R (Association of British Civilian Internees Far Eastern Region) v Secretary of State for Defence

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Dyson
Judgment Date03 April 2003
Neutral Citation[2003] EWCA Civ 473
Docket NumberCase No: C1/2002/2277

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ADMINISTRATIVE COURT

(Mr Justice Scott Baker)

Before:

Lord Phillips, Master of the Rolls

Lord Justice Schiemann and

Lord Justice Dyson

Case No: C1/2002/2277

Between:
The Association of British Civilian Internees-Far Eastern Region
Appellant
and
Secretary of State for Defence
Respondent

Mr David Pannick QC, Mr Michael Fordham and Mr Ben Jaffey (instructed by Messrs Leigh Day and Co) for the Appellant

Mr Philip Sales and Ms Karen Steyn (instructed by the Treasury Solicitor) for the Respondent

Lord Justice Dyson

This is the judgment of the court.

Introduction

1

The appellant is the Association of British Civilian Internees Far Eastern Region ("ABCIFER"). It is an unincorporated association which represents a substantial number of individuals (and their surviving spouses) who were interned by the Japanese during the Second World War ("the War") as British civilians, and have been refused a £10,000 compensation payment by the Secretary of State for Defence because neither they nor one of their parents or grandparents was born in the United Kingdom.

2

After many years of campaigning, the British government acceded to pressure, notably from the Royal British Legion, that members of British groups who had been interned by the Japanese should each receive ex-gratia payments of £10,000. On 7 November 2000, Dr Lewis Moonie, the Parliamentary Under-Secretary of State for Defence, announced the introduction of a non-statutory compensation scheme under which 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, in recognition of the unique circumstances of their captivity". In his announcement in the House of Commons, Dr Moonie said:

"Those who will be entitled to receive the payment are former members of Her Majesty's armed forces who were made prisoners of war, former members of the Merchant Navy who were captured and imprisoned, and British civilians who were interned. Certain other former military personnel in the colonial forces, the Indian army and the Burmese armed forces who received compensation in the 1950s under United Kingdom auspices will also be eligible. As I said earlier, in cases in which a person who would have been entitled to the payment has died, the surviving spouse will be entitled to receive it instead."

3

In a further announcement to the House on 11 July 2001, Dr Moonie was asked by Mr Nicholas Winterton MP "what changes there have been to the definition of "British" when applied to civilians eligible for Her Majesty's Govenrment's ex-gratia payments to former prisoners of war and internees of the Japanese from 1941 to 1945 since 7 November 2000". Dr Moonie replied:

"The ex-gratia payment announced on 7 November 2000 is being made to the various British groups who had been held prisoner by the Japanese during the Second World War. The eligibility criterion for civilian claimants has recently been clarified, but there has been no change in the intended scope of the scheme. British subjects whom the Japanese interned and who were born in the United Kingdom, or had a parent or grandparent born here, are eligible for the payment."

4

The Government has proceeded to make payments in accordance with this statement. On behalf of the appellant, Mr Pannick QC submits that, in refusing to make payments unless a claimant who was a British subject at the time of internment was born in the UK or had a parent or grandparent who was born in the UK ("the birth criteria"), the Government has been acting unlawfully.

5

As we shall explain, the Government decided that it should be a requirement of entitlement to an ex-gratia payment that a claimant should have had "strong links" with the UK at the time of internment, and the birth criteria were introduced to that end.

6

In summary, Mr Pannick submits that (a) the requirement of strong links with the UK at the time of internment and/or the birth criteria are unlawful on the grounds that they are disproportionate and/or irrational; alternatively (b) there has been breach of a legitimate expectation created by Dr Moonie's announcement of 7 November 2000: it was conspicuously unfair and an abuse of power to change the criteria for compensation (i) so as to exclude those who would previously have been entitled to payment; alternatively (ii) to do so without taking into account the fact that expectations had been raised by the announcement of 7 November 2000 which would be frustrated by the introduction of the birth criteria.

7

In a reserved judgment handed down on 18 October 2002, Scott Baker J dismissed the appellant's claim for judicial review. This appeal is brought with permission granted by Sedley LJ. It is important when considering the issues that arise to have in mind the fact that under section 1(1) of the British Nationality and Status of Aliens Act 1914 ("the 1914 Act"), "any person born within His Majesty's dominions and allegiance" was deemed to be a "natural-born British subject".

The relevant history

8

On 7 December 1941, Japan launched a surprise attack on the US Pacific Fleet at Pearl Harbour in Hawaii. In a swift campaign thereafter, the Japanese invaded and occupied many territories in East and South-East Asia, several of which were British colonies, territories or possessions. Between 1941 and 1945, they captured and held as prisoners of war ("POWs") more than 50,000 members of the UK armed forces of whom about one in four did not survive. In addition to the POWs, the Japanese also interned many civilians. The precise number is uncertain. The conditions in which the POWs and the civilians were held, and the manner in which they were treated, were appalling.

9

In his statement to the House on 7 November 2000, Dr Moonie said that "the unique nature of Japanese captivity in the Far East was recognised in the 1950s, when those who had been held became eligible for modest payments from Japanese assets, made under the provisions of the 1951 San Francisco treaty of peace with Japan". We shall refer to this compensation scheme as "the 1950s scheme". The maximum sums payable under the 1950s scheme were £76.50 for POWs and £48.50 for civilians. A civilian did not qualify for payment under the scheme unless he was a British national normally resident in the UK before internment who had returned to take up residence in the UK on or before the date of application for payment, and was over the age of 21 on 8 December 1941. Approximately 8,500 civilian internees received payments under the 1950s scheme.

10

Since then, successive British governments and some former British Far East captives have pursued the issue of additional compensation directly with Japan. But the position of the Japanese government is that the issue of compensation was settled under the 1951 Treaty.

11

On 10 April 2000, Dr Moonie met a delegation from the Royal British Legion at Downing Street. They outlined the case for a one-off ex-gratia payment for the POWs. The position of the civilians was not discussed. Following this meeting, the Prime Minister initiated a reconsideration of the long-standing government policy towards Far East POWs. During the summer of 2000, the Ministry of Defence reviewed the question whether further payment should be made to the POWs. The position of the civilians was only raised to the extent that it was noted that, if it was decided to make payments to former POWs, it was likely that civilian internees would also seek payments.

12

An Inter-Departmental Working Group was set up in the autumn of 2000. It was chaired by Mr Tom McKane. The Group's advice to Ministers was contained in a note dated 2 November. The note stated that the number of survivors was between 5500 and 6500 POWs (plus 4500 surviving widows), and about 2500 civilians (many of whom had been interned as children). The latter figure had been provided by ABCIFER. The note identified a number of options, and stated (para 13) that it was important that the criteria for the scheme should be carefully defined. If the scheme were to include civilian internees, merchant seamen and their surviving spouses, the additional cost would be approximately £87 million. The note suggested that if a scheme were adopted which included payment to civilians, it should extend to "surviving civilians, who are UK nationals and were interned by the Japanese in the Far East during the second World War".

13

On 6 November, the Government decided to establish an ex gratia payment scheme to be administered by the War Pensions Agency ("WPA"). Mr McKane says in his witness statement that "The Government's intention was that only civilians with a strong link to the United Kingdom would be eligible for such a payment, but at this stage there was no discussion of the precise criteria on the basis on which such a link would be assessed".

14

On the following day, Dr Moonie made his statement to the House of Commons. He said:

"In April this year, my right hon. Friend the Prime Minister held a meeting with representatives of the Royal British Legion to discuss the British groups who had been held prisoner by the Japanese during the second world war. He subsequently initiated a reconsideration of the longstanding policy of the Government towards those far eastern prisoners. The review took time to conduct because of the complexity of the issues involved, but it has now been completed.

I am very pleased to be able to inform the House that, as a result of the review, the Government have decided to...

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