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HC 324

‘A Debt of Honour’

‘A Debt of Honour’ | 12 July 2005 | 1

‘A Debt of Honour’The ex gratia scheme forBritish groups interned bythe Japanese during theSecond World War

4th ReportSession 2005-2006Presented to Parliament Pursuant to Section 10(3) of the ParliamentaryCommissioner Act 1967

Ordered byThe House of Commonsto be printed on12 July 2005

HC 324London: The Stationery Office£x.xx

2 ‘A Debt of Honour’ | 12 July 2005 |


1. This report sets out the results of myinvestigation of a complaint by Professor JackHayward about the ex gratia scheme formembers of British groups interned by theJapanese during the Second World War.

2. This scheme was administered by the WarPensions Agency (WPA), an executive agency ofthe Department for Work and Pensions (DWP: forpart of the relevant time, the DWP was calledthe Department of Social Security – DSS).Responsibility for the WPA transferred to theMinistry of Defence (MOD) on 8 June 2001 andthe WPA was renamed the Veterans Agency. TheVeterans Agency administered the scheme afterthis date.

3. The report does not contain every detailinvestigated by my staff but I am satisfied thatnothing of significance has been omitted.

4. I consider that it is appropriate to lay thisreport before Parliament for a number ofreasons. First, while this report sets out theresults of my investigation into ProfessorHayward’s complaint, his was only one of anumber of complaints about the same mattersreceived by my Office. Thus, the representativeinvestigation I conducted into his complaint hasapplication to other people in a similar positionto Professor Hayward.

5. Secondly, the complaint relates to matterswhich raise public policy issues that have been ofinterest to Parliament and which have beendebated there on a number of occasions.

6. Thirdly, the recommendations I make in thisreport have significance beyond the particularscheme complained about and are relevant toother ex gratia schemes operated by public bodies.

7. Finally, the Government – exceptionally – hasnot accepted all of the recommendations I havemade in this report. I consider it appropriate tobring this to Parliament’s attention.

8. Therefore this report is laid before Parliamentpursuant to section 10(3) of the ParliamentaryCommissioner Act 1967, which denotes that Ihave found injustice caused by maladministrationthat the Government does not propose toremedy.

Structure of the report9. In that context, this report addresses thecircumstances of Professor Hayward’s complaint,outlines my investigation, and sets out myconclusions and resulting recommendations.

10. But first, I set out the reasons for mydecision to investigate Professor Hayward’scomplaint in the context of my statutory roleand jurisdiction.

My role and jurisdictionMy role11. My powers are set out in the ParliamentaryCommissioner Act 1967, as amended. The 1967Act provides that my role is to investigate actiontaken by or on behalf of bodies within myjurisdiction in the exercise of their administrativefunctions. Complaints are referred to me by aMember of the House of Commons on behalf ofa member of the public who claims to havesuffered injustice in consequence ofmaladministration in connection with the actionso taken.

Bodies and matters in my jurisdiction12. When deciding whether I should investigateany individual complaint, I have to satisfy myself,first, that the body or bodies complained aboutare within my jurisdiction. Such bodies are listedin Schedules 2 and 4 to the 1967 Act. Secondly, Imust also be satisfied that the actionscomplained about were taken in the exercise ofthat body’s administrative functions and are notmatters that I am precluded from investigating bythe terms of Schedule 3 to the 1967 Act, which

Introduction


lists administrative matters over which I have nojurisdiction.

13. Professor Hayward’s complaint was directedat the MOD, as this is the department which haspolicy responsibility within Government for thescheme about which he complains. Moreover,the body responsible for administering thescheme, the Veterans Agency (formerly theWPA), has been one of the MOD’s executiveagencies since 8 June 2001. The MOD is listed inSchedule 2 to the 1967 Act and so it and itsexecutive agencies are within my jurisdiction. TheDWP, which previously had responsibility for theWPA, is also within my jurisdiction for the samereason.

14. My investigation has shown, however, thatofficials from other public bodies were involvedin an informal inter-departmental working partywhich made recommendations to Ministers inthe MOD concerning the ex gratia scheme. Theseincluded both officials and legal advisers in theDWP and a member of the Overseas andDefence Secretariat of the Cabinet Office, whochaired the group. Other officials who attendedthe group came from the Foreign andCommonwealth Office, Her Majesty’s Treasury,and the Inland Revenue. All of these bodies arewithin my jurisdiction, being listed in Schedule 2to the 1967 Act, with the exception of theOverseas and Defence Secretariat of the CabinetOffice, which is expressly excluded from myjurisdiction by virtue of a Note to that Schedule.

15. Upon discovering that this was the case, Iconsidered whether this was relevant to mydecision to investigate. Having done so, I wassatisfied that the actions complained about weretaken in the exercise of the administrativefunctions of a body within my jurisdiction – theMOD, whose Ministers made the relevantdecisions and whose officials in the VeteransAgency and its predecessor administered the

scheme – albeit with the advice of officials fromother public bodies, one of which is not in myjurisdiction.

Alternative remedy

16. The 1967 Act also provides, in section 5(2)(b),that I may not conduct an investigation into anyaction in respect of which the person aggrievedhas or had a remedy by way of proceedings inany court of law unless I am satisfied that, in theparticular circumstances of the case, it is notreasonable to expect the person aggrieved toresort to such a remedy.

17. My Office’s consideration of this question inrelation to Professor Hayward’s complaint wasinitially delayed. The relevant events are coveredin more detail later in this report.

18. However, to outline these briefly, mypredecessor received the referral of ProfessorHayward’s complaint in a letter from AustinMitchell MP dated 12 December 2001. While mypredecessor was considering whether toinvestigate Professor Hayward’s complaint, hewas informed that the Association of BritishCivilian Internees Far Eastern Region (ABCIFER)had initiated an application for judicial reviewimpugning the legality of the scheme. In thatcontext, my predecessor decided to deferconsideration of Professor Hayward’s complaintuntil the ABCIFER litigation had been concluded.

19. In summary, in the judicial reviewproceedings ABCIFER challenged the legality of aGovernment decision to introduce a bloodlinkcriterion as a requirement for eligibility forcertain claimants. ABCIFER contended that thatdecision was disproportionate and/or irrational,involved a breach of legitimate expectationcreated by the Ministerial announcement of thescheme on 7 November 2000 and/or wasconspicuously unfair and an abuse of power.


20. ABCIFER was unsuccessful before the HighCourt. An appeal to the Court of Appeal alsofailed. Other litigation – which found against theGovernment in relation to the position of theGurkhas – was also initiated. The latterproceedings did not directly relate to thematters which were the subject of ProfessorHayward’s complaint.

My decision to investigate21. Following the conclusion of the ABCIFERcourt proceedings in April 2003, I gave carefulconsideration as to whether it was reasonable toexpect Professor Hayward to resort to legalproceedings as an alternative to my investigatinghis complaint.

22. In doing so, I first considered whetherProfessor Hayward had already exercised analternative remedy.

23. Professor Hayward was not party to thejudicial review proceedings concerned with theposition of civilian internees and he had neverbeen a member of the organisation whichinitiated them. It was my conclusion that he hadnot exercised an alternative remedy throughABCIFER’s actions.

24. I next considered whether it would havebeen reasonable to expect him to initiate legalproceedings on his own behalf.

25. Professor Hayward’s complaint, which mypredecessor had received prior to the initiationof any proceedings, was not directed at whetherthe scheme was lawful but concerned theinjustice he claimed to have suffered inconsequence of maladministration. Hiscomplaint was in my view therefore not one thatwas wholly amenable to an application forjudicial review, as maladministration is notsynonymous with acting unlawfully. Thus Iconsidered that in this case the availability of analternative remedy was limited.

26. In any event, having regard to thecircumstances of his case I did not consider itreasonable to expect Professor Hayward toexercise any alternative remedy – to the limitedextent that he might have had such a remedy –by means of proceedings before a court of law. Ibelieved that such proceedings might well havebeen costly to him – in both emotional andfinancial terms.

27. I also had regard to the fact that courtproceedings are adversarial in nature and, giventhe particular circumstances of ProfessorHayward’s case, I did not consider it reasonableto expect him to have to resort to such a processwhen that could have been distressing and as hehad firmly indicated that instead he wished meto investigate his complaint.

28. In addition, I considered that it would havebeen difficult for Professor Hayward to haveobtained the evidence necessary to pursue legalproceedings as he did not have access to officialfiles. I have considerable powers in relation toaccess to evidence. That being so, in thecircumstances of this case I considered that myfact-finding powers made an investigation by memore appropriate than expecting ProfessorHayward to initiate legal proceedings.

29. Finally, I considered whether the ABCIFERapplication for judicial review, and the judgmentsin relation to it, prevented me from carrying outan investigation into Professor Hayward’scomplaint.

30. In doing so, I considered his specific case inthe wider context of the purpose of my Officeas decided by Parliament, which is to investigatecomplaints about injustice caused bymaladministration on the part of public bodies inmy jurisdiction.

31. While it is for the courts to determinequestions of legality, Parliament has determined


that my role is to consider whether theadministrative actions about which individualscomplain constitute maladministration causinginjustice to them. Professor Hayward had askedme to investigate such a complaint.

32. It was proper that I should have had regardto the challenge by others to the lawfulness ofsome of the actions about which ProfessorHayward complained and it is also proper that Ishould not question the decisions of the courtsabout the scheme, some of which have upheldits lawfulness and others which have not.

33. However, I considered that these proceedingsand decisions did not prevent me frominvestigating whether those actions constitutedmaladministration causing injustice to ProfessorHayward. My investigation would be confined todetermining whether the administrative actionsof the MOD constituted maladministrationfalling short of unlawfulness.

34. For the reasons set out above, I decided thatI should investigate Professor Hayward’scomplaint.

35. In its response to my draft report (seeannex), the Government has said that myreasons, given above, for considering that it wasnot reasonable to expect Professor Hayward toinitiate legal proceedings are ‘unsatisfactory’.

36. The MOD’s position appears to be that Ishould have expected Professor Hayward to havetaken legal action (presumably, given the termsof the rest of their response to this report, onlyin relation to some aspects of his complaint) andthat I should not, therefore, have conducted aninvestigation.

37. The Government did not raise any suchobjections in June 2003 when I first asked theMOD, as I am required to do, for anyobservations that it might have on my proposalto investigate Professor Hayward’s complaint. The

first time such objections were raised by theMOD was some months after I sent my draftreport to it.

38. Section 5(5) of the ParliamentaryCommissioner Act 1967 provides that indetermining whether to initiate, continue ordiscontinue an investigation I shall act inaccordance with my discretion and that anyquestion as to whether a complaint is duly madeshall be determined by me.

39. I have considered the Government’srepresentations on this point and I do not findthem persuasive. I am satisfied that ProfessorHayward’s complaint was duly made and, havingconsidered his complaint carefully, for thereasons given above I have exercised mydiscretion to investigate it. I believe I have doneso properly and appropriately.

Observations about the investigation40. My investigation has taken a considerabletime to complete. I decided to investigateProfessor Hayward’s complaint in June 2003. Thatdecision was delayed for the reasons explained inthis report. I am also conscious that ProfessorHayward’s complaint was first referred to myOffice in December 2001 and that he and othershave been waiting for the resolution of theinvestigation for many months.

41. I regret the length of time that it has takento conclude this investigation, which wasconsiderably longer than I would normallyexpect such investigations to take. I am deeplyaware that the people affected by the subjectmatter of this investigation are elderly and thatmany have been considerably distressed by theseevents. I am grateful to Professor Hayward and toothers for the great patience they have shownwhile this investigation has been undertaken.

42. Many of the causes of the delay in finalisingthis report are attributable to factors beyond my


control. We are responsible for others. However,one of the principal difficulties I haveencountered in this investigation was ensuringthat the respective roles of my Office and thecourts were clearly delineated and properlyunderstood.

43. I will reflect on how best to apply thelessons we have learned from this experience toour other casework.

The circumstances of Professor Hayward’scomplaint44. Professor Hayward was born in Shanghai in1931. His father was a British subject who wasborn in India and his mother was born in Iraq. Hisgrandparents died before he was born. His birthwas registered with the British Consulate, as wasusual with the children of British subjects at thattime. In early 1943, the Japanese authoritiesinterned him and his parents as British subjects inYangchow Camp C, near Shanghai in China. Thelate date of the internment is explained by thefact that there were many British subjects inShanghai; it took some time for the Japanese tointern everyone. Many members of ProfessorHayward’s family were interned, but one of hissisters escaped internment because she wasworking in London as a nurse.

45. Following his release from internment,Professor Hayward accepted an offer of‘repatriation’ to the UK and in 1946 he came hereto live with an aunt. He went to boarding schooland university in England and did NationalService as an Education Officer in the Royal AirForce before embarking on an academic career.In the course of his career as a political scientist,he was appointed Professor at Oxford University,having been invited to establish a School ofEuropean Studies at St Antony’s College. Hespecialised in the study of the French politicalsystem and was awarded the Légion d’Honneur.He is a Fellow of the British Academy and on

retirement from Oxford was appointed ResearchProfessor at Hull University. His two children arepursuing careers in the UK.

46. On 7 November 2000, the ParliamentaryUnder-Secretary of State for Defence, Dr LewisMoonie (now the Lord Moonie of Bennochy),announced in Parliament that the Governmentwas making funds available for one-off ex gratiapayments of £10,000 to the surviving membersof the British groups who were held prisoner bythe Japanese during the Second World War. Oneof the eligible groups was described as ‘Britishcivilians who were interned’, without furtherqualification as to nationality or bloodline. TheWPA advertised the scheme and issued claimforms to its welfare offices and to ex-serviceorganisations who acted as its authorised agents.Some of these latter groups contactedindividuals who they thought might be eligibleunder the scheme. Other groups advertised thescheme on websites and in periodicalpublications. Professor Hayward received aninvitation to apply for the scheme and, thinkingthat he fell within the category of British civilianinternees, in December 2000 he applied to theWPA for an ex gratia payment.

47. The WPA rejected Professor Hayward’sapplication, and many other similar applications,on 25 June 2001. Their letter stated:

‘Those who are entitled to receive the paymentare former members of HM Armed Forces whowere made prisoners of war, former members ofthe Merchant Navy who were captured andimprisoned and civilian internees who wereBritish subjects, and were born in the UnitedKingdom or who had a parent or grandparentborn in the United Kingdom... it would appearfrom the information held that you are noteligible to receive the ex gratia payment.’

48. Professor Hayward considers it outrageousand unacceptable that he should have been


asked to apply to the scheme and then refusedpayment because of an eligibility criterion thathad been introduced months after the schemewas established and which was not disclosed tohim at the time that he was asked to completean eligibility questionnaire. He considers that hemeets the eligibility criteria originally announcedto Parliament as he was interned as a Britishsubject and is now a British citizen who has livedin the UK since 1946 and thus can demonstrate alink to the UK. He seeks a review of the decisionand an apology both to him and to other Britishcivilians who have been refused recognition insimilar circumstances.

My investigation49. As explained above, Austin Mitchell MP firstasked my predecessor to investigate ProfessorHayward’s complaint in a letter dated 12December 2001. However, shortly thereafter mypredecessor was informed that ABCIFER hadmade an application for judicial review of theGovernment’s decision to require that civilianclaimants must have been born (or have had aparent or grandparent born) in the UK to qualifyfor an ex gratia payment. My Office informed MrMitchell that we would consider whether toinvestigate the complaint once the outcome ofthe litigation was known.

50. Mr Mitchell and other Members ofParliament continued to press the case ofProfessor Hayward and other former civilianinternees who were similarly affected. On 3 April2003, the Court of Appeal handed down itsjudgment on ABCIFER’s appeal against the HighCourt’s judgment to dismiss its application forjudicial review. Following consideration of theposition in the light of the court judgments, mythen Deputy informed Mr Mitchell on 25 June2003 that I would carry out an investigation intoProfessor Hayward’s complaint.

51. My Office also sent the statement ofProfessor Hayward’s complaint to the PermanentSecretary of the MOD on 25 June 2003, togetherwith a number of specific questions and arequest for any observations the MOD mighthave on my proposal to investigate thecomplaint. The MOD’s reply came in the form ofa letter from the Treasury Solicitor dated 11August 2003. The Treasury Solicitor’s letter didnot respond directly to the statement ofcomplaint, but enclosed the pleadings andskeleton arguments relied upon by the parties inthe application for judicial review, together withcopies of relevant witness statements.

52. Following consideration of the backgroundto the complaint, my investigator wrote toProfessor Hayward and the Chairman of ABCIFERto offer them interviews. Both accepted theinvitation.

Interview with ABCIFER

53. The interview with the Chairman of ABCIFERtook place on 24 April 2004. The Chairmanexplained that ABCIFER had assisted Governmentofficials in making estimates of the number offormer civilian internees who might qualify underan ex gratia scheme. The Association had hadaccess to records of detainees in Japaneseinternment camps, and these recordsdistinguished between different categories ofthose who were British at the time. For example,they distinguished between ‘British British’ and‘Australian British’. The Association had identifiedapproximately 20,000 ‘British British’ interneesfrom the records before reaching an estimate(based on actuarial advice) of 2,500 to 3,000survivors, not including widows. He stressed thatthis figure was for all civilian internees who hadbeen detained as British subjects, and not forsome more restricted group such as those withan added ‘close connection’ with the UnitedKingdom.


54. The Chairman went on to describe ABCIFER’sdealings with the DWP and the MOD over thedefinition of British both for the purposes of anextra-statutory scheme for war pensions forformer civilian internees and of the ex gratiascheme. He said that, in the course of the judicialreview proceedings, the MOD had sought todraw an analogy between the two schemes. Butin his view this analogy was false; in thediscussions on the ex gratia scheme, the DWPhad assured ABCIFER that this scheme would beinterpreted more generously than the warpensions scheme.

55. The Chairman stated, moreover, that thedefinition of British for the purpose of warpensions had changed significantly in the periodbetween the Ministerial announcement of 7November 2000 and the rejection of ProfessorHayward’s application on 25 June 2001. He arguedthat, if the link between the two schemes hadbeen made at the time of the announcement ofthe ex gratia scheme on 7 November 2000, itwould have been clear then that few formercivilian internees would have qualified forpayment. That was because the qualification fora civilian war pension at the time of theannouncement was that the claimant shouldhave been born in the UK. The extension of warpensions to British civilians who had a parent orgrandparent born in the UK had only been agreedin May 2001 and applied from 25 June 2001.

56. The Chairman stressed that many of thoseformer British civilian internees who had beenrefused an ex gratia payment by the MOD weredistressed and outraged. It was not so much amatter of money – although the money wasimportant to some of the claimants, all of whomwere elderly. It was more the insult arising fromthe suggestion that they were not sufficientlyBritish to receive payment, despite the fact thatthey had been interned as British and many hadsince maintained close links with this country, in

some cases giving many years of public service.The Prime Minister had recognised the wrongdone to British civilian internees and hadannounced in 2000 that the wrong would berighted. The Chairman said that it was his viewthat it was indefensible that administrativearrangements should then arbitrarily reduce thenumber who should be compensated.

57. The Chairman went on to allege that therehad been a great deal of inconsistency in theapplication of the ex gratia scheme to formercivilian internees and gave some examples. Hesaid that the WPA had made a large number ofex gratia payments in February 2001, and therecipients must have included a significantnumber of former British civilian internees whodid not have a parent or grandparent born in theUK. That was because the requirement that acivilian claimant should have a parent orgrandparent who was born in the UK had notbeen introduced until some months later.ABCIFER did not know how many claimants fellinto this category, and those who did wereunderstandably reticent for fear that thegovernment might demand that thecompensation be repaid. But ABCIFER estimatedthat approximately one-sixth of the formercivilian internees who had received ex gratiapayments by March 2001 did not meet thecriteria that were introduced in June 2001.

58. Another anomaly that the Chairmanunderstood had arisen was that payment hadbeen made to civilian claimants who had not,strictly speaking, been interned. He believed thatthis may have included some diplomats who hadbeen held under house arrest and some civilianswho had been under the care of the Red Cross.He said that ABCIFER was aware that paymentshad been made to some claimants who had aparent or grandparent born in this country, butwho had not been a British subject at the time oftheir internment. ABCIFER subsequently provided


my Office with copies of a number of relevantdocuments.

59. The information and documents supplied byABCIFER – and the Chairman’s views as to theway in which the scheme was operated – are notevidence on which I could rely in coming to adetermination of whether the scheme wasoperated without maladministration. However,they helped me to set the complaint byProfessor Hayward in a wider context.

Interview with Professor Hayward60. My investigator interviewed ProfessorHayward at Hull University on 29 April 2004. Hewas able to provide a great deal of backgroundinformation, which has been incorporated in thisreport. He stressed that money was not hisprime consideration in making a complaint: it wasthe insulting implication that he was notconsidered sufficiently British to receivepayment.

61. In Professor Hayward’s own words:

‘To be told retrospectively that I was a lesserBritish subject because, by implication,meanwhile Great Britain had become LesserBritain was mean and disingenuous of the MODand demeaning to me. An official apology for theinsult involved and the injustice inflicted is calledfor.’

Request for information from MOD62. I wrote to the Permanent Secretary of theMOD on 7 May 2004 to ask him for furtherinformation. I asked him to supply the originalpapers, including the papers of the meetings ofwhat was described in the evidence submitted tothe courts on behalf of the MOD in the judicialreview application as the ‘Inter-DepartmentalWorking Group’. I asked for copies of briefings toMinisters and of any advice given to the WPAabout the definition of ‘British’ for the purposesof the ex gratia scheme. I also posed a number of

specific questions and asked for some statisticalinformation.

63. The Permanent Secretary replied on 14 July2004. I acknowledge that the MOD tookconsiderable care with the preparation andpresentation of the documentary evidence, forwhich I am grateful. The reply dealt both withthe questions I posed in my letter and those inthe letter from my Office on 25 June 2003.

What my investigation hasshownThe events giving rise to Professor Hayward’scomplaint 64. When the Japanese invaded south-east Asiain the Second World War, they capturedapproximately 50,000 prisoners of war and anumber of civilians. These internees were held inappalling conditions. The number of civilianinternees is variously estimated at between16,500 and 20,000. Many of these civilians wereBritish subjects under the terms of the BritishNationality and Status of Aliens Acts 1914 to1943, the relevant legislation at the time. Section1(1) of the Acts provided that any person bornwithin His Majesty’s Dominions and allegiancewas deemed to be a natural-born British subject.The definition of what constituted ‘British’ wastherefore much wider then than it is today.

65. The circumstances of the interned Britishcivilians also differed widely. Some had beenborn in the UK and had gone out to the Far Easton colonial service or business with a view toretiring back in this country. Others belonged toold colonial families who had given generationsof service to the British Empire overseas. Often,successive generations were born in Britishcolonies, were educated in the UK, and laterretired here. There were also those who werethen British subjects by virtue of the fact thatthey had been born in a British colony, who had


had no close link with the UK itself or who hadnever visited this country, but who had sincebecome nationals of other countries. Butwhatever the nature of their connection with theUK, they were subjected to the samedeprivations, as well as to the same risk ofbrutality. It is estimated that about 1,000 died incaptivity.

66. There was a change in the definition ofBritish with the passing of the British NationalityAct 1948, and many former British internees atthat time or thereafter became citizens ofindependent countries such as Australia, Canadaand Pakistan. However, a bloodlink was not anessential criterion for determining Britishnationality. The law changed with the BritishNationality Act 1981.

67. Modest payments of compensation for someof those who had been imprisoned or detainedby the Japanese were made in the 1950s,following the ratification of the 1951 SanFrancisco peace treaty. £76.50 was paid to formerprisoners of war (under article 16 of the treaty)and £48.50 was paid to civilians (following adecision by the British Government to usemoney received under the treaty in this way).The money came from the sale of Japaneseassets.

68. However, a civilian did not qualify for thepayment unless he or she had been a Britishnational normally resident in the UK beforeinternment who had since returned to take upresidence in the UK and was over the age of 21on 8 December 1941. Approximately 8,500civilian internees received payments under thisscheme. Professor Hayward was not aware ofthese payments and would not have qualified forone because he was not normally resident in theUK before he was interned and as he also did notmeet the minimum age requirement at therelevant time.

The campaign for compensation69. The British government continued to pursuethe matter of additional compensation, but theposition of the Japanese government remainedthat the issue of compensation had been settledunder the 1951 treaty. Former British captives andtheir representative bodies also continued topursue the matter with the government. Theformer prisoners of war were often representedby the Royal British Legion, and the formercivilian internees by ABCIFER. I understand thatProfessor Hayward is not a member of ABCIFERbut he has a sister who was a member. She, too,has lived in England for many years.

70. The issue of compensation – or of someform of recognition – for the suffering enduredboth by prisoners of war and by civilian interneesof the Japanese became the subject ofParliamentary debate and public discussion,especially in the period after 1995 when thetopic was the subject both of many adjournmentdebates in the House and also of questions toMinisters in both this Government and itspredecessor. Key debates in the House ofCommons were held on 10 May 1995, 4December 1996, 29 April 1998, 9 March 2000 and6 June 2000. In the first three debates, thecampaign by ABCIFER for recognition of theposition of civilian internees was specificallymentioned; in all the debates the wider questionof compensation was discussed.

71. Following continued pressure from the RoyalBritish Legion, the Prime Minister and Dr Mooniemet its General Secretary on 10 April 2000. Atthe meeting, the Prime Minister undertook tolook again at the question of compensation forprisoners of war. In the absence of any decision,on 28 September 2000 the Royal British Legionwrote to the Secretary of State for Defence tocomplain of delay in concluding the review andto threaten a mass lobby of MPs. Ministerialanswers to parliamentary questions – for


example in response to John Cryer MP on 6 July2000 – continued to report that the concerns ofMembers would be drawn to the relevantMinister’s attention as he was considering thematter.

72. On 25 October 2000, in response to aquestion in the House of Commons from DavidWinnick MP, the Prime Minister indicated thatthe review would be brought to a conclusion by8 November 2000 in the pre-Budget process. Thesame day, the Prime Minister’s Office asked theCabinet Office to convene an early meeting ofinterested departments with a view to providingadvice to Ministers.

The development of the ex gratia scheme73. The first meeting of a group of officials frominterested departments took place two dayslater, on Friday 27 October 2000. The group’sterms of reference were to provide advice toMinisters by 1 November 2000 on the optionsfor an ex gratia scheme. A Cabinet Office officialchaired the meeting, which was attended byofficials from the MOD, the DWP, the Foreignand Commonwealth Office, the Treasury and theInland Revenue. Following the meeting, theCabinet Office asked departments forcontributions to a draft paper by 2pm onMonday 30 October 2000, with a view todiscussion at a meeting of officials at 9am thefollowing day.

74. The draft paper drawn up by officials offeredMinisters four options, including resisting exgratia payments, delaying a decision, and twovariants of an ex gratia scheme. The first variantinvolved payments of £10,000 to formerprisoners of war, former British civilian internees,former members of the Merchant Navy whowere captured and imprisoned, and the survivingspouses of all three categories. The amount waschosen as being the same as that recently paidby the governments of Canada and the Isle of

Man. The second ex gratia option involved inaddition the extension of the scheme to formerprisoners of war in the European theatre.

75. An early draft of the paper stated thatABCIFER estimated that approximately 2,500former civilian internees were still alive, to whichthe DWP added an estimate of 1,200 widows; thisinformation was included in the final version ofthe paper.

76. In the course of exchanges betweendepartments while the paper for Ministers wasbeing put together, the DWP urged that anyannouncement about an ex gratia scheme shouldbe couched in general terms because:

‘There has not been sufficient time to work updetailed entitlement criteria that can withstandchallenge and criticism from MPs, the press and[former prisoners of war]’.

77. In addition, in a manuscript note to theSecretary of State for Defence on 30 October2000, one of his Private Secretaries commented,

‘There is, on eligibility, a rather alarming degreeof imprecision which, if we do not get it rightwill doubtless result in a raft of complaints andadverse stories in the media from those who donot qualify.’

78. A further parliamentary debate was held on31 October 2000. In response to the debate, DrMoonie said

‘The issue of further compensation for thoseheld as prisoners of war in the far east during thesecond world war involves several Departments.Those Departments have been considering thequestion of an ex gratia payment...

‘I assure honourable Members that the case putforward for an ex gratia payment has beensubjected to the most careful and sympatheticconsideration during the past few months...


‘Work is currently in hand that will lead to anannouncement being made soon...’

79. An agreed paper was submitted to Ministerson 2 November 2000. It described the option ofresisting ex gratia payments as ‘politicallydifficult, given that expectations have beenraised’. It described the option of deferring adecision as ‘politically difficult, if not impossible,for the same reason’. It went on to set outreasons why those who had been imprisoned andinterned by the Japanese could be treated as aspecial case. It made no firm recommendation.

80. The paper considered the risks of asuccessful legal challenge from those excludedby whichever eligibility criteria were chosen andstressed the importance of defining such criteriacarefully. It also raised the question of twogroups of ex-servicemen – members of colonialforces and ‘certain members of the Indian Armyand Burmese armed forces’ who might bepotentially excluded from the scheme but whohad been eligible under the 1951 scheme.

81. The paper suggested that if a scheme wereadopted which included payments to civilians, itshould extend ‘to surviving civilians who are UKnationals (my emphasis) and were interned bythe Japanese in the Far East during the SecondWorld War’. It noted that although it would bedesirable to make any payments as quickly aspossible, no payments could be made before theend of January 2001 if it were decided to makeRegulations disregarding them for the purpose ofbenefits payments, as such Regulations wouldrequire Parliamentary approval.

82. The Private Secretary to the Secretary ofState for Defence wrote to the Prime Minister’soffice on 3 November 2000 to record ministerialsupport for the option, described as ‘acomprehensive ex gratia scheme’, that includedformer prisoners of war, merchant seamen,civilian internees and surviving spouses. In

relation to the position of certain members ofcolonial forces, the Indian Army and the Burmesearmed forces, it was said that the Secretary ofState believed ‘on balance, that if these groupswere sufficiently associated with the UK in the1950s to be included alongside UK servicepersonnel, then the same should apply today’.This was subject to DSS agreement that suchinclusion would not compromise thearrangements for war pensions. The letter alsorecorded that the MOD and DSS had agreed to adivision of responsibilities in relation to theadministration of the scheme.

83. On 6 November 2000, the Prime Ministeragreed to the establishment of a non-statutoryex gratia payment scheme, to be administered bythe WPA. It was also decided to makeRegulations to ensure that no recipients losteligibility for social security benefits merelybecause they received a payment under thescheme.

The announcement of the scheme84. Dr Moonie announced the introduction ofthe scheme the following day in a statement inthe House of Commons. He began by saying,

‘The review took some time to conduct becauseof the issues involved, but it has now beencompleted.’

85. He went on to say that a single ex gratiapayment of £10,000 would be made

‘to each of the surviving members of the Britishgroups who were held prisoner by the Japaneseduring the Second World War, in recognition ofthe unique circumstances of their captivity’.

86. As regards eligibility, the Minister said:

‘Those who will be entitled to receive thepayments are former members of Her Majesty’sarmed forces who were made prisoners of war,former members of the Merchant Navy who


were captured and imprisoned, and Britishcivilians (my emphasis) who were interned.Certain other former military personnel in thecolonial forces, the Indian Army and the Burmesearmed forces who received compensation in the1950s under United Kingdom auspices will alsobe eligible. As I said earlier, in cases in which theperson who would have been entitled to thepayment has died, the surviving spouse will beentitled to receive it instead’.

87. The ministerial statement concluded withthe following words:

‘The government recognise that many UKcitizens (my emphasis), both those serving in thearmed forces and civilians, have had to enduregreat hardship at different times and in differentcircumstances, but the experience of those whowent into captivity in the Far East during theSecond World War was unique. We have saidbefore that we believe the country owes a debtof honour to them. I hope that I am speaking foreveryone here when I say that today somethingconcrete has been done to recognise that debt.’

Events subsequent to the announcement of the exgratia scheme88. After the announcement of the ex gratiascheme in Parliament on 7 November 2000, theWPA published a leaflet entitled ‘Ex gratiapayment for British groups who were heldprisoner by the Japanese during World War Two:Notes for Guidance’. The leaflet identified fivecategories of persons who were entitled to makea claim for payment, one of which was ‘survivingBritish civilians who were interned by theJapanese in the Far East during the Second WorldWar’. Claims had to be made on a special formwhich contained the following words: ‘You maybe eligible for the ex gratia award if you are asurviving British civilian who was interned by theJapanese in the Far East during the Second WorldWar’. There was no reference in the form to any

requirement for the applicant (or a parent orgrandparent) to have been born in the UnitedKingdom.

89. In commenting on an earlier draft of theWPA leaflet, an official had, in an unsignedmanuscript note on a fax dated 6 November2000, suggested the removal of the phrase ‘UKcitizens’ from the publicity because it was:

‘clear that we’re dealing with payments to“surviving members of British groups” so thatshould suffice. We can interpret “British” as wewant!’

90. On 10 November 2000, an official in theMOD wrote to a number of officials in the MOD,DSS and the Foreign and Commonwealth Officeto clarify a ‘misunderstanding’ about theMinisterial announcement. This related to theposition of certain members of the colonial andBurmese forces and those of the Indian Armywho it had been announced would be eligible forthe scheme. The official said that ‘only thosewho received compensation in the 1950s underUK auspices are eligible [for the current scheme].This last group... de facto covers only“Europeans”’.

91. On 15 November 2000, the WPA met bodiesrepresenting those imprisoned or interned,including ABCIFER. A number of issuesconcerning eligibility were raised, includingnationality, where the issue was described as‘what constituted “British” and what is the impactof any change in nationality since imprisonment’.After the meeting, the DWP confirmed toABCIFER that a change of citizenship subsequentto internment would not have an impact oneligibility for an ex gratia payment.

92. The group of officials met again on 22November 2000, when it decided that UKnationals should be defined as ‘those civilianinternees who were British at the time of their


incarceration; those who became British citizensonly subsequently would not be eligible forpayment’. There was no other discussion of thedefinition of ‘British’ for the purpose of thescheme and it was agreed that there would be nofurther meeting of the group unless the needarose.

93. In a minute to the Cabinet Office dated 15December 2000, a DSS official wrote to ‘place onrecord our intentions regarding theinterpretation of “British” in relation to civilianinternees’. He recognised that ‘nowhere do wedefine what we mean by “British”’ and noted thedefinition of UK national that had been agreed atthe meeting of officials on 22 November 2000.Before asking for views on the contents of thenote, he said:

‘In many cases, claimants will have been born inthe UK, worked in Malaysia for example for a fewyears, imprisoned by the Japanese, returned tothe UK on release and lived here ever since. Their“Britishness” is not in doubt. However, claims arebeing received from people who were children oryoung adults when captured by the Japanese.Some of these people, although “British subjects”,would not have been born in the UK but wouldreasonably consider themselves to have verystrong links with this country in view of thebirthplace of, for example, their parents... Weintend making ex gratia awards in thesecircumstances.’

94. Another issue raised in the note waswhether payments should be made to qualifyingBritish civilians who were resident overseas, and,on 29 December 2000, the Cabinet Office agreedthat such payments should be made providedthe Treasury gave its authorisation.

95. On 12 January 2001, the WPA reported that itwas encountering some problems dealing withclaims from former civilian internees who hadnot received payments of compensation in the

1950s, but the WPA said it was working withABCIFER to resolve these problems. On 25January 2001, it reported that the number ofclaims of all kinds was likely to exceed theoriginal estimate, although it was not in aposition to estimate by how much.

96. On 1 February 2001, Parliament approvednew Social Security Regulations which enabledthe payments to be disregarded for the purposesof means-tested eligibility for social securitybenefits. The WPA immediately paid some 14,000claims. In the case of former prisoners of war, itmade payments based on its records of militaryprisoners of war. In the case of applications fromcivilians, it made payment on receipt of proofthat the applicant had received compensation inthe 1950s. In the press notice announcing thepayments, the WPA again referred to ‘Britishcivilians who were interned’ as being eligible forpayment, without further qualification.

Further discussions about eligibility

97. A further meeting of the group of officialswas arranged for 13 February 2001, presumablybecause of the need to resolve the issuesidentified by the WPA. The day before themeeting, the WPA circulated a paper dealing witha number of these issues, including the definitionof British for the purpose of the ex gratiascheme. It noted that there were difficulties inobtaining records about civilian interneeapplicants who had not received compensationin the 1950s, and concluded: ‘we therefore needto establish appropriate guidelines on thequestion of nationality.’

98. I understand that there are no minutes ofthe meeting on 13 February 2001, but followingthe meeting the WPA wrote to the CabinetOffice to note that it had agreed to write tosuggest an approach to nationality. Thatsuggested was that:


‘for the purposes of this scheme the definition of‘Britishness’ is defined as either being born in theBritish Isles or being born of one or more parentswho were themselves born in the British Isles...We would not propose to add any furtherqualifying criteria such as return to the BritishIsles.’

99. However, later the same day the WPAsubmitted a further paper prepared by the DWPsuggesting that the criteria be extended toinclude civilian claimants who had a grandparentwho was born in the British Isles. It was arguedthat this would bring the ex gratia scheme intoline with what was being proposed for the non-statutory war pensions scheme for formercivilian internees.

100. On 21 February 2001, the Cabinet Officesent out a note asking Cabinet Office, MOD andDWP lawyers to ‘get their heads together’ andwork through the options for defining thenationality criteria for civilian internees. DWPofficials consulted their own lawyers, and onesaid in reply: ‘I am puzzled as to why we areuncertain now as to the meaning of ‘British’ forthe purposes of the policy announced inNovember last year’. She went on to stress that‘in terms of risk of challenge to the scheme, thekey is to ensure that “British” is based on thelegislation at the time’. DWP lawyerssubsequently consulted a legal adviser in theCabinet Office and Central Advisory Division ofthe Treasury Solicitor’s office (CAD).

101. On 8 March 2001, the Chairman of ABCIFERwrote to the WPA to say that some of hismembers were asking why they had not receivedpayments while others had already been paid. Henoted that staff of the WPA had indicated thatverification of nationality was a problem. Heexplained that some former civilian interneeswho had not been born in the UK were feelingthat some form of discrimination existed: he

stressed that this was a sensitive area thatrequired early action before it caused moredistress. He went on:

‘I believe you may be trying to get clarification ofnationality questions from the policy makers sothat you can progress blocks of claims ratherthan ask individuals for proof which they mayfind difficulty in obtaining. This sounds sensible,but it does not deal with the growing concernsof people some of whom are elderly and whohave heard nothing further from you since theinitial acknowledgement of their claim.’

102. The Chairman of ABCIFER went on tosuggest that the WPA might write to thoseaffected to inform them of the position and toask them to provide evidence of nationalitywhere it existed.

103. The Cabinet Office and CAD legal adviserreplied to DWP lawyers on the question ofnationality on 13 March 2001, proposing criteriabased on the British Nationality Act 1981. Basedon this advice, the DWP wrote to the CabinetOffice on 15 March 2001 to propose again thatpayment should be made to former civilianinternees who could show that they had a parentor grandparent who was born in the UK (the‘bloodlink criterion’). The writer drew an analogywith the non-statutory war pensions scheme forcivilians and said; ‘this is a proposal which I amreasonably confident would be acceptable toABCIFER’.

104. On 21 March 2001, the Cabinet Office saidit had no difficulty with the DWP proposal,subject to DWP legal advisers being content. Ihave seen no evidence of any furthercorrespondence on the matter.

The eligibility questionnaire and ABCIFER concerns105. As a consequence of this decision, the WPAwrote to former civilian internees whose claimswere still being considered, sending them a


questionnaire asking for additional informationto ‘assist us to confirm eligibility within theentitlement criteria set’. The WPA asked fordetails of the claimant’s parents andgrandparents, including place of birth. One of therecipients of this letter was Professor Hayward,who returned the questionnaire to the WPA on28 March 2001.

106. This questionnaire produced a further letterto the WPA from the Chairman of ABCIFER, whonoted that the letter to claimants appeared tobe seeking to identify ‘a bloodlink of claimants tothe UK not apparent from the original claimssubmitted’. He said that this had caused concernand distress to a number of ABCIFER memberswho were unable to provide the informationrequested, but who were regarded as British bythe Japanese and interned as such. He went on:

‘At the time of the 7 November [2000]announcement of the ex gratia [scheme], it wasnot possible to foresee every aspect which mightarise in dealing with claims. But the underlyingtheme was to recognise the unique experienceand suffering of British nationals at the hands ofthe Japanese, and we look to the continuation ofa generous interpretation of this intent.’

107. The Chairman of ABCIFER wrote to the WPAagain on 9 April 2001 to say that a number of theAssociation’s members would not meet thecriteria of having a parent or grandparent born inthe UK. He urged that the criteria for eligibilityshould not lead to ‘discrimination betweenBritish nationals’. Nine days later he submitted apaper dealing with the eligibility of formercivilian internees. In referring to those who didnot satisfy the birth criteria, the paperdistinguished between two categories, those whohad settled in the UK immediately or shortlyafter the war, and those who had not done so.

108. In relation to the claimants who had settledin the UK after the war, the ABCIFER paper

argued that payment of their claims would notcreate a precedent for others who claimed tohave been British subjects but who wereoverseas. It argued that the rejection of theirclaim by the UK would mean that they had noother country to turn to for recognition of theirsuffering and loss. ABCIFER acknowledged thatthe claims of those who had not settled in theUK after the war might have to be assessed on adifferent basis, including how strongly andconsistently they had demonstrated their claimto be British. The paper concluded as follows:

‘It appears that the intention of the Britishgovernment in granting recognition of suffering bymeans of the ex gratia [scheme] was to begenerous. The interpretation of British nationalitywill be the test of the extent of the generosity ofthe government’s ex gratia [scheme]. It is asensitive area for those affected and will beregarded as discriminatory by those excluded. Thispoint is now being made and is causing distress.Decisions which impose a cut-off point are bytheir nature discriminatory. It should be said thatthe Japanese did not discriminate when interningthem, together with those for whom a bloodlinelink to the UK now assumes importance, and thattheir action would have been based on what wasaccepted as “British at the time”’.

109. The WPA also began to have concerns aboutthe practical effect of the proposed criteria, and,on 10 April 2001, its then Acting Chief Executivewrote to the Cabinet Office to voice hisconcerns. His letter included the following:

‘When [DWP sent their note of 15 March 2001]the expectation was that the proposed definitionof eligibility would allow the bulk of outstandingcases to be paid. It now appears that if we applythe eligibility criteria we will be left with some800 which do not qualify.

Not only will this result in a much larger numberof rejections than expected but the individual


circumstances of many of these cases will behard to defend. Many of the individuals, now“fully naturalised British citizens” have lived inthe UK for over 50 years and would be deemedby the general public to be wholly “British”. Mostimportantly for presentational purposes, theywere interned solely because the Japanesedeemed them to be British.’

‘Despite previous concerns at expansion of theeligibility we are now firmly of the belief thatthe evidence of individual cases suggests that thepresent stance will be impossible to defend ongrounds of fairness and logic. It does not seemthat the rejection of these cases will be inkeeping with the original intent and spirit of thescheme. I have a real concern that rejectingclaims on the current “nationality” criteria couldvery quickly put the whole scheme intoprominence as a “bad news” story.’

110. The WPA went on to call for an urgentmeeting of the group of officials. It also continuedto liaise with ABCIFER in relation to claims fromformer civilian internees. According to a note of ameeting with ABCIFER on 24 April 2001, the WPAagreed to make a submission to the Governmentabout ‘other categories of Nationality for instancereturning to live in the UK or working in an officialcapacity for the UK Government.’

111. Following this meeting, the WPA submitted apaper to the Cabinet Office on 4 May 2001about ‘the need for extension of criteria’. Thepapers divided applications from former civilianinternees into five categories, one of which was:

‘Neither applicant nor parent/grandparent bornin the UK but applicant is now a “British citizen”(which we assume is defined as holding/entitledto a British passport) and is “permanently”resident in the UK.’

112. In relation to this category, the WPA said:

‘There are people within this category whounderwent considerable suffering and who “theman in the street” would consider to be whollyBritish. It may therefore be deemed appropriateto introduce further criteria of eligibility thatwould allow payment to this group.’

113. In an internal note dated 9 May 2001, aMOD official expressed reservations about thisproposal on the ground that it could extendeligibility to the members of the former IndianArmy. The writer recognised that such claimantswould be ruled out on other grounds (i.e.because they were not members of the Britisharmed forces when imprisoned by the Japanese)but commented that ‘the man in the street’might consider at least the Gurkhas ‘British’.

The working group meets again114. There was a further meeting of the group ofofficials on 21 May 2001. Once again, there areno minutes, but following the meeting theCabinet Office wrote to those who had attendedto record the main points to emerge. In respectof the definition of British civilians, the lettersaid:

‘This had been defined subsequently as thoseBritish subjects who had been born in the UK, orwhose parents or grandparents had been bornhere. There had never been any intention on thepart of Ministers to open up the scheme toanyone without a direct link to the UK. It wasagreed therefore that it would not beappropriate to extend the scheme to thoseinternees who subsequently settled in the UK orwho were British citizens abroad.’

115. On 8 June 2001, responsibility for the WPApassed to the MOD and it was renamed theVeterans Agency.

116. On 12 June 2001, MOD officials put asubmission to Dr Moonie inviting him to ‘note’the definition of British being used for the


purposes of the ex gratia scheme. The submissioncontained the following statement:

‘Many have applied who could have been definedas British subjects during the war or have sincesettled here and become British citizens but itwas never the intention of the scheme to includethose who have no close connection by birthwith the United Kingdom.’

117. I am told that, following receipt of this note,the Minister asked for further information andMOD commissioned further briefing from theVeterans Agency in order to provide thisinformation. The following day, the VeteransAgency sent the MOD a note describing thecircumstances of some ten civilian claimantswhose claims stood to be refused. The noteended:

‘You will see from the above that the contrast isas wide as a current British citizen not being paidagainst a lifetime foreign national receivingpayment. Any line drawn in the sand willdisentitle some applicants; however it is rightthat we should be aware of the potentiallyembarrassing contradictions arising out of thecurrent definition. These could be exploited bythe press and the fact that, in the eyes of thepublic, we are denying those who they perceiveto be British, in favour of those they mayconsider are not.’

118. A second submission, based in part on thefurther information provided by the VeteransAgency, was made to the Minister on 14 June2001. It provided an excellent summary of thebackground, and enclosed details of the tencases identified by the Veterans Agency beforerecommending that the criteria should remainunchanged. The Minister’s decision is recorded ina note dated 19 June 2001. It noted that theMinister recognised that the decision wascontentious, and would probably attractcriticism, but;

‘It is accepted that the term “British” neededfurther clarification, and that this measure hasbeen adopted to avert the potential abuse of theex gratia payment scheme.’

The rejection of claims

119. The Veterans Agency wrote to a number offormer British civilian internees on 25 June 2001to reject their claims for compensation on theground that they were not (or did not have aparent or grandparent who had been) born in theUK. As I noted above, one of these claimants wasProfessor Hayward.

120. Dr Moonie replied on 11 July 2001 to aquestion from Sir Nicholas Winterton MP, whohad asked what changes had been made to thedefinition of ‘British’ when applied to civilians forthe purposes of the ex gratia payments. Thereply was as follows;

‘The ex gratia payment announced on 7November 2000 is being made to the variousBritish groups who had been held prisoner by theJapanese during the Second World War. Theeligibility criterion for civilian claimants hasrecently been clarified, but there has been nochange in the intended scope of the scheme.British subjects whom the Japanese interned andwho were born in the United Kingdom, or had aparent or grandparent born here, are eligible forthe payment’.

121. The Minister’s Assistant Private Secretarywrote to the Chairman of ABCIFER about thisannouncement on 20 July 2001. The letterincluded the following:

‘On the matter of the definition of “British”, Ishould point out that we have not changed thedefinition: no definition was given by theMinister in Parliament on 7 November, nor, Ibelieve, was one set out by officials at yourmeeting with the WPA later the same month.


The definition set out recently has been issuedto provide necessary clarification of the meaningof the term “British” in the context of civilianclaimants under the scheme. The government’sintention has always been that the eligibility forthis group should be dependent on a direct linkto the United Kingdom at the time of captivityby birth or by parentage.’

ABCIFER’S application for judicial review

122. Following this announcement, ABCIFERmade an application for judicial review of thelegality of the decision to introduce thebloodlink criterion.

123. Mr Justice Scott Baker rejected theapplication on 18 October 2002. His judgmentincluded the following words:

‘It is a great pity that the government’s intentionas to those who should qualify for the paymentwas not expressed at the time with greaterclarity. The hopes of a significant number whowere interned by the Japanese have been raisedonly to be dashed, and considerable distress hasbeen caused as a result. I can well understandthe feeling of those who were “British enough tobe interned but not British enough to receive thepayment”. This is of particular poignancy whenseen in the context that the payment was notexpressed as compensation but as recognition ofa debt of honour owned by this country to theBritish people who were detained by theJapanese during the Second World War. Thequestion is not, however, whether the decision todefine British as requiring birth in this country ora blood link with it is unjust but whether it isunlawful’ (my emphasis).

124. The case went to the Court of Appeal and ahearing took place on 17 and 18 March 2003. TheCourt handed down its judgment on 3 April 2003.It concluded as follows:

‘Naturally, we feel very great sympathy for allthose who suffered appalling ill-treatment at thehands of the Japanese during their captivity. Wealso well understand that many civilians hadtheir hopes of receiving compensation raised byDr Moonie’s announcement of 7 November 2000,and that they have been extremely disappointed,and indeed angered, by what they see as asubsequent and unfair change of heart on thepart of the Government. But anyone who seeksto challenge as unlawful the content of a non-statutory ex gratia compensation scheme facesan uphill struggle. We do not think that theintroduction of this scheme was well handled bythe Government. But for the reasons that wehave given, the applicant has failed to satisfy usthat the scheme was unlawful. The appeal musttherefore be dismissed’.

125. The Court thus rejected contentions madeon behalf of ABCIFER that the introduction ofthe bloodlink criterion was unlawful. However, ingiving its reasons, the Court made a number ofcriticisms. It concluded that the Minister’sannouncement of 7 November 2000 had been‘less clear than it should have been’. It alsoconcluded that there had ‘been nothing [in theannouncement] to suggest that the Governmentwas intending to introduce a qualification whichwould exclude a significant number of personswho would otherwise be eligible to receivepayment’.

126. However, having made these criticisms, theCourt went on to conclude:

‘anyone reading the announcement and thespecimen claim form carefully should haverealised that the scheme did not, or might not,entitle all those who were British subjects at thetime of their internment to compensationwithout qualification’.

127. The Court also stated that:


‘Despite the fact that, unwisely, Dr Moonie said[in his announcement of 7 November 2000] thatthe review had been completed, it was apparentthat the details had still to be worked out’.

Further criticism of the scheme128. Subsequent to the judgment of the Court ofAppeal, Members of Parliament and ABCIFERcontinued to press the MOD to change itsposition in relation to the bloodlink criterion inthe light of the injustice they felt was beinginflicted on those civilian internees who werethereby excluded from receiving the ex gratiapayments. The MOD told both MPs and ABCIFERthat there was no question of acceding to thisrequest as the courts had determined that theMOD had acted legally. At the time of writing,that continued to be the Government’s publicposition.

The courts and my role129. I accept that the MOD did not actunlawfully insofar as the matters considered inthe ABCIFER proceedings are concerned. I notethat other proceedings found the scheme to beunlawful in relation to its treatment of certainmilitary internees, although those proceedingsare not relevant to the subject matter of thisreport. I am also aware of other legalproceedings related to the treatment of civilianapplicants – primarily related to whether thescheme is unlawful on the grounds of racialdiscrimination – on which the High Court hasjust passed judgment.

130. As I understand it, that judgment finds thatthe bloodlink criterion constitutes unlawfulindirect racial discrimination for which nojustification exists; and that the MOD is in breachof its general race equality duty. Othercontentions as to the legality of the schemewere dismissed by the court. I do not knowwhether this judgment will be the subject ofappeal.

131. Questions of legality are for the courts todecide and I do not seek to question orcomment on their findings. It is questions ofmaladministration which are for me to decide.

132. In relation to my role and that of the formallegal process, the courts have elsewhere heldthat, although there is a substantial element ofoverlap between maladministration and unlawfulconduct, these concepts are not synonymous.There is no reason in principle why theconsiderations which determine whether therehas been maladministration should, necessarily,be the same as those which determine whetherconduct had been unlawful.

133. There is therefore no reason why, whenexercising my power to investigate and report oncomplaints of maladministration, that I shouldnecessarily be constrained by the legal principleswhich would be applicable if I were carrying outthe different task (for which I have no mandate)of determining whether conduct has been lawful.

134. My findings which follow are thus confinedto determining whether the MOD acted withmaladministration (falling short of unlawfulness).

Findings135. I now turn to an assessment of the facts setout above which have been disclosed by myinvestigation. Before doing so, I will set out myunderstanding of the effect of the adoption ofthe eligibility criterion.

The effect of the bloodlink criterion136. In the paper of 2 November 2000, thegroup of officials estimated that there would bea total of about 16,700 claims under the ex gratiascheme, including about 3,700 claims fromformer civilian internees or their survivingspouses. In response to my enquiries, the MODinformed me that, as at 28 June 2004, a total of29,094 claims had been received, of which 23,852


have been paid. By 10 February 2005, the numberof claims received had risen to 29,288 and 23,963payments had been made. These figures areconsiderably in excess of the original estimate.

137. The MOD also informed me that 3,650claims had been received from former civilianinternees (excluding spouses) by 28 June 2004. By10 February 2005, this had increased to 3,664.Again, these figures are significantly in excess ofthe original estimate which, in that case, wasprovided by ABCIFER. The MOD was unable toprovide a figure for the number of claims fromsurviving spouses of former civilian internees.They explained that the figure could only beobtained by examining all of the claims fromspouses of all categories of claimant, which hadtotalled over 15,000.

138. I asked the MOD for the total number ofclaims from former civilian internees that wererejected solely on the ground that the claimantwas not born (or did not have a parent orgrandparent born) in the UK. The MOD wasunable to provide an exact figure, but they toldme that some relevant figures had beenextracted and given in an answer to aParliamentary Question on 8 April 2003. Thatanswer had stated that approximately 800 claimsfrom former civilian internees, including survivingspouses, with addresses abroad had beenrejected on the ‘bloodlink’ criterion.Approximately 300 claims from former civilianinternees, including spouses, with UnitedKingdom addresses, were rejected on the‘bloodlink’ criterion. The MOD also pointed outthat some of these claims might have failed onother grounds.

139. I also asked the MOD how many claimsfrom former civilian internees had been paid byvirtue of the fact that the claimant had receivedcompensation in the 1950s, and how many ofthat total were not (or did not have a parent or

grandparent) born in the UK. The MOD wasunable to provide figures, but told me that, fromthe memory of those involved, the number inthe latter category was ‘minimal’.

140. I am aware that ABCIFER and others believethat the scheme was operated in such a way asto lead to the inconsistent treatment of thosewhose applications were determined prior toand following the introduction of the bloodlinkcriterion. As I have said above, the allegationsmade by ABCIFER are not evidence on which Ihave relied and they are not material to myfindings which follow.

141. The MOD says that, without sight ofindividual cases provided by ABCIFER or otherswhere it is alleged that inconsistencies inpayments under the scheme occurred, it isunable to comment on or respond to suchallegations. That may be the case, but thequestion for me, in the light of the inability ofthe MOD to provide the information I requestedabove, is that there is little evidence throughwhich to ascertain exactly how the scheme wasoperated prior to the introduction of thebloodlink criterion to assist me to determinewhether it was operated withoutmaladministration. I note also that the MOD hasalso been unable to provide information aboutthe categories of applicant to whom paymentswere made during the early operation of thescheme.

The questions I have asked142. In assessing the evidence uncovered by myinvestigation in the context of my statutoryremit, I have considered two questions: first, didthe actions of the MOD in relation to thedevelopment, announcement and operation ofthe scheme constitute maladministration?Secondly, if so, did that maladministration causean unremedied injustice to Professor Haywardand to others like him?


Maladministration143. In relation to the first question, I haveconsidered three aspects of the events describedabove. First, whether the way in which the schemewas devised was in accordance with goodadministrative practice. Secondly, whether themanner in which the scheme was announced wassatisfactory. Finally, whether the operation of thescheme, including the introduction of thebloodlink criterion, constituted maladministration.

144. In relation to the final question, I haveconsidered the fairness of the bloodlink criterionand four elements of the operation of thescheme: the first payments made under thescheme; the equal treatment of applicants;whether applicants were properly informed ofthe clarified scheme eligibility criteria; andresponses to criticism of the scheme.

The origination of the scheme145. Did the manner in which the ex gratiascheme was developed constitutemaladministration? I consider that it did.

146. As explained above, the issue of whether tomake an ex gratia payment to the differentgroups of British people interned by the Japanesehad been a matter of Parliamentary debate for atleast five years prior to the eventualannouncement of the scheme in November2000. The wider issues had been the subject ofpublic campaigns for much longer.

147. The Prime Minister had agreed to considerthe question of compensation for formerprisoners of war on 10 April 2000. It is thereforesurprising that officials were only asked to drawup options – for making a decision on whethersuch a scheme was appropriate and, if so, whatthe conditions of eligibility should be – on 25October 2000. This was only two weeks prior tothe eventual announcement of the scheme andthis occurred on the same day as the PrimeMinister informed the House of theGovernment’s impending decision.

148. I am also concerned that officials weregiven only a few days to complete their task –one that, it should be remembered, on theGovernment’s own admission required decisionson sensitive issues that involved manyDepartments and entailed a departure from thepolicy pursued by previous administrations.

149. The Cabinet Office was asked to convene ameeting of interested Departments onWednesday 25 October 2000. The first meetingof the resulting working party was held on Friday27 October 2000. Departments were asked toproduce contributions to a draft paper, forsubmission to Ministers, by 2pm on Monday 30October 2000 – effectively one working day (orthree calendar days) after the initial discussionby the working party. The paper and a coveringnote were finalised on Thursday 2 November2000 and Ministers agreed the scheme onMonday 6 November 2000, one day prior to theParliamentary announcement.

150. I make no criticism of the officials involvedin drawing up the paper, who had to work quicklywithin the timetable imposed on them. But itshould have been apparent that drawing up an exgratia scheme in such a short space of time gaveno opportunity for the details to be worked outproperly and that this inevitably would lead to alack of clarity.

151. I accept that, on some occasions, policydecisions and the administrative schemes toimplement them need to be taken and devised invery short timescales due to specialcircumstances such as emergencies. However,that does not appear to me to have been thecase here.

The announcement of the scheme152. The result was that the scheme wasannounced to Parliament before all of theimplications of the eligibility criteria had beenthought through. I note that the Court of Appeal


said that it was ‘unwise’ for the Minister to saythat the review had been completed when it ‘wasapparent that the details still had to be workedout’; and that it was ‘unfortunate that he did notarticulate what had been finally determined andwhat still remained to be worked out’ which gaverise to ‘scope for misunderstanding’.

153. The Ministerial announcement gave rise to anumber of problems, including:

• that a misleading impression was given toprospective applicants by the terms of theannouncement that the review – and thus theterms of the scheme including the eligibilitycriteria for it – had been completed. That wasnot the case;

• that the reference to the review having takentime to conduct carried the misleadingimplication that the scheme had been workedout over some time and that eligibility for anex gratia payment would be based on theterms of the announcement, which had madeno mention of the requirement for a bloodlinkto the UK. This also was not the case; and

• that, by referring to ‘British groups that wereheld prisoner by the Japanese’ as being eligiblefor the scheme ‘in recognition of the uniquecircumstances of their collective captivity’,and also by reference within the samestatement to ‘UK citizens’ and to ‘Britishcivilians’, the Minister did not make anyreference to the need to demonstrate anyother link with the UK, whether by bloodlinkor otherwise. This did not accurately describethe position. One can be, like ProfessorHayward, currently a citizen of the UK andhave been interned as a ‘British civilian’ by theJapanese during the war but still have nobloodlink to the UK.

154. The Courts have determined that the formand content of the announcement made by the

Minister in the House of Commons on 7November 2000 did not in itself lead to asituation in which those later refused payment(because of the introduction of the bloodlinkcriterion) were frustrated in a legitimateexpectation. The Courts so concluded becausethe statement was sufficiently imprecise so asnot to constitute ‘a clear and unequivocalrepresentation’.

155. However, in my view, it is precisely that lackof clarity which represents such a significantdeparture from standards of good administrationto the extent that it constitutesmaladministration. As an official in the Secretaryof State’s Private Office recognised, there was an‘alarming degree of imprecision’.

156. As the Court of Appeal stated in itsjudgment, the Ministerial announcement ‘wasless clear than it should have been’ and ‘manycivilians had their hopes of compensation raisedby Dr Moonie’s announcement’ only to be‘extremely disappointed, and indeed angered’.This echoed the High Court’s view that ‘it is agreat pity that the government’s intention as towho should qualify for payment was notexpressed at the time with greater clarity’.

157. I recognise the good intentions of Ministersand officials but I criticise the lack of clarity withwhich the announcement was made and themisleading impression that it created. In my view,this constituted maladministration.

158. The misleading impression wascompounded by the later DSS press release,issued on 1 February 2001, which referred to‘British civilians who were interned’ as beingeligible for payment without furtherqualification. A press notice using similarlanguage was issued by the Scotland Office thefollowing day; this also said that payments hadbeen made to 1,092 people living in Scotland –443 former prisoners of war and 649 widows.


159. Good administration of extra-statutoryschemes requires clearly articulated entitlementcriteria to ensure that those potentially coveredby the scheme are not put to unnecessarydistress or inconvenience by uncertainty orconflicting information. Such a need is all themore essential when the relevant issues aresensitive, as is clearly the case here.

The fairness of the bloodlink criterion160. Some of the explanations that I have seenin official papers of the rationale for the need toclarify the eligibility criteria or surrounding thediscussions about why scheme eligibility couldnot be widened beyond the bloodlink criteriondo not appear to me to be persuasive. Forexample, it is unclear to me why the bloodlinkcriterion would be necessary to discourageapplications from members of the Indian Army,as that criterion was to apply only to civilianapplications. However, the decision to introducethe bloodlink criterion was a discretionarydecision that the Government was entitled totake.

161. Whatever the rationale for the introductionof the bloodlink criterion, I would echo the viewof the DWP lawyer, who was ‘puzzled’ as to why‘the meaning of “British”’ was discussed for thefirst time several months after the scheme wasannounced and some weeks after the firstpayments were made under it.

162. The then Acting Chief Executive of the WPAconsidered that the decision to introduce thebloodlink criterion was ‘impossible to defend ongrounds of fairness and logic’. However, thecourts addressed the question of whether thebloodlink criterion – that to be eligible asurviving internee had to be born in the UK orhad to have a parent or grandparent born in theUK – was irrational or in some other wayunlawful. The courts have also now consideredwhether the scheme breached race

discrimination legislation. The most recentjudgment may be subject to appeal.

163. In the circumstances, it is not for me toaddress the aspect of the complaints I havereceived which relates to the fairness of thespecific criterion. I will go no further than to saythat it is perhaps surprising that this particularcriterion was chosen as being the means to repay‘a debt of honour’ to those interned as Britishcivilians by the Japanese. And that, to echo thejudgment of the High Court, I have greatsympathy ‘for those who were British enough tobe interned by the Japanese in the second worldwar because they were British citizens at thetime... but do not have a sufficient blood linkconnection to qualify for an ex gratia paymentunder the scheme’.

164. My role in these matters is limited todetermining whether the administrative acts ofthe MOD in operating the scheme constitutedmaladministration. I now turn to consideraspects of the operation of the scheme.

The operation of the scheme – the first paymentsunder the scheme165. The scheme was, as explained above,announced to Parliament on 7 November 2000.In the press statement issued on 1 February 2001,the Minister then responsible for the WPAannounced that over 14,000 payments would bemade to applicants to the scheme. The pressrelease congratulated WPA staff for having done‘a brilliant job contacting [potential applicants]and processing their claims in just over twomonths’.

166. It appears that these payments were basedto a significant extent on evidence of paymentof compensation under the 1951 scheme.However, as it was later recognised in officialcorrespondence – including in a minute dated 25May 2001 from the WPA to the Cabinet Office –eligibility for payments under the 1951 scheme


had been widened during the 1950s to includepersons who had been married to British citizens,wherever the spouse had been born. There wastherefore in early 2001 no way of knowingwithout detailed scrutiny of all of the papers ineach case whether a recipient under the 1951scheme had a bloodlink to the UK for thepurpose of making payments under the currentscheme.

167. Furthermore, eligibility for the 1951 schemewas based on being a British national normallyresident in the UK prior to internment who hadalso returned to live in the UK after the war.However, under the legislation then in force,being a ‘British national’ at that time and beingresident in the UK (both prior to the outbreak ofthe war and after its end) could not in itselfdetermine whether that person had a bloodlinkto the UK.

168. Thus eligibility for the 1951 scheme was,without a full review of each case, an insufficientbasis on which to assess whether an applicanthad a bloodlink to the UK, although the MODhas recently told me that it was possible toascertain the place of birth of recipients ofcompensation in the 1950s through scrutiny oftheir individual records.

169. The MOD also recently drew my attentionto the note of 15 December 2000, which set outa proposed way to deal with applicants who hadbeen children or young adults when they wereinterned.

170. However, I have seen nothing to persuademe that such a proposal was consistently appliedas a bloodlink criterion in relation to allapplicants at that time. It may have been thecase – in the absence of evidence I do not know– that applications from former child interneesin the position described in the note wereapproved and paid prior to the introduction ofthe bloodlink. However, that (and the other

content of the note) does not assist me todetermine the policy applied to other applicants– such as those who received compensationunder the 1951 scheme but who had no bloodlinkto the UK or those who were surviving spousesof civilian internees without such a link.

171. Neither am I persuaded that any checkwould have been made to establish whetherevery civilian internee claimant who hadreceived compensation under the 1951 schemewas born (or had a parent or grandparent whohad been born) in this country because, at thetime that the first applications to the currentscheme were considered, such a requirement didnot exist.

172. The first time that officials were asked todiscuss and define what constituted ‘British’ forthe purposes of the scheme was on 21 February2001 – approximately three weeks after the firstpayments had been made – although it appearsthat it had been agreed that such a definitionwas necessary at a meeting on 13 February 2001.The bloodlink criterion, however, was not agreedin correspondence among officials untilapproximately 21 March 2001, this decision wasnot confirmed until a meeting of officials in May2001, Ministers were not consulted about thedecision until 12 June 2001, and the criterion wasnot made public until 11 July 2001.

173. Those determining the first batch of claimswould therefore have done so withoutknowledge of the information that they wouldlater need to acquire in order to apply thebloodlink criterion – at the time thoseapplications were determined, that criterion hadnot even been discussed, let alone been agreed.

174. I am also not persuaded by the MOD’sreliance on the note of 15 December 2000 asdemonstrating that early applications weredetermined in accordance with what laterbecame known as the bloodlink criterion.


175. Its recent position does not appear to siteasily with:

• the WPA request for clarification of thenationality criterion almost two months afterthe note was written, on the day prior to themeeting on 13 February 2001. The WPA saidthat there was (my emphasis) a ‘need toestablish appropriate guidelines on thequestion of nationality’ to assist them todetermine civilian applications. This wouldappear to suggest that they were at that timenot sure how to determine the ‘British’question and that no guidelines existed toassist them to do so; or

• the DWP lawyer’s advice in February 2001 that‘British’ should be based on the legislation atthe relevant time (i.e. in the 1940s) – again,citizenship under that law was not consistentwith the bloodlink criterion. As legal advicewas at that time being sought and given toinform the development of an agreeddefinition of what constituted ‘British’, thiswould not appear to suggest that such anagreed definition was already in place.

176. If things were settled in mid-December2000, as the MOD’s recent submission appears toargue, I am puzzled as to why either of the aboveshould have happened.

177. But most significantly in my view, the MOD’srecent explanation appears to be inconsistentwith their contemporaneous explanations of therationale for the introduction of the criterion.

178. As I have noted above, in agreeing thebloodlink criterion in June 2001, Dr Moonie wasreported to have said that it had been ‘adoptedto avert the potential abuse of the ex gratiapayment scheme’. When later announcing theclarification in Parliament, the Minister alsoreferred to the criteria having been clarified‘recently’.

179. Nor would the Government’s recentexplanation seem consistent with the statementin July 2001 by an official in the Secretary ofState’s Private Office, also referred to above, that‘no definition was given by the Minister on 7November [2000], nor, I believe, was one set outby officials’ (at their meeting with ABCIFER andothers later that month). In that statement, theofficial continued (my emphasis):

‘the definition set out recently has been issuedto provide clarification of the meaning of theterm “British” in the context of civilian claimantsunder the scheme’.

180. Albeit that the MOD position is notpersuasive, I do not consider that the facts as towhat policy was applied prior to theintroduction of the bloodlink criterion arewholly clear. These could only be clarified by athorough review of the early operation of thescheme.

181. Similarly, the events surrounding thepayment of the first claims in February 2001could only be properly established through sucha review.

182. As noted above, in that batch 14,000payments were made. The Government has onlybeen able to provide aggregate informationabout the particular status of the people towhom payments were made at that time,although we know at least that 649 paymentswere made to widows resident in Scotland.

183. It is reasonable to assume that payments tosurviving spouses were among those made inFebruary 2001 to people not resident inScotland. Many of these payments (both inScotland and elsewhere) would have been madein respect of their deceased spouse’s internmentas a prisoner of war and therefore the bloodlinkcriterion would have been immaterial.


184. That said, if any of the first batch ofpayments were made to the surviving spouses ofcivilian internees, such payments would havebeen made on the basis of an application formthat did not ask for the information required toapply the bloodlink criterion or on the basis ofeligibility for compensation under the 1951scheme, which also would not in itself haveprovided sufficient information. They would alsohave been determined, as I have shown above, ata time when the relevant criterion had not yetbeen discussed.

185. The MOD has not been able to provide mewith evidence to assist me to establish what didoccur. That is of concern to me.

186. I would expect a system designed inaccordance with principles of goodadministration to be transparent, to produceconsistent outcomes and not to be designed insuch a way as to produce inconsistent outcomes.That this is the case should also bedemonstrable.

187. I recognise that the existence ofadministrative errors does not necessarily rendera scheme unlawful. Such errors do, however, raisequestions as to whether a scheme has beenoperated without maladministration.

188. I cannot establish whether ABCIFER’scontention – that approximately one-sixth of thefirst batch of payments to civilian internees wasmade to individuals who did not meet thebloodlink criterion – is true. The MOD told methat the relevant records can only be searched invery limited ways and that the only way toprovide the information I requested to enableme to determine this was by means of a manualsearch of all claim files. It is said that this wouldhave been an ‘enormous undertaking’.

189. In the absence of a full review of the MOD’sfiles, it cannot therefore be known the extent to

which, if at all, payments were made prior to theintroduction of the bloodlink criterion to peoplewho would not have qualified had theirapplication been determined after itsintroduction.

190. I note the Government’s position that suchpayments were made only as the result ofadministrative error and not in consequence ofthe introduction of the bloodlink criterion orbecause those determining applications prior tothat introduction had no agreed guidelines inplace to assist them to identify what definitionto apply.

191. However, it is unclear to me on what basis itknows this in the absence of detailedinformation about the payments made at thattime – which the MOD has said it cannotprovide without a thorough review of their files,which has not yet been undertaken.

192. In any case, I also note that theGovernment does not intend to seek to reclaimpayments made in error or beyond the scope ofthe scheme. That intention seems to me to beentirely appropriate.

The operation of the scheme – equal treatment

193. The Government chose to introduce thebloodlink criterion many months into theoperation of the scheme. As I have said above,that was a discretionary decision that it wasentitled to make.

194. However, as this was done some weeks afterthe first payments were made under the scheme,in my view it was incumbent on the MOD at thattime to satisfy itself that the late introduction ofan eligibility criterion would not lead to theinconsistent treatment of applicants or to otheradministrative anomalies. They did not do so. Iconsider that this failure constitutesmaladministration.


195. The Government has also not been able toprovide me with evidence to assure me now thatapplications from people in the same situationfor the purposes of the scheme’s eligibilitycriteria were not decided differently.

196. In this context, I am not satisfied thatProfessor Hayward (and those others whoseapplications were determined after theintroduction of the new criterion) was affordedtreatment equal to those whose applicationswere determined prior to the introduction of thebloodlink criterion.

The operation of the scheme – informingapplicants197. I also criticise the failure to explain the‘clarification’ of the eligibility criteria to thosewho, like Professor Hayward, were issued with aquestionnaire in March 2001. This supplementaryform was designed to elicit the new informationneeded following the introduction of thebloodlink criterion. The opportunity to informapplicants and potential applicants that theeligibility criteria for the scheme had beenclarified was sadly missed. Those adverselyaffected by the clarification of the criteria didnot have the position explained to them untiltheir application was refused. This failure did notmeet the standards of administration thatcitizens are entitled to expect from publicbodies.

The operation of the scheme – criticism and review198. I am also concerned that the MOD failed toundertake a review of the ex gratia schemesubsequently, following criticisms of the handlingof the announcement and of the administrationof the scheme contained in both the High Courtjudgment and that of the Court of Appeal. Suchcriticisms were also repeated in both Houses ofParliament and in correspondence with ABCIFERand others. While the decision as to the policyto be applied remained with Ministers (subject to

Parliamentary sanction), the failure to reviewthat policy in the light of the criticisms made bythe courts and others is a matter of concern.

Summary of findings199. I have made four findings ofmaladministration. These are:

(i) that the way in which the scheme wasdevised constituted maladministration inthat it was done overly quickly and in sucha manner as to lead to a lack of clarityabout eligibility for payments under thescheme;

(ii) that the way in which the scheme wasannounced constituted maladministrationin that the Ministerial statement was sounclear and imprecise as to give rise toconfusion and misunderstanding;

(iii) that, at the time when the bloodlinkcriterion was introduced, the failure toreview the impact of that introduction toensure that it did not lead to unequaltreatment constituted maladministration;and

(iv) that the failure to inform applicants thatthe criteria had been clarified when theywere sent a questionnaire to establish theireligibility constituted maladministration.

200. In addition, I am also concerned about thefollowing two aspects of the operation of thescheme:

(v) that the Government has been unable toprovide evidence of the basis on which theearly payments under the scheme weremade and that thus I have been unable todetermine whether the scheme wasoperated properly; and

(vi) that no review of the scheme wasundertaken in the light of criticisms of it bythe courts, in Parliament, and elsewhere.


Injustice

201. I have found that, to the extent indicatedabove, the way in which the ex gratia scheme wasdevised, announced and operated constitutedmaladministration. I now turn to the question ofwhether such maladministration caused aninjustice to Professor Hayward (and to others in asimilar position to him).

202. In coming to my determination of thisquestion, I first considered whether thoseaffected suffered an injustice, before consideringwhether any such injustice was in consequenceof the maladministration I have identified in thisreport.

203. In considering the first question, I wasstruck by the fact that it was not the failure toreceive a payment under the scheme that mostoutraged Professor Hayward. In that sense, whilehe has not received the financial sum that someothers in his position may have received, theprincipal form of injustice he has suffered is notfinancial.

204. Rather, Professor Hayward was mostoutraged by the implication that he was notsufficiently British to receive a payment –expressed as being in recognition of ‘a debt ofhonour’ – under a scheme whose administratorshad made no attempt to explain that he wouldnot be eligible to receive such a payment untilhis application was refused. Had he known theterms of the scheme, it is reasonable to assumethat Professor Hayward would not have appliedfor a payment under it and therefore he wouldnot have suffered the distress of having hisapplication subsequently refused.

205. In the course of this investigation, I havecome across other examples of claimants whoseapplications have been refused as a result of theintroduction of the bloodlink criterion. Theseinclude:

• Squadron Leader X, who was also repatriatedto the United Kingdom shortly after releasefrom internment and was conscripted fornational service. He decided to pursue apermanent career in the Royal Air Force andretired at the age of 55; and

• Doctor Y, who spent the whole of his workinglife at the Government’s Royal AircraftEstablishment in Farnborough. He has beenelected a Fellow of the Royal Society.

206. These are people who have given publicservice to the UK. Many others who are ineligibleunder the clarified terms of the scheme can alsodemonstrate a close link with the UK: by havingtaken up UK citizenship, through long residencehere, or by having brought up a family here.Those who have demonstrated such acommitment have told me that they feel a senseof injustice.

207. It is therefore clear to me that many peoplein Professor Hayward’s position have sufferedoutrage at the way in which the scheme has beenoperated and distress at being told that theywere not ‘British enough’ to qualify for paymentunder the scheme. That outrage and distressconstitutes an injustice.

208. The question for me, however, is whetherthe maladministration I have identified causedthe injustice suffered by Professor Hayward andothers in a position similar to him.

209. I consider that he and others were entitledto expect that the scheme would be devisedproperly, with clearly articulated eligibilitycriteria. They were also entitled to expect thatthey would be provided with pertinentinformation and that the scheme would beoperated properly.

210. Given what I have said above in relation tomy findings about the origination, announcementand operation of the scheme, and having regard


to what Professor Hayward and others have toldme, I am satisfied that the maladministrationwhich I have found caused injustice in the formof a sense of outrage to Professor Hayward andto others in a similar position to him.

Recommendations211. Having found that the manner in which theex gratia scheme was devised, announced, andoperated constituted maladministration causinginjustice to Professor Hayward and to those in aposition similar to him, I now turn to makerecommendations to remedy that injustice.

Recommendations specific to thisinvestigationFirst recommendation212. First, I consider that the MOD shouldreview the operation of the ex gratia scheme.

213. The acknowledged inability of the MOD toprovide evidence from their records – without afull review – in relation to indications that thelate introduction of the bloodlink criterion mayhave led to unequal treatment is sufficient in myview to warrant such a review. The need for athorough review of the scheme is reinforced bythe failure to conduct such a review at the timethe bloodlink criterion was introduced and also,as no such review had been undertaken, in thelight of the later criticisms made of the schemeby the courts and in other places.

Second recommendation214. Secondly, I consider that the MOD shouldfully reconsider the position of ProfessorHayward and those in a similar position to him.

215. My investigation has shown that it isimpossible to determine how many people in asimilar position to Professor Hayward in relationto the bloodlink criterion received a paymentbecause their application was determined priorto the introduction of the criterion. The

Government accepts that some mistakes didoccur. If a thorough review of the schemeconfirms that such payments were made prior to(and because of) the late introduction of thebloodlink criterion, I believe that theGovernment should fully reconsider the effectsof that on those whose applications weredetermined subsequently.

216. What form such reconsideration shouldtake is a matter for the Government. However, Iconsider that, in undertaking any review, nopossible outcome should be ruled out arbitrarily.I would also expect to monitor such a reviewclosely.

Third recommendation

217. My third recommendation is that the MODshould apologise to Professor Hayward and toothers in a similar position to him for thedistress which the maladministration identifiedin this report has caused them.

Fourth recommendation

218. Finally, I recommend that the MOD shouldconsider whether they should express thatregret tangibly.

The Government’s response to my recommendations

219. I put these recommendations to thePermanent Secretary of the MOD on 18 January2005. The Permanent Secretary replied on 24February 2005. I met the Permanent Secretary on8 May 2005 to discuss the implementation of myrecommendations and I received further writtenrepresentations from him on 22 June 2005, on 23June 2005 and on 7 July 2005.

220. The Government’s response is set out in theannex to this report. As can be seen, theGovernment has not accepted myrecommendations in full but has only agreed toimplement my third and fourthrecommendations.


221. All of the points made by the Governmentin the annex are dealt with in the body of thisreport. It should be evident that I do not acceptthe MOD’s submissions, although in previouscorrespondence I have sought (and beenprovided with) information from the MOD thathas contributed to the final version of thisreport.

222. I am satisfied that my report is clear andcomprehensive and that it is not necessary todeal with each part of the Government’sresponse again here.

Other recommendations223. In addition to the recommendationsspecific to this investigation, I wish to bring threemore general recommendations to the attentionof Parliament. These recommendations havebeen informed both by this investigation and alsoby the considerable experience of my Office indealing with complaints about ex gratia schemes.

224. First, I consider that ex gratia schemesshould be devised with due regard to the needto give proper examination to all of the relevantissues before the scheme is announced orotherwise advertised. It is wholly unacceptablefor schemes – especially those that are designedto deal with sensitive issues – to be announced,and applications received, before decisions havebeen taken on key issues such as eligibility. Thatcan only lead to disappointment and distress.

225. Secondly, once advertised andimplemented, any changes to eligibility criteria, ifsuch are needed, should be publicised andexplained to those potentially affected by thechanges. This can prevent individuals feeling thatthey have been misdirected or otherwise misled.

226. Finally, I wish to emphasise that, whereschemes are the subject of large numbers ofcomplaints alleging maladministration or ofother criticisms from the courts or in Parliament,

I believe that it is good administrative practice toreview the relevant scheme. An early recognitionthat lessons can be learned from complaints andother feedback can prevent systemic failure or asituation in which public resources are expendedon remedial action, which would not have beennecessary had a thorough review taken place atthe appropriate time and had any correctiveaction been carried out proactively.

Conclusion227. I have reached my findings in relation toProfessor Hayward’s complaint with a degree ofregret.

228. The conception of the ex-gratia schemehad much to recommend it and theannouncement of 7 November 2000 was widelywelcomed. Both Ministers and officials wererightly intent on ensuring that claims were paidas quickly as possible in view of the age of manyof the claimants, as was demonstrated by the14,000 payments made by the WPA in February2001. Those administering the scheme have paidmany more claims than was originally estimated,and continue to meet such claims.

229. In those circumstances, it is a great pity thata comparatively small number of individualsshould have been caused such distress as a resultof the maladministration of what was, after all, ahighly commendable attempt to recognise ‘adebt of honour’. The number of rejected claimsfrom former civilian internees living in thiscountry would appear to be no more than about300 and those living abroad total approximately800. Some of those claims may fall to berejected on grounds other than the bloodlinkcriterion. That compares with the nearly 24,000claims that have been paid.

230. However, those for whom this scheme wassupposed to offer a tangible expression of ‘adebt of honour’ – owed to them by this country


in recognition of the inhuman treatment andsuffering they endured in the 1940s at the handsof the Japanese, who considered them to beBritish – were entitled to expect that thescheme would be devised, announced andadministered without maladministration.

231. It is of considerable regret to me that thisdid not happen. It is also deeply disappointingthat the Government has not accepted that itshould properly remedy the injustice I havefound was caused by maladministration.


The Government’s response to my report1. This annex sets out the Government’s responseto my report. The MOD has confirmed that itsresponse was submitted on behalf of allGovernment bodies concerned with the subjectmatter of the investigation.

2. What follows is in the words of the PermanentSecretary of the MOD (although some minorediting has been necessary).

Principal findings and recommendations3. Your findings of maladministration can be splitinto two sections. The first deals with the‘origination and announcement of the scheme’;the second deals with ‘the operation of thescheme and the bloodlink (birthlink) criterion’.These sections are addressed in turn:

Findings of maladministration in relation to theorigination and announcement of the scheme4. As Ministers have many times acknowledgedin letters, given the need for boundaries to defineeligibility for ex gratia schemes, those peoplefalling outside the boundaries of such schemesfeel real and understandable disappointment.

5. Nevertheless, you have found that the mannerin which this ex gratia scheme was devisedconstituted maladministration on the groundthat the scheme should not have beenannounced to Parliament before the eligibilitycriteria had been completely thought through. Inaddition, you have found that had ProfessorHayward known the terms of the scheme, hewould not have applied for a payment under itand therefore would not have suffered thedistress of having his application subsequentlyrefused by reason of the late introduction of acriterion which was not disclosed to ProfessorHayward or to other disappointed applicantsuntil after their applications were refused. Youhave also found that the eligibility criteria shouldhave been explained to those issued with thequestionnaire sent out in March 2001.

6. The Government accepts these particularcriticisms and, further, accepts yourrecommendation that it should apologise toProfessor Hayward and others in a similarposition for the distress thus caused, which isprofoundly regretted. Consideration will begiven, in line with your recommendation, as towhether that regret should be expressed tangibly.

7. All the Departments concerned accept that,although in some areas a considerable amount ofscoping work had been undertaken, the schemewas introduced very quickly. This was in line withthe wish to have it – and the payments to bemade under it – in place as soon as possible,particularly in view of the age of thoseconcerned: as acknowledged in your report, itwas being made very clear to Departments bythose representing the former internees thattime was of the essence in ensuring that claimswere dealt with speedily.

Finding of maladministration in relation to theoperation of the scheme and the birthlink criterion8. However, you then go beyond your criticismsof the way in which the scheme was originatedand introduced, and criticise the decision tointroduce the birthlink criterion at a time whensome 14,000 payments had already been made.(The majority of these payments had of coursebeen made to former prisoners of war (i.e.personnel whose eligibility arose because theyhad been imprisoned when serving in the ArmedForces of the Crown), or to their survivingspouses, and who did not therefore need todemonstrate a close connection to the UK bybirthlink.)

9. The Government has significant concernsabout this section of your Report.

10. To the extent that Professor Haywardcomplains about the way in which the schemewas announced and introduced, his complaintswere not capable of legal remedy because

Annex


(despite the fact that these matters werereferred to in passing by the court), they did notgive rise to any illegality. These were, in the truesense, complaints of maladministration fallingshort of illegality.

11. But there was another category of complaint:those which, if true, would have constitutedgrounds for judicial review. A complaint fallinginto this category would not be one ofmaladministration falling short of illegality, butone in which the maladministration alleged is aninstance of illegality and, therefore, one inrespect of which the person aggrieved has or hada remedy by way of proceedings in any court oflaw within section 5(2)(b) of the ParliamentaryCommissioner Act 1967. You would therefore beprecluded from investigating it, unless you weresatisfied that in the particular circumstances itwas not reasonable to expect Professor Haywardto resort or have resorted to the legal remedy.

12. In your report, you say that the Governmenthas not been able to demonstrate thatapplications from people in the same situationfor the purposes of the scheme’s eligibilitycriteria were not decided differently. You alsosay that officials have accepted that paymentswere made prior to the introduction of thebloodlink criterion to individuals who did notqualify under this criterion.

13. If there were indeed such cases where thedifference in treatment between those cases andsubsequent cases in which payment was notmade was attributable to a deliberate change inthe eligibility criteria then that would beevidence of arbitrary and unlawful discrimination.

14. Indeed, this very point was advanced byABCIFER in their case as a ground of unlawfulnessand was dealt with by Scott Baker J who said:

“Wherever one draws the boundaries of ascheme of this kind, there are bound to be

anomalies and unfairness. But I accept thesubmission of Mr Sales [Treasury Counsel] thatthis cannot dictate the lawfulness or otherwiseof the scheme. Nor is it in my judgment relevantthat a few payments were made to those whodid not qualify with the blood link. It seems tome that some errors were an inevitableconsequence of trying to implement the schemeas quickly as possible.”

15. In your report, you have said that you do notconsider it reasonable for Professor Hayward tohave pursued a legal remedy, but your reasonsfor this conclusion are unsatisfactory, given thatothers, including another individual, have takenthis route.

16. The fact that ABCIFER did in fact bringproceedings and that they did raise precisely thepoint on which you now rely indicates thatProfessor Hayward could have taken the pointhad he wished to do so.

17. The fact that Scott Baker J dealt with thepoint and found that “some errors were...inevitable” makes it inappropriate for you toconsider the point afresh and reach a conclusionwhich, with respect, is frankly inconsistent withthat of the learned judge.

18. Quite apart from any inconsistency with thejudgement of Scott Baker J, it is unclear on whatevidence you can base your conclusion thatpeople in the same position as ProfessorHayward were paid before the birthlink criterionwas introduced apart from those paid bymistake. The papers discussing the criteria useddemonstrate that the payments processedinitially were in respect of those former civilianinternees born in this country, or, for thoseinterned as children who were born in the FarEast, those whose parents were born here. Theseindividuals met a criterion that was stricter thanthe later birthlink criterion and were nottherefore in the same position as Professor


Hayward. Nor therefore do they constitute aprecedent for Professor Hayward now.

19. These papers also indicate that the need toclarify civilian eligibility criteria was recognisedearly and that many claims were set asidepending this clarification. The introduction of thebirthlink criterion actually represented awidening of the existing basis for payment toinclude those not born in this country but whohad a parent or grandparent born here.

20. You have included in your report statementsmade by the Chairman of ABCIFER oninconsistencies in payments made under thescheme of which apparently he gave youexamples. We however have not had theopportunity to identify and comment on thesecases, or on the other evidence which heapparently supplied to you. This puts me at adisadvantage in responding to your findings onthis point, although insofar as we can guesswhich cases he may be referring to, we do notbelieve that they necessarily support yourfindings.

21. You also cite examples of people who havebeen rejected as lacking the birthlink but who,like Professor Hayward, have established a closelink with the UK since the War and in many casesmade a considerable contribution in this country.

22. But the scheme is not designed to recogniselinks or contributions to the UK made since theWar; it is the link at the time of internmentwhich counts and to include people because of alink now would be to change the basis of thescheme and destroy its coherence, which changecould effect many more than a few hundredpeople.

23. As you know, it was an important element ofABCIFER’s challenge that those who came to thiscountry after the War should be entitled tobenefit from the scheme. The Court of Appeal

concluded however that “the failure to takeaccount of the closeness of the links with the UKat the time of the claim for compensation is nota good reason for impugning the rationality ofthe birth criteria.”

24. The differences you highlight in your reportare, therefore, a result of the way in which thescheme criteria (whose legality was upheld) wereframed.

25. Accordingly, it is not appropriate for thesedifferences in treatment to appear under theheading “Injustice”, which, as we understand it, isintended to identify injustice which has beencaused by the maladministration you have found,rather than by the operation of the scheme as awhole.

Recommendation for a “thorough review of thescheme”26. I trust that, in the light of the abovecomments, you will understand why theGovernment does not accept that a thoroughreview of the scheme is warranted.

27. The Government accepts in full your findingsof maladministration in relation to the‘origination and announcement’ of the schemeand will apologise for the distress which thismaladministration caused to Professor Haywardand others in a similar position.

28. The Government will also considerexpressing its regret tangibly. But we do notconsider that these findings warrant a thoroughreview of the scheme.

29. The bloodlink criterion does, as both youand the courts have pointed out, create someapparent anomalies.

30. But, as the courts have recognised, suchanomalies are inevitable when devising eligibilitycriteria for a scheme such as this. They do notmake the scheme as a whole irrational or unfair.


31. Nor is the fact that some payments weremade in error to people who are not eligibleunder the scheme a reason why others in whosecases the same error was not made should nowbe paid.

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