and therefore how the two factors relied on below for justification need to be considered also from the point of view of analogous situation.

The formal structure of the Michalak analysis, useful as it is, should not however disguise the essential question of judgment which has to be performed, and which has indeed been brought into sharper relief by Laws LJ’s reformulation. If the two factors relied on are not in themselves justification for treating differently soldiers of different nationality serving side by side, albeit in different units, it is at least doubtful that they will serve to differentiate their respective situations so that one concludes that these are not analogous. I recognise, of course, that on the question of analogous situation the complainant still bears the burden of proof or persuasion, whereas the burden of justification is upon the defendant. This presents a formal difficulty in running questions (iii) and (iv) together, although the reformulation seems to me to recognise and overcome that difficulty by emphasising the need to find a situation which calls for justification. The critical and admittedly difficult question remains, whether the two factors validly distinguish Gurkhas and British soldiers in the context of accompanied service so as not to necessitate any enquiry into the reasons for their admittedly different treatment in that respect.

On that question, however, I would conclude that the judge’s decision, however instinctive, was correct, and that further analysis does not impinge on the validity of his judgment. The question is essentially whether soldiers in an integral army are in an analogous situation so far as the conditions of their soldiering is concerned. One of those conditions is their accommodation and, in that connection, their ability to sustain a family life if married. At one time it may be that it was thought that service in the armed forces inevitably meant separation from one’s family, but that has long ceased to be the case, and, broadly speaking, the general rule is that marriage entitles the serving soldier to be accompanied by his family. If one wanted to look for distinctions to make in this respect, it would in theory be possible to do so: for instance on the basis that soldiers who are in the forces for fewer years might have to put up with unaccompanied service rather than those who are in service for longer; but such distinctions are not made and would in any event operate in favour of rather than against the Gurkhas’ case. In the case of Gurkhas, however, the general rule is abrogated: in their case, an artificial limitation is imposed whose effect is that for those to whom it is applied, that is to say those below the rank of colour sergeant, twelve years out of fifteen are spent unaccompanied, subject, I recognise, to the incidence of significant periods of home leave every three years. If one asks why that difference exists, the real answer, or at any rate a very large part of the answer, appears to be historical: it is a limitation left over from the 1947 TPA, see the minister’s parliamentary answer (quoted by Sullivan J at paragraph 73 of his judgment) in which he referred to the 25 per cent limit to the terms of the TPA when he announced the 1997 changes to the Gurkha soldiers’ terms and conditions of service (TACOS). In the meantime in matters for instance of pay, the “universal addition” (or UA) described by Lord Justice Simon Brown in paragraph 10 above has brought Gurkha pay into line with that of British soldiers of comparable rank and experience. That reflects the modern appreciation that soldiers doing the same job should be receiving the same pay.

In my judgment these considerations demonstrate to me that Gurkha soldiers and British soldiers, while serving in the British army, are in an analogous situation and that the two factors relied on by the MoD are put forward as reasons why the continuing difference in treatment in relation to accompanied service can nevertheless still be explained. Such matters, however, are essentially matters of justification. They are put forward to justify a situation which prima facie calls out for justification. That is how these matters were addressed in the evidence given on behalf of the MoD by Mr Michael Scott. Thus –

“The MOD has always taken the view that it is justified in abiding by the TPA’s “limit” of 25% in order to ensure that these linkages to Nepal, envisaged [in] the international agreement, were maintained.”

In terms of Laws LJ’s reformulation: the situation of Gurkha and British soldiers serving together in the British army is sufficiently similar to call for positive justification of a special rule relating to accompanied service. It is not self-evident to me how prolonged absence of the Gurkha soldier from his family maintains his linkage with Nepal, but that is no doubt a topic for discussion. It is certainly clear that at the end of his term of service the Gurkha soldier returns to Nepal.

That is, however, to say nothing as to how the full review now promised by the Under Secretary of State should solve the particular problems raised by a change in the limit. There undoubtedly are special considerations which have to be taken into account. On the one hand, in order to maintain links with Nepal, and also with his family, the Gurkha soldier has much longer periods of leave than the British soldier. On the other hand, because of the large distance between Nepal and the UK, the opportunity for a Gurkha soldier to see his family, when it does not accompany him, outside the periods of home leave is restricted.

On the basis that article 14 is engaged and that it becomes a matter for justification, in respectful disagreement with Lord Justice Chadwick, I can see no reason for departing from the judge’s view that the MoD has failed in its attempt to justify. The obligation to justify, if question (iv) is reached, arises at trial. My Lords accept that Gurkha soldiers have a genuine grievance and that they should in fairness be provided with more married accommodation than they receive at present (see for instance paragraph 74 above). The fact that the complainants in this case have completed their period of service, so that they are no longer affected by the 25 per cent rule, has not been relied on by the MoD to render the complaint regarding accompanied service moot.

I come, finally, to the question whether any declaration should be made in the light of my conclusions. In the light of My Lords’ judgments, that question is academic, but, if it had not been, I cannot see why a declaration should not have been granted. If, as Lord Justice Simon Brown seems to recognise (paragraph 73 above), a breach of article 14 is a corollary of agreement with Sullivan J’s analysis and if the conclusion that such a breach has occurred can be permitted to appear from the judgment itself, I do not see why it should not appear from a declaration, as long as that declaration does not go wider than stigmatising the 25 percent limit. I would nevertheless echo what the judge said at the conclusion of his judgment. In litigation between Gurkhas and the MoD, there can be no winner; the solution is to be found in the MoD’s review and in a spirit of cooperation rather than conflict.