Annex B – Chronology of events

1930 to 1943

Mr A’s parents were both from Iraq and migrated to Malaysia before their children were born. Mr A and his four siblings, Mrs B, Mrs D, Mrs E and Mr F, were the youngest 5 of 11 children born to their parents. They were all born in Negeri Sembilan, one of the Federated Malay States. They were born between 1930 and 1943. Their six older siblings were all born in Singapore. In her letter to the Agency in October 2007 Mrs B described her family’s situation as follows:

‘To be able to earn a liveable livelihood, my parents migrated to Malaysia. Having to support 11 children, caring for two elderly parents, a sick brother and two widowed sisters it was my Dad’s responsibility being the eldest in his family.

‘There was little – or no – medical facilities at the time my six elder siblings were born and there was no alternative but for my Mum to travel to Singapore for their births. The five of us were born in Malaysia due to lack of finance.’

At the time the family were interned by the Japanese, Mr A’s father was a shop keeper.

7 December 1941

The Japanese attacked Pearl Harbour.

8 December 1941

The Japanese invaded what was then Malaya.

15 February 1942

Singapore surrendered to the invading Japanese forces.

28 March 1945 to 6 September 1945

Mr A and his family were amongst those interned by the Japanese. They were held in Sime Road internment camp in Singapore. Although Mr A and his siblings note the date they were interned as 25 March 1945, official records note that they were interned on 28 March 1945. After the end of the war it appears that the whole family moved back to Malaya.

10 May 1951

Prior to the San Francisco Peace Treaty a motion in the House of Commons asked that the British Government should give consideration to compensating British Far East prisoners of war.

September 1951

The San Francisco Peace Treaty between the Allied powers and Japan was signed.

21 October 1952

It was announced on this day in the House of Commons that the Government had decided that the proceeds of Japanese assets in the UK should be distributed on a ‘per capita basis’ to Far East prisoners of war in accordance with the 10 May 1951 motion. They said that:

‘having regard to the smallness of the sum available, it was felt that qualifications for a grant [of compensation] must be narrow as otherwise individual payments might be derisory.’

The eligibility criteria were that a person must be:

• British;
• normally resident in the UK at the time of capture; and
• resident in the UK now (in 1952).

Widows would also qualify for a compensation payment, but no ‘family unit’ could receive more than ‘one share’. Civilian internees received £48.50. Between 1952 and 1956 approximately 8,800 adult British internees received this sum.

1957

In this year Mr A emigrated from Malaya to Australia. Most of his siblings did so as well.

1994

In this year the surviving British internees founded the Association of British Civilian Internees – Far Eastern Region (ABCIFER).

25 October 2000

In response to a question in the House of Commons, the Prime Minister indicated that a decision on compensating prisoners of war in the Far East would be made by 8 November 2000. On the same day the Prime Minister’s Office asked the Cabinet Office to arrange a meeting of the interested government departments to provide advice to ministers on the key issues including ‘who would/should be covered?’ by such a scheme.

27 October 2000

A meeting, attended by officials from the Cabinet Office, the Treasury, the Ministry of Defence (MoD), the Department of Social Security (DSS – as it was known until 8 June 2001, when it became the Department for Work and Pensions – DWP), the Foreign and Commonwealth Office (FCO) and Inland Revenue (now HM Revenue & Customs), took place. One action point from the meeting was for FCO to seek legal advice on whether the Government had any potential obligation to make payments to ‘civil internees who were Empire nationals’.

Following the meeting the Cabinet Office drafted advice for ministers and circulated it for comment from the officials who attended the meeting. An early draft of the advice (it is unclear whether this was a result of FCO’s legal advice) said:

‘civilian internees of former Empire countries would not have a legal basis for asking for a payment from HMG [Her Majesty’s Government] (the full rights and responsibilities of the British Government regarding members of the Empire having been transferred on the granting of independence).’

A manuscript note next to this paragraph in a later draft of the advice said ‘which wd [would] have suggested paying those now UK citizens’. The paragraph was removed from the final draft of the advice.

1 November 2000

DSS wrote to the Cabinet Office with their comments on the draft advice. They suggested amendments to the draft which would:

‘emphasise … the importance of tying entitlement to British taxpayers money …, in the case of civilian internees, to British nationality and residence. The suggested criteria are largely based on that used in Britain’s distribution of liquidated Japanese assets in the 1950s.’

They went on to say that it seemed ‘there has not been sufficient time to work up a detailed entitlement criteria that can withstand challenge and criticism from MPs, the Press and ex-FEPOWs [Far East prisoners of war]’. The DWP suggested that the eligibility criterion for the original scheme should be ‘surviving British civilians who were interned by the Japanese during the second world war’.

2 November 2000

The final paper, resulting from the 27 October 2000 meeting and the subsequent comments advised, in relation to civilians, stated that payments should be made to ‘surviving civilians, who are UK nationals and were interned by the Japanese in the Far East during the Second World War’. The criteria also permitted the inclusion of the surviving spouses of those civilians. The paper did not define what was meant by ‘UK nationals’.

3 November 2000

The Private Secretary to the Secretary of State for Defence wrote to the Prime Minister’s Office to record ministerial support for the option in the Cabinet Office’s advice for ‘a comprehensive ex gratia scheme’ including prisoners of war, merchant seaman, civilian internees and surviving spouses. The Private Secretary said that ‘there is good sense in maintaining consistency of approach by including all categories of individuals eligible under the 1950s compensation scheme’.

6 November 2000

The Prime Minister agreed to go ahead with ‘an ex gratia payment of £10,000 to Far East prisoners of war, Far East civilian internees, merchant seamen and the widows/widowers of these groups’. He also agreed that the scheme should be administered by the War Pensions Agency.²⁹ (For simplicity, I will refer to it throughout as the Agency.)

Also on this day, in commenting on earlier drafts of the Agency’s leaflet Ex gratia payment for British groups who were held prisoner by the Japanese during World War Two: Notes for Guidance and the draft press release, a DSS official had, in an unsigned manuscript note on a fax, suggested the removal of the phrase ‘UK citizens’ 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!’.

7 November 2000

In a statement in the House of Commons the Parliamentary Under-Secretary of State for Defence, Dr Lewis Moonie, announced 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. Dr Moonie said that amongst those who would be eligible for the payment would be ‘British civilians who were interned’. The ministerial statement went on to say that:

‘the government recognise that many UK citizens, 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.’

During the House of Commons debate that followed, Ms Jane Griffiths MP asked whether the Minister could ‘confirm whether compensation for civilians who were prisoners will be paid to those who were children at the time’. Dr Moonie said that ‘all prisoners are entitled to payment’. Mr David Rendel MP welcomed the:

‘fact that all members of families who were interned will receive the payment, and that there will not be just one payment per family. May I bring it to the attention of the Minister that it is in the nature of such families that many have not returned to Britain or may not live here?’

Mr Rendel asked the Parliamentary Under-Secretary to assure him that ‘where they are living will make no difference to whether they receive the payment’. The Parliamentary Under-Secretary assured Mr Rendel that ‘that is certainly the case’.

A Q & A [Question and Answer] Pack attached to the press release accompanying the Parliamentary Under-Secretary’s statement did not distinguish between ‘British groups’. The pack included the question: ‘Are all those who are eligible to receive payments British nationals?’; the answer to which was ‘No. Foreign nationals who were members of the UK armed forces will also be eligible for this payment’.

The Agency’s leaflet Ex gratia payment for British groups who were held prisoner by the Japanese during World War Two: Notes for Guidance identified the categories of persons who could make a claim for the payment. One of the categories was ‘surviving British civilians who were interned by the Japanese in the Far East during the Second World War’.

13 November 2000

The Agency’s project manager of the original scheme emailed a colleague in the Agency’s policy section with a query about the references to nationality in the published literature for the scheme. The project manager noted that the leaflet for claimants referred to civilians who ‘are a UK national’ (my emphasis), while the claim form made reference to a claimant having to be a civilian who ‘was a UK national’ (my emphasis). He asked at what point a claimant’s nationality was relevant: currently or ‘at the time of incarceration’. A manuscript note on the email said ‘use language from the announcement/press releases i.e. “British civilians who were interned” – consistency! All agreed’.

15 November 2000

The Agency met bodies representing those imprisoned and interned. A number of issues concerning eligibility were raised, including nationality. The notes of the meeting included the question ‘what constitutes “British” and what is the impact of any change in nationality since imprisonment [?]’.

16 November 2000

An internal policy paper addressed a number of issues raised within the Agency that ‘required clarification’. Amongst the issues raised, the paper said that ‘A clear definition of a “UK National” is required. Are children who were interned and are of British nationality but were not born in Britain now covered [?]’. The answer in the paper was:

‘We favour the use of the term “British” to describe the qualifying group of former civilian internees. This is the term used in the Government’s Statement of 7 November to Parliament on its decision to make ex gratia payments. We would like to see examples of any problem cases WPA encounter with the use of this term. We consider that the group referred to in your question is covered by the ex gratia scheme, particularly those born to British parents.’

22 November 2000

A meeting took place at the Cabinet Office between the government departments with an interest in the original scheme. The participants agreed 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 discussion of the definition of ‘British’.

6 December 2000

Following a Social Security Advisory Committee (SSAC) meeting on this day, a DSS official emailed the Agency to say that points raised at the SSAC meeting ‘suggested we had been too loose in our description’ of those entitled to the ex gratia payment. He asked the Agency what was meant by ‘British civilian internees’. In particular, he asked ‘are Malayans who were interned but have since moved to Britain entitled? Or did they have to be British when interned?’. There is no evidence of the response to this question on the MoD’s files.

7 December 2000

The Agency faxed the MoD’s army historian to ask for his comments on the definitions they proposed to use in their response to the chairman of the SSAC. Its definition of ‘British civilian internees’ was ‘those who were British at the time of their incarceration’. The army historian wrote back on the same day. He agreed with the Agency’s definition ‘on the basis that we are using UK funds: in reality = to UK Article 14 assets, in 1950s we insisted on a UK nationality & residential qualification’.

15 December 2000

In a minute to the Cabinet Office, a DWP 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 content 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.’

29 December 2000

A Cabinet Office official responded to DWP’s minute of 15 December 2000. They agreed with DWP’s proposed approach in respect of ‘British civilians resident in the UK’. They said that the question remained as to how they should treat ‘British civilians resident overseas’. They said that they understood the MoD’s position to be that as war pensions were payable to former service personnel overseas so should the ex gratia payment. On that basis they thought there would be an inconsistency if civilian internees could not receive the payment. They agreed that ex gratia payments could be made to civilian internees resident abroad provided that the Treasury gave their authorisation.

December 2000

Mr A and his siblings submitted claims to the Agency for ex gratia payments as ex Far East prisoners of war:

• Mr A’s claim, dated 28 November 2000, was received by the Agency on 7 December 2000.
• Mrs B’s claim, dated 12 December 2000, was received by the Agency on 18 December 2000.
• Mrs D’s claim, dated 11 December 2000, was received by the Agency on 18 December 2000.
• Mrs E’s claim, dated 7 December 2000, was received by the Agency on 12 December 2000.
• Mr F’s claim, dated 16 December 2000, was received by the Agency on 29 December 2000.

Mr A and his sister, Mrs E, both attached covering letters to their claim forms. These letters described the way in which the Japanese soldiers woke their family in the early hours of the morning, ordered them to pack bare essentials and then took them on a terrible journey to Sime Road internment camp in Singapore. The letters also described their memories of fear when witnessing violence towards other internees within the camp, lack of food and the prevalence of diseases such as scabies. The letter is attached in full at Annex D, D1.

12 January 2001

The Agency provided the Cabinet Office with a written progress report on the original scheme. It explained that it had been unable to trace approximately 600 civilian internees who had applied for an ex gratia payment. It said that it had expected civilians would form the majority of cases that they were unable to trace because civilians under the age of 21 were not covered by the 1950s scheme and because a higher proportion of civilian internees would have been resident overseas and may not have claimed under the 1950s scheme. It said that it was working with ABCIFER to confirm the eligibility of these claimants.

1 February 2001

The Agency issued a press notice saying that from that date over 14,000 payments of £10,000 would be issued to former prisoners of the Japanese or their surviving spouses in recognition of the unique circumstances of their captivity during the Second World War. In the press notice, the Agency referred to ‘British civilians who were interned’ as being eligible for payment, without further qualification.

13 February 2001

A further meeting of the government departments with an interest in the original scheme took place. The day before the meeting the Agency circulated a paper which listed the ‘Definition of British’ as an item for discussion at the meeting and that it needed to establish ‘appropriate guidelines for the question of nationality’. We understand that there are no minutes of the meeting on 13 February 2001 but, following the meeting, the Agency wrote to the Cabinet Office to note that it had agreed to write to suggest an approach to nationality. That suggestion was:

‘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.’

However, later the same day the Agency submitted a further paper prepared by DSS 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 original scheme into line with what was being proposed for the non-statutory war pensions scheme for former civilian internees.

21 February 2001

The Cabinet Office sent out a note asking the Cabinet Office, the 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 (CAD) of the Treasury Solicitor’s office.

8 March 2001

Ron Bridge MBE AFC FRAeS FRIN, in his capacity as the Chairman of ABCIFER wrote to the Agency 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 Agency 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.’

Ron Bridge went on to suggest that the Agency might write to those affected to inform them of the position and to ask them to provide evidence of nationality where it existed.

13 March 2001

The Cabinet Office and Central Advisory Division legal adviser replied to DWP lawyers on the question of nationality (in response to the request for advice in February 2001), proposing criteria based on the British Nationality Act 1981.

15 March 2001

Based on the above advice, DWP wrote to the Cabinet Office 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’.

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. It would seem that the Agency started applying the ‘bloodlink’ criterion at about this time.

22 and 23 March 2001

The Agency acknowledged Mr A and his siblings’ claims of December 2000 by sending requests for further information to all of them. The further information requested was about their nationality at birth and the place of birth of both their parents and grandparents.

April 2001

Mr A and his siblings all completed and returned the forms sent by the Agency in March 2001. The Agency received them all, except for Mrs B’s forms, during April 2001. They received hers on 9 July 2001. Regarding their nationality at birth, the siblings all said they were British subjects, except for Mrs B who said she was Malaysian and Mrs E who said she was British. Each said that their parents and grandparents were born in Baghdad, Iraq.

June 2001

The Agency responded to Mr A and his siblings with identical letters to say they were not eligible for the ex gratia payments. (Mrs B received her letter in August 2001 due to a delay in her responding with the further information requested in March 2001.) I do not know the exact date in June that the letters were sent. The letter they sent to Mr A is attached in full at Annex D, D2.

2002

ABCIFER applied for judicial review of the scheme, arguing that the decision of the government to introduce a ‘bloodlink’ criterion as a requirement for eligibility for certain claimants was illegal. ABCIFER argued that the decision was disproportionate, discriminatory, unfair and an abuse of power. ABCIFER was unsuccessful before the High Court. ABCIFER were also unsuccessful before the Court of Appeal on 3 April 2003.

7 July 2005

On this date former civilian internee Mrs Diana Elias challenged the ‘bloodlink’ criterion in the High Court. The High Court judge ruled in her favour, saying that, while it was legitimate to limit the original scheme to those with a close link with the UK, the ‘bloodlink’ criterion was unlawful in that it indirectly discriminated against people of non-UK national origins. The judge ruled that her proper remedy was to seek damages for race discrimination in the county court.

The MoD appealed this ruling. The appeal was to be heard in January 2006, and meanwhile the compensation scheme was suspended and a review of all 30,000 claims was ordered.

12 July 2005 – A Debt of Honour

The investigation of a complaint that had been brought to my Office by Professor Jack Hayward about the original scheme led to that complaint being upheld. The final report of my investigation of that complaint became the special report,³⁰ A Debt of Honour, which highlighted the administrative shortcomings of the original scheme. That special report was published on this day. In my report I made four findings of maladministration. These were:

1. that the way in which the original 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;
2. 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;
3. that, at the time 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
4. that the failure to inform applicants that the criteria had been clarified when they were sent a questionnaire to establish their eligibility constituted maladministration.

I found that the maladministration led to a significant injustice for Professor Hayward, and others in a similar position to him, in the form of outrage at the way the scheme was operated and distress at being told that he was not ‘British enough’ to qualify for payment under the scheme. To remedy that injustice I made four recommendations:

1. the MoD should review the operation of the original scheme;
2. the MoD should review the position of Professor Hayward and those in a similar position to him;
3. the MoD should apologise to Professor Hayward and to others in a similar position to him for the distress which the maladministration identified has caused them; and
4. the MoD should consider whether it should express that regret tangibly.

At this time the MoD accepted only two of my recommendations – recommendations three and four.

13 July 2005

As a result of my criticisms in A Debt of Honour, the Minister issued an apology in the House of Commons. The apology was with respect to the distress caused to those applicants to the original scheme who were led by the terms of the original scheme’s initial announcement to expect that they might be eligible for an award, and in particular would have qualified but for the introduction of the ‘bloodlink’ criterion. In his apology he said:

‘I recognise that it’s [the original scheme’s] announcement and introduction were not well handled … I regret that a number of people who at first thought that they would be compensated will not now be compensated, because of the issue of birthlink. I sincerely apologise for that. It was wrong and the Government made a mistake. I shall be giving some thought to the ombudsman’s [sic] recommendation that I should do more than apologise and consider some tangible response.’

The Minister announced in October 2005 that the Government would be making a tangible apology in the form of a £500 one off payment to compensate for the distress that the loss of expectation that their actions may have caused to applicants of the original scheme.

October 2005

The Agency wrote to those who had applied to the original scheme whose claims had been declined, but who it thought may have met the criteria set out in the Minister’s statement and should receive a payment of £500. Mr A and his siblings were amongst those who received these letters on or around 28 October 2005. The letters explained that the £500 apology payment was:

‘with respect to the distress caused to those who were led by the terms of the scheme’s initial announcement to expect that they might be eligible for an award, and in particular would have qualified but for the introduction of the birthlink criterion.’

The letters to Mr A and his siblings were all identical. A copy of the letter in full is attached at Annex D, D4.

24 October 2005

In Mr A’s case papers I have seen an internal Agency form entitled ‘Stage 6 action sheet compensation authorisation civilian nationality claims’ (attached in full at Annex F, F1). It seems that this form was used by the Agency when reviewing whether an applicant to the original scheme was entitled to the £500 apology payment. The form listed questions for completion by the person conducting the review, amongst which were: ‘Have we proof of British Citizenship on file?’ and ‘Internment verified?’. The person completing the form had ticked ‘yes’ to both of these questions, and dated and initialled the form on this day. This is the first instance that we have seen on Mr A’s file, of evidence indicating that the Agency checked if he had been interned by the Japanese.

November to December 2005

Mr A and his siblings completed and signed the declarations for the £500 apology payment as requested and returned them to the Agency between 13 November and 2 December. As a result the siblings all received letters from the Minister for Veterans between 30 November and 30 December. (A full copy of the text of this letter is attached at Annex D, D5.) The letters were identical and renewed the apology the Minister had made in July 2005.

1 December 2005

PASC held an inquiry into the original scheme. Whilst appearing before the committee Don Touhig, the Minister for Veterans, announced a significant change in the MoD’s position, which he said resulted from evidence uncovered at the last minute during his preparation for the hearing. Don Touhig conceded that there appeared to be some inconsistency around the eligibility rules the MoD had applied pre and post the introduction of the ‘bloodlink’ criterion and confirmed that there would be a review of those rules, to be completed by February 2006.

December 2005

The Agency authorised apology payments of £500 to Mr A on 5 December 2005; to Mrs E on 7 December 2005; and to Mrs D on 21 December 2005.

12 December 2005

Don Touhig issued another statement to Parliament in which he refused to confirm whether a full review of the original scheme would take place. Nor did he provide a commitment to review the position of Professor Hayward and others in a similar position following the outcome of my investigation.

5 January 2006

The Agency authorised apology payments of £500 to Mrs B and Mr F on 5 January 2006.

9 January 2006

In Mr A’s case papers I have seen an internal Agency form entitled ‘Civilian Internees Pro-forma’ signed and dated on this date. The form appears to have been used to review claims to the original scheme. In part 4 of the form, which was to be completed ‘for rejections only’, it asked ‘why was claim rejected?’.There were five options to choose from. They were: ‘not interned; internment not verified; 3rd party not spouse; birthlink not met’ and ‘other’. The person completing the form had ticked the box ‘birthlink not met’. Additionally, at the bottom of the page was a ‘notes’ section. In this section the person completing the form had written and initialled ‘camp checked’. (Attached in full at Annex F, F2.)

19 January 2006

PASC published their report on my A Debt of Honour. In the report PASC said that I had acted appropriately in investigating the case. PASC also said that they were disturbed by the MoD’s refusal to comply with some of my recommendations. PASC said that there was:

‘ample evidence to support the Ombudsman’s finding of maladministration. If it had always been intended to make a payment only to those civilians with close links to the United Kingdom at the time of internment, regardless of their subsequent history, there appears to be no clear indication of it in any contemporary papers, and no Minister was asked to decide the matter until long after the first payment had been made.’

30 January 2006

Don Touhig, Minister for Veterans, announced in a written ministerial statement to Parliament that a separate, independent investigation would be conducted by retired senior civil servant David Watkins into how the use of inconsistent criteria had arisen and why it had not been exposed earlier.

23 February 2006

Following the High Court ruling on 7 July 2005 that the ‘bloodlink’ criterion was unlawful, Mrs Elias’ case was brought to the Central London County Court for the award of damages to be considered.

9 March 2006

The judgment in the Elias case at the county court was handed down. With regard to whether Mrs Elias could recover in damages the sum she says she should have received under the scheme, it said:

‘if the unlawful element of the birth line criterion were stripped out, what remains may well disentitle her to payment. So, on balance she would not have received the payment in any case. This part of her claim in damages must fail.’

The judgment continued: ‘The other question raised in the case is the level of damages which flow from the injury to her feelings. It is accepted that this claim should succeed’. Mrs Elias was awarded £3,000 plus £900 interest for injury to feelings. Both Mrs Elias and the MoD appealed the county court judgment to the Court of Appeal. The county court judgment is attached in full at Annex E, E2.

28 March 2006 – the revised scheme

Don Touhig, the Minister for Veterans, announced the outcome of the internal MoD review he had initiated in December 2005, outlining two changes to the criteria for civilian internees to remedy the previous inconsistencies. He announced the introduction of the new ‘20 year rule’ criterion which required that claimants had resided in the UK for at least 20 years since the end of the Second World War, until November 2000 when the original scheme was introduced, in order to be eligible for the £10,000 payment. (A full statement of the rules for the 20 year residency criterion was issued by the MoD in June 2006.) Don Touhig also announced that anyone who was rejected under the ‘bloodlink’ criterion but who would have met the Japanese asset criteria would also be eligible.

11 May 2006

The Agency emailed FCO with enquiries concerning British subject status, which it said it required in order to assist it with administering the Far East prisoners of war ex gratia scheme. (In its response to a question from the Ombudsman in June 2009 about why it was asking these questions of the FCO, the Agency said that it was seeking clarification because it had begun to review cases for the revised scheme that was to be introduced in the summer of 2006.) In the email the Agency asked if FCO could:

‘provide confirmation of British subject status for people born in Malaya and Malaysia and in particular Kuala Lumpur. I am interested in what their status was during World War two, i.e. 1939 to 1945.’

From the papers I have seen, it seems FCO advised the Agency that the ‘Modern day federation of Malaysia (formerly the Federation of Malaya) comprises of the nine British Protected States of Malaya and the Colonies of Penang and Malacca’. FCO advised that persons born within one of the nine British Protected States of Malaya (of which Negeri Sembilan was one) were British protected persons by birth, but that persons born within the two colonies were British subjects by birth. FCO went on:

‘Therefore in 1939 – 1945 you only acquired British subject status if you were born in Penang or Malacca. However, if you were born in a protected state and had a parent born in the UK or Colonies you were a British subject deemed by birth.’

15 May 2006

The Agency asked a further question in response to FCO’s advice:

‘Where you say “if you were born in a protected state and had a parent born in the UK or Colonies you were a British subject deemed by birth” – was this automatic or did the birth have to be registered at the consul, i.e. did the parents have to do anything for the child to be deemed British?’

FCO responded by email the next day saying ‘British subject deemed by birth was automatic if your father was born in the UK or Colonies …’.

23 May 2006

I have seen in Mr A’s case papers a form entitled FEPOW RESIDENCY CRITERIA which was completed and dated by hand on this date. The form was used to review whether Mr A might be eligible for a payment from the original scheme under the revised 20 year residency criteria which had been announced in March 2006. The form asked if the case could be identified as potentially eligible and the ‘yes’ box was ticked. In the comments box next to this the reason given was ‘£500 apology paid’.

Below this was the ‘no’ box, which was not ticked. If it had been ticked there were then six options for why that may have been. They were: rejected on internment; rejected on service; rejected as not eligible to claim; evidence on file that claimant was not British at internment; evidence on file of payment received from another country; and other. None of these boxes were ticked.

May 2006

Throughout the end of May 2006 the Agency sought further information from FCO about British subject status, specifically in relation to people born in Indonesia, and about how the status ‘British subject by birth’ and ‘British subject by descent’ were acquired.

21 June 2006

I have seen internal Agency memos dated this day, in each of Mr A’s siblings’s file (except for Mr F’s file), that question whether the £500 apology payments, made in December 2005 and January 2006, were made in error because of where Mr A and his siblings were born. All memos were identical. The memo stated:

‘The claimant was born in Seremban, the capital of Negeri Sembilan, Malaysia. This is verified by the Birth Certificate. It has been confirmed by the Foreign & Commonwealth Office that persons born in this state were British Protected Persons … In view of the above it is clear that the claimant was not a British Subject at internment. Do you agree that this apology has been paid in error and as such the file should be dealt with as a rejected apology case with no further action required at this time in respect of the preparatory work for the Residency Criteria.’

Each memo referred specifically to one sibling and then listed three related siblings. Mr F’s name was not listed on any of the memos, except on the memo specifically regarding Mr A, where he is mentioned. All the memos have a handwritten note at the bottom that states ‘File checked – agree not British Subject at internment. No further action re 20 year residency’ and was dated 14 July 2006.

26 June 2006

Following the MoD’s review of the compensation scheme, which had been announced by Don Touhig, Minister for Veterans, on 1 December 2005, and which arose as a result of my investigation, and the MoD’s preparation for the PASC enquiry, an extended £10,000 payment scheme was announced in the House of Commons. It was agreed that it would include ‘those who were British subjects when interned and had lived in the UK for 20 years by 7 November 2000’ (further to the announcement in March 2006) – that is, they had maintained close links to the UK.

28 June 2006

Over five years after the original scheme had been first introduced Mrs Elias received the £10,000 compensation payment under the revised scheme – Mrs Elias fell within the 20 year rule. Payments to other previously excluded claimants began late in July 2006.

7 July 2006

Following the announcement by Don Touhig, Minister for Veterans, on 30 January 2006 that a separate, independent investigation into how the use of inconsistent criteria had arisen and why it had not been exposed earlier, on this date David Watkins delivered the full report on his Investigation into Civilian Eligibility Criteria with regard to the original scheme. In his report David Watkins made various criticisms of the original scheme, amongst which were: the haste with which it was created contributed to the failings of the scheme; there was insufficient thoroughness, including research, at several points; and there was no testing of the criteria for the original scheme to assess their likely impact, either initially or in March 2001 when the ‘bloodlink’ criterion was adopted.

2 August 2006

The Ombudsman wrote to the then Minister for Veterans and Under-Secretary of State for Defence, Tom Watson, and to Sir Gus O’Donnell in his capacity as Head of the Civil Service to confirm that all four recommendations from my A Debt of Honour report had finally been complied with. The Ombudsman was keen to ensure that the wider lessons from this affair could be learnt and offered her assistance in taking this forward. This offer was not taken up.

10 October 2006

The Court of Appeal upheld the earlier High Court finding in the case brought by Mrs Elias. The Court of Appeal upheld the county court decision to award Mrs Elias £3,000 plus £900 interest for injury to feelings. The extract of the judgment is attached at Annex E, E3.

6 November 2006

The MoD sought Counsel’s advice regarding a number of points, as it was considering how to respond to letters coming into the Agency from individuals who were refused a payment when the ‘bloodlink’ criterion was in operation. The first of which was:

‘If an application from a person of non-UK national origins was rejected on the grounds that they did not satisfy the birthlink criteria, could they be entitled to claim damages for having had the unlawfully discriminatory criteria applied to their application even if they did not satisfy the internment criteria and/or were not British at the time of internment?’

The enquiry continued saying that the Agency had stated that:

‘when the birthlink was in operation, some claims were rejected because they did not meet the birthlink without checks first being made to see whether the applicants met the other criteria (i.e. being interned in a designated camp and, if so, being British at the time of internment) and in the period following the introduction of the birthlink this probably happened in the majority of cases.’

The MoD explained that it had viewed the process as having worked as follows:

‘1. being British and interned were the first hurdles for claimants to cross. 2. the group that crossed those hurdles was then assessed under the birthlink. 3. it was assessment under the birthlink that resulted in indirect discrimination on grounds of national origins. 4. this means that only those who were British and interned could possibly claim to have had the unlawful discriminatory criteria (the “place of birth” requirement) applied to their applications and could therefore possibly claim to have been discriminated against and thus claim damages.’

The MoD went on to say that it’s analysis breaks down:

‘if, in fact, claims were considered under the birthlink first. Looking at the birthlink first and rejecting on this alone if it is not satisfied has the effect that the unlawfully discriminatory criteria are being applied in every case. This would appear to increase the pool of applicants who may have been discriminated against. It doesn’t seem like a sufficient answer to a claim from an applicant of non-UK national origins who was not interned or was not British at the time of internment but whose claim was rejected on birthlink grounds, without their nationality at the time of internment or the question of whether or not they were interned having been considered, to simply say that they are not entitled to damages because their claim would have been rejected on the other, non-discriminatory, grounds anyway. Isn’t it the case that the damages for injury to feelings compensate for the damage caused by having had discriminatory criteria applied to their application rather than simply having had their application turned down? I would be grateful for your views on this.’

Counsel responded to this email later the same day. Counsel’s full response is attached at Annex C, C1 to this document. In summary, Counsel assessed the likelihood of successfully defending such claims and suggested resisting them.

5 December 2006

The Director of the Veterans Policy Unit, Jonathan Iremonger, submitted to the Permanent Under-Secretary of State at the MoD, Sir Bill Jeffrey, a document advising on whether the MoD should resist claims for damages with respect to indirect racial discrimination in cases similar to that of Elias. (A full copy of this submission is attached at Annex C, C2.)

In summary, Jonathan Iremonger set out the various options: pay; resist or negotiate. He recommended the middle option, advising the Permanent Under-Secretary ‘on balance that, based on the financial issues and Counsel’s advice as to the legal merits of our position we should resist full payment’.

22 December 2006

The Permanent Under-Secretary replied to Jonathan Iremonger’s submission. The Minister did not accept the recommendation. He noted that the MoD could probably successfully resist the claims and the financial implications of the various options and decided, taking into account the reputational risks, that MoD should adopt the pay option as outlined in the submission of 5 December.

26 January 2007

The Parliamentary Under-Secretary of State for Defence, Derek Twigg, announced that the MoD:

‘was prepared to consider claims for compensation for injury to feelings resulting from discrimination on national origins grounds from any person whose claim was rejected on birthlink grounds and who, like Mrs Elias, was of non-UK national origins.’

The full Hansard transcript is attached at Annex C, C4.

Around this time it would seem that Mr A and his four siblings sent letters to the Minister for Veterans regarding the ex gratia payment scheme. I have not seen copies of these letters and so do not know exactly when they were sent or what they said.

March 2007

The Veterans Policy Unit responded to the letters written by Mr A and his siblings regarding their ongoing attempt to be paid the ex gratia payment. The responses were all worded similarly and first recognised that the conditions under which many prisoners of war and civilian internees were held by the Japanese were harsh and that their treatment was cruel. The letters explained the background to the original scheme, detailed the ‘bloodlink’ criterion and its subsequent withdrawal and outlined the criteria that now needed to be met in order to receive the payment. They referred to the siblings’ letters which said that the siblings expected to receive the ex gratia payment, and said that the award of the payment would depend on them meeting the original scheme’s criteria which they listed.³¹ The letters invited the siblings to contact the Agency providing details as appropriate if they believed they may have met the criteria.

The letters went on to state:

‘You also mentioned “restitution for discriminatory action”. Following the courts findings that the birthlink criterion involved unjustified indirect discrimination against those of non-UK national origins, we have confirmed that we are prepared to consider claims for compensation for injury to feelings resulting from discrimination on grounds of national origins, from any person whose claim was rejected on birthlink grounds and who was of non-UK national origins. Claimants who think that they are entitled to compensation in this way should write to the Veterans Agency setting out the basis on which they consider themselves to be a person of non-UK national origins or otherwise entitled to make a claim for indirect discrimination under the Race Relations Act 1976.’

(A full copy of the letter is attached at Annex D, D7.)

May, June and July 2007

Mr A and his siblings sent letters to the Agency expressing their wish to claim compensation for injury to feelings. The letters were all very similar and set out the reasons why they believed they should be considered British, amongst which were; that they were ‘singled out by the Japanese as British and taken by cattle truck from Seremban to Singapore’; that they were held in the Sime Road internment camp; that they had provided the Agency with copies of their passports which clearly stated they were ‘British Citizens of United Kingdom and Colonies’; and that the Japanese listing at the time of their internment showed them as being British. A copy of Mr A’s letter is attached in full at Annex D, D8.

19 July 2007

On this date the MoD issued internal guidance entitled The FEPOW scheme – adjudicating claims for compensation to help staff administering the original scheme to make decisions about who did or did not qualify for the scheme. The guidance stated that:

‘The Department should therefore consider favourably claims for compensation for injury to feelings resulting from discrimination on national origins grounds from any person whose claim was rejected on birthlink grounds and who is of non-UK national origins or who is not of exclusively UK national origins. To qualify for compensation, the claimant must also meet the other requirements of the scheme (i.e. that they were a British subject at the time of internment and that they were held in a specially designated camp controlled by the Japanese).’

The guidance included flow diagrams showing examples of qualifying and non-qualifying cases of birthplace history of parents and grandparents that officers administering the original scheme could have come across. Those diagrams are re-created at Annex C, C6.

Also contained within the guidance were template letters and a form to be used to gather additional information from people who had said that they believed they were entitled to claim compensation for injury to feelings resulting from discrimination on national origins grounds.

There were two template letters provided, one to be used when writing to people who had previously made enquiries about compensation for injury to feelings, and the other for first time enquiries. Both letters stated that Mrs Elias had won her case on the grounds that the ‘bloodlink’ criterion unlawfully discriminated against her, a person of non-UK national origins, in favour of people of UK national origins. Both letters also stated that therefore:

‘the Ministry of Defence is prepared to consider claims for compensation for injury to feelings resulting from discrimination on national origins grounds from any person of non-UK, or non-exclusively UK, national origins whose claim was rejected as failing to meet the birthlink.’

Both template letters then stated that the Agency needed to know whether the person considered themselves:

‘to be a person of non-UK, or non-exclusively UK, national origins and, if so, the reasons why you consider yourself to be of non-UK, or non-exclusively UK, national origins. We would therefore be grateful if you could complete the enclosed form and return to us.’

The template for the form was also provided in the guidance. It was called the National Origins Declaration Form. It firstly asked the recipient to state what they considered their national origins to be. The recipient could tick either (a) UK, (b) non-UK or (c) partly UK and partly non-UK. Second, it asked the recipient to ‘please explain below the basis on which you consider your national origins to be as given above’. The recipient then needed to sign, print their name and date the form. Both template letters are attached in full at Annex C, C5.

17 August 2007

In response to a request from the solicitors, acting on behalf of Mrs Elias, the MoD provided information on its arrangements for compensating those refused payment under the original scheme. This information included the sentence:

‘Therefore the Ministry of Defence is prepared to consider claims for compensation for injury to feelings resulting from discrimination on national origins grounds from any person of non-UK, or non-exclusively UK, national origins whose claim was rejected as failing to meet the “birthlink”.’

30 August 2007

The Agency responded to Mr A and his siblings’ claims for compensation saying that it would not be appropriate. The letters were exactly the same. They said that Mrs Elias did not win her case because she should have been considered ‘British enough’ to qualify under the original scheme. Rather, she won her case and was awarded damages on the basis that the ‘bloodlink’ criterion unlawfully discriminated against her. The letters went on to explain that the MoD was prepared to consider claims for compensation for injury to feelings resulting from discrimination on national origins grounds from any person of non-UK, or non-exclusively UK, national origins whose claim was rejected as failing to meet the ‘bloodlink’ criterion. However, the Agency’s letter stated that to qualify for compensation the claimant must also meet the other requirements of the scheme (that is, that they were a British subject at the time they were interned).

The letters said that having reviewed each sibling’s case it had been discovered that each one did not satisfy the nationality criteria of the scheme, that is, they were not British subjects at the time of their internment. The letters said that: ‘Consequently the £500 apology payment which you received … was awarded to you in error’. Additionally, the letters explained that although persons, like the siblings, who were born in one of the nine British protected states of Malaya were British protected persons, they were not British subjects. The letters said that a person born in a protected state could be a British subject deemed by birth if they had a parent born in the UK or colonies. But, as the siblings’ parents were born in Iraq, their birth in a protected state did not give them British subject status. The Agency said that compensation would not be appropriate. A copy of the letter Mr A received is attached in full at Annex D, D9.

14 and 17 September 2007

The siblings responded to the Agency’s decision not to award compensation. They each argued that there should be no distinction between British protected persons and British subjects because the treatment they had received at the hands of the Japanese was no different from that of their siblings born in Singapore, who were classed as British subjects. A copy of the letter Mr A wrote is attached in full at Annex D, D10.

17 October and 1 November 2007

The Agency responded to the siblings’ letters. The letters were identical and reiterated that, to qualify for compensation, a claimant must have been a British subject at the time of internment. The Agency said that whilst it appreciated that each sibling had:

‘suffered greatly during the period of [their] captivity, unfortunately [their] circumstances are such that [they] did not have British Subject Status during the second world war. Consequently [they did] not meet the nationality criteria of the scheme.’

The Agency concluded by saying that it was unable to change the previous decision and confirmed that compensation was not appropriate. A copy of the letter Mr A received is attached in full at Annex D, D11.

1 November 2007

Mr A wrote to the Agency on behalf of himself and his siblings in response to the Agency’s decision not to offer compensation. In his letter he emphasised that his six older siblings were all entitled to compensation because they were born in Singapore and questioned how he and the other siblings could possibly be isolated from the others. A copy of the letter Mr A wrote is attached in full at Annex D, D12.

Mr A sent a copy of this letter to the then Prime Minister, Gordon Brown, to draw his attention to the issue and seeking his assistance in the matter. Mr A also sent a copy to the chairman of PASC, who referred Mr A’s complaint to my Office shortly afterwards on 20 November 2007.

7 December 2007

The Agency sent letters to Mr A and his siblings in response to their letter of 1 November 2007. In the response the Agency acknowledged that the treatment of prisoners of war and civilian internees by the Japanese was harsh and cruel. However, the Agency also said that it had always been a requirement of the scheme that to qualify for a £10,000 payment civilian internees must have held British subject status at the time of their internment. Also, with regard to the compensation for injury to feelings resulting from discrimination on national origin grounds, the MoD was prepared to consider claims from individuals who satisfied the fundamental internment and nationality criteria of the scheme but whose claim had been rejected as failing to meet the ‘bloodlink’ criterion. The Agency went on to say that as a result, unfortunately, as Mr A and his four siblings’ place of birth did not give them automatic British subject status, unlike other members of their family who were born in a British colony, they were not eligible for the £4,000 compensation payment. In their letter the Agency said it recognised that:

‘there may be feelings of unfairness when members of the same family who were interned together are treated differently under the scheme because some do and others do not meet the criteria. However it has been concluded that it must be right that there should be different decisions depending on whether or not an individual can satisfy the scheme’s criteria.’

In its letter the Agency also explained that the status of many individuals changed when the term British protected person was defined in the British Nationality Act 1948. The Agency also referred to the British protectorates, protected states and protected persons order that came into force on 28 January 1949, which the Agency said established for the first time a statutory basis for British protected persons status. The Agency said once again that the scheme required individuals to be British subjects during the Second World War, which, Mr A and his siblings had not been. The Agency ended the letter by saying it was ‘sorry to, once again, send a disappointing reply but I hope it explains the position and answers your questions’.

After receiving Mr A’s complaint on 20 November 2007, my officers and I attempted to reach a resolution with the MoD, rather than enter into a statutory investigation. This was with a view to ending quickly what had already become a prolonged and stressful complaints process for Mr A and his family. Our attempts included two rounds of correspondence between myself and the then Permanent Under-Secretary of State at the MoD, Sir Bill Jeffrey; further information requests by my officers and a meeting with the MoD to discuss the complaint in detail.

April 2009

We began our investigation of Mr A’s complaint in April 2009. During the investigation my officers have met with Ron Bridge, the Chairman of ABCIFER and Mr and Mrs A at their home in Sydney.

12 August 2010

Sadly, on 12 August 2010 Mr A passed away after a long illness. Since that time my staff have been in regular contact with Mrs A. Mrs A is acting on behalf of Mr A and has kindly agreed to act as our contact point with Mr A’s siblings.

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29. At the time an executive agency of the DSS. The Agency transferred to the MoD on 8 June 2001 and became the Veterans Agency. It merged with the Armed Forces Personnel Administration Agency in April 2007 to become the Service Personnel & Veterans Agency.
30. A special report is one which the Ombudsman lays before Parliament on a rare occasion where it appears to the Ombudsman that injustice has been caused to the person aggrieved in consequence of maladministration and that the injustice has not been, or will not be, remedied.
31. That is, ‘you were British at the time you were interned, that you were held captive in a specifically designated camp controlled by the Japanese, that you can demonstrate a close link to the UK through meeting residence-based criteria’.