TREATMENT OF THE GURKHAS FROM THE POINT OF VIEW OF INTERNATIONAL AND BRITISH DOMESTIC LAW
GAESO Conference Kathmandu, Nepal

9th – 11th March 2001

HENRIETTA HILL[1]

1. The nature of the discrimination against Gurkhas in the British Army

1.1 Discrimination against Gurkhas in the British Army has manifested itself in the following forms:

• Pay - the Tri-Partite Agreement between the UK, Nepal and India Linked the salary of UK Gurkhas to those serving in the Indian Army, meaning that all wages reflected the cost of living in Nepal, resulting in less pay for Gurkhas than for British soldiers Gurkhas were paid markedly different rates depending on the country in which they served, their marital status and whether or not they are accompanied.

In February 1997, new regulations were laid, so that from 1st July 1997, the Gurkhas would be on equal take-home pay to British soldiers, apparently as part of a wider package of terms and conditions.
• Pensions and resettlement grants - in accordance with the Tri-Partite Agreement, British ex-Gurkhas continue to receive a similar pension to Indian ex-Gurkhas, which is often up to twenty times less than that of a British soldier. It is not uncommon, therefore, for a severely wounded ex-Gurkha to receive a combined service and medical pension which amounts to no more than £45 a month, when the service pension alone of a former British soldier of similar rank and length of service would be nearer £1500, on 1995 figures. In December 1999, the British Government announced an increase in the pensions payable to Gurkhas in the future, but GAESO argue that there should be full parity between Gurkhas and British soldiers, which the increase does not provide for.
• Compensation payments on death - the recent report of the paltry payments made to the family of Balaram Rai, the Gurkha soldier killed in Kosovo, highlighted the massive disparity in their treatment when compared with British soldiers. Many more Gurkhas and their widows receive no pension or gratuity at all and rely on donations from the various Gurkha charities. In October 1999, the British Government announced changes to improve the compensation payable to Gurkha widows.
• Under the Tri-Partite Agreement, the promotional structure for Gurkhas was different to that for British soldiers, meaning that very few Gurkhas reached the higher ranks.
• GAESO have also been greatly concerned that when the Army has made redundancies, Gurkha positions have been reduced more drastically than those of British soldiers.
• The Army appears to have a unique means by which they deal with Gurkhas’ tax affairs, whereby they account for tax in one lump sum for the Brigade of Gurkhas, which can make it impossible for the Gurkhas to claim benefits such as tax rebates, MIRAS relief etc.
• The family members of many Gurkhas have faced various difficulties. In the past it was not uncommon for the family members to be prevented from joining their husband/father in the United Kingdom, even if they lived outside the army camp. The frustration and mental distress at such separation is obvious.

2. International law
2.1 Protection against discrimination on grounds of race is found in many international human rights instruments. The majority of international law mechanisms for the protection of human rights, however, require that domestic remedies be exhausted before international redress is sought (see section 3 below).
(a) The International Convention on the Elimination of All Forms of Racial Discrimination (’CERD’)[2]

3.2 This Convention specifically provides for the right to freedom from racial discrimination in the workplace. The matters of which the Gurkhas complain could, on a straightforward analysis, fall within the provisions of CERD. The monitoring of compliance with CERD is undertaken by the Committee on the Elimination of All Forms of Racial Discrimination, a panel of eighteen experts from a variety of states parties to the Convention. Article 14(1) permits the Committee to consider communications from individuals, provided the communication is lodged as against a State which has accepted the jurisdiction of the Committee. As yet, the UK has not done so, and so Gurkhas may have to revert to a more informal approach of lobbying the British delegates on the Committee to consider their case and/or working to ensure reference is made to the Gurkhas case in reports submitted to the Committee.
(b) The International Labour Organisation (”ILO”)

3.3 The ILO has perhaps the most comprehensive network of documents detailing the rights of workers, all of which must be enjoyed without discrimination on racial grounds. The supervisory structure is also extensive, consisting of the ILO Committee of Experts and the Conference Committee on the Application of Conventions and Recommendations.

3.4 It is rare indeed that governments do not co-operate fully with ILO investigations and go some way to implementing their recommendations. The ILO mechanisms cannot be invoked by individuals, and must be petitioned by a government, trade union or employer’s association. However, if such an approach could be formulated on behalf of the Gurkhas, it may bo that the ILO’s thorough mechanisms of review and recommendations to governments could be of assistance.
(c) The European Convention on Human Rights and Fundamental Freedoms[3]

3.5 Article 4 of the Convention provides for protection from forced labour or slavery. “Slavery” is generally recognised as relating to oppressive working conditions which an individual cannot change, and forced labour focuses on involuntary work or services. Article 14 provides that the rights under Article 4 are to be enjoyed without discrimination on any ground including national or social origin, association with a national minority, property, birth or other status”.

3.6 The coming into force of the Human Rights Act 1998 on 2 October 2000 means that in the domestic case brought in the UK Employment Tribunal, the court would have to consider the Tri-Partite Agreement to ensure it is compatible with the above Convention rights.

3.7 The Convention remedy is to lodge a petition with the European Court of Human Rights in Strasbourg but this will generally rely on domestic remedies having been exhausted.
(d) The International Covenant on Economic, Social and Cultural Rights[4]

3.8 This Covenant dictates at Article 7 that everyone has the right to “….just and favourable conditions of work….”. Included within this is that all workers should receive:

“(a) (i) …….equal remuneration for work of equal value without distinction of any kind….(ii) a decent living for themselves and for their families…. (c) equal opportunities for everyone to be promoted in his employment…..”.

3.9 This must be read as being subject to Article (2) which guarantees all the rights in that Convention without discrimination on the grounds of, among other things, race or national origin. It is easy to conceive how the treatment of the Gurkhas could contravene a breach of these provisions. Although there is no Committee-based means of redress for such a breach, the existence of this obligation provides additional strength to the Gurkhas’ argument about their treatment.

(e) The International Covenant on Civil and Political Rights[5]

3.10 Article 26 of the International Covenant gives a general right to:

“….equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

3.11 The Human Rights Committee indicated in S.M.W Broeks v The Netherlands[6] that the protection of Article 26 was not limited to the rights specified in the Covenant, but extended to:

“…..any field regulated and protected by public authorities……”.
A breach of the right to protection from non-discrimination is therefore actionable without reference to any other right specifically laid out in the Covenant.

3.12 The remedy for a breach of an individual’s rights under this Covenant is to petition the United Nations Human Rights Committee. Such action can only be taken if the violating State has accepted the jurisdiction of the Committee under the Optional Protocol to the Convention. As far as we are aware, the United Kingdom has not done this as yet. The breach of this basic human right to freedom from discrimination nevertheless provides a further international law argument for the Gurkhas.

3.13 In mid-April 2000, representatives of GAESO appeared before the United Nations Commission on Human Rights in Geneva, with the assistance of the World Federation of Democratic Youth and Inter-Faith International (both organisations with observer status). Dr Om Gurung summarised the Gurkha discrimination issues in a two-minute slot before the full Assembly of country representatives and observer organisations - the relatively informal means by which an NGO such as GAESO can have their specific issue raised on the international stage for the first time. On 12th April 2000, GAESO hosted a lunchtime discussion group, including the showing of the “Gurkha Blues” video. Large numbers of copies of the Kathmandu Declaration and other relevant leaflets were disseminated during the conference.

3.14 GAESO are optimistic that in due course, the UN Commission will order a more formal investigation into their concerns, perhaps by the appointment of a thematic Special Rapporteur. There was discussion at the conference with other NGO and UN representatives as to whether, for example, the International Labour Organisation, might provide an appropriate forum for the Gurkha case.
(f) Thematic UN Conferences

3.15 GAESO are also preparing a strategy for raising the issue of discrimination against Gurkhas at the UN World Conference on Racism to be held in South Africa in 2001.

4. UK Domestic Law
(a) British Army Grievance Procedure

4.1 Section 180 of the Army Act 1955 provides for an internal of grievance procedure in the Army. This must be pursued before a soldier can proceed to an Employment Tribunal in relation to a claim of discrimination on racial grounds (see below), although the process can be very protracted.

4.2 Different provisions of the Race Relations Act 1976 (”the l976 Act”) were in force in 1991 when the Divisional Court had to consider the case of R. v. Army Board of Defence ex parte Anderson [1991] ICR 537. Nevertheless at that time it was common ground that in considering the allegations that were before it the Army Board had to give effect to the 1976 Act and also to follow the usual procedural rules. It is therefore likely that the redress of grievance procedure under section 180 must also be followed in a way which is procedurally proper.

4.3 What fairness requires will differ from case to case. Indeed one key point that was present in ex parte Anderson is no longer present in that the Army hearing is no longer the end of the matter. However fairness would certainly require that there should not be any improper delay and possibly that relevant information (though not necessarily all the documents) should be disclosed to assist the soldier.

4.4 One area in which the grievance procedure will be essential is that of pay. It has been settled law for a very long time that a soldier cannot sue for his pay, and so his sole remedy would be by the redress of grievance provisions. If that fails, it might be possible to seek judicial review of any failure to deal with the pay issue by way of the redress process.

(b) Race Discrimination

(i) Procedure

4.5 Part II of the 1976 Act provides that it is unlawful for an employer to “directly” discriminate against (ie. treat less favourably) an employee on racial grounds in the terms of employment which he or she is afforded, by refusing or deliberately omitting to afford him or her access to opportunities for transfer and training or to any other benefits, or by subjecting him or her to any other kind of “detriment” (which is given a very broad meaning).
4.6 Similarly, it is unlawful for an employer to “indirectly” discriminate against employees on racial grounds by imposing a “condition or requirement” with which a disparately low proportion of a certain racial group can comply.

4.7 Section 75(2) of the 1976 Act states that:

“… (2) Parts II and IV apply to…(c) service in the armed forces, as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service.”

Accordingly a soldier can make any complaint of unlawful discrimination that can properly be made under Part II.

4.8 However the making of the complaint is not straightforward. Section 23 of the Armed Forces Act 1996 has substituted new subsections into the 1976 Act in relation to the armed forces. These new subsections (9)B(10) have effect from 1 October 1997 and apply to any complaint of discrimination contrary to Parts II or IV of the Act where the act complained of was done before 1 October 1997[7].

4.9 They apply, per section 75(8), to:

“…any complaint by a person (”the complainant”) that another person - (a) has committed an act of discrimination against the complainant which is unlawful by virtue of section 4; or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant, if at the time when the act complained of was done the complainant was serving in the armed forces and the discrimination in question relates to his service in those forces.”

4.10 The new provisions state so far as relevant that:

(9) No complaint… shall be presented to an employment tribunal under section 54 unless - (a) the complainant has made a complaint to an officer under the service redress procedures applicable to him and has submitted that complaint to the Defence Council under those procedures; and (b) the Defence Council have made a determination with respect to the complaint.”

4.11 Section 75(9) provides the guiding rule that the service redress procedures shall take place first. It is made clear by section 75(10)(ab) that the service redress procedures are:

“…the procedures, excluding those which relate to the making of a report on a complaint to Her Majesty, referred to in section 180 of the Army Act 1955…”

4.12 However Parliament was aware that this could lead to considerable delay and procedural confusion and has enacted by section 75(9A) that:

Regulations may make provision enabling a complaint to which subsection (8) applies to be presented to an employment tribunal under section 54 in such circumstances as may be specified by the regulations, notwithstanding that subsection (9) would otherwise preclude the presentation of the complaint to an industrial tribunal. (9B) Where a complaint is presented to an employment tribunal under section 54 by virtue of regulations under subsection (9A), the service redress procedures may continue after the complaint is so presented.”

4.13 Regulations have now been made to give effect to this from the 1 October 1997: Reg. 1 of the Race Relations (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1997 (SI 1997/2161). These regulations provide that:

2.C(1) A person may present a complaint to an industrial tribunal under section 54 of the Race Relations Act 1976, notwithstanding that section 75(9) of that Act would otherwise preclude the presentation of such a complaint, where - (a) he has made a complaint in respect of the same matter to an officer under the service redress procedures; and (b) that complaint has not been withdrawn.

(2) For the purposes of paragraph (l)(b) above, a person shall be treated as having withdrawn his complaint if, having made a complaint to an officer under the service redress procedures, he fails to submit that complaint to the Defence Council under those procedures”.

4.14 It follows that it is essential that any complaint under the redress of complaints procedure under section 180 of the Army Act 1955 is proceeded with to the Defence Council if a complaint is already made to the Employment Tribunal. If not the complaint is treated as withdrawn.

(ii) Formulating a claim of discrimination on racial grounds.

4.15 It is necessary to point out that in relation to any of the matters of which the Gurkhas complain, they must establish that they have suffered less favourable treatment on grounds of his race: section 1 of the 1976 Act. If they cannot do that, they cannot succeed in a complaint of direct race discrimination. On a superficial level in so far as they can show to any extent that the treatment they receive was because they are Gurkhas, they have the makings of a claim.

4.16 On one view, this approach is too simplistic. A justification that could be advanced for some of the acts and omissions of which the Gurkhas complain on the basis that they are assumed to have been recruited in Nepal and to be intending to return to Nepal and that their pay is fixed by reference to the Tri-Partite Agreement. However, it seems that at least as far as the pensions issue is concerned, it is not merely those Gurkhas who choose not to return to Nepal who suffer. There is evidence to suggest that 90% of all Gurkhas have to find another career as their pension is not enough. Similarly, it must be right to say that any arguments based on the cost of living in Nepal are significantly weakened when one considers that the very purpose of the 1947. Agreement was to separate off those Gurkhas who were to become allied solely to the British Army, as opposed to the Indian Army. The worldwide deployment of Gurkhas further erodes any argument based on their Nepali history.

4.17 There is an initial striking similarity in this with the case of Wakeman and others v. Quick [1999] IRLR 424. In that case the Appellants failed to establish that they were treated less favourably than Japanese fellow employees who were paid according to Japanese pay rates because they were recruited in Japan. The Court of Appeal upheld the Employment Tribunal’s conclusions that the treatment was not on grounds of race and that the “material circumstances” for the comparison were different (see here section 3(4) of the 1976 Act). A key factor was that there were Japanese local recruits who were paid at local rates.

4.18 It will be essential to distinguish any Gurkha cases in relation to any complaint that is based on the Tri-Partite Agreement. So it will be very important to analyse why the Gurkhas received the treatment that they did in relation to all the matters about which they complain. Some of those matters are plainly connected with the fact that they were assumed to have been returning to Nepal from whence it was assumed that they had been recruited. However some of the matters are rather different and are not linked with where the Gurkhas are expected to live. Moreover mere assumptions about where Gurkhas are to return would also be likely to be discriminatory.

4.19 In those cases where the “material circumstances” defence might apply it would probably be sensible to complain of indirect discrimination. While there is no provision for a financial remedy for indirect race discrimination unless it is proved to have been intentional it is at least possible to argue that the Army should provide its own remedy. It is not impossible that a successful argument in relation to intentionality might be argued. 4.20 In order to succeed in a complaint of indirect discrimination it will be necessary to establish that the Army applied a requirement or condition to Gurkhas which was such that it had an adverse impact on members of the brigade of Gurkhas who were from Nepal or were ethnically Gurkha or Nepali and that the requirement or condition was not justified.

4.21 The test for adverse impact is met when it can be shown that the proportion of Gurkhas who could comply with the requirement or condition was considerably smaller than the proportion of non-Gurkhas who could comply with it. The choice of the requirement or condition will therefore be very important. Indeed it may be that it is such that no persons of Gurkha or Nepali ethnic origin will be able to comply with the requirement and that all those who are not will be able to.

4.22 If adverse impact is shown then the Employment Tribunal has to assess whether the requirement or condition is justified. This will depend on the nature of the justification that is advanced and it may be that the justification will differ as between his different complaints. I expect that it will. However whatever the justification advanced the Employment Tribunal will have to consider whether it meets the general principles of proportionality. That is to say the Employment Tribunal will need to ask whether the requirement or condition is appropriate and suitable for the aim that the Army have, whether it is necessary to achieve that aim and whether it is proportional in the strict sense of the word and does not use a sledge hammer to crack a nut.

4.23 The main way in which the Army are likely to defend some of the Gurkhas’ claims on the grounds that they are simply the implementation of Queen’s Regulations. If so, an issue may arise as to whether by section 41 of the 1976 Act they are immune from challenge before the Employment Tribunal, as having “statutory authority”. It is clear that section 41 provides only a very narrow defence (Hampson v. D.E.S. [1990] ICR 511) but that this could nevertheless provide a further obstacle to the Gurkhas’ claims of discrimination.

5. CONCLUSION

5.1 It is clear that the treatment of the Gurkhas by the British Army falls to be re-examined in the light of the domestic legislation and international human rights jurisprudence which has come into effect since the Tri-Partite Agreement. It is to be hoped that the imminent legal proceedings will lead to some form of negotiated settlement of the Gurkhas’ claims. This conference will serve a valuable role in raising international awareness of the Gurkhas’ plight.

HENRIETTA HILL

March 2001

[1] Barrister, Doughty Street Chambers, 10 -11 Doughty Street, London WC1N 2PL. This paper is based on one prepared for The Plight of the Gurkhas Conference in Kathmandu in September 1999, jointly with Geoffrey Bindman (Solicitor) and Robin Allen QC (Barrister).

[2] Adopted 21 December 1965, entered into force 4 January 1969, 660 U.N.T.S. 195.

[3] Signed 4 November 1950, entered into force 3 September 1953, 213 U.N.T.S. 222, Europ T.S. No. 5.

[4] Adopted 19 December 1966, entered into force 3 January 1976, 990 U.N.T.S. 3.

[5] Adopted 19 December 1966, entered into force 23 March 1976, 99 U.N.T.S, 171. Article 27 of the Covenant provides a specific right for those in ethnic, religious or linguistic minorities within States to “profess and practise their own religion”.

[6] Views adopted 9 April 1987 (29th Sess.), Communication No. 172/1984, Report of the Commission on Human Rights, U.N. GAOR 42d Sess., Supp. No. 40, J 12.3, U.N. Doc. No. A/42/40 (1987).