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BRIEF FOR ALL PARTY PARLIAMENTARY GROUP ON GURKHA WELFARE COMMITTEE OF INQUIRY 20 MARCH 2014

BRIEF FOR ALL PARTY PARLIAMENTARY GROUP ON GURKHA WELFARE COMMITTEE OF INQUIRY 20 MARCH 2014.

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BRIEF FOR ALL PARTY PARLIAMENTARY GROUP ON GURKHA WELFARE COMMITTEE OF INQUIRY 20 MARCH 2014

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  1. BRIEF FOR ALL PARTY PARLIAMENTARY GROUP ON GURKHA WELFARE COMMITTEE OF INQUIRY 20 MARCH 2014

  2. 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 so that the stigma of “mercenary troops” may for all time be wiped out…. .ANNEXURE III to TPA

  3. AIM To explain why I believe the Gurkha veterans have legitimate grievances that need to be properly addressed.

  4. MY BACKGROUND • 27 Years Service in British Army • 6 Tours with Brigade of Gurkhas • Commanded Queen’s Gurkha Signals Regiment in Hong Kong • Retired in 1991 • 10 Years as Dept. Commandant of Gurkha Reserve Unit for The Sultan of Brunei • Currently rebuilding homes for Typhoon Victims in the Philippines

  5. BRITISH & GURKHA COMPARISON PRE 1997 • “LOA is designed to contribute towards the necessary additional local cost of day-to-day living, when service personnel are required to serve overseas. LOA recognises the amount by which average essential expenditure on day-to-day living in a particular overseas location differs from that in the UK, taking into account the differences in the local lifestyle.”House of Commons Written Answers., 27 July 2010 (11588).

  6. ‘Payment of Tax in Brunei. The imposition of tax on Gurkha servicemen in Brunei is undertaken by the MOD to simplify the management of BG. There is no requirement from the Inland Revenue to pay tax. This management deduction, equal to the rate of income tax paid in the UK, could be set aside against the wider costs of BG. The imposition of equal rates of pay will result in a net decrease in pay for Gurkha soldiers in Brunei, in respect of the adjustment in nominal tax liability. This could be phased in over two or three years to ease the transition for personnel that remain in Brunei during this period.’Working Gp Review GTACOS 1996

  7. ’Essentially a complaint to the Pensions Ombudsman must be based on the law as it stands in the UK. It is not, for example within my remit to review government policy. There are elements to Mr. Sherchan’scomplaintWhere he seeks to rely upon the terms of the Tripartite Agreement drawn up between the governments of Britain , India and Nepal in 1947 (the TPA). For example Mr. Sherchan seeks to argue that the TPA established a link between the terms of the Indian Army pension scheme and the UK’s Gurkha Pension Scheme (GPS) which the UK government is bound by. The MOD and SPVA argue that the TPA is not justiciable in English law.Deputy Pension Ombudsman Determination Case No. PO777 29 Nov 2013

  8. The TPA is akin to a treaty which has not been incorporated into English law by statute. It has also been described as “less a treaty as notes towards a possible treaty that never came to be drawn up” or “Memorandum of Agreement”.

  9. The convention is that unless the provisions of a treaty are brought into domestic law by statute, the courts (and by extension, the Ombudsman) have no jurisdiction to interpret or apply them, The argument being that the conclusion of a treaty is an act of Crown Prerogative which creates binding obligations on the UK at international level but no enforceable rights (or obligations) at the individual level in English law.’

  10. ‘Terms and Conditions of Service for Gurkha servicemen serving in the British Armywere originally minuted in Section J to the 1947 Tripartite AgreementTERMS AND CONDITIONS OF SERVICE – GURKHAS 1997

  11. Gurkha pay, allowances and pensions are governed by the Tripartite AgreementGTACOS 1997 Annex C para 1

  12. ‘Gurkha pensions are issued in accordance with the Pension Regulations for the Army India 1961 Part 1 as governed by the TPA. Wherever possible Gurkha pensions are paid in accordance with Indian Army rates and based in ICRsGTACOS 1997 Annex C para 20

  13. Basic rates of Gurkha pensions are based upon the Indian Army Pensions Code in accordance with the terms of the Tripartite and Bipartite agreements signed in 1947 between the governments of India, Nepal and the United Kingdom’Gurkha Pay and Pension Manual dated 1 May 1995 para 1

  14. ‘When accepted for enlistment into the Gurkha Regiment of the British Army, every volunteer will be required to take the prescribed oath/affirmation and to be attested in accordance with the Army Act , Section 80 (4) (5) & (6). The volunteer thereupon will become subject to British Military Law\ as a soldier of the Regular Forces, by virtue of the Army Act Section 176 (1). Gurkha other ranks enlisted into the British Army therefore become subject to the Army Act and to any regulations issued under authority thereofTPA Part 1 Section II para 9

  15. At a meeting held in Kathmandu on 1st May, 1947 between representatives of His Majesty’s Government in the United Kingdom; the Government of India and the Government of Nepal, His Highness the Prime Minister and Supreme Commander-in-Chief of Nepal stated that he would welcome the proposals to maintain the Gurkha connection with the armies of the United Kingdom and India on the following basis “If the terms and conditions at the final stage do not prove detrimental to the interest and dignity of the Nepalese Government, my Government will be happy to maintain connections with both armies, provided men of the Gurkha regiments are willing so to serve (if they will not be looked upon as distinctly mercenary)”..TPA Part 1 paragraph 1

  16. 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 so that the stigma of “mercenary troops” may for all time be wiped out….TPA Annexure III paragraph 1

  17. “subject to the limitation of finance and supply”, welfare facilities would be provided for Gurkha troops on similar lines to those provided to British (United Kingdom) troops. In a Tripartite meeting at Kathmandu on 7 November, attended by the Maharaja of Nepal, ‘Mr. Symon emphasised that the United Kingdom Government in no way regarded Gurkha troops as mercenaries, and that they would form an integral and distinguished part of the British Army’TPA Annexure III Footnote (1)

  18. ‘The Review Team concluded that, the affordability issues notwithstanding, the major differences in Gurkha terms and conditions of service could no longer be justified on legal or moral grounds and recommended that they be modernised by bringing them largely into line with those available to the wider Army’2006 GTACOS Review Chapter 1 paragraph 15.19.,December 2006.

  19. Except where specifically done in compliance with the TPA or with arrangements by a Minister of the Crown, it will be necessary to treat Gurkhas broadly in the same way as other members of the British Army. However, it is acceptable to provide different treatment to some degree where this can be objectively justified.HQBG, Working Group Review of Gurkha Terms and Conditions of Service, p.25, paragraph 84, 19 April 1996.

  20. Different Conditions of Service for British Gurkhas after 1997 • Gurkhas on Nepal Leave paid at Indian Army rates • LOA not paid to Gurkhas until 2007 • MOD paid tax centrally for Gurkhas by Annual Voluntary Settlement until 1 May 2006 when they became liable for UK income tax. • NI Contributions not collected from Gurkhas until 2007 • Chronic shortage of married quarters in the UK until 2006. • QGO Commission retained until 2007

  21. The 2006 Gurkha TACOS Review ‘concluded that the current arrangements could not continue for much longer’ 2006 GTACOS Review Chapter 14 paragraph 3.

  22. Introduction of New Pension Schemes by the Indian and British Governments in 2006 and 2007.

  23. This in effect created two groups of pensioners, one linked to existing rules and a second to new rules linked to Indian rates of pay on retirement which we cannot mirror.’…MOD D/LF Sec (F&C)/141/10, p1, paragraph 3, 2 March 2009.

  24. Gurkha soldiers whose enlistment into the British Army is simultaneous with their discharge from the Indian Army (i.e. where there is no break in continuity of service), will be allowed to reckon their former qualifying service in the Indian Army as qualifying service in the British Army for purposes of calculating entitlement to increments of Pay, Gratuities and PensionsTPA Part I Section II, paragraph 2.

  25. We are of the opinion that the 1947 Tripartite agreement is non-justiciable in English law. The tripartite agreement is a treaty and a departure from its intent is a matter between the parties to the treaty. It is not open for the Internal Disputes Resolution Procedures to consider any complaint about the lawfulness of the Gurkha Pension Scheme (GPS) or the Armed Forces Pension Scheme 75. This is a matter for Judicial Review.SPVA (G) 542890(Pens)dated 7 November 2013.

  26. “1947 Tripartite Agreement is a Memorandum of agreement and is not listed as a treaty by the Foreign and Commonwealth Office”MOD D/US of S/JA MC04012/2012 Lord Astor of Hever to Lord Selkirk of Douglas dated 8 October 2012

  27. ’The basic outcome of the 6th CPC is that the GPS is already ahead of the Indian Army Scheme for the majority of members of the Scheme. Because of this there is no additional benefit that will apply from the 6th CPC to most ex-Gurkhas.’The hand out states, ‘If we were to re-base to Indian rates (that is at double their rates to preserve the principle of doubling rates from 1 April 2000), we would have to reduce GPS pension rates. But as we are breaking away from the Indian rates, while retaining links to their pension structure and rules, the current advantage to GPS members will be retained.MOD., Handout for Gurkha Regimental Associations Gurkha Pension Scheme (GPS),p 1, paragraph 6, 2009.MOD., Handout for Gurkha Regimental Associations Gurkha Pension Scheme (GPS),p 2, paragraph 7e, 2009.

  28. Given the fact that the GPS is now a closed scheme with only 10 serving members it is not intended to follow the Indians new rule changes. This will mean that all pensioners in the GPS will remain with the current rules and rates of pension’MOD D/LF Sec (F&C)/141/10, p1, paragraph 3, 2 March 2009.

  29. ’There is a single pension rate for each rank and incremental level, regardless of the date your pension comes into paymentMOD Booklet MMP 137 ‘Your Gurkha Pension Scheme Explained’. P 10

  30. The underlying rates of Indian Army pay used in the calculations are those in issue from 1 January 1996 as the pay and related pension changes of the Indian 6th Central Pay Commission announced in 2008 were not implemented for British Gurkhas.MOD LF/Sec/15/01/02 p 2, paragraph 9, 22 March 2011.

  31. 'The basic position of the GPS is that while it has its own rates of pension, those rates will be at least double the equivalent Indian Army pension as at the start date of a CPC period’…MOD D/LF Sec (F&C)/141/10, p3,paragraph 14, 2 March 2009

  32. The Indians have effectively created two pension schemes by virtue of the changes made by 6 CPC. The GPS follows the rules of the pre 1 January 2006 scheme because this relates to existing veterans. Changes made to the new scheme, which is for those in service from 1 January 2006,will not therefore apply to the GPS.LF Sec (F&C) letter to the RAN Chairman dated 22 October 2010 paragraph 5.

  33. the pension position for ex-Gurkhas who retired before 1997 fell outside the scope of the (2006 Gurkha TACOS) ReviewMOD D/LF Sec (Gurkha)/140/7.,GTACOS Review., p.14-2 Chapter paragraph 8..,December 2006.

  34. ‘The documents support an argument that there was an intention for the GPS to offer similar terms to those offered by the Indian Army. Having said that, it is clear also that there was never any commitment to replicate the Indian Army Scheme entirely’Deputy Pension Ombudsman PO 777 dated 29 November 2013 page 9.

  35. The TPA envisages that British Gurkha pay and pension rates will be linked to the Indian Army Pay and Pension Regulations. The last major review of Pay and Pensions was as a result of the 1996 5th Indian Government Pay Commission. This Commission reports every 10 years and recommends pay and pension awards for the Indian Army, which are then applied to British Army Gurkhas’MOD Ministerial Examination of Gurkha Pensions and Gratuities 1999 , paragraph 4

  36. The important date distinguishing between these groups is 1 October 1993GAD.,9267/9 Gurkha Offer to Transfer –Pre 97 Service Credits p1, 2 March 2007

  37. ‘The actual exchange rates over the period would need to be used to convert any GPS lump sums to £ Sterling, but the GPS pension payment (which uses Indian currency Rupees and Nepalese currency Rupees) should be converted to £Sterling using Annual average exchange rates.’MODUnreferenced Pension Policy Instruction.,31,July 2009

  38. ‘The major after care concern, the provision of medical care, remains unresolved. The disparity between the treatment of retired IA Gurkhas and their British counterparts is a growing source of concern. A number of efforts have been attempted to resolve it, one even sponsored personally by a former AG, but have failed. It is a resource issue and one which must be addressed‘HQBG., BG 0226, Working Group Review of Gurkha Terms and Conditions of Service, p. 25. Paragraph 81, 19 April 1996.

  39. ‘These calculations show that in many cases granting a year-for-year credit would be “overgenerous” and so a scale of reduced service credits has been developed.’GAD., Gurkha Offer to Transfer-Pre 1 July 1997 Service Credits, p.2, third paragraph., March 2007

  40. Pension Comparison GPS/AFPS Captain with 27 Years’ Service

  41. “This will mean that all pensioners in the GPS will remain with the current rules and rates of pension”MOD D/LF Sec (F&C)/141/10, p1, paragraph 3, 2 March 2009

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