Investigation

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My investigation

49. As explained above [in the introduction], Austin Mitchell MP first asked my predecessor to investigate Professor Hayward's complaint in a letter dated 12 December 2001. However, shortly thereafter my predecessor was informed that ABCIFER had made an application for judicial review of the Government's decision to require that civilian claimants must have been born (or have had a parent or grandparent born) in the UK to qualify for an ex gratia payment. My Office informed Mr Mitchell that we would consider whether to investigate the complaint once the outcome of the litigation was known.

50. Mr Mitchell and other Members of Parliament continued to press the case of Professor Hayward and other former civilian internees who were similarly affected. On 3 April 2003, the Court of Appeal handed down its judgment on ABCIFER’s appeal against the High Court’s judgment to dismiss its application for judicial review. Following consideration of the position in the light of the court judgments, my then Deputy informed Mr Mitchell on 25 June 2003 that I would carry out an investigation into Professor Hayward’s complaint.

51. My Office also sent the statement of Professor Hayward’s complaint to the Permanent Secretary of the MOD on 25 June 2003, together with a number of specific questions and a request for any observations the MOD might have on my proposal to investigate the complaint. The MOD’s reply came in the form of a letter from the Treasury Solicitor dated 11 August 2003. The Treasury Solicitor’s letter did not respond directly to the statement of complaint, but enclosed the pleadings and skeleton arguments relied upon by the parties in the application for judicial review, together with copies of relevant witness statements.

52. Following consideration of the background to the complaint, my investigator wrote to Professor Hayward and the Chairman of ABCIFER to offer them interviews. Both accepted the invitation.

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Interview with ABCIFER

53. The interview with the Chairman of ABCIFER took place on 24 April 2004. The Chairman explained that ABCIFER had assisted Government officials in making estimates of the number of former civilian internees who might qualify under an ex gratia scheme. The Association had had access to records of detainees in Japanese internment camps, and these records distinguished between different categories of those who were British at the time. For example, they distinguished between ‘British British’ and ‘Australian British’. The Association had identified approximately 20,000 ‘British British’ internees from the records before reaching an estimate (based on actuarial advice) of 2,500 to 3,000 survivors, not including widows. He stressed that this figure was for all civilian internees who had been detained as British subjects, and not for some more restricted group such as those with an added ‘close connection’ with the United Kingdom.

54. The Chairman went on to describe ABCIFER’s dealings with the DWP and the MOD over the definition of British both for the purposes of an extra-statutory scheme for war pensions for former civilian internees and of the ex gratia scheme. He said that, in the course of the judicial review proceedings, the MOD had sought to draw an analogy between the two schemes. But in his view this analogy was false; in the discussions on the ex gratia scheme, the DWP had assured ABCIFER that this scheme would be interpreted more generously than the war pensions scheme.

55. The Chairman stated, moreover, that the definition of British for the purpose of war pensions had changed significantly in the period between the Ministerial announcement of 7 November 2000 and the rejection of Professor Hayward’s application on 25 June 2001. He argued that, if the link between the two schemes had been made at the time of the announcement of the ex gratia scheme on 7 November 2000, it would have been clear then that few former civilian internees would have qualified for payment. That was because the qualification for a civilian war pension at the time of the announcement was that the claimant should have been born in the UK. The extension of war pensions to British civilians who had a parent or grandparent born in the UK had only been agreed in May 2001 and applied from 25 June 2001.

56. The Chairman stressed that many of those former British civilian internees who had been refused an ex gratia payment by the MOD were distressed and outraged. It was not so much a matter of money - although the money was important to some of the claimants, all of whom were elderly. It was more the insult arising from the suggestion that they were not sufficiently British to receive payment, despite the fact that they had been interned as British and many had since maintained close links with this country, in some cases giving many years of public service. The Prime Minister had recognised the wrong done to British civilian internees and had announced in 2000 that the wrong would be righted. The Chairman said that it was his view that it was indefensible that administrative arrangements should then arbitrarily reduce the number who should be compensated.

57. The Chairman went on to allege that there had been a great deal of inconsistency in the application of the ex gratia scheme to former civilian internees and gave some examples. He said that the WPA had made a large number of ex gratia payments in February 2001, and the recipients must have included a significant number of former British civilian internees who did not have a parent or grandparent born in the UK. That was because the requirement that a civilian claimant should have a parent or grandparent who was born in the UK had not been introduced until some months later. ABCIFER did not know how many claimants fell into this category, and those who did were understandably reticent for fear that the government might demand that the compensation be repaid. But ABCIFER estimated that approximately one-sixth of the former civilian internees who had received ex gratia payments by March 2001 did not meet the criteria that were introduced in June 2001.

58. Another anomaly that the Chairman understood had arisen was that payment had been made to civilian claimants who had not, strictly speaking, been interned. He believed that this may have included some diplomats who had been held under house arrest and some civilians who had been under the care of the Red Cross. He said that ABCIFER was aware that payments had been made to some claimants who had a parent or grandparent born in this country, but who had not been a British subject at the time of their internment. ABCIFER subsequently provided my Office with copies of a number of relevant documents.

59. The information and documents supplied by ABCIFER - and the Chairman’s views as to the way in which the scheme was operated – are not evidence on which I could rely in coming to a determination of whether the scheme was operated without maladministration. However, they helped me to set the complaint by Professor Hayward in a wider context.

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Interview with Professor Hayward

60. My investigator interviewed Professor Hayward at Hull University on 29 April 2004. He was able to provide a great deal of background information, which has been incorporated in this report. He stressed that money was not his prime consideration in making a complaint: it was the insulting implication that he was not considered sufficiently British to receive payment.

61. In Professor Hayward’s own words:

‘To be told retrospectively that I was a lesser British subject because, by implication, meanwhile Great Britain had become Lesser Britain was mean and disingenuous of the MOD and demeaning to me. An official apology for the insult involved and the injustice inflicted is called for.’

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Request for information from MOD

62. I wrote to the Permanent Secretary of the MOD on 7 May 2004 to ask him for further information. I asked him to supply the original papers, including the papers of the meetings of what was described in the evidence submitted to the courts on behalf of the MOD in the judicial review application as the ‘Inter-Departmental Working Group’. I asked for copies of briefings to Ministers and of any advice given to the WPA about the definition of ‘British’ for the purposes of the ex gratia scheme. I also posed a number of specific questions and asked for some statistical information.

63. The Permanent Secretary replied on 14 July 2004. I acknowledge that the MOD took considerable care with the preparation and presentation of the documentary evidence, for which I am grateful. The reply dealt both with the questions I posed in my letter and those in the letter from my Office on 25 June 2003.

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What my investigation has shown

The events giving rise to Professor Hayward’s complaint

64. When the Japanese invaded south-east Asia in the Second World War, they captured approximately 50,000 prisoners of war and a number of civilians. These internees were held in appalling conditions. The number of civilian internees is variously estimated at between 16,500 and 20,000. Many of these civilians were British subjects under the terms of the British Nationality and Status of Aliens Acts 1914 to 1943, the relevant legislation at the time. Section 1(1) of the Acts provided that any person born within His Majesty's Dominions and allegiance was deemed to be a natural-born British subject. The definition of what constituted ‘British’ was therefore much wider then than it is today.

65. The circumstances of the interned British civilians also differed widely. Some had been born in the UK and had gone out to the Far East on colonial service or business with a view to retiring back in this country. Others belonged to old colonial families who had given generations of service to the British Empire overseas. Often, successive generations were born in British colonies, were educated in the UK, and later retired here. There were also those who were then British subjects by virtue of the fact that they had been born in a British colony, who had had no close link with the UK itself or who had never visited this country, but who had since become nationals of other countries. But whatever the nature of their connection with the UK, they were subjected to the same deprivations, as well as to the same risk of brutality. It is estimated that about 1,000 died in captivity.

66. There was a change in the definition of British with the passing of the British Nationality Act 1948, and many former British internees at that time or thereafter became citizens of independent countries such as Australia, Canada and Pakistan. However, a bloodlink was not an essential criterion for determining British nationality. The law changed with the British Nationality Act 1981.

67. Modest payments of compensation for some of those who had been imprisoned or detained by the Japanese were made in the 1950s, following the ratification of the 1951 San Francisco peace treaty. £76.50 was paid to former prisoners of war (under article 16 of the treaty) and £48.50 was paid to civilians (following a decision by the British Government to use money received under the treaty in this way). The money came from the sale of Japanese assets.

68. However, a civilian did not qualify for the payment unless he or she had been a British national normally resident in the UK before internment who had since returned to take up residence in the UK and was over the age of 21 on 8 December 1941. Approximately 8,500 civilian internees received payments under this scheme. Professor Hayward was not aware of these payments and would not have qualified for one because he was not normally resident in the UK before he was interned and as he also did not meet the minimum age requirement at the relevant time.

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The campaign for compensation

69. The British government continued to pursue the matter of additional compensation, but the position of the Japanese government remained that the issue of compensation had been settled under the 1951 treaty. Former British captives and their representative bodies also continued to pursue the matter with the government. The former prisoners of war were often represented by the Royal British Legion, and the former civilian internees by ABCIFER. I understand that Professor Hayward is not a member of ABCIFER but he has a sister who was a member. She, too, has lived in England for many years.

70. The issue of compensation – or of some form of recognition – for the suffering endured both by prisoners of war and by civilian internees of the Japanese became the subject of Parliamentary debate and public discussion, especially in the period after 1995 when the topic was the subject both of many adjournment debates in the House and also of questions to Ministers in both this Government and its predecessor. Key debates in the House of Commons were held on 10 May 1995, 4 December 1996, 29 April 1998, 9 March 2000 and 6 June 2000. In the first three debates, the campaign by ABCIFER for recognition of the position of civilian internees was specifically mentioned; in all the debates the wider question of compensation was discussed.

71. Following continued pressure from the Royal British Legion, the Prime Minister and Dr Moonie met its General Secretary on 10 April 2000. At the meeting, the Prime Minister undertook to look again at the question of compensation for prisoners of war. In the absence of any decision, on 28 September 2000 the Royal British Legion wrote to the Secretary of State for Defence to complain of delay in concluding the review and to threaten a mass lobby of MPs. Ministerial answers to parliamentary questions – for example in response to John Cryer MP on 6 July 2000 – continued to report that the concerns of Members would be drawn to the relevant Minister’s attention as he was considering the matter.

72. On 25 October 2000, in response to a question in the House of Commons from David Winnick MP, the Prime Minister indicated that the review would be brought to a conclusion by 8 November 2000 in the pre-Budget process. The same day, the Prime Minister’s Office asked the Cabinet Office to convene an early meeting of interested departments with a view to providing advice to Ministers.

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The development of the ex gratia scheme

73. The first meeting of a group of officials from interested departments took place two days later, on Friday 27 October 2000. The group’s terms of reference were to provide advice to Ministers by 1 November 2000 on the options for an ex gratia scheme. A Cabinet Office official chaired the meeting, which was attended by officials from the MOD, the DWP, the Foreign and Commonwealth Office, the Treasury and the Inland Revenue. Following the meeting, the Cabinet Office asked departments for contributions to a draft paper by 2pm on Monday 30 October 2000, with a view to discussion at a meeting of officials at 9am the following day.

74. The draft paper drawn up by officials offered Ministers four options, including resisting ex gratia payments, delaying a decision, and two variants of an ex gratia scheme. The first variant involved payments of £10,000 to former prisoners of war, former British civilian internees, former members of the Merchant Navy who were captured and imprisoned, and the surviving spouses of all three categories. The amount was chosen as being the same as that recently paid by the governments of Canada and the Isle of Man. The second ex gratia option involved in addition the extension of the scheme to former prisoners of war in the European theatre.

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

76. In the course of exchanges between departments while the paper for Ministers was being put together, the DWP urged that any announcement about an ex gratia scheme should be couched in general terms because:

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

77. In addition, in a manuscript note to the Secretary of State for Defence on 30 October 2000, one of his Private Secretaries commented,

‘There is, on eligibility, a rather alarming degree of imprecision which, if we do not get it right will doubtless result in a raft of complaints and adverse stories in the media from those who do not qualify.’

78. A further parliamentary debate was held on 31 October 2000. In response to the debate, Dr Moonie said

‘The issue of further compensation for those held as prisoners of war in the far east during the second world war involves several Departments. Those Departments have been considering the question of an ex gratia payment…

‘I assure honourable Members that the case put forward for an ex gratia payment has been subjected to the most careful and sympathetic consideration during the past few months…

‘Work is currently in hand that will lead to an announcement being made soon…’

79. An agreed paper was submitted to Ministers on 2 November 2000. It described the option of resisting ex gratia payments as ‘politically difficult, given that expectations have been raised’. It described the option of deferring a decision as ‘politically difficult, if not impossible, for the same reason’. It went on to set out reasons why those who had been imprisoned and interned by the Japanese could be treated as a special case. It made no firm recommendation.

80. The paper considered the risks of a successful legal challenge from those excluded by whichever eligibility criteria were chosen and stressed the importance of defining such criteria carefully. It also raised the question of two groups of ex-servicemen – members of colonial forces and ‘certain members of the Indian Army and Burmese armed forces’ who might be potentially excluded from the scheme but who had been eligible under the 1951 scheme.

81. The paper suggested that if a scheme were adopted which included payments to civilians, it should extend ‘to surviving civilians who are UK nationals (my emphasis) and were interned by the Japanese in the Far East during the Second World War’. It noted that although it would be desirable to make any payments as quickly as possible, no payments could be made before the end of January 2001 if it were decided to make Regulations disregarding them for the purpose of benefits payments, as such Regulations would require Parliamentary approval.

82. The Private Secretary to the Secretary of State for Defence wrote to the Prime Minister’s office on 3 November 2000 to record ministerial support for the option, described as ‘a comprehensive ex gratia scheme’, that included former prisoners of war, merchant seamen, civilian internees and surviving spouses. In relation to the position of certain members of colonial forces, the Indian Army and the Burmese armed forces, it was said that the Secretary of State believed ‘on balance, that if these groups were sufficiently associated with the UK in the 1950s to be included alongside UK service personnel, then the same should apply today’. This was subject to DSS agreement that such inclusion would not compromise the arrangements for war pensions. The letter also recorded that the MOD and DSS had agreed to a division of responsibilities in relation to the administration of the scheme.

83. On 6 November 2000, the Prime Minister agreed to the establishment of a non-statutory ex gratia payment scheme, to be administered by the WPA. It was also decided to make Regulations to ensure that no recipients lost eligibility for social security benefits merely because they received a payment under the scheme.

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The announcement of the scheme

84. Dr Moonie announced the introduction of the scheme the following day in a statement in the House of Commons. He began by saying,

‘The review took some time to conduct because of the issues involved, but it has now been completed.’

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

‘to each of the surviving members of the British groups who were held prisoner by the Japanese during the Second World War, in recognition of the unique circumstances of their captivity’ .

86. As regards eligibility, the Minister said:

‘Those who will be entitled to receive the payments are former members of Her Majesty's armed forces who were made prisoners of war, former members of the Merchant Navy who were captured and imprisoned, and British civilians (my emphasis) who were interned. Certain other former military personnel in the colonial forces, the Indian Army and the Burmese armed forces who received compensation in the 1950s under United Kingdom auspices will also be eligible. As I said earlier, in cases in which the person who would have been entitled to the payment has died, the surviving spouse will be entitled to receive it instead’.

87. The ministerial statement concluded with the following words:

‘The government recognise that many UK citizens (my emphasis), both those serving in the armed forces and civilians, have had to endure great hardship at different times and in different circumstances, but the experience of those who went into captivity in the Far East during the Second World War was unique. We have said before that we believe the country owes a debt of honour to them. I hope that I am speaking for everyone here when I say that today something concrete has been done to recognise that debt.’

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Events subsequent to the announcement of the ex gratia scheme

88. After the announcement of the ex gratia scheme in Parliament on 7 November 2000, the WPA published a leaflet entitled ‘Ex gratia payment for British groups who were held prisoner by the Japanese during World War Two: Notes for Guidance’. The leaflet identified five categories of persons who were entitled to make a claim for payment, one of which was ‘surviving British civilians who were interned by the Japanese in the Far East during the Second World War’. Claims had to be made on a special form which contained the following words: ‘You may be eligible for the ex gratia award if you are a surviving British civilian who was interned by the Japanese in the Far East during the Second World War’. There was no reference in the form to any requirement for the applicant (or a parent or grandparent) to have been born in the United Kingdom.

89. In commenting on an earlier draft of the WPA leaflet, an official had, in an unsigned manuscript note on a fax dated 6 November 2000, suggested the removal of the phrase ‘UK citizens’ from the publicity because it was:

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

90. On 10 November 2000, an official in the MOD wrote to a number of officials in the MOD, DSS and the Foreign and Commonwealth Office to clarify a ‘misunderstanding’ about the Ministerial announcement. This related to the position of certain members of the colonial and Burmese forces and those of the Indian Army who it had been announced would be eligible for the scheme. The official said that ‘only those who received compensation in the 1950s under UK auspices are eligible [for the current scheme]. This last group… de facto covers only “Europeans”’.

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

92. The group of officials met again on 22 November 2000, when it decided that UK nationals should be defined as ‘those civilian internees who were British at the time of their incarceration; those who became British citizens only subsequently would not be eligible for payment’. There was no other discussion of the definition of ‘British’ for the purpose of the scheme and it was agreed that there would be no further meeting of the group unless the need arose.

93. In a minute to the Cabinet Office dated 15 December 2000, a DSS official wrote to ‘place on record our intentions regarding the interpretation of “British” in relation to civilian internees’. He recognised that ‘nowhere do we define what we mean by “British”’ and noted the definition of UK national that had been agreed at the meeting of officials on 22 November 2000. Before asking for views on the contents of the note, he said:

‘In many cases, claimants will have been born in the UK, worked in Malaysia for example for a few years, imprisoned by the Japanese, returned to the UK on release and lived here ever since. Their “Britishness” is not in doubt. However, claims are being received from people who were children or young adults when captured by the Japanese. Some of these people, although “British subjects”, would not have been born in the UK but would reasonably consider themselves to have very strong links with this country in view of the birthplace of, for example, their parents… We intend making ex gratia awards in these circumstances.’

94. Another issue raised in the note was whether payments should be made to qualifying British civilians who were resident overseas, and, on 29 December 2000, the Cabinet Office agreed that such payments should be made provided the Treasury gave its authorisation.

95. On 12 January 2001, the WPA reported that it was encountering some problems dealing with claims from former civilian internees who had not received payments of compensation in the 1950s, but the WPA said it was working with ABCIFER to resolve these problems. On 25 January 2001, it reported that the number of claims of all kinds was likely to exceed the original estimate, although it was not in a position to estimate by how much.

96. On 1 February 2001, Parliament approved new Social Security Regulations which enabled the payments to be disregarded for the purposes of means-tested eligibility for social security benefits. The WPA immediately paid some 14,000 claims. In the case of former prisoners of war, it made payments based on its records of military prisoners of war. In the case of applications from civilians, it made payment on receipt of proof that the applicant had received compensation in the 1950s. In the press notice announcing the payments, the WPA again referred to ‘British civilians who were interned’ as being eligible for payment, without further qualification.

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Further discussions about eligibility

97. A further meeting of the group of officials was arranged for 13 February 2001, presumably because of the need to resolve the issues identified by the WPA. The day before the meeting, the WPA circulated a paper dealing with a number of these issues, including the definition of British for the purpose of the ex gratia scheme. It noted that there were difficulties in obtaining records about civilian internee applicants who had not received compensation in the 1950s, and concluded: ‘we therefore need to establish appropriate guidelines on the question of nationality.’

98. I understand that there are no minutes of the meeting on 13 February 2001, but following the meeting the WPA wrote to the Cabinet Office to note that it had agreed to write to suggest an approach to nationality. That suggested was that:

‘for the purposes of this scheme the definition of ‘Britishness’ is defined as either being born in the British Isles or being born of one or more parents who were themselves born in the British Isles… We would not propose to add any further qualifying criteria such as return to the British Isles.’

99. However, later the same day the WPA submitted a further paper prepared by the DWP suggesting that the criteria be extended to include civilian claimants who had a grandparent who was born in the British Isles. It was argued that this would bring the ex gratia scheme into line with what was being proposed for the non-statutory war pensions scheme for former civilian internees.

100. On 21 February 2001, the Cabinet Office sent out a note asking Cabinet Office, MOD and DWP lawyers to ‘get their heads together’ and work through the options for defining the nationality criteria for civilian internees. DWP officials consulted their own lawyers, and one said in reply: ‘I am puzzled as to why we are uncertain now as to the meaning of ‘British’ for the purposes of the policy announced in November last year’. She went on to stress that ‘in terms of risk of challenge to the scheme, the key is to ensure that “British” is based on the legislation at the time’. DWP lawyers subsequently consulted a legal adviser in the Cabinet Office and Central Advisory Division of the Treasury Solicitor’s office (CAD).

101. On 8 March 2001, the Chairman of ABCIFER wrote to the WPA to say that some of his members were asking why they had not received payments while others had already been paid. He noted that staff of the WPA had indicated that verification of nationality was a problem. He explained that some former civilian internees who had not been born in the UK were feeling that some form of discrimination existed: he stressed that this was a sensitive area that required early action before it caused more distress. He went on:

‘I believe you may be trying to get clarification of nationality questions from the policy makers so that you can progress blocks of claims rather than ask individuals for proof which they may find difficulty in obtaining. This sounds sensible, but it does not deal with the growing concerns of people some of whom are elderly and who have heard nothing further from you since the initial acknowledgement of their claim.’

02. The Chairman of ABCIFER went on to suggest that the WPA might write to those affected to inform them of the position and to ask them to provide evidence of nationality where it existed.

103. The Cabinet Office and CAD legal adviser replied to DWP lawyers on the question of nationality on 13 March 2001, proposing criteria based on the British Nationality Act 1981. Based on this advice, the DWP wrote to the Cabinet Office on 15 March 2001 to propose again that payment should be made to former civilian internees who could show that they had a parent or grandparent who was born in the UK (the ‘bloodlink criterion’). The writer drew an analogy with the non-statutory war pensions scheme for civilians and said; ‘this is a proposal which I am reasonably confident would be acceptable to ABCIFER’.

104. On 21 March 2001, the Cabinet Office said it had no difficulty with the DWP proposal, subject to DWP legal advisers being content. I have seen no evidence of any further correspondence on the matter.

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The eligibility questionnaire and ABCIFER concerns

105. As a consequence of this decision, the WPA wrote to former civilian internees whose claims were still being considered, sending them a questionnaire asking for additional information to ‘assist us to confirm eligibility within the entitlement criteria set’. The WPA asked for details of the claimant’s parents and grandparents, including place of birth. One of the recipients of this letter was Professor Hayward, who returned the questionnaire to the WPA on 28 March 2001.

106. This questionnaire produced a further letter to the WPA from the Chairman of ABCIFER, who noted that the letter to claimants appeared to be seeking to identify ‘a bloodlink of claimants to the UK not apparent from the original claims submitted’. He said that this had caused concern and distress to a number of ABCIFER members who were unable to provide the information requested, but who were regarded as British by the Japanese and interned as such. He went on:

‘At the time of the 7 November [2000] announcement of the ex gratia [scheme], it was not possible to foresee every aspect which might arise in dealing with claims. But the underlying theme was to recognise the unique experience and suffering of British nationals at the hands of the Japanese, and we look to the continuation of a generous interpretation of this intent.’

107. The Chairman of ABCIFER wrote to the WPA again on 9 April 2001 to say that a number of the Association’s members would not meet the criteria of having a parent or grandparent born in the UK. He urged that the criteria for eligibility should not lead to ‘discrimination between British nationals’. Nine days later he submitted a paper dealing with the eligibility of former civilian internees. In referring to those who did not satisfy the birth criteria, the paper distinguished between two categories, those who had settled in the UK immediately or shortly after the war, and those who had not done so.

108. In relation to the claimants who had settled in the UK after the war, the ABCIFER paper argued that payment of their claims would not create a precedent for others who claimed to have been British subjects but who were overseas. It argued that the rejection of their claim by the UK would mean that they had no other country to turn to for recognition of their suffering and loss. ABCIFER acknowledged that the claims of those who had not settled in the UK after the war might have to be assessed on a different basis, including how strongly and consistently they had demonstrated their claim to be British. The paper concluded as follows:

‘It appears that the intention of the British government in granting recognition of suffering by means of the ex gratia [scheme] was to be generous. The interpretation of British nationality will be the test of the extent of the generosity of the government’s ex gratia [scheme]. It is a sensitive area for those affected and will be regarded as discriminatory by those excluded. This point is now being made and is causing distress. Decisions which impose a cut-off point are by their nature discriminatory. It should be said that the Japanese did not discriminate when interning them, together with those for whom a bloodline link to the UK now assumes importance, and that their action would have been based on what was accepted as “British at the time”’.

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

‘When [DWP sent their note of 15 March 2001] the expectation was that the proposed definition of eligibility would allow the bulk of outstanding cases to be paid. It now appears that if we apply the eligibility criteria we will be left with some 800 which do not qualify.

Not only will this result in a much larger number of rejections than expected but the individual circumstances of many of these cases will be hard to defend. Many of the individuals, now “fully naturalised British citizens” have lived in the UK for over 50 years and would be deemed by the general public to be wholly “British”. Most importantly for presentational purposes, they were interned solely because the Japanese deemed them to be British.’

‘Despite previous concerns at expansion of the eligibility we are now firmly of the belief that the evidence of individual cases suggests that the present stance will be impossible to defend on grounds of fairness and logic. It does not seem that the rejection of these cases will be in keeping with the original intent and spirit of the scheme. I have a real concern that rejecting claims on the current “nationality” criteria could very quickly put the whole scheme into prominence as a “bad news” story.’

110. The WPA went on to call for an urgent meeting of the group of officials. It also continued to liaise with ABCIFER in relation to claims from former civilian internees. According to a note of a meeting with ABCIFER on 24 April 2001, the WPA agreed to make a submission to the Government about ‘other categories of Nationality for instance returning to live in the UK or working in an official capacity for the UK Government.’

111. Following this meeting, the WPA submitted a paper to the Cabinet Office on 4 May 2001 about ‘the need for extension of criteria’. The papers divided applications from former civilian internees into five categories, one of which was:

‘Neither applicant nor parent/grandparent born in the UK but applicant is now a “British citizen” (which we assume is defined as holding/entitled to 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 who underwent considerable suffering and who “the man in the street” would consider to be wholly British. It may therefore be deemed appropriate to introduce further criteria of eligibility that would allow payment to this group.’

113. In an internal note dated 9 May 2001, a MOD official expressed reservations about this proposal on the ground that it could extend eligibility to the members of the former Indian Army. The writer recognised that such claimants would be ruled out on other grounds (i.e. because they were not members of the British armed forces when imprisoned by the Japanese) but commented that ‘the man in the street’ might consider at least the Gurkhas ‘British’.

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The working group meets again

114. There was a further meeting of the group of officials on 21 May 2001. Once again, there are no minutes, but following the meeting the Cabinet Office wrote to those who had attended to record the main points to emerge. In respect of the definition of British civilians, the letter said:

  • ‘This had been defined subsequently as those British subjects who had been born in the UK, or whose parents or grandparents had been born here. There had never been any intention on the part of Ministers to open up the scheme to anyone without a direct link to the UK. It was agreed therefore that it would not be appropriate to extend the scheme to those internees who subsequently settled in the UK or who were British citizens abroad.’

115. On 8 June 2001, responsibility for the WPA passed to the MOD and it was renamed the Veterans Agency.

116. On 12 June 2001, MOD officials put a submission to Dr Moonie inviting him to ‘note’ the definition of British being used for the purposes of the ex gratia scheme. The submission contained the following statement:

‘Many have applied who could have been defined as British subjects during the war or have since settled here and become British citizens but it was never the intention of the scheme to include those who have no close connection by birth with the United Kingdom.’

117. I am told that, following receipt of this note, the Minister asked for further information and MOD commissioned further briefing from the Veterans Agency in order to provide this information. The following day, the Veterans Agency sent the MOD a note describing the circumstances of some ten civilian claimants whose claims stood to be refused. The note ended:

‘You will see from the above that the contrast is as wide as a current British citizen not being paid against a lifetime foreign national receiving payment. Any line drawn in the sand will disentitle some applicants; however it is right that we should be aware of the potentially embarrassing contradictions arising out of the current definition. These could be exploited by the press and the fact that, in the eyes of the public, we are denying those who they perceive to be British, in favour of those they may consider are not.’

118. A second submission, based in part on the further information provided by the Veterans Agency, was made to the Minister on 14 June 2001. It provided an excellent summary of the background, and enclosed details of the ten cases identified by the Veterans Agency before recommending that the criteria should remain unchanged. The Minister’s decision is recorded in a note dated 19 June 2001. It noted that the Minister recognised that the decision was contentious, and would probably attract criticism, but;

‘It is accepted that the term “British” needed further clarification, and that this measure has been adopted to avert the potential abuse of the ex gratia payment scheme.’

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The rejection of claims

119. The Veterans Agency wrote to a number of former British civilian internees on 25 June 2001 to reject their claims for compensation on the ground that they were not (or did not have a parent or grandparent who had been) born in the UK. As I noted above, one of these claimants was Professor Hayward.

120. Dr Moonie replied on 11 July 2001 to a question from Sir Nicholas Winterton MP, who had asked what changes had been made to the definition of ‘British’ when applied to civilians for the purposes of the ex gratia payments. The reply was as follows;

‘The ex gratia payment announced on 7 November 2000 is being made to the various British groups who had been held prisoner by the Japanese during the Second World War. The eligibility criterion for civilian claimants has recently been clarified, but there has been no change in the intended scope of the scheme. British subjects whom the Japanese interned and who were born in the United Kingdom, or had a parent or grandparent born here, are eligible for the payment'.

121. The Minister’s Assistant Private Secretary wrote to the Chairman of ABCIFER about this announcement on 20 July 2001. The letter included the following:

‘On the matter of the definition of “British”, I should point out that we have not changed the definition: no definition was given by the Minister in Parliament on 7 November, nor, I believe, was one set out by officials at your meeting with the WPA later the same month.

The definition set out recently has been issued to provide necessary clarification of the meaning of the term “British” in the context of civilian claimants under the scheme. The government’s intention has always been that the eligibility for this group should be dependent on a direct link to the United Kingdom at the time of captivity by birth or by parentage.’

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ABCIFER’S application for judicial review

122. Following this announcement, ABCIFER made an application for judicial review of the legality of the decision to introduce the bloodlink criterion.

123. Mr Justice Scott Baker rejected the application on 18 October 2002. His judgment included the following words:

‘It is a great pity that the government's intention as to those who should qualify for the payment was not expressed at the time with greater clarity. The hopes of a significant number who were interned by the Japanese have been raised only to be dashed, and considerable distress has been caused as a result. I can well understand the feeling of those who were “British enough to be interned but not British enough to receive the payment”. This is of particular poignancy when seen in the context that the payment was not expressed as compensation but as recognition of a debt of honour owned by this country to the British people who were detained by the Japanese during the Second World War. The question is not, however, whether the decision to define British as requiring birth in this country or a blood link with it is unjust but whether itis unlawful’ (my emphasis) .

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

‘Naturally, we feel very great sympathy for all those who suffered appalling ill-treatment at the hands of the Japanese during their captivity. We also well understand that many civilians had their hopes of receiving compensation raised by Dr Moonie's announcement of 7 November 2000, and that they have been extremely disappointed, and indeed angered, by what they see as a subsequent and unfair change of heart on the part of the Government. But anyone who seeks to challenge as unlawful the content of a non-statutory ex gratia compensation scheme faces an uphill struggle. We do not think that the introduction of this scheme was well handled by the Government. But for the reasons that we have given, the applicant has failed to satisfy us that the scheme was unlawful. The appeal must therefore be dismissed’.

125. The Court thus rejected contentions made on behalf of ABCIFER that the introduction of the bloodlink criterion was unlawful. However, in giving its reasons, the Court made a number of criticisms. It concluded that the Minister’s announcement of 7 November 2000 had been ‘less clear than it should have been’. It also concluded that there had ‘been nothing [in the announcement] to suggest that the Government was intending to introduce a qualification which would exclude a significant number of persons who would otherwise be eligible to receive payment’.

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

‘anyone reading the announcement and the specimen claim form carefully should have realised that the scheme did not, or might not, entitle all those who were British subjects at the time of their internment to compensation without qualification’ .

127. The Court also stated that:

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

Further criticism of the scheme

128. Subsequent to the judgment of the Court of Appeal, Members of Parliament and ABCIFER continued to press the MOD to change its position in relation to the bloodlink criterion in the light of the injustice they felt was being inflicted on those civilian internees who were thereby excluded from receiving the ex gratia payments. The MOD told both MPs and ABCIFER that there was no question of acceding to this request as the courts had determined that the MOD had acted legally. At the time of writing, that continued to be the Government’s public position.

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The courts and my role

129. I accept that the MOD did not act unlawfully insofar as the matters considered in the ABCIFER proceedings are concerned. I note that other proceedings found the scheme to be unlawful in relation to its treatment of certain military internees, although those proceedings are not relevant to the subject matter of this report. I am also aware of other legal proceedings related to the treatment of civilian applicants – primarily related to whether the scheme is unlawful on the grounds of racial discrimination – on which the High Court has just passed judgment.

130. As I understand it, that judgment finds that the bloodlink criterion constitutes unlawful indirect racial discrimination for which no justification exists; and that the MOD is in breach of its general race equality duty. Other contentions as to the legality of the scheme were dismissed by the court. I do not know whether this judgment will be the subject of appeal.

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

132. In relation to my role and that of the formal legal process, the courts have elsewhere held that, although there is a substantial element of overlap between maladministration and unlawful conduct, these concepts are not synonymous. There is no reason in principle why the considerations which determine whether there has been maladministration should, necessarily, be the same as those which determine whether conduct had been unlawful.

133. There is therefore no reason why, when exercising my power to investigate and report on complaints of maladministration, that I should necessarily be constrained by the legal principles which would be applicable if I were carrying out the different task (for which I have no mandate) of determining whether conduct has been lawful.

134. My findings which follow are thus confined to determining whether the MOD acted with maladministration (falling short of unlawfulness).

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