Introduction
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Introduction
1. This report sets out the results of my investigation of a complaint by Professor Jack Hayward about the ex gratia scheme for members of British groups interned by the Japanese during the Second World War.
2. This scheme was administered by the War Pensions Agency (WPA), an executive agency of the Department for Work and Pensions (DWP: for part of the relevant time, the DWP was called the Department of Social Security - DSS). Responsibility for the WPA transferred to the Ministry of Defence (MOD) on 8 June 2001 and the WPA was renamed the Veterans Agency. The Veterans Agency administered the scheme after this date.
3. The report does not contain every detail investigated by my staff but I am satisfied that nothing of significance has been omitted.
4. I consider that it is appropriate to lay this report before Parliament for a number of reasons. First, while this report sets out the results of my investigation into Professor Hayward’s complaint, his was only one of a number of complaints about the same matters received by my Office. Thus, the representative investigation I conducted into his complaint has application to other people in a similar position to Professor Hayward.
5. Secondly, the complaint relates to matters which raise public policy issues that have been of interest to Parliament and which have been debated there on a number of occasions.
6. Thirdly, the recommendations I make in this report have significance beyond the particular scheme complained about and are relevant to other ex gratia schemes operated by public bodies.
7. Finally, the Government – exceptionally - has not accepted all of the recommendations I have made in this report. I consider it appropriate to bring this to Parliament’s attention.
8. Therefore this report is laid before Parliament pursuant to section 10(3) of the Parliamentary Commissioner Act 1967, which denotes that I have found injustice caused by maladministration that the Government does not propose to remedy.
Structure of the report
9. In that context, this report addresses the circumstances of Professor Hayward’s complaint, outlines my investigation, and sets out my conclusions and resulting recommendations.
10. But first, I set out the reasons for my decision to investigate Professor Hayward’s complaint in the context of my statutory role and jurisdiction.
My role and jurisdiction
My role
11. My powers are set out in the Parliamentary Commissioner Act 1967, as amended. The 1967 Act provides that my role is to investigate action taken by or on behalf of bodies within my jurisdiction in the exercise of their administrative functions. Complaints are referred to me by a Member of the House of Commons on behalf of a member of the public who claims to have suffered injustice in consequence of maladministration in connection with the action so taken.
Bodies and matters in my jurisdiction
12. When deciding whether I should investigate any individual complaint, I have to satisfy myself, first, that the body or bodies complained about are within my jurisdiction. Such bodies are listed in Schedules 2 and 4 to the 1967 Act. Secondly, I must also be satisfied that the actions complained about were taken in the exercise of that body’s administrative functions and are not matters that I am precluded from investigating by the terms of Schedule 3 to the 1967 Act, which lists administrative matters over which I have no jurisdiction.
13. Professor Hayward’s complaint was directed at the MOD, as this is the department which has policy responsibility within Government for the scheme about which he complains. Moreover, the body responsible for administering the scheme, the Veterans Agency (formerly the WPA), has been one of the MOD’s executive agencies since 8 June 2001. The MOD is listed in Schedule 2 to the 1967 Act and so it and its executive agencies are within my jurisdiction. The DWP, which previously had responsibility for the WPA, is also within my jurisdiction for the same reason.
14. My investigation has shown, however, that officials from other public bodies were involved in an informal inter-departmental working party which made recommendations to Ministers in the MOD concerning the ex gratia scheme. These included both officials and legal advisers in the DWP and a member of the Overseas and Defence Secretariat of the Cabinet Office, who chaired the group. Other officials who attended the group came from the Foreign and Commonwealth Office, Her Majesty’s Treasury, and the Inland Revenue. All of these bodies are within my jurisdiction, being listed in Schedule 2 to the 1967 Act, with the exception of the Overseas and Defence Secretariat of the Cabinet Office, which is expressly excluded from my jurisdiction by virtue of a Note to that Schedule.
15. Upon discovering that this was the case, I considered whether this was relevant to my decision to investigate. Having done so, I was satisfied that the actions complained about were taken in the exercise of the administrative functions of a body within my jurisdiction – the MOD, whose Ministers made the relevant decisions and whose officials in the Veterans Agency and its predecessor administered the scheme – albeit with the advice of officials from other public bodies, one of which is not in my jurisdiction.
Alternative remedy
16. The 1967 Act also provides, in section 5(2)(b), that I may not conduct an investigation into any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law unless I am satisfied that, in the particular circumstances of the case, it is not reasonable to expect the person aggrieved to resort to such a remedy.
17. My Office’s consideration of this question in relation to Professor Hayward’s complaint was initially delayed. The relevant events are covered in more detail later in this report.
18. However, to outline these briefly, my predecessor received the referral of Professor Hayward’s complaint in a letter from Austin Mitchell MP dated 12 December 2001. While my predecessor was considering whether to investigate Professor Hayward’s complaint, he was informed that the Association of British Civilian Internees Far Eastern Region (ABCIFER) had initiated an application for judicial review impugning the legality of the scheme. In that context, my predecessor decided to defer consideration of Professor Hayward’s complaint until the ABCIFER litigation had been concluded.
19. In summary, in the judicial review proceedings ABCIFER challenged the legality of a Government decision to introduce a bloodlink criterion as a requirement for eligibility for certain claimants. ABCIFER contended that that decision was disproportionate and/or irrational, involved a breach of legitimate expectation created by the Ministerial announcement of the scheme on 7 November 2000 and/or was conspicuously unfair and an abuse of power.
20. ABCIFER was unsuccessful before the High Court. An appeal to the Court of Appeal also failed. Other litigation – which found against the Government in relation to the position of the Gurkhas – was also initiated. The latter proceedings did not directly relate to the matters which were the subject of Professor Hayward’s complaint.
My decision to investigate
21. Following the conclusion of the ABCIFER court proceedings in April 2003, I gave careful consideration as to whether it was reasonable to expect Professor Hayward to resort to legal proceedings as an alternative to my investigating his complaint.
22. In doing so, I first considered whether Professor Hayward had already exercised an alternative remedy.
23. Professor Hayward was not party to the judicial review proceedings concerned with the position of civilian internees and he had never been a member of the organisation which initiated them. It was my conclusion that he had not exercised an alternative remedy through ABCIFER’s actions.
24. I next considered whether it would have been reasonable to expect him to initiate legal proceedings on his own behalf.
25. Professor Hayward’s complaint, which my predecessor had received prior to the initiation of any proceedings, was not directed at whether the scheme was lawful but concerned the injustice he claimed to have suffered in consequence of maladministration. His complaint was in my view therefore not one that was wholly amenable to an application for judicial review, as maladministration is not synonymous with acting unlawfully. Thus I considered that in this case the availability of an alternative remedy was limited.
26. In any event, having regard to the circumstances of his case I did not consider it reasonable to expect Professor Hayward to exercise any alternative remedy – to the limited extent that he might have had such a remedy – by means of proceedings before a court of law. I believed that such proceedings might well have been costly to him – in both emotional and financial terms.
27. I also had regard to the fact that court proceedings are adversarial in nature and, given the particular circumstances of Professor Hayward’s case, I did not consider it reasonable to expect him to have to resort to such a process when that could have been distressing and as he had firmly indicated that instead he wished me to investigate his complaint.
28. In addition, I considered that it would have been difficult for Professor Hayward to have obtained the evidence necessary to pursue legal proceedings as he did not have access to official files. I have considerable powers in relation to access to evidence. That being so, in the circumstances of this case I considered that my fact-finding powers made an investigation by me more appropriate than expecting Professor Hayward to initiate legal proceedings.
29. Finally, I considered whether the ABCIFER application for judicial review, and the judgments in relation to it, prevented me from carrying out an investigation into Professor Hayward’s complaint.
30. In doing so, I considered his specific case in the wider context of the purpose of my Office as decided by Parliament, which is to investigate complaints about injustice caused by maladministration on the part of public bodies in my jurisdiction.
31. While it is for the courts to determine questions of legality, Parliament has determined that my role is to consider whether the administrative actions about which individuals complain constitute maladministration causing injustice to them. Professor Hayward had asked me to investigate such a complaint.
32. It was proper that I should have had regard to the challenge by others to the lawfulness of some of the actions about which Professor Hayward complained and it is also proper that I should not question the decisions of the courts about the scheme, some of which have upheld its lawfulness and others which have not.
33. However, I considered that these proceedings and decisions did not prevent me from investigating whether those actions constituted maladministration causing injustice to Professor Hayward. My investigation would be confined to determining whether the administrative actions of the MOD constituted maladministrationfalling short of unlawfulness.
34. For the reasons set out above, I decided that I should investigate Professor Hayward’s complaint.
35. In its response to my draft report (see annex), the Government has said that my reasons, given above, for considering that it was not reasonable to expect Professor Hayward to initiate legal proceedings are ‘unsatisfactory’.
36. The MOD’s position appears to be that I should have expected Professor Hayward to have taken legal action (presumably, given the terms of the rest of their response to this report, only in relation to some aspects of his complaint) and that I should not, therefore, have conducted an investigation.
37. The Government did not raise any such objections in June 2003 when I first asked the MOD, as I am required to do, for any observations that they might have on my proposal to investigate Professor Hayward’s complaint. The first time such objections were raised by the MOD was some months after I sent my draft report to it.
38. Section 5(5) of the Parliamentary Commissioner Act 1967 provides that in determining whether to initiate, continue or discontinue an investigation I shall act in accordance with my discretion and that any question as to whether a complaint is duly made shall be determined by me.
39. I have considered the Government’s representations on this point and I do not find them persuasive. I am satisfied that Professor Hayward’s complaint was duly made and, having considered his complaint carefully, for the reasons given above I have exercised my discretion to investigate it. I believe I have done so properly and appropriately.
Observations about the investigation
40. My investigation has taken a considerable time to complete. I decided to investigate Professor Hayward’s complaint in June 2003. That decision was delayed for the reasons explained in this report. I am also conscious that Professor Hayward’s complaint was first referred to my Office in December 2001 and that he and others have been waiting for the resolution of the investigation for many months.
41. I regret the length of time that it has taken to conclude this investigation, which was considerably longer than I would normally expect such investigations to take. I am deeply aware that the people affected by the subject matter of this investigation are elderly and that many have been considerably distressed by these events. I am grateful to Professor Hayward and to others for the great patience they have shown while this investigation has been undertaken.
42. Many of the causes of the delay in finalising this report are attributable to factors beyond my control. We are responsible for others. However, one of the principal difficulties I have encountered in this investigation was ensuring that the respective roles of my Office and the courts were clearly delineated and properly understood.
43. I will reflect on how best to apply the lessons we have learned from this experience to our other casework.
