The events leading to Mr A bringing the complaint to the Ombudsman

Internment during the Second World War

In the aftermath of the attack on Pearl Harbour and the successful invasion and occupation by Japan of many of those colonies of the UK and other western countries which were located in Southeast Asia, it is estimated that a total of 132,895 Allied civilians were interned by the Japanese.¹³ The number of British civilians interned by the Japanese is variously estimated at between 15,000 and 20,000.¹⁴

It is a matter of record that the treatment by the Japanese of Allied civilian internees and military prisoners of war was horrific. It was extremely traumatic for those held in captivity because they were Allied nationals and thus deemed to be enemies of the Japanese Empire.

Mr A’s personal experience

Mr A was born in February 1937 in Seremban, Negeri Sembilan, Malaya (footnote 9). Mr A was the second youngest of eleven children; the oldest six of whom had been born in Singapore (then a British colony); the other five were born in Malaya (then a British protected state).

Mrs A very kindly provided my Office with some of her recollections of Mr A’s wartime experience in the Sime Road internment camp. She and Mr A first met as children whilst being held in the camp. Mrs A explained that at 5am one morning in March 1945, Japanese soldiers arrived in a lorry outside Mr A’s family residence in Seremban. The Japanese soldiers ordered Mr A’s father to have the family ready with bare essentials within one hour in order that they be taken to the police station in Seremban. They were held at the police station for up to seven hours without food and water prior to being transported by railway cargo truck from Seremban railway station to Singapore. When they arrived in Singapore, the family were taken in an open lorry to the Sime Road camp, and were initially placed in a hut which was bereft of basic facilities. They were moved to the main hut when space was made for the women and children. As Mr A was 8 years old at the time he was interned, he was billeted in the Women’s hut. His four older brothers and his father were billeted in the men’s accommodation, and were separated from the rest of the family for the duration of their internment.

According to Mrs A’s account, within a short time in the camp, Mr A’s body, arms and legs were covered with scabies which required the Red Cross nurse to cut them each morning with a pair of scissors, following which a lotion was dabbed onto the infected parts and he, together with a number of other children, were required to stand naked in the sun for about half an hour each day outside the medical hut.

The interned male population of the camp were required to march each day through the Women’s Section to get to their various jobs. The prisoners were not allowed to communicate with each other and had to remain silent. However, following a signal from one of his four older brothers, Mr A would run between the marchers to grab a metal container filled with rice meant for him and his grandmother as they otherwise did not have enough food to eat. In the evening when the men were returning to their huts after a hard day’s work, he would repeat the earlier exercise and return the empty metal container to his brother. By Mrs A’s account this was a risky procedure, which Mr A was lucky to survive.

Post–war events

Following the defeat of Japan at the end of the war, a peace treaty between the Allied powers and Japan was signed at San Francisco in 1951. Under article 14 of that treaty, each of the Allied powers was given the right to ‘seize, retain, liquidate or otherwise dispose of all property, rights and interests’ of Japan and Japanese nationals held on their territory or under their control. Article 16 of the treaty provided that such Japanese assets were to be liquidated and distributed for the benefit of former prisoners of war and their families.

In the UK, this led to payments being made to those held prisoner or interned by the Japanese under what came to be known as the ‘Japanese asset scheme’. The eligibility criteria for that scheme were that a person must have been British and over 21, normally resident in the UK before the war, and resident in the UK 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 under this scheme.

As I noted in the introduction to this report, at that time and for many years after, the surviving internees led a campaign for an official apology from Japan for the inhuman treatment that they had endured and for compensation to be paid by the Japanese Government in recognition of that treatment.

The original ex gratia scheme

The circumstances in which the UK Government decided to establish an ex gratia scheme to make payments to surviving members of British groups interned by the Japanese during the war were the subject of my July 2005 report entitled A Debt of Honour, to which I briefly referred in the introduction to this report (paragraph 19). The key point about the original scheme which relates to the subject matter of this report is the way in which eligibility for the original scheme was determined.

Eligibility for a payment under the original scheme required applicants to demonstrate three things: firstly, that they were British at the time of internment; second, that they had been interned in a designated camp run by Japanese guards; and third, that they possessed a close link to the UK. As will be seen, those considering applying to the scheme were not told clearly what these eligibility criteria were.

Criticism of the original ex gratia scheme: maladministration

I referred in the introduction to the many complaints and criticisms that were made about the way in which the MoD and the Agency administered the original scheme, in particular the introduction seven months after the scheme was announced of a new eligibility criterion for civilian internee applicants – the ‘bloodlink’ criterion – without informing applicants that the eligibility criteria had been changed, and without any review being conducted to ensure that this did not lead to unequal treatment of claims decided at different times. As I touched upon in my introduction, these criticisms led to considerable legal and administrative review over a period of years.

In December 2001 my Office received a complaint from Professor Hayward about the operation of the original scheme. My investigation identified considerable shortcomings with the development and operation of the original scheme. I made four findings of maladministration:

1. the way in which the original scheme was devised – overly quickly and in such a manner as to lead to a lack of clarity about eligibility for payments under the scheme;
2. the way in which the original scheme was announced – in that Dr Lewis Moonie’s ministerial statement was so unclear and imprecise as to give rise to confusion and misunderstanding;
3. the failure to review the impact of the introduction of the ‘bloodlink’ criterion when it was introduced to ensure that it did not lead to unequal treatment; and
4. the failure to inform applicants that the criteria had been clarified when they were sent a questionnaire to establish their eligibility.

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 original scheme was operated and distress at being told that he was not ‘British enough’ to qualify for payment under the original 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.

The MoD initially accepted only two of my recommendations – recommendations three and four. I felt compelled to lay the report, A Debt of Honour, before Parliament on 12 July 2005, using the powers available to me under section 10(3) of the Parliamentary Commissioner Act 1967.

Whilst the maladministration by the MoD and the Agency that I have outlined above related to the original scheme, which was prior to the actions and events which gave rise to the complaints I have considered in this report, it should not be forgotten that this maladministration also had an impact on Mr A and his siblings, as well as on all the other applicants in the same position as them. This is a matter to which I will return.

The MoD’s response to my A Debt of Honour report was to issue an apology in the House of Commons on 13 July 2005 for the distress caused by the maladministration in the implementation and clarification of the original scheme. And to write to all those individuals who had applied and been declined compensation in the original scheme, and who had thought that they met the criteria as set out in Dr Moonie’s statement in November 2000, but for the ‘bloodlink’ criterion, offering them a ‘one off’ payment of £500 to express their regret and apologising for the distress caused by their maladministration.

On 1 December 2005 PASC held an inquiry into these events. When he appeared before the Committee, the Minister for Veterans Don Touhig announced a significant change in the position of the MoD, which he said was as a result of last minute evidence which had been uncovered during his preparation for the hearing. Don Touhig conceded that there appeared to be some inconsistency around the eligibility rules 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. In a further statement on 12 December 2005 Don Touhig 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.

PASC published a report of their findings on 19 January 2006. They concluded that:

‘it is a source of regret, and shame, that the MoD received the Ombudsman’s report a year ago, on 18 January 2005, and did nothing until our hearing meant that it had to address the report properly. It has been forced into conducting the review the Ombudsman recommended … and should do so with the urgency and generosity of the scheme’s original intention.’

In late January 2006 Don Touhig announced in a written ministerial statement to Parliament that a separate, independent investigation would be conducted by retired senior civil servant, Mr David Watkins, into how the use of inconsistent criteria had arisen and why it had not been exposed earlier.

The second scheme – the revised scheme

On 28 March 2006 Don Touhig 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 a new ‘20 year rule’ which required claimants to have 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 about the 20 year residency rule 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 be eligible.

In July 2006 the Watkins report was issued. David Watkins endorsed the point I made in my A Debt of Honour report that prior to the announcement of an ex gratia scheme all relevant issues should be examined. And, if there are any subsequent amendments to a scheme that these should be published and explained. David Watkins found:

‘no evidence of culpable behaviour amongst officials involved: shortcomings and inadequacies certainly and things which, with hindsight, should have been done better, and these resulted in maladministration and distress to a group of people who had already suffered as a result of their internment.’

In August 2006 I wrote to the then Minister for Veterans and Parliamentary 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. I was keen to ensure that the wider lessons from this affair could be learnt, and offered my assistance in taking this forward. Unfortunately, as can be seen in this report, my offer was not taken up and the learning does not seem to have been embedded.

Criticism of the original scheme:
unlawful indirect race discrimination

As I touched on in my introduction, in July 2005 the High Court (and subsequently upheld by the Court of Appeal in October 2006) held that the introduction of the ‘bloodlink’ criterion constituted unlawful indirect race discrimination.¹⁵ In general terms, unlawful indirect race discrimination is caused by the application of a general principle, where the result is that some people are treated unfairly. The courts said that the ‘bloodlink’ criterion operated to exclude a greater proportion of those applicants with non-UK national origins than those who had been born in the UK and possessed UK origins – and was thus indirectly discriminatory. Whether this indirect discrimination on the ground of national origins was justified was then assessed. The courts found that, although the ‘bloodlink’ criterion had had a legitimate aim – restricting the compensation payments to those with a ‘close link’ to the UK – that criterion was not proportionate to the aim to be achieved and was not objectively justified. Therefore, it was deemed unlawful.

The Court of Appeal, in its judgment of 10 October 2006, upheld both the finding of unlawful indirect race discrimination and the award of compensation for injury to feelings to Mrs Elias. As a result, the ‘bloodlink’ criterion was formally withdrawn.

The injury to feelings scheme – development and announcement

Following the decision of the High Court and the Court of Appeal, internal discussions in the MoD focused on the most appropriate way to deal with those other civilian applicants in a similar position to Mrs Elias. Annex C to this report contains the detailed discussions which preceded the MoD’s decision and the considerations which the MoD took into account in reaching it. Annex C also includes the internal MoD documents which detail significant aspects of the decision making process in the development of the injury to feelings scheme.

In summary, an internal submission from Jonathan Iremonger, the then Director of the Veterans Policy Unit, to the then Parliamentary Under-Secretary of State for Defence and Minister for Veterans, Derek Twigg, in December 2006 presented three options for responding to the additional cases that were being put forward for compensation following the Elias decision:

• Pay: a sum of £4,000 settlement for the existing claimants.
• Resist: legal counsel advised that the MoD had a 55 to 60 per cent chance of winning in the county court, as they could argue that:
  • many of the claimants were out of time; and
  • under EU law the discrimination was unintentional and the benefits concerned were not ones of a form giving a social benefit, therefore the inclusion of the ‘bloodlink’ criterion constituted indirect racial discrimination contrary to section 1(1)(b) of the Race Relations Act and was not a form of indirect racial discrimination for which hurt feelings damages can be paid.
• Negotiate: an out of court settlement for less than £4,000 per claimant.

Derek Twigg chose the first option – to make payments of £4,000 to those in a similar position to Mrs Elias. This decision was announced by way of a Parliamentary answer given by Derek Twigg to Mr Austin Mitchell MP on 26 January 2007 which said that the MoD:

‘… is 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.’

Eligibility – British subjects and British protected persons

While the Elias litigation was underway and the MoD was considering its response to the outcome of that litigation, in May 2006 developments were occurring within the MoD, with assistance from the Foreign and Commonwealth Office (FCO), regarding its understanding of the complexity of the British nationality law that was applicable during the Second World War. The question arose as to the scope of ‘British subject’ status and, in particular, whether those former civilian internees who had possessed the status of a British protected person fell within the definition of ‘British at the time of internment’ for the purposes of the original scheme.

Specific questions were asked about the status of people born in Malaya. FCO advised that persons born within one of the nine British Protected States of Malaya (of which Negeri Sembilan – where Mr A and four of his brothers and sisters were born – was one) were British protected persons by birth, but persons born within the two colonies were British subjects by birth. FCO went on to say that:

‘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.’

The chronology of events at Annex B sets out the full background to the decision made by the MoD in July 2006, following its discussions with FCO from May 2006, that British protected persons did not fall within the definition of ‘British at the time of internment’ for those purposes. Annex A of the report outlines the relevant changes to British nationality law.

The handling of the claims made by Mr A and his siblings

In what follows here and in the rest of this report, I have used the case of Mr A as an example. As can be seen from the chronology of events (Annex B), the specific dates relevant to his case sometimes differ slightly from those relevant to the claims of his siblings. In that sense alone, the detail of what follows relates only to Mr A’s claim.

However, the MoD’s correspondence with all of the members of Mr A’s family who were denied a payment was largely based on exactly the same terms. And the letters sent by each family member to the MoD made the same or very similar points in reply. Given that all of their cases were also decided on identical grounds, I am satisfied that what I go on to say about the handling of Mr A’s case applies equally in general terms to each of his siblings on whose behalf he complained. (Annex D includes full copies of the key correspondence referred to below, between Mr A and his family and the MoD and the Agency from 2000 to date.)

Mr A submitted an application to the original scheme on 28 November 2000, and in March 2001 Mr A and his siblings were sent requests for further information to help decide their applications – this was about their nationality at birth and the place of birth of their parents and grandparents. In June 2001 Mr A received a rejection letter from the Agency, stating that he was not eligible for the ex gratia payment, and explaining that:

‘those who are entitled to receive the payment are … civilian internees who were British subjects, and were born in the United Kingdom or who had a parent or grandparent born in the United Kingdom.’

From this letter it was clear that Mr A’s application was rejected because he did not satisfy the ‘bloodlink’ criterion. Mr A and his siblings wrote to the Agency upon receipt of this news expressing their disgust at the rejection of their claims, and the family members continued to pursue their claim for the £10,000 payment.

In late October 2005 Mr A received a letter from the Agency asking him to provide some further information in order for him to receive the one off £500 ‘tangible apology payment’ which the MoD offered following the publication of my report A Debt of Honour. The letter explained that the Agency held sufficient information to confirm that Mr A satisfied most of the original scheme’s requirements (other than the ‘bloodlink’ requirement) and needed merely to confirm that there had been no change in Mr A’s position. Mr A wrote to the Agency in November 2005 accepting the payment and providing the additional information but noting that he did not want acceptance of the sum to prejudice his ongoing claim for the original £10,000 payment. Mr A received the £500 payment in January 2006.

In March 2007 the MoD sent Mr A a letter, responding to an earlier letter he sent them asking why he had not received the £10,000 ex gratia payment. The MoD explained the qualifying criteria for the £10,000 payment and invited him to apply for it if he felt that he qualified. The letter also noted that the MoD were:

‘prepared to consider claims for compensation for injury to feelings resulting from discrimination on grounds of national origins, from anyone whose [original] claim was rejected on birthlink grounds and who was of non-UK national origins …’

The MoD invited him to apply for this payment if he considered that he was eligible.

Mr A’s application for a payment under the injury to feelings scheme – which he made on 1 July 2007 – was rejected on 30 August 2007. This claim was rejected because he was deemed to have been ineligible under the original scheme as he had been, at internment, a British protected person. The rejection letter told him that:

‘it has been discovered that you do not satisfy the nationality criteria of the Scheme, i.e. you were not a British subject at the time of your internment. Consequently, the £500 apology payment which you received in December 2005 [sic]¹⁶ was awarded to you in error.’

After his claim to the injury to feelings scheme was rejected, there followed a substantial amount of correspondence between Mr A and the MoD and the Agency. Mr A was furious with this outcome, and at the retraction of the earlier ‘apology’. In these letters he made his feelings very clear; he was deeply upset and outraged by the way in which his claims had been handled and by the reasons given for the rejection of those claims. In a letter he wrote to the then Minister for Veterans in September 2007, he summed up his feelings saying:

‘your handling and treatment of this whole issue is despicable and disgraceful, and bereft of common decency and justice. So why don’t you do the right thing now? I AM HOPEFUL THAT JUSTICE WILL PREVAIL – BEFORE I GO TO MY GRAVE.’

Another aspect of the handling of the claims made by Mr A and his siblings is that some of his family received a payment for injury to feelings (his six brothers and sisters who were born in Singapore received the payment – paragraphs 39 and 40), while he and his four other siblings did not. This difference in treatment – under the schemes said to have been devised either to recognise the circumstances of captivity, which the whole family had endured together, or to remedy indirect race discrimination, which they had all suffered for the same reason – further exacerbated Mr A’s sense of grievance. This is an important aspect of my findings with regard to the general fairness of the treatment of Mr A and his siblings involved in this complaint, at the hands of the MoD and the Agency.

15. This occurs when a provision, criterion or practice which, on the face of it, has nothing to do with race and is applied equally to everyone:
    • puts or would put people of the same race or ethnic or national origins at a particular disadvantage when compared with others;
    • puts a person of that race or ethnic or national origin at that disadvantage; and
    • cannot be shown to be a proportionate means of achieving a legitimate aim.
      (Note: this definition came from the Equality and Human Rights Commission.)
16. This payment was made in January 2006.