Annex E – Court decisions: Mrs Elias
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E1 7 July 2005: The summary of the High Court case
‘There was no basis for saying that because the Government had agreed to make payments in a certain class of situations that it then became obliged to consider applications, from those who did not fall within the rules, in a different way than it would otherwise have done. The Government was not obliged to consider extending the scheme on a case-by-case basis beyond the scope that it had carefully delineated. The court’s task was to give effect to the scheme established by the Crown in the same way as it would a scheme established by legislation. It was no more an unfair or unlawful exercise of power for the Crown, acting through the secretary of state, to refuse to consider exceptional cases under the common law scheme than it would have been under a statutory scheme. Further, there was no authority to make payments outside the terms of the scheme. (2) The scheme was not directly discriminatory, James v Eastleigh Borough Council (1990) ICR 554 distinguished. However, it was unlawful and indirectly discriminated against those of non-British origin. The desire of the Government to limit the category of those who could claim under the scheme to persons with a close link with the UK at the time of the internment was a legitimate aim. However, in adopting the criteria that assessed eligibility by reference to the place of birth of the applicant, parent or grandparent, the effect was markedly to reduce the proportion of those of non-British national origin compared with those whose national origin was British. Those provisions were not justifiable in all the circumstances, Orphanos v Queen Mary College (1986) CMLR 73 applied. (3) The secretary of state had breached his duties under s.71 of the Act.
Application granted.’
E2 9 March 2006: County court judgment
‘In the Central London County Court Claim No: 5CL12683
Between:
Diana Elias
-and-
The Secretary of State for Defence
Judgement
‘1. Liability in this case has been determined in separate proceedings by Elias J. My task is to consider damages. I have discussed this case with my assessors. I have taken their advice. I have sent them a draft of this judgement. They agree with it.
‘2. The first question is whether Mrs Elias can recover in damages the sum which she says she should have received under the scheme. That depends on whether it is probable that she would have received the sum if the government had not imposed that part of the criterion for entitlement that Elias J has ruled unlawful.
‘3. To a large extent Elias J has already answered this question. He was asked to order the Secretary of State to pay this sum. He refused because the scheme which the Department might now put in place may lead to the same outcome. For example, it may put in place a scheme which requires residence immediately before the outbreak of the war. Or it may put in place a scheme which requires only that the applicant should have been born in the UK. Neither of those has been ruled unlawful. In either event, Mrs Elias would not qualify.
‘4. But the question he had to decide is not precisely the same as the question I must decide, although the answer may be the same. I need to look back and judge as best I can what the outcome would have been when she was refused payment. Although the government did not make the criteria as clear as it should have, the evidence shows that they would have introduced a scheme which did not include all British citizens. The two schemes which appear to have been put in place involved proof of residence or connection by birth line. There is evidence that some applicants appear to have received the payment without needing to comply with either requirement, but I am satisfied that that was not the result of policy but as a consequence of aberrant processing by junior staff. It is therefore probable that if the unlawful element had not been included in the scheme some other scheme would have been put in place which would still have excluded Mrs Elias. And, of course, as Elias J pointed out, 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.
‘5. 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. The issue is how much the damages should be. On her behalf it is contended that I should not only make an award which falls within the highest band of the Vento decision, but I should also add further sums for aggravated and exemplary damages. On the other side it is argued that she should only receive damages which fall within the lower band.
‘6. The contentions made on her behalf are in my view unrealistic. First, once it is accepted that she probably would not have received payment in any event, the hurt which she undoubtedly felt is a hurt she would have experienced anyhow. Secondly, it is clear from her statements that it was the rejection of her claim rather than the reasons for the rejection which upset her. She took the refusal as a slight on her Britishness. But that was largely caused by the failure of the government to make clear at the outset that not all British subjects would be eligible under the scheme … Hopes were raised. That was an aspect of the maladministration which sadly occurred in this case and which has been rightly condemned by the Ombudsman and by the Select Committee. However, on any rational analysis the rejection has nothing to do with Britishness, but everything to do with where the line for entitlement is drawn, Elias J has ruled that the way the line was drawn in this case was not lawful. But he has expressly left open the possibility that other ways may well be lawful and would equally disentitle people in Mrs Elias’ position. The lines have to be drawn somewhere. So, for example, I was told that British civilians interned in Europe are not entitled to compensation. And, so far as I know, no compensation has ever been paid to the tens of thousands of civilians who spent night after night in air raid shelters, often parted from their children, whilst their homes were being bombed and their relatives and friends killed and injured. Where to draw these lines is for the politicians not the judges – provided, of course, that they are lawfully drawn.
‘7. The birth line criterion was introduced in good faith. As Elias J points out, it was introduced in a genuine endeavour to increase the pool of those eligible to make a claim. It was not obvious that it was unlawful. Indeed the scheme was considered by many distinguished lawyers and judges before someone decided to make a challenge based on the Race Relations Act. It is true that evidence has emerged which shows that at least one official in the Department suggested that the scheme might fall foul of the Act and with the benefit of hindsight the government might be criticised for not taking this suggestion more seriously at the time. The discrimination against Mrs Elias and others in her position was entirely unintentional.
‘8. Of course, given the policy that was adopted, it was inevitable that the claim would be rejected. But the rejection was made courteously, and Mrs Elias’ further correspondence with the department was treated with consideration. Fortunately for her, others were willing and able to take up her cause and vindicate the stance she had taken.
‘9. All of these features are relevant in considering the level of award and whether aggravated and exemplary damages should also be given. The discrimination here is not of the same order as a sustained and humiliating campaign involving repeated acts which were deliberately inflicted. As I pointed out in argument there is not much to distinguish this case from the thousands of decisions which Departments make every year in rejecting benefit applications which are overturned on appeal. The rejections may well have been hurtful. For example, no one likes to be told that they are not disabled when they clearly are. No one likes to be rejected on grounds of gender or nationality, though sometimes they are. Some of these decisions are made on the individual facts of the case. But some, like the decision in Mrs Elias’ case, are made because Departments apply policy criteria which tribunals and courts later declare to have been unlawful. The hurt inflicted in these cases do not attract any right to recompense – though where maladministration is established ex gratia payments (usually very modest) may be made.
‘10. In my judgement this case falls fairly and squarely within the lowest band. I award £3,000. I reject the claim for aggravated damages. Although valid criticisms can be made of the way in which the department administered this scheme, that conduct is not so heinous as to aggravate the hurt which Mrs Elias felt. I reject the claim for exemplary damages. The conduct was neither arbitrary nor unconstitutional. It was not alleged that it was oppressive. In my view it would only be unconstitutional if every government policy later declared to be unlawful were to be so regarded. That is clearly not the case. Exemplary damages are reserved for conduct which is so outrageous that the court is impelled to mark its disapproval by imposing a monetary sanction. This case falls very short of that.’
E3 An extract from the Court of Appeal judgment
‘HELD: (1) The discrimination complained of did not take the direct form of treatment “on racial grounds”. The birth link criteria took an apparently neutral form, which would apply equally to all applicants to the compensation scheme. It was the application of the neutrally worded criteria that produced the disparate adverse impact and put persons of the same national origins at a particular disadvantage when compared with other persons. These were the distinguishing features of discrimination in its indirect form, Ealing v Race Relations Board (1972) AC 342, (1972) 1 WLR 71 applied. The eligibility criteria did indirectly discriminate against E on racial grounds. (2) The question of legitimate aim had to be looked at in the round and the judge was right to conclude that overall the aim of confining the payments to those with close links to the UK was a legitimate one. The judge was also correct to find that the means used were not proportionate to the aim. It was more difficult for the secretary of state to justify the proportionality of his choice of the birth link criteria as a matter of discretionary judgment when he did not even consider whether he was indirectly discriminating on racial grounds. It was also relevant to take account of the fact that, as the compensation scheme was not properly thought out in the first place, the issue of discrimination was not properly addressed at the relevant time. As a result there was no proper attempt to achieve a proportionate solution by examining a range of possible criteria and by balancing the legitimate aim of confining the payments to those with close links to the UK with the seriousness of detriment suffered by individuals who were discriminated against. Accordingly although the eligibility criteria had a legitimate aim they were not proportionate to the aim or objectively justified and were therefore unlawful. (3) There was no unlawful fettering of the secretary of state’s common law powers in refusing to depart from the eligibility criteria. Until the scheme was amended to bring E within it, the secretary of state was acting lawfully in insisting that payments were only made to those who satisfied the criteria. (4) The quashing of the eligibility criteria on the ground of indirect discrimination did not entitle E to payment of any compensation or to damages for race discrimination. The public law duty of the secretary of state was to apply lawful criteria to the application of compensation. It was possible to replace the unlawful criteria with lawful criteria that would exclude E from the scheme without contravening the Act.’
