Findings

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135. I now turn to an assessment of the facts set out above which have been disclosed by my investigation. Before doing so, I will set out my understanding of the effect of the adoption of the eligibility criterion.

The effect of the bloodlink criterion

136. In the paper of 2 November 2000, the group of officials estimated that there would be a total of about 16,700 claims under the ex gratia scheme, including about 3,700 claims from former civilian internees or their surviving spouses. In response to my enquiries, the MOD informed me that, as at 28 June 2004, a total of 29,094 claims had been received, of which 23,852 have been paid. By 10 February 2005, the number of claims received had risen to 29,288 and 23,963 payments had been made. These figures are considerably in excess of the original estimate.

137. The MOD also informed me that 3,650 claims had been received from former civilian internees (excluding spouses) by 28 June 2004. By 10 February 2005, this had increased to 3,664. Again, these figures are significantly in excess of the original estimate which, in that case, was provided by ABCIFER. The MOD was unable to provide a figure for the number of claims from surviving spouses of former civilian internees. They explained that the figure could only be obtained by examining all of the claims from spouses of all categories of claimant, which had totalled over 15,000.

138. I asked the MOD for the total number of claims from former civilian internees that were rejected solely on the ground that the claimant was not born (or did not have a parent or grandparent born) in the UK. The MOD was unable to provide an exact figure, but they told me that some relevant figures had been extracted and given in an answer to a Parliamentary Question on 8 April 2003. That answer had stated that approximately 800 claims from former civilian internees, including surviving spouses, with addresses abroad had been rejected on the ‘bloodlink’ criterion. Approximately 300 claims from former civilian internees, including spouses, with United Kingdom addresses, were rejected on the ‘bloodlink’ criterion. The MOD also pointed out that some of these claims might have failed on other grounds.

139. I also asked the MOD how many claims from former civilian internees had been paid by virtue of the fact that the claimant had received compensation in the 1950s, and how many of that total were not (or did not have a parent or grandparent) born in the UK. The MOD was unable to provide figures, but told me that, from the memory of those involved, the number in the latter category was ‘minimal’.

140. I am aware that ABCIFER and others believe that the scheme was operated in such a way as to lead to the inconsistent treatment of those whose applications were determined prior to and following the introduction of the bloodlink criterion. As I have said above, the allegations made by ABCIFER are not evidence on which I have relied and they are not material to my findings which follow.

141. The MOD says that, without sight of individual cases provided by ABCIFER or others where it is alleged that inconsistencies in payments under the scheme occurred, it is unable to comment on or respond to such allegations. That may be the case, but the question for me, in the light of the inability of the MOD to provide the information I requested above, is that there is little evidence through which to ascertain exactly how the scheme was operated prior to the introduction of the bloodlink criterion to assist me to determine whether it was operated without maladministration. I note also that the MOD has also been unable to provide information about the categories of applicant to whom payments were made during the early operation of the scheme.

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The questions I have asked

142. In assessing the evidence uncovered by my investigation in the context of my statutory remit, I have considered two questions: first, did the actions of the MOD in relation to the development, announcement and operation of the scheme constitute maladministration? Secondly, if so, did that maladministration cause an unremedied injustice to Professor Hayward and to others like him?

Maladministration

143. In relation to the first question, I have considered three aspects of the events described above. First, whether the way in which the scheme was devised was in accordance with good administrative practice. Secondly, whether the manner in which the scheme was announced was satisfactory. Finally, whether the operation of the scheme, including the introduction of the bloodlink criterion, constituted maladministration.

144. In relation to the final question, I have considered the fairness of the bloodlink criterion and four elements of the operation of the scheme: the first payments made under the scheme; the equal treatment of applicants; whether applicants were properly informed of the clarified scheme eligibility criteria; and responses to criticism of the scheme.

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The origination of the scheme

145. Did the manner in which the ex gratia scheme was developed constitute maladministration? I consider that it did.

146. As explained above, the issue of whether to make an ex gratia payment to the different groups of British people interned by the Japanese had been a matter of Parliamentary debate for at least five years prior to the eventual announcement of the scheme in November 2000. The wider issues had been the subject of public campaigns for much longer.

147. The Prime Minister had agreed to consider the question of compensation for former prisoners of war on 10 April 2000. It is therefore surprising that officials were only asked to draw up options – for making a decision on whether such a scheme was appropriate and, if so, what the conditions of eligibility should be – on 25 October 2000. This was only two weeks prior to the eventual announcement of the scheme and this occurred on the same day as the Prime Minister informed the House of the Government’s impending decision.

148. I am also concerned that officials were given only a few days to complete their task – one that, it should be remembered, on the Government’s own admission required decisions on sensitive issues that involved many Departments and entailed a departure from the policy pursued by previous administrations.

149. The Cabinet Office was asked to convene a meeting of interested Departments on Wednesday 25 October 2000. The first meeting of the resulting working party was held on Friday 27 October 2000. Departments were asked to produce contributions to a draft paper, for submission to Ministers, by 2pm on Monday 30 October 2000 – effectively one working day (or three calendar days) after the initial discussion by the working party. The paper and a covering note were finalised on Thursday 2 November 2000 and Ministers agreed the scheme on Monday 6 November 2000, one day prior to the Parliamentary announcement.

150. I make no criticism of the officials involved in drawing up the paper, who had to work quickly within the timetable imposed on them. But it should have been apparent that drawing up an ex gratia scheme in such a short space of time gave no opportunity for the details to be worked out properly and that this inevitably would lead to a lack of clarity.

151. I accept that, on some occasions, policy decisions and the administrative schemes to implement them need to be taken and devised in very short timescales due to special circumstances such as emergencies. However, that does not appear to me to have been the case here.

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The announcement of the scheme

152. The result was that the scheme was announced to Parliament before all of the implications of the eligibility criteria had been thought through. I note that the Court of Appeal said that it was ‘unwise’ for the Minister to say that the review had been completed when it ‘was apparent that the details still had to be worked out’; and that it was ‘unfortunate that he did not articulate what had been finally determined and what still remained to be worked out’ which gave rise to ‘scope for misunderstanding’.

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

  • that a misleading impression was given to prospective applicants by the terms of the announcement that the review – and thus the terms of the scheme including the eligibility criteria for it – had been completed. That was not the case;
  • that the reference to the review having taken time to conduct carried the misleading implication that the scheme had been worked out over some time and that eligibility for an ex gratia payment would be based on the terms of the announcement, which had made no mention of the requirement for a bloodlink to the UK. This also was not the case; and
  • that, by referring to ‘British groups that were held prisoner by the Japanese’ as being eligible for the scheme ‘in recognition of the unique circumstances of their collective captivity’, and also by reference within the same statement to ‘UK citizens’ and to ‘British civilians’, the Minister did not make any reference to the need to demonstrate any other link with the UK, whether by bloodlink or otherwise. This did not accurately describe the position. One can be, like Professor Hayward, currently a citizen of the UK and have been interned as a ‘British civilian’ by the Japanese during the war but still have no bloodlink to the UK.

154. The Courts have determined that the form and content of the announcement made by the Minister in the House of Commons on 7 November 2000 did not in itself lead to a situation in which those later refused payment (because of the introduction of the bloodlink criterion) were frustrated in a legitimate expectation. The Courts so concluded because the statement was sufficiently imprecise so as not to constitute ‘a clear and unequivocal representation’.

155. However, in my view, it is precisely that lack of clarity which represents such a significant departure from standards of good administration to the extent that it constitutes maladministration. As an official in the Secretary of State’s Private Office recognised, there was an ‘alarming degree of imprecision’.

156. As the Court of Appeal stated in its judgment, the Ministerial announcement ‘was less clear than it should have been’ and ‘many civilians had their hopes of compensation raised by Dr Moonie’s announcement’ only to be ‘extremely disappointed, and indeed angered’. This echoed the High Court’s view that ‘it is a great pity that the government’s intention as to who should qualify for payment was not expressed at the time with greater clarity’.

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

158. The misleading impression was compounded by the later DSS press release, issued on 1 February 2001, which referred to ‘British civilians who were interned’ as being eligible for payment without further qualification. A press notice using similar language was issued by the Scotland Office the following day; this also said that payments had been made to 1,092 people living in Scotland – 443 former prisoners of war and 649 widows.

159. Good administration of extra-statutory schemes requires clearly articulated entitlement criteria to ensure that those potentially covered by the scheme are not put to unnecessary distress or inconvenience by uncertainty or conflicting information. Such a need is all the more essential when the relevant issues are sensitive, as is clearly the case here.

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The fairness of the bloodlink criterion

160. Some of the explanations that I have seen in official papers of the rationale for the need to clarify the eligibility criteria or surrounding the discussions about why scheme eligibility could not be widened beyond the bloodlink criterion do not appear to me to be persuasive. For example, it is unclear to me why the bloodlink criterion would be necessary to discourage applications from members of the Indian Army, as that criterion was to apply only to civilian applications. However, the decision to introduce the bloodlink criterion was a discretionary decision that the Government was entitled to take.

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

162. The then Acting Chief Executive of the WPA considered that the decision to introduce the bloodlink criterion was ‘impossible to defend on grounds of fairness and logic’. However, the courts addressed the question of whether the bloodlink criterion – that to be eligible a surviving internee had to be born in the UK or had to have a parent or grandparent born in the UK – was irrational or in some other way unlawful. The courts have also now considered whether the scheme breached race discrimination legislation. The most recent judgment may be subject to appeal.

163. In the circumstances, it is not for me to address the aspect of the complaints I have received which relates to the fairness of the specific criterion. I will go no further than to say that it is perhaps surprising that this particular criterion was chosen as being the means to repay ‘a debt of honour’ to those interned as British civilians by the Japanese. And that, to echo the judgment of the High Court, I have great sympathy ‘for those who were British enough to be interned by the Japanese in the second world war because they were British citizens at the time… but do not have a sufficient blood link connection to qualify for an ex gratia payment under the scheme’.

164. My role in these matters is limited to determining whether the administrative acts of the MOD in operating the scheme constituted maladministration. I now turn to consider aspects of the operation of the scheme.

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The operation of the scheme - the first payments under the scheme

165. 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 WPA announced that over 14,000 payments would be made to applicants to the scheme. The press release congratulated WPA staff for having done ‘a brilliant job contacting [potential applicants] and processing their claims in just over two months’.

166.It appears that these payments were based to a significant extent on evidence of payment of compensation under the 1951 scheme. However, as it was later recognised in official correspondence – including in a minute dated 25 May 2001 from the WPA to the Cabinet Office – eligibility for payments under the 1951 scheme had been widened during the 1950s to include persons who had been married to British citizens, wherever the spouse had been born. There was therefore in early 2001 no way of knowing without detailed scrutiny of all of the papers in each case whether a recipient under the 1951 scheme had a bloodlink to the UK for the purpose of making payments under the current scheme.

167. Furthermore, eligibility for the 1951 scheme was based on being a British national normally resident in the UK prior to internment who had also returned to live in the UK after the war. However, under the legislation then in force, being a ‘British national’ at that time and being resident in the UK (both prior to the outbreak of the war and after its end) could not in itself determine whether that person had a bloodlink to the UK.

168. Thus eligibility for the 1951 scheme was, without a full review of each case, an insufficient basis on which to assess whether an applicant had a bloodlink to the UK, although the MOD has recently told me that it was possible to ascertain the place of birth of recipients of compensation in the 1950s through scrutiny of their individual records.

169. The MOD also recently drew my attention to the note of 15 December 2000, which set out a proposed way to deal with applicants who had been children or young adults when they were interned.

170. However, I have seen nothing to persuade me that such a proposal was consistently applied as a bloodlink criterion in relation to all applicants at that time. It may have been the case – in the absence of evidence I do not know - that applications from former child internees in the position described in the note were approved and paid prior to the introduction of the bloodlink. However, that (and the other content of the note) does not assist me to determine the policy applied to other applicants - such as those who received compensation under the 1951 scheme but who had no bloodlink to the UK or those who were surviving spouses of civilian internees without such a link.

171. Neither am I persuaded that any check would have been made to establish whether every civilian internee claimant who had received compensation under the 1951 scheme was born (or had a parent or grandparent who had been born) in this country because, at the time that the first applications to the current scheme were considered, such a requirement did not exist.

172. The first time that officials were asked to discuss and define what constituted ‘British’ for the purposes of the scheme was on 21 February 2001 – approximately three weeks after the first payments had been made – although it appears that it had been agreed that such a definition was necessary at a meeting on 13 February 2001. The bloodlink criterion, however, was not agreed in correspondence among officials until approximately 21 March 2001, this decision was not confirmed until a meeting of officials in May 2001, Ministers were not consulted about the decision until 12 June 2001, and the criterion was not made public until 11 July 2001.

173. Those determining the first batch of claims would therefore have done so without knowledge of the information that they would later need to acquire in order to apply the bloodlink criterion - at the time those applications were determined, that criterion had not even been discussed, let alone been agreed.

174. I am also not persuaded by the MOD’s reliance on the note of 15 December 2000 as demonstrating that early applications were determined in accordance with what later became known as the bloodlink criterion.

175. Its recent position does not appear to sit easily with:

  • the WPA request for clarification of the nationality criterion almost two months after the note was written, on the day prior to the meeting on 13 February 2001. The WPA said that there was (my emphasis) a ‘need to establish appropriate guidelines on the question of nationality’ to assist them to determine civilian applications. This would appear to suggest that they were at that time not sure how to determine the ‘British’ question and that no guidelines existed to assist them to do so; or  
  • the DWP lawyer’s advice in February 2001 that ‘British’ should be based on the legislation at the relevant time (i.e. in the 1940s) – again, citizenship under that law was not consistent with the bloodlink criterion. As legal advice was at that time being sought and given to inform the development of an agreed definition of what constituted ‘British’, this would not appear to suggest that such an agreed definition was already in place.

176. If things were settled in mid-December 2000, as the MOD’s recent submission appears to argue, I am puzzled as to why either of the above should have happened.

177. But most significantly in my view, the MOD’s recent explanation appears to be inconsistent with their contemporaneous explanations of the rationale for the introduction of the criterion.

178. As I have noted above, in agreeing the bloodlink criterion in June 2001, Dr Moonie was reported to have said that it had been ‘adopted to avert the potential abuse of the ex gratia payment scheme’. When later announcing the clarification in Parliament, the Minister also referred to the criteria having been clarified ‘recently’.

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

‘the definition set out recently has been issued to provide clarification of the meaning of the term “British” in the context of civilian claimants under the scheme’.

180. Albeit that the MOD position is not persuasive, I do not consider that the facts as to what policy was applied prior to the introduction of the bloodlink criterion are wholly clear. These could only be clarified by a thorough review of the early operation of the scheme.

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

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

183. It is reasonable to assume that payments to surviving spouses were among those made in February 2001 to people not resident in Scotland. Many of these payments (both in Scotland and elsewhere) would have been made in respect of their deceased spouse’s internment as a prisoner of war and therefore the bloodlink criterion would have been immaterial.

184. That said, if any of the first batch of payments were made to the surviving spouses of civilian internees, such payments would have been made on the basis of an application form that did not ask for the information required to apply the bloodlink criterion or on the basis of eligibility for compensation under the 1951 scheme, which also would not in itself have provided sufficient information. They would also have been determined, as I have shown above, at a time when the relevant criterion had not yet been discussed.

185. The MOD has not been able to provide me with evidence to assist me to establish what did occur. That is of concern to me.

186. I would expect a system designed in accordance with principles of good administration to be transparent, to produce consistent outcomes and not to be designed in such a way as to produce inconsistent outcomes. That this is the case should also be demonstrable.

187. I recognise that the existence of administrative errors does not necessarily render a scheme unlawful. Such errors do, however, raise questions as to whether a scheme has been operated without maladministration.

188. I cannot establish whether ABCIFER’s contention – that approximately one-sixth of the first batch of payments to civilian internees was made to individuals who did not meet the bloodlink criterion – is true. The MOD told me that the relevant records can only be searched in very limited ways and that the only way to provide the information I requested to enable me to determine this was by means of a manual search of all claim files. It is said that this would have been an ‘enormous undertaking’.

189. In the absence of a full review of the MOD’s files, it cannot therefore be known the extent to which, if at all, payments were made prior to the introduction of the bloodlink criterion to people who would not have qualified had their application been determined after its introduction.

190. I note the Government’s position that such payments were made only as the result of administrative error and not in consequence of the introduction of the bloodlink criterion or because those determining applications prior to that introduction had no agreed guidelines in place to assist them to identify what definition to apply.

191. However, it is unclear to me on what basis it knows this in the absence of detailed information about the payments made at that time - which the MOD has said it cannot provide without a thorough review of their files, which has not yet been undertaken.

192. In any case, I also note that the Government does not intend to seek to reclaim payments made in error or beyond the scope of the scheme. That intention seems to me to be entirely appropriate.

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The operation of the scheme - equal treatment

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

194. However, as this was done some weeks after the first payments were made under the scheme, in my view it was incumbent on the MOD at that time to satisfy itself that the late introduction of an eligibility criterion would not lead to the inconsistent treatment of applicants or to other administrative anomalies. They did not do so. I consider that this failure constitutes maladministration.

195. The Government has also not been able to provide me with evidence to assure me now that applications from people in the same situation for the purposes of the scheme’s eligibility criteria were not decided differently.

196. In this context, I am not satisfied that Professor Hayward (and those others whose applications were determined after the introduction of the new criterion) was afforded treatment equal to those whose applications were determined prior to the introduction of the bloodlink criterion.

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The operation of the scheme - informing applicants

197. I also criticise the failure to explain the ‘clarification’ of the eligibility criteria to those who, like Professor Hayward, were issued with a questionnaire in March 2001. This supplementary form was designed to elicit the new information needed following the introduction of the bloodlink criterion. The opportunity to inform applicants and potential applicants that the eligibility criteria for the scheme had been clarified was sadly missed. Those adversely affected by the clarification of the criteria did not have the position explained to them until their application was refused. This failure did not meet the standards of administration that citizens are entitled to expect from public bodies.

The operation of the scheme – criticism and review

198. I am also concerned that the MOD failed to undertake a review of the ex gratia scheme subsequently, following criticisms of the handling of the announcement and of the administration of the scheme contained in both the High Court judgment and that of the Court of Appeal. Such criticisms were also repeated in both Houses of Parliament and in correspondence with ABCIFER and others. While the decision as to the policy to be applied remained with Ministers (subject to Parliamentary sanction), the failure to review that policy in the light of the criticisms made by the courts and others is a matter of concern.

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Summary of findings

199. I have made four findings of maladministration. These are:

  • that the way in which the scheme was devised constituted maladministration in that it was done overly quickly and in such a manner as to lead to a lack of clarity about eligibility for payments under the scheme;
  • that the way in which the scheme was announced constituted maladministration in that the Ministerial statement was so unclear and imprecise as to give rise to confusion and misunderstanding;
  • that, at the time when the bloodlink criterion was introduced, the failure to review the impact of that introduction to ensure that it did not lead to unequal treatment constituted maladministration; and
  • that the failure to inform applicants that the criteria had been clarified when they were sent a questionnaire to establish their eligibility constituted maladministration.

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

  • that the Government has been unable to provide evidence of the basis on which the early payments under the scheme were made and that thus I have been unable to determine whether the scheme was operated properly; and
  • that no review of the scheme was undertaken in the light of criticisms of it by the courts, in Parliament, and elsewhere.

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Injustice

201. I have found that, to the extent indicated above, the way in which the ex gratia scheme was devised, announced and operated constituted maladministration. I now turn to the question of whether such maladministration caused an injustice to Professor Hayward (and to others in a similar position to him).

202. In coming to my determination of this question, I first considered whether those affected suffered an injustice, before considering whether any such injustice was in consequence of the maladministration I have identified in this report.

203.In considering the first question, I was struck by the fact that it was not the failure to receive a payment under the scheme that most outraged Professor Hayward. In that sense, while he has not received the financial sum that some others in his position may have received, the principal form of injustice he has suffered is not financial.

204. Rather, Professor Hayward was most outraged by the implication that he was not sufficiently British to receive a payment – expressed as being in recognition of ‘a debt of honour’ – under a scheme whose administrators had made no attempt to explain that he would not be eligible to receive such a payment until his application was refused. Had he known the terms of the scheme, it is reasonable to assume that Professor Hayward would not have applied for a payment under it and therefore he would not have suffered the distress of having his application subsequently refused.

205. In the course of this investigation, I have come across other examples of claimants whose applications have been refused as a result of the introduction of the bloodlink criterion. These include:

  • Squadron Leader X, who was also repatriated to the United Kingdom shortly after release from internment and was conscripted for national service. He decided to pursue a permanent career in the Royal Air Force and retired at the age of 55; and
  • Doctor Y, who spent the whole of his working life at the Government's Royal Aircraft Establishment in Farnborough. He has been elected a Fellow of the Royal Society.

206. These are people who have given public service to the UK. Many others who are ineligible under the clarified terms of the scheme can also demonstrate a close link with the UK: by having taken up UK citizenship, through long residence here, or by having brought up a family here. Those who have demonstrated such a commitment have told me that they feel a sense of injustice.

207. It is therefore clear to me that many people in Professor Hayward’s position have suffered outrage at the way in which the scheme has been operated and distress at being told that they were not ‘British enough’ to qualify for payment under the scheme. That outrage and distress constitutes an injustice.

208. The question for me, however, is whether the maladministration I have identified caused the injustice suffered by Professor Hayward and others in a position similar to him.

209. I consider that he and others were entitled to expect that the scheme would be devised properly, with clearly articulated eligibility criteria. They were also entitled to expect that they would be provided with pertinent information and that the scheme would be operated properly.

210. Given what I have said above in relation to my findings about the origination, announcement and operation of the scheme, and having regard to what Professor Hayward and others have told me, I am satisfied that the maladministration which I have found caused injustice in the form of a sense of outrage to Professor Hayward and to others in a similar position to him.

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