R (Elias) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Elias |
| Judgment Date | 07 July 2005 |
| Neutral Citation | [2005] EWHC 1435 (Admin) |
| Docket Number | Case No: CO/5181/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 July 2005 |
and
[2005] EWHC 1435 (Admin)
Mr Justice Elias
Case No: CO/5181/2004
IN THE HIGH COURT OF JUSTICE
ADMINSTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Rabinder Singh Q.C., Ms Helen Mountfield & Miss Claire McCann (instructed by Bindman & Partners) for the Claimant
Mr Phillip Sales and Mr Martin Chamberlain (instructed by Treasury Solicitors) for the Defendant
Mr David Pannick Q.C. and Mr David Pievsky (instructed by The Commission for Racial Equality) for the Intervenor
Introduction.
This is an application for judicial review. The Claimant Diana Elias is now 81. Her parents were both Jewish; her mother was from Iraq and her father from Iraq or India. She was born in Hong Kong on 9 th January 1924 and she was registered, as a British subject, with the British High Commission in Hong Kong. She was still in Hong Kong when the Japanese forces invaded that territory in 1941. The British authorities gave a list of British subjects to the Japanese. Her name was included on that list together with her parents and siblings. Her home was raided and she and her family were all interned by the Japanese, by virtue of being British civilians, in Stanley Camp. She was there between 1941 and the liberation of Hong Kong in 1945. During that period she suffered extremely traumatic experiences which it is not necessary to recount. She has suffered serious psychological effects identified in a medical report from Professor Robbins. Mrs Elias remains a British citizen. From 1945 until 1976 she lived partially in this country and since 1976 she has lived here full time. Her children and all her grandchildren are British citizens.
Her complaint relates to the non-statutory compensation scheme for those who were interned by the Japanese during the war. The scheme is termed "The Far Eastern Prisoner of War Ex-Gratia Compensation Scheme". When setting up the scheme, the government said that it was "to repay the debt of honour" owed by the United Kingdom to British civilians interned by the Japanese during the war. The scheme applies both to members of the armed services who served during the war and to civilians, but different rules of eligibility were established for the two categories. A single ex-gratia payment of £10,000 is made to those who qualify under the scheme. So far as civilian internees are concerned, in order to qualify they either have to have been born in the United Kingdom or have a parent or grandparent born here ("the birth link criteria"). Mrs Elias does not meet that requirement and therefore has not been allowed to benefit from the scheme. She feels very deeply aggrieved that the perceived "debt of honour" does not extend to her. She contends that the Secretary of State, in refusing to compensate her, has acted unlawfully in two distinct ways. First, it is said that he has erred in law in failing to consider whether, because of the extreme suffering she has undergone, she should be made an exceptional case. She recognises that everyone interned by the Japanese was treated extremely harshly but contends that her treatment was particularly brutal and merits recognition. Second, it is submitted that the scheme is unlawfully discriminatory. The Claimant submits that the criteria operate as direct discrimination on grounds of national origins or alternatively, are indirectly discriminatory and cannot be justified.
There is a further ground that in formulating the scheme the government failed to comply with its obligations under s71 of the Race Relations Act 1976. This is essentially a discrete and self-contained point and I deal with it separately at the end of this judgment. The Commission for Racial Equality was permitted to intervene and make submissions on the discrimination and the section 71 grounds. They were represented by Mr Pannick QC.
Earlier Challenges to the Scheme.
The scheme in issue in this case has already been the subject of two challenges in the courts. First, in R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] EWCA Civ 473 [2003] QB 1397 ("the ABCIFER case") it was claimed that the criteria were unlawful because they were disproportionate and /or irrational, and also on the ground that they defeated the legitimate expectation, created it was alleged by the announcement in Parliament setting up the scheme, that those who were British subjects at the time of their internment would be entitled to the compensation. The Court of Appeal, Lord Phillips of Worth Matravers MR, Schiemann and Dyson LJJ rejected the challenge. The court held, after reviewing a number of authorities, that proportionality had not replaced the test of rationality in judicial review claims which raised no Human Rights or European Community Law issues. It was further held that the objective of seeking to limit the beneficiaries of the scheme to those with close links to the United Kingdom at the time of the internment, and the introduction of the birth link criteria to demonstrate those close links, were rational. The court also held that there was no frustration of any legitimate expectation. The grounds now being advanced were not pursued in that case.
In the case of Phalam Gurung v Ministry of Defence [2002] EWHC 2463 Admin, Mr Justice McCombe held that it was irrational for the scheme to discriminate against Ghurkhas who had fought in the British-Indian Army and had been denied benefits under the scheme. The ostensible reason for distinguishing them from British service personnel who also served in the Indian army was that the Ghurkhas were subject to Indian military discipline whereas the British were subject to British Military Law. McCombe J held that the scheme was a de facto racial one concealed beneath the cloak of de jure constitutional distinctions. That case, however, concerned soldiers as opposed to civilians, and different criteria were under consideration than in this case.
The history of the scheme.
I will not set this out in any detail. It was fully and helpfully recounted in the judgment of Lord Justice Dyson handing down the judgment of the court in the ABCIFER case: see paragraphs 8 to 31. The bare bones are as follows. It was announced that the scheme would be set up on 7 th November 2000. Dr Mooney, then Parliamentary Under Secretary for Defence, informed the House of Commons that "British civilians who were interned" would receive the compensation.
It became apparent that it was necessary to define precisely who fell within the concept of "British civilians." The criteria were subsequently fixed at an inter-departmental working group meeting on March 21 st. In the weeks following that meeting, Mr Alan Burnham, then Acting Chief Executive of the Veterans Agency (formerly the War Pensions Agency) expressed concerns as to whether these criteria were defensible and suggested that wider eligibility criteria might be adopted, perhaps on a discretionary basis. Notwithstanding these concerns, the inter departmental working party, at a meeting on the 18 May, confirmed the birth criteria. The minutes of that meeting note that the committee considered that what it termed the "bloodline connection with the United Kingdom" should be retained and was consistent with the war pensions arrangements. The criteria were made public by an announcement in the House of Commons on the 11 July 2001.
The justification for the adoption of the criteria was explained in a witness statement in the ABCIFER litigation by Mr McKane who was the chair of the Interdepartmental Working Group which advised ministers on the scheme. Mr McKane said this:
"In reaching this definition we were guided by our understanding that the Ministerial intention was that there should be a requirement that the Claimant should have had strong links with the UK. We initially considered that a strong link with the UK required that either the Claimant or at least one of their parents was born in the UK.
In extending the link to the UK back to grandparents, we bore in mind representations made by ABCIFER in respect of the Governments proposals on a distinct but analogous matter, namely to revise the policy for determining whether a former civilian Far East internee "belongs to the UK" for the purpose of entitlement to a War Pension".
It is somewhat ironical that it is the extension back to grandparents which is relied upon as an important element in the alleged discrimination in this case. However, if the unlawful discrimination is made out, it is trite law that the fact that it resulted from benign intentions is irrelevant.
Mrs Elias' claims.
In the context of the history of the scheme as a whole, I turn briefly to deal with the factual background relating to Mrs Elias' own claims. Soon after the scheme was set up, she made a claim for compensation. At that stage she understood that she would be eligible as a British citizen, and it was only through correspondence that she appreciated that she was being denied the payment because she did not satisfy the criteria. She wrote a number of letters to the Prime Minister, but to no avail. She was formally notified in a letter from the War Pensions Agency on 25 th June 2001 that because of her failure to satisfy the criteria, "you are not eligible to receive the ex gratia payment".
Mrs Elias' solicitors wrote on 20 th January 2004 specifically asking whether any other information might assist the War Pension Agency in making a decision in her favour even although she fell outside...
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