Supplementary memorandum submitted by the Gurkha Army Ex-Servicemen's Organisation (11 October 2001)
We write further to our e-mail correspondence in September 2001 with Paul Evans, Clerk to the Defence Committee in which he invited us, the Gurkha Army Ex-Servicemen's Organisation ("GAESO"), to participate in the Armed Forces Pension Scheme Review and the Joint Compensation Review. We write to amplify some of the points which were made in the letter we submitted on 9 October 2001.
As you are no doubt aware, Nepalese men have been recruited into the Brigade of Gurkhas since the last century. Recent years have seen the Gurkhas fighting alongside British soldiers in the Gulf Conflict, Bosnia, Kosovo and East Timor. The vast majority of ex-Gurkhas return to Nepal on discharge from the British Army, and the relationship of mutual goodwill and gratitude between the Gurkhas and the British Army is highly valued. GAESO is based in Kathmandu, and we represent the interests of many thousands of these ex-Gurkhas.
We should say at the outset that we welcome the Ministry of Defence's willingness to examine its scheme for Army pensions and compensation, which was established in the 1960's, so as to ensure that the scheme meets the particular needs of the Armed Forces in the 21st century. It must be right that the Army as an employer of so many thousands of individuals seeks to ensure that its pension and compensation arrangements change to keep pace with developments within and outside the Army.
We note that the principal changes to pensions and compensation which are proposed are:
officers and other ranks are to be eligible for a "full career pension" and gratuity (of three times pension) after the same period of service, namely 35 years (at present officers and other ranks are eligible at different times) (paragraphs 4.6-4.9 of the Consultation Paper);
officers and other ranks are to be eligible for an "immediate pension" and gratuity (of three times pension) at age 40 or after 18 years' service (paragraphs 4.6-4.9);
pensions are to be based on the final salary at retirement (perhaps the best 12-month period in the last three years service), rather than on representative pay for each rank, but specialist pay (eg flying pay, submarine pay) should remain non-pensionable (paragraphs 4.2-4.5 and 4.10-4.12);
a new three-tier structure of ill-health benefits should be introduced with the level of benefit varying according to the level of disablement; and invalid benefits should be restructured to reflect employment prospects in civilian life, namely by providing for benefits to comprise both compensation for injury or illness paid as a lump sum in accordance with a tariff according to disablement, and compensation for lost earnings capacity, paid as an income stream for life (paragraphs 4.16-4.18).
the scheme of benefits for dependants should be improved so that the death-in-service grant would be increased (from 1 1/2 to 3 times pensionable salary) and widows' pensions should not in future be withdrawn on re-marriage (paragraphs 4.19-4.20)
new entrants to the Army would automatically become members of the new scheme, and serving members would be given the option to transfer into the scheme (paragraph 6.2).
While we accept that all of these proposals appear just and equitable in principle, and likely to lead to greater consistency within the Army scheme and with other pension schemes in the private and public sectors, we are concerned to know how far the Brigade of Gurkhas will benefit from them.
We note that the MoD are examining the position of certain "self-contained groups" such as Medical Officers, Dental Officers and Full Time Reservists, separately, as "special cases" in the pension and compensation review (paragraph 6.1). We are concerned that the Brigade of Gurkhas does not appear to be being given the same separate consideration, despite the fact that the Gurkhas are a discrete unit of the Army, to whom very specific features apply. Our main concern is that Gurkhas be treated in just the same way as British soldiers, but we accept that historically they have not been so treated. We therefore ask that for the purposes of this review, specific consideration be given to how pensions and compensation for the Gurkhas might also be brought into the 21st century.
We note, for example, that much consideration has been given to the date at which soldiers should be eligible for a full career pension or an immediate pension; yet the fact that Gurkhas have traditionally been eligible for an immediate pension at 15 years reckonable service does not appear to have formed part of the MoD's remit.
Of a greater concern to us is that there is no guarantee in the Consultation Paper that the rates of pension payable to ex-Gurkhas will be reviewed so that they receive the same pensions and post-retirement benefits as British soldiers. This is an issue of massive significance to us, about which we have campaigned for many years. From 18 to 20 September 1999, for example, we held an "International Conference on the Plight of the Gurkhas" in Kathmandu, Nepal. Over 30,000 ex-Gurkhas and their families attended a mass rally in the Open Theatre (Khula Manch) of Ratna Park, Kathmandu to protest against the inequality in pensions for the Gurkhas. A similar conference took place from 9-11 March 2001, the outcome of which was a declaration calling for such parity. We have taken our concerns into the international law arena, by speaking at the United Nations Commission on Human Rights in Geneva in April 2000 and March 2001, and at the World Conference Against Racism in Durban in August/September 2001.
As I am sure you know, the root of the disparity in pay and pensions between the Gurkhas and British soldiers is the 1947 Tri-Partite Agreement ("TPA") between Britain, India and Nepal. This "Agreement" is in fact a series of bilateral agreements, and prior or subsequent exchanges of letters, between the governments of the UK, India and Nepal. The TPA gives the British Government the right to employ Gurkhas, and makes provision for pay, pensions and conditions of service for the Gurkhas.
We have long been concerned that the TPA is legally dubious because the Nepalese Government did not directly sign any part of the TPA specifically dealing with pensions and pay for the Gurkhas, and had made clear that it was willing to maintain the link between the Gurkhas and the British and Indian armies only "if the terms and conditions at the final stage do not prove detrimental to the interest or dignity of the Nepalese Government . . . [and if] in all matters of promotion, welfare and other facilities, the Gurkha troops should be treated on the same footing as the other units in the parent army. . .".
The TPA has been interpreted as having approximated pay and pensions for the British Gurkhas with the Indian Army Pay Code, so that for many years serving Gurkhas were paid significantly less than their British counterparts. The TPA has nevertheless been interpreted flexibly by the Army, and over time and through changing circumstances, some of the provisions have been overtaken or enhanced. Detailed provisions as to the Gurkhas' pay and pensions can be found in the Gurkhas Pay and Pensions Manual.
The MoD reviewed the Gurkhas terms and conditions in 1996, concluding that they included "significant anomalies" (HC Deb 20.11.96 c 613w). In February 1997, new regulations were laid, so that the Gurkhas were paid comparable take-home pay to British soldiers. This was achieved by keeping the Indian Army element of Gurkhas' pay low, but by introducing a Universal Addition for Gurkhas, to represent the cost of living outside Nepal. These changes took effect from 1 July 1997 (see the statement of Earl Home in the House of Lords on 17 February 1997).
There were, obviously, many thousands of Gurkhas who had served in the British Army who would not benefit from these pay changes as they were not retrospective. Further, the pensions issue was not addressed in the 1996 review. Rather, in accordance with TPA, British ex-Gurkhas continued to receive similar pensions to Indian ex-Gurkhas, which were often up to 20 times less than that of a British soldier.
For example, in 1988, the Defence Committee found that a Queen's Gurkha Captain, retiring after 22 years' service, would receive a pension at 10 per cent of that received by a British Captain who had served for the same period (HC 68 Sess 88/89, p 96). On 1995 figures, the average Gurkha pension rates was £26-£44 per month for soldiers and £36-£87 for officers, whereas a British private, retiring after 22 years service, would receive £4,508 per annum. Similarly, a severely wounded ex-Gurkha would receive a combined service and medical pension which amounted 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 have been nearer £1,500.
There was a further Ministerial examination into pensions and gratuities completed in late 1999. This found that British Gurkhas were disadvantaged upon their retirement when compared with the Indian Army because of the benefits in kind provided to Indian Army ex-servicemen. We can confirm that our own experience shows massive poverty and consequent widespread social and economic problems endured by ex-Gurkha pensioners returning to Nepal.
With effect from 1 April 2000, Gurkha service pensions were increased to equate to 200 per cent of the Indian Army equivalent. The review also resulted in substantial increases in death in service payments for the families of Gurkhas. This had been announced on 25 October 1999, after the issue of disparity in pay for the families of Gurkhas killed in service had been highlighted by the death of Gurkha Balaram Rai in Kosovo. It was widely reported that while Lieutenant Gareth Evans, a comparable British soldier who was also killed in Kosovo, would have received a £54,000 lump sum and £15,192 annually thereafter, Sergeant Rai's widow would receive only £19,092 as a lump sum and £771.48 thereafter.
However, there is rising concern that firstly, there is still not parity of pensions between British soldiers and Gurkhas; and secondly, that even the pension payable at the April 2000 rates will not enable an ex-Gurkha to support his family adequately.
We would also like to take this opportunity to draw to your attention that many thousands of Gurkhas who were made German/Japanese prisoners of war in the course of their service in the British Army did not receive compensation equal to that paid to British soldiers who were also prisoners of war. In addition, in the 1960s and 1970s, many thousands of Gurkhas were retrenched under the Army's redundancy scheme. Although their British colleagues who were so retired received ample compensation, the Gurkhas were sent back home to Nepal with a one-off payment of just £150.
There is a growing feeling among ex-Gurkhas that their treatment by the British Army constitutes unfair differential treatment, which amounts to unlawful discrimination against them on grounds of their race, contrary to the Race Relations Act 1976, s.4 and/or the Human Rights Act 1998. As to the latter we remind you of your obligations as a public body under s.6 of that Act to ensure that you do not do any act which might be incompatible with the rights enshrined in the European Convention on Human Rights. Of those, we believe that Gurkhas' pensions are protected under Article 6 (civil rights) and/or Protocol 1, Article 1 (property) and that the continued disparity in payment of them constitutes a violation of Article 6 and/or Protocol 1, Article 1 taken with Article 14 (which guarantees freedom from discrimination on racial grounds in the enjoyment of Convention rights).
As a final point, we note that one of the main aims of the revised pension arrangements is to enable the Army to encourage new entrants to the service, while also retaining sufficient personnel to meet the numbers and structure of manpower needed (p 2). As to this we would point out that the disparity in pay and pensions between Gurkhas and British soldiers has not, historically, been a disincentive to Nepalese boys and men seeking recruitment to the British Army. To the best of our knowledge, recruitment for the Brigade of Gurkhas has always been oversubscribed and many thousands of Nepalese boys and men continue to see such service as an honour. However, there is a growing concern among current and former Gurkhas at the disparities in pensions, which we fear will lead to a weakening of the relationship of mutual goodwill between the Gurkhas and the British Army, which has always existed.
In summary, therefore, while we see the merit in your proposals for the mainstream British Army, we would urge you to consider the issue of the Gurkhas as a further "self-contained group" and/or "special case" under (para. 6.1) alongside Medical Officers, Dental Officers and Full Time Reservists. As we hope we have demonstrated, there are very particular considerations which apply to Gurkha pensions, and we hope that the MoD will feel able to take into account the issues we have raised in this letter.
Our main hopes would be that the review will achieve:
parity in pensions between the Gurkhas and the rest of the British Army;
pensions for those made "redundant" and sent home pensionless;
full parity in death-in-service payments;
equal compensation for Gurkhas who were prisoners of war.
If you have any queries about GAESO's additional observations, please do not hesitate to contact me.