R (Elias) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judgment Date | 11 October 2006 |
| Date | 11 October 2006 |
| Court | Court of Appeal (Civil Division) |
COURT OF APPEAL
Before Lord Justice Mummery, Lady Justice Arden and Lord Justice Longmore
ELIGIBILITY criteria in an ex gratia compensation scheme, to compensate British civilians interned by the Japanese during the Second World War, were indirectly discriminatory on racial grounds because of the requirement that a claimant had to have a national origin link with the UK.
Although the aim of limiting the criteria to a category narrower than everyone who was a British subject at the time of internment was in principle legitimate, a stringent standard of scrutiny of its justification was appropriate. The chosen criteria used by the Secretary of State for Defence, responsible for administering the scheme, were not necessary and proportionate to achieve that aim.
Nevertheless the secretary of state was entitled in the circumstances to refuse to make an exception to the criteria for the claimant, and he had not unlawfully fettered his powers in so doing, so that the quashing of the criteria on the ground of indirect race discrimination did not entitle the claimant to payment of compensation or to damages for race discrimination.
The Court of Appeal so held in a reserved judgment, inter alia, dismissing appeals by the secretary of state and the claimant, Mrs Diane Elias, against the judgment of Mr Justice Elias (The Times August 25, 2005) holding:
(i) that the birth link criteria discriminated against Mrs Elias on the ground of race, namely national origins, and constituted unlawful indirect discrimination, contrary to section 1(1A) and/or 1(1)(b) of the Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000, and quashing the decision to refuse to make a payment to her; (ii) that although the criteria had a legitimate aim, they were not objectively justified as they were disproportionate, and (iii) that the claimant had not suffered direct discrimination, and the secretary of state had not unfairly fettered his discretion by failing to consider the possibility of making ex gratia payments to those who fell outside the criteria but were exceptional cases.
The judge declined to order the secretary of state to reconsider her application for payment by disapplying the unlawful criteria so as to entitle the claimant to be paid Pounds 10,000 under the scheme.
Section 71 of the 1976 Act, as substiuted, provided a general statutory duty on...
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