R (Elias) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lady Justice Arden,Lord Justice Longmore |
| Judgment Date | 10 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1293 |
| Docket Number | Case No: C1/2005/1548 & C1/2005/1554 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 October 2006 |
[2006] EWCA Civ 1293
Lord Justice Mummery
Lady Justice Arden and
Lord Justice Longmore
Case No: C1/2005/1548 & C1/2005/1554
IN THE SUPREME COURT OF JUDICAT
COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE HIGH COURT OF JUST
ADMINISTRATIVE CO
MR JUSTICE EL
CO/5181/04 and
ON APPEAL FROM THE CENTRAL LONDON COUNTY CO
HHJ HAR
CLAIM No: 5CL12683
Royal Courts of Justice
Strand, London, WC2A 2LL
MR PHILIP SALES & MR MARTIN CHAMBERL (instructed by the Treasury Solicitor) for the Appellant
MR RABINDER SINGH QC, MS HELEN MOUNTFIELD, MS CLAIRE McCANN & MR JOHN HALF (instructed by Bindman & Partners) for the Respondent
Litigation overview
This is no ordinary race discrimination case. The setting is an application for judicial review of common law powers exercised by the Secretary of State for Defence (the Secretary of State) to set up an ex gratia compensation scheme. There are grave allegations, responsibly made, of abuse of power and serious maladministration by the Secretary of State involving direct, as well as indirect, race discrimination. Exemplary damages are claimed for alleged oppressive, arbitrary or unconstitutional action by public officials. Aggravated damages are claimed for alleged high-handed, trivialising, insulting and thoughtless behaviour towards a vulnerable citizen.
Some of the arguments criticising executive action are unjustified, but the occasion for making them ought never to have occurred. For all those concerned about sound standards of administration, prudence in the handling of taxpayers' money and State compliance with principles of equal and fair treatment of individuals some aspects of this affair are troubling. It is fully appreciated that officials are sometimes over-pressured and under-resourced in the conduct of public affairs. The decisions that they have to make are sometimes more difficult than is generally understood. This is, however, a case in which more time should have been given to careful thought, detailed discussion, relevant consultations and responsible planning before the launch of a well-intentioned humanitarian scheme for the ex gratia distribution of hundreds of millions of pounds from public funds. The result of inadequate preparation has been an embarrassing administrative and legal muddle, personal pain, charges of incompetence, costly litigation and political apologies, accompanied by inquiries, investigations, reports, hearings and reviews. A cloud has been cast over what many people would agree was an honourable act of public benevolence.
Challenge to the Compensation Scheme
The claimant, Mrs Diana Elias, is in her early 80s and lives with her disabled eldest son. She is a British subject, as were both of her parents (and, she claims, her grandparents) ; but she was not born in the United Kingdom; nor were her grandparents, or her parents, who were both Jewish, her mother from Iraq and her father from Iraq or India. Mrs Elias and her family took great pride in being British subjects.
Mrs Elias was born in Hong Kong in 1924. She was there when the Japanese forces invaded in 1941. During the Japanese occupation from 1941 till 1945 she was interned by the Japanese in Stanley Camp, Hong Kong. She suffered extremely traumatic experiences with serious, long-term psychological effects. She was interned because she was a British civilian, as evidenced by her registration with the British High Commission and by the inclusion of her name and the names of her parents and siblings in a list handed to the Japanese by the British authorities.
Mrs Elias is also a British citizen. She lived partially in the UK between 1945 and 1976. She has lived in the UK full time since 1976. Her children and grandchildren are all British citizens.
The defendant Secretary of State is responsible for the administration of an ex- gratia compensation scheme announced in November 2000. The court below found race discrimination of the indirect (or disguised) kind resulting from the application of discriminatory criteria to applications for payments under the scheme. Mrs Elias' claim is simple: she would be eligible for a payment of £10,000 under the scheme, but for the racially discriminatory condition or requirement introduced and applied by the Secretary of State that either she, or one or more of her parents or grandparents, should have been born in the United Kingdom. She is "very deeply aggrieved" by her exclusion from the scheme resulting from the application of discriminatory criteria. Like others in the same position as she is, she finds it offensive to be told that she is not "British enough" to be compensated, although she was "British enough" to be interned.
It has to be said that, although the claim is simple, the course of the litigation and the legal issues thrown up by it are far from simple. The principal written submissions on behalf of Mrs Elias run to 267 paragraphs (82 pages) . They were supplemented by further written submissions before and after the oral hearing. The Secretary of State's principal and supplementary submissions are of comparable length and complication. This is a worrying case, which raises fundamental issues of discrimination law. They are not made any easier by the fact that the whole affair is suffused with a personal and historic sense of injustice. The issues of interpretation and application of the law must, of course, be judged with complete objectivity.
The main grounds of challenge to the lawfulness of administrative action are direct or indirect race discrimination contrary to the Race Relations Act 1976, as amended (the 1976 Act) and the unlawful fettering of discretion in the exercise of common law public powers. It is contended that these grounds render unlawful the application of the eligibility criteria adopted by the Secretary of State between March and June 2001 for determining who would be entitled to receive payments under the non-statutory Far Eastern Prisoner of War and Civilian Internees Ex-Gratia Compensation Scheme (the Compensation Scheme) .
The Compensation Scheme was announced by the Parliamentary Under-Secretary of State for Defence in Parliament on 7 November 2000. It exists to "to repay the debt of honour" owed by the UK to "British civilians" who were interned by the Japanese during the Second World War. The Compensation Scheme was described in similar terms in "Notes for Guidance" in a leaflet published by the War Pensions Agency (now the Veterans Agency) . There was no definition of "British" and there was no reference at that time to the need to demonstrate any other links with the UK, to "belonging to Britain" or to any other defined eligibility criteria.
For the Secretary of State it was contended that it was wrong to read references in the announcement and the leaflet to "British civilians" as being or containing a promise to compensate every internee who was a British subject at that time. Whatever may have been intended, the announcement was lacking in detail and clarity. The need to clarify "British" in an easily understandable and administratively workable way emerged as completed application forms were received and assessed. The Secretary of State argued that it was never stated that payments would be made to all civilians who were British subjects at the time of internment and that it was always intended to require strong links with the UK as a condition of payment.
On any view of the matter the unfortunate feature of the launch of the Compensation Scheme is that its announcement in Parliament preceded a decision on how the intended beneficiaries, who were described in the announcement as "British civilians", should actually be determined. Thousands of applicants, who were identified as having received compensation under an earlier war pensions scheme in the 1950s, received payments under the Compensation Scheme before the announcement and publication of the eligibility criteria that the Secretary of State then relied on to reject applications from Mrs Elias and hundreds of other similarly placed applicants.
The conditions for eligibility under the 1950s scheme (the Japanese Asset Scheme) were that a civilian did not qualify for payment 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 21 on 8 December 1941. The underlying thinking behind the earlier scheme was that the persons to benefit should be British nationals normally belonging to or having roots in the UK before the war and who were living in the UK at the time of distribution. It should be remembered, however, that, at the time of the 1950s scheme, there was no race discrimination legislation, which had to be complied with or which could be invoked as a ground of challenge.
According to the 2000 announcement single lump sum payments of £10,000 each were to be made to "British civilians" who had been interned by the Japanese in the Second World War. Mrs Elias falls into this general description. Her hopes were raised by the announcement, as she thought that she would be eligible for compensation. But the claim submitted by her soon after the setting up of the Compensation Scheme was rejected by the Secretary of State's Veterans Agency on the grounds that she did not satisfy the eligibility criteria. She feels deeply aggrieved that the "debt of honour" does not extend to her, although, in circumstances that are disputed, the widows of her two brothers, Charlie and Abraham, who had...
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