Annex - The Government's response
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1. This annex sets out the Government’s response to my report. The MOD has confirmed that its response was submitted on behalf of all Government bodies concerned with the subject matter of the investigation.
2. What follows is in the words of the Permanent Secretary of the MOD (although some minor editing has been necessary) .
Principal findings and recommendations
3. Your findings of maladministration can be split into two sections. The first deals with the ‘origination and announcement of the scheme’; the second deals with ‘the operation of the scheme and the bloodlink (birthlink) criterion’. These sections are addressed in turn:
Findings of maladministration in relation to the origination and announcement of the scheme
4. As Ministers have many times acknowledged in letters, given the need for boundaries to define eligibility for ex gratia schemes, those people falling outside the boundaries of such schemes feel real and understandable disappointment.
5. Nevertheless, you have found that the manner in which this ex gratia scheme was devised constituted maladministration on the ground that the scheme should not have been announced to Parliament before the eligibility criteria had been completely thought through. In addition, you have found that had Professor Hayward known the terms of the scheme, he would not have applied for a payment under it and therefore would not have suffered the distress of having his application subsequently refused by reason of the late introduction of a criterion which was not disclosed to Professor Hayward or to other disappointed applicants until after their applications were refused. You have also found that the eligibility criteria should have been explained to those issued with the questionnaire sent out in March 2001.
6. The Government accepts these particular criticisms and, further, accepts your recommendation that it should apologise to Professor Hayward and others in a similar position for the distress thus caused, which is profoundly regretted. Consideration will be given, in line with your recommendation, as to whether that regret should be expressed tangibly.
7. All the Departments concerned accept that, although in some areas a considerable amount of scoping work had been undertaken, the scheme was introduced very quickly. This was in line with the wish to have it – and the payments to be made under it – in place as soon as possible, particularly in view of the age of those concerned: as acknowledged in your report, it was being made very clear to Departments by those representing the former internees that time was of the essence in ensuring that claims were dealt with speedily.
Finding of maladministration in relation to the operation of the scheme and the birthlink criterion
8. However, you then go beyond your criticisms of the way in which the scheme was originated and introduced, and criticise the decision to introduce the birthlink criterion at a time when some 14,000 payments had already been made. (The majority of these payments had of course been made to former prisoners of war (i.e. personnel whose eligibility arose because they had been imprisoned when serving in the Armed Forces of the Crown), or to their surviving spouses, and who did not therefore need to demonstrate a close connection to the UK by birthlink.)
9. The Government has significant concerns about this section of your Report.
10. To the extent that Professor Hayward complains about the way in which the scheme was announced and introduced, his complaints were not capable of legal remedy because (despite the fact that these matters were referred to in passing by the court), they did not give rise to any illegality. These were, in the true sense, complaints of maladministration falling short of illegality.
11. But there was another category of complaint: those which, if true, would have constituted grounds for judicial review. A complaint falling into this category would not be one of maladministration falling short of illegality, but one in which the maladministration alleged is an instance of illegality and, therefore, one in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law within section 5(2)(b) of the Parliamentary Commissioner Act 1967. You would therefore be precluded from investigating it, unless you were satisfied that in the particular circumstances it was not reasonable to expect Professor Hayward to resort or have resorted to the legal remedy.
12. In your report, you say that the Government has not been able to demonstrate that applications from people in the same situation for the purposes of the scheme’s eligibility criteria were not decided differently. You also say that officials have accepted that payments were made prior to the introduction of the bloodlink criterion to individuals who did not qualify under this criterion.
13. If there were indeed such cases where the difference in treatment between those cases and subsequent cases in which payment was not made was attributable to a deliberate change in the eligibility criteria then that would be evidence of arbitrary and unlawful discrimination.
14. Indeed, this very point was advanced by ABCIFER in their case as a ground of unlawfulness and was dealt with by Scott Baker J who said:
“Wherever one draws the boundaries of a scheme of this kind, there are bound to be anomalies and unfairness. But I accept the submission of Mr Sales [Treasury Counsel] that this cannot dictate the lawfulness or otherwise of the scheme. Nor is it in my judgment relevant that a few payments were made to those who did not qualify with the blood link. It seems to me that some errors were an inevitable consequence of trying to implement the scheme as quickly as possible.”
15. In your report, you have said that you do not consider it reasonable for Professor Hayward to have pursued a legal remedy, but your reasons for this conclusion are unsatisfactory, given that others, including another individual, have taken this route.
16. The fact that ABCIFER did in fact bring proceedings and that they did raise precisely the point on which you now rely indicates that Professor Hayward could have taken the point had he wished to do so.
17. The fact that Scott Baker J dealt with the point and found that “some errors were… inevitable” makes it inappropriate for you to consider the point afresh and reach a conclusion which, with respect, is frankly inconsistent with that of the learned judge.
18. Quite apart from any inconsistency with the judgement of Scott Baker J, it is unclear on what evidence you can base your conclusion that people in the same position as Professor Hayward were paid before the birthlink criterion was introduced apart from those paid by mistake. The papers discussing the criteria used demonstrate that the payments processed initially were in respect of those former civilian internees born in this country, or, for those interned as children who were born in the Far East, those whose parents were born here. These individuals met a criterion that was stricter than the later birthlink criterion and were not therefore in the same position as Professor Hayward. Nor therefore do they constitute a precedent for Professor Hayward now.
19. These papers also indicate that the need to clarify civilian eligibility criteria was recognised early and that many claims were set aside pending this clarification. The introduction of the birthlink criterion actually represented a widening of the existing basis for payment to include those not born in this country but who had a parent or grandparent born here.
20. You have included in your report statements made by the Chairman of ABCIFER on inconsistencies in payments made under the scheme of which apparently he gave you examples. We however have not had the opportunity to identify and comment on these cases, or on the other evidence which Mr Bridge apparently supplied to you. This puts me at a disadvantage in responding to your findings on this point, although insofar as we can guess which cases he may be referring to, we do not believe that they necessarily support your findings.
21. You also cite examples of people who have been rejected as lacking the birthlink but who, like Professor Hayward, have established a close link with the UK since the War and in many cases made a considerable contribution in this country.
22. But the scheme is not designed to recognise links or contributions to the UK made since the War; it is the link at the time of internment which counts and to include people because of a link now would be to change the basis of the scheme and destroy its coherence, which change could effect many more than a few hundred people.
23. As you know, it was an important element of ABCIFER’s challenge that those who came to this country after the War should be entitled to benefit from the scheme. The Court of Appeal concluded however that “the failure to take account of the closeness of the links with the UK at the time of the claim for compensation is not a good reason for impugning the rationality of the birth criteria.”
24. The differences you highlight in your report are, therefore, a result of the way in which the scheme criteria (whose legality was upheld) were framed.
25. Accordingly, it is not appropriate for these differences in treatment to appear under the heading “Injustice”, which, as we understand it, is intended to identify injustice which has been caused by the maladministration you have found, rather than by the operation of the scheme as a whole.
Recommendation for a “thorough review of the scheme”
26. I trust that, in the light of the above comments, you will understand why the Government does not accept that a thorough review of the scheme is warranted.
27. The Government accepts in full your findings of maladministration in relation to the ‘origination and announcement’ of the scheme and will apologise for the distress which this maladministration caused to Professor Hayward and others in a similar position.
28. The Government will also consider expressing its regret tangibly. But we do not consider that these findings warrant a thorough review of the scheme.
29. The bloodlink criterion does, as both you and the courts have pointed out, create some apparent anomalies.
30. But, as the courts have recognised, such anomalies are inevitable when devising eligibility criteria for a scheme such as this. They do not make the scheme as a whole irrational or unfair.
31. Nor is the fact that some payments were made in error to people who are not eligible under the scheme a reason why others in whose cases the same error was not made should now be paid.
