Examination of Witnesses (Questions 1-18)
MS ANN
ABRAHAM AND
MR IAIN
OGILVIE
1 DECEMBER 2005
Q1 Chairman: Could I welcome Ann Abraham
and Iain Ogilvie from the Ombudsman's Office? We are spending
this morning looking at issues arising out of the Debt of Honour
report, Ann, which you produced earlier this year around the ex
gratia payments scheme for Japanese prisoners of war and the
civilian internees. We want to spend a few minutes to start with,
if we may, talking to you about this report that you have made
and then we shall move on to talk to others about it. Could I
kick off by noting the fact that this is, I think, only the third
report in the history of your Office which you have brought under
those particular provisions in your founding statute, in cases
where there is an unremedied injustice that you have discovered?
Would you like to tell us how serious you think it is, that it
has made you bring a report of this kind under that provision?
Ms Abraham: I think the fact that
it is only the third report that a Parliamentary Ombudsman has
made to Parliament using powers under section 10(3) of the legislation.
Whereas there are powers to make a variety of reports to Parliament,
this is a specific power in relation to situations where the Ombudsman
has found maladministration leading to injustice which has not
been remedied. The two other cases were, I believe, in 1995 when
Sir William Reid reported to Parliament on issues to do with the
Channel Tunnel rail link and planning blight. Before that, you
have to go back to 1978, when Sir Idwal Pugh reported on issues,
again in Kent, to do with a bypass scheme and compensation payments
under the Land Compensation Act. So it is a rarely used power
and I deduce from that that it is a rare situation.
Q2 Chairman: Do you think that over
the years there has been a falling-off in the way that governments
have seen your recommendations? I am thinking back to the 1980s,
to the Barlow Clowes case where, although you did not report under
this particular provision, the fact was that the government of
the day did not accept the rationale on which the Ombudsman had
come to the view, but nevertheless said, "We shall pay up"—I
think that it was about £150 million—". . . out
of respect for the Ombudsman's Office". We have reached a
point now where we are talking about a much smaller sum—it
may be as small as £10 million—and you have produced
this compelling report. Is there something shocking about a government
that says, despite that, "We don't have sufficient respect
for the Ombudsman's Office to do the decent thing"?
Ms Abraham: I suppose that I see
it slightly differently, and maybe that is an optimistic tendency
of mine. I do not see in this a determined attempt by government
to resist the Ombudsman or to show disrespect for the Office.
I would say in all seriousness that in all the work we do we see
huge respect for the Office across government and in Parliament.
I think that this situation is extraordinary. I do not entirely
understand it, and I have talked directly with the now-retired
permanent secretary about it. I suppose in some respects I almost
feel that it is possible that the Government does not understand
the seriousness of it either, or maybe they now understand the
seriousness of it; but, at the time when we were having our discussions
with the Department from February onwards—there are busy
times, there are lots of things on people's desks—I do not
quite understand why we have got into this situation over something
that seems to me to have no repercussions beyond the individual
issue, where the sums involved obviously are large but they are
not extraordinarily large. So I still find myself not fully understanding
the Government's position—but the Committee may well want
to ask questions on it later.
Q3 Chairman: Let us just go to the
MoD's response to your report. What they were saying was, "We
accept what you say about the way in which the scheme was introduced"—problems
with that—but then they go on to say, in effect, "but
you have no right to go on to say that there are problems with
the scheme itself. This is outside your remit. You should never
have gone there". You, in response, try to make an argument
about the difference between what is lawful and what is maladministrative.
This is a rather important point for your whole work. Do you want
to say something about that?
Ms Abraham: Indeed I do, and I
deal with this extensively in paragraph 16 onwards in my report.
I will not read them to you, but I would refer the Committee to
them. I think that the MoD have simply got it wrong in relation
to the vires point. Obviously I looked at it very carefully
and reflected on what they had to say, but I think that they simply
got it wrong. The suggestion seems to be—and this is where
it is quite confusing—they say that the first part of the
report and the first two recommendations are about maladministration,
and therefore there is no legal remedy for those complaints; and
it is okay for me to be in, in relation to the introduction and
the announcement of the scheme but, when it comes to the operation
of the scheme, there is the possibility there of a legal remedy
by way of judicial review and therefore I cannot become involved;
I cannot do an investigation. That is not at all the legislation
as I understand it. First of all, I have discretion to decide
whether it is reasonable for the complainant to exercise the alternative
legal remedy. What the Government seems to be saying is, "If
this is judicially reviewable, you can't go to the Ombudsman".
That is not what the law says.
Q4 Chairman: Have you taken this
up with the Cabinet Office?
Ms Abraham: Not specifically on
the point.
Q5 Chairman: This goes to the heart
of how you operate, does it not? If this is the proposition being
advanced by government now—that you cannot operate in those
circumstances, and that cuts across everything we thought your
Office was about—surely you should be urgently seeking some
clarification about this?
Ms Abraham: I suppose I am so
confident that they have got it wrong, and I suppose if the Government
really think that I have got this wrong they have the opportunity
to challenge me by way of judicial review—but that is not
where any of us want to be, I think. I do find it very difficult
to understand the suggestion—when all of the enthusiasm
and support is for using the courts as a last resort, alternative
dispute resolution, and choice for citizens in relation to the
way in which they seek remedies—that, because of the possibility
of taking a judicial review, the Ombudsman cannot be involved.
The other point, and this is very technical stuff, is about whether
the fact that there were court proceedings brought—not by
Professor Hayward and not on the same point, certainly not a complaint
of maladministration—that somehow excludes me. The point
made in the report is that there is maladministration short of
unlawfulness, and legality and maladministration are not the same
thing. Just to give you a quote from the European Ombudsman, who
has been visiting us this week, he has this lovely phrase: "There
is life beyond legality, and there is space which is maladministration".
We have not for a moment sought to determine the lawfulness of
this scheme. I know that is not my job.
Q6 Mr Liddell-Grainger: You said
earlier that you were not entirely sure that the Government understood
some of this. Can I first ask you what you meant by that? Secondly—let
us be crude about this—are the Government going on as long
as they can so that as many people will die before they have to
pay out the money?
Ms Abraham: I do not believe so.
Q7 Mr Liddell-Grainger: You think
it is just that the Government has decided that there is a line
in the sand, or is it as naive as that they do not understand
it?
Ms Abraham: We are talking about
the Government here. The MoD's response was the Government's response
and was said to be so. I therefore have to take it as that. In
the course of dialogue with a number of individual government
departments on issues around the interpretation of the legislation,
maladministration, application of alternative legal remedies,
I have found myself over the last couple of years in some quite
peculiar discussions, usually with lawyers, around those interpretations.
It has occurred to me—and in fact I have talked to Gus O'Donnell
about this recently—that my Office could usefully run some
sessions for government lawyers on our understanding of the legislation.
To be fair to people, they do not come to these issues very often.
Quite often, they are grappling with particular circumstances,
a piece of legislation that they are not hugely familiar with
which we are familiar with and we work with every day of the week.
So I think maybe there is work for us to do in helping government
at least to understand our interpretation of the legislation.
That does not mean that they have to agree with it, but at least
they could understand how we seek to apply it.
Q8 Mr Liddell-Grainger: There are
column inches about this, going back over quite a lot of years.
The Government cannot not have known what is going on. Somebody
has made a conscious decision that they are not happy with what
is going on. It is at Cabinet level; it is at some level. There
are quotes in here from Lewis Moonie, when he was Minister for
Veterans' Affairs; there are quotes here from the Member for Hendon.
This has gone on for a long time. I am sorry, I do not believe
for one minute that the Government are that naive.
Ms Abraham: I did not say they
were naive.
Q9 Mr Liddell-Grainger: You have
implied that they do not know what they are doing, or the lawyers
do not know what they are doing.
Ms Abraham: I said that I think
they have got it wrong. I think that their interpretation of the
law is wrong. I have considered the response from the Government,
which is in full in the back of the report, and I dealt with it
in my report in paragraph 16 onward, and indeed in various other
places in the report. So I have considered very carefully what
was said and I have said in the report that I am not persuaded
by those arguments.
Q10 Mr Burrowes: Do you think that
there is proper respect from the Government for the Office of
the Parliamentary Commissioner?
Ms Abraham: Most of the time.
Q11 Mr Burrowes: In relation to the
statement in July, which was in effect the definitive response
from the Government to your detailed report, it was a very opaque,
short and indeed, perhaps one would say, terse statement. Does
that show proper respect for the Office, on such an exceptional
course of action that you followed, reaching what are quite exceptional
recommendations?
Ms Abraham: The simple answer
to that question has to be no, it does not. However, I would say
that the very fact that we are here, for the third time in the
Office's nearly 40-year history, having this discussion about
a government's refusal to accept the findings and the recommendations,
is extraordinary. It does concern me. I think I said, when I was
before the Committee in October, that if this becomes a frequent
occurrence then I clearly will be very concerned. It is exceptional,
and that is why I reported to Parliament; that is why I am very
pleased that the Committee is here this morning, asking questions
about these issues; and I will be as interested as the Committee
to hear from the Government and to understand their reasons.
Q12 Mr Burrowes: Obviously this issue
has gone on for some time. We are not talking about new issues.
Trying to look at it from the Government's point of view and whether
they have any avenue for being able to avoid answering the questions,
looking in particular at the recommendations in your report, you
say, "The Government has also not been able to provide me
with evidence to assure me now that applications from people in
the same situation for the purposes of the scheme's eligibility
criteria were not decided differently". Throughout your compiling
of the report, were the Government fully co-operative in providing
all the necessary evidence that you requested?
Ms Abraham: There was a huge amount
of evidence, and I think that we got everything we asked for.
I am always reluctant to see any kind of deliberate lack of co-operation
or any kind of inappropriate behaviour in departments. I honestly
do not think that there was any attempt to withhold information
from us. It is the nature of our investigations that sometimes
we will go back and ask for supplementary information that has
not come in the first bundle, and there sometimes will be genuine
reasons why things were not included. So I am not concerned about
lack of co-operation in relation to this report. The area for
me that remains a fundamental difference between my Office and
the Ministry of Defence is that we asked them to demonstrate to
us that, when the blood link criterion was introduced after the
scheme had been announced and claims had been made, the introduction
of the new criterion some months into the scheme had been considered
in terms of whether it would cause unfairness or inconsistency
in its application. We said, "If you were going to do that
some months in, good administration says that you should be able
to show that you considered the point and you could demonstrate
there was no inconsistency or unfairness arising from its introduction".
They could not show us that, and have not been able to show us
that.
Q13 Mr Burrowes: In relation to the
issue about whether there should be a proper review of the scheme,
do you think the Government response that there is ongoing litigation
or other reasons are a sufficient reason for them not to follow
that recommendation? The other issue is that obviously the Government
has responded in terms of giving a tangible effect to their apology
by the £500 payment. Do you think that was enough?
Ms Abraham: There are two points
there. Could you repeat the first one again, please?
Q14 Mr Burrowes: It was in relation
to the Government not following through the recommendation for
a review of the scheme.
Ms Abraham: On the point about
whether the very separate issue of the litigation has any effect
here, I do not believe that that makes any difference. I am very
clear, and the report goes into great length, as to why we consider
that these issues were separate from any litigation going on in
another place. In terms of the amount, I said in the report that
there should be an apology and that recommendation was accepted.
As to the £500 for distress, I said that I thought the Government
should consider whether that regret should be expressed tangibly.
I did not make any recommendations as to the amount and I left
it to the Government to take a decision about that. £500
is not a large sum of money for distress, and certainly I have
seen higher awards and would expect to make higher awards. My
criteria would be about the severity, the intensity of the distress,
and how long it had gone on. I would look also at the circumstances
of the individuals, their vulnerability, their age, their particular
circumstances.
Q15 Paul Flynn: Could we just knock
on the head this idea that the Government are behaving out of
financial reasons; that they are waiting for the recipients to
die? Could we just put in context the amount of money involved?
Many of us would find it a very small amount of money, considering
the terrible suffering of the prisoners, in terms of what compensation
is paid today. Can we say that the amount of money, to the Department
and to the Government, is microscopic; that it is protozoan in
dimensions? Whatever the reasons behind what appears to be the
extraordinary behaviour of the Ministry of Defence—it may
be hubris, it may be someone just covering up over a bad estimate
and so on—would you say that it is certainly not any attempt
to save money?
Ms Abraham: I have seen no attempt
at all to save money. I have not seen any evidence of that.
Q16 Chairman: I have just one final,
factual question. Reading the material, it is pretty clear that
there was reliance being put on the information supplied by Mr
Bridge of the Association of British Internees, Far East Region—ABCIFER—in
terms of processing claims. From the work that you have done,
have you been able to form a judgment as to how reliable the information
that was being supplied was?
Ms Abraham: I have no suggestion
that it was anything other than reliable, but what I hope the
report makes clear is that my investigator spoke to Mr Bridge,
who was extremely helpful in giving us background information
and context, and explained about the dialogue he had had with
government over a period of time on these issues. In relation
to the cases of people who had had their claims accepted—who,
once the criterion had been introduced, probably would not have
been eligible—there was some information that was provided
to us; but, as you can imagine, those individuals were very concerned
that, if they came forward on the record, they might have their
£10,000 taken away. The report makes very clear that we did
not rely on evidence provided by Mr Bridge in relation to the
findings of maladministration. I come back to my point that we
asked the Ministry to demonstrate to us that they had considered
the effects of this criterion when it was introduced some months
into the scheme, and they were unable to do that.
Q17 Chairman: Just as we end this
bit of the session, there is a smoking gun in all this, is there
not? It is this memorandum from Mr Burnham, who was then the Acting
Chief Executive of the War Pensions Agency, as it was described
at that time. It is this memorandum of 10 April 2001, where he
writes amongst other things, "Despite previous concerns at
expansion of the eligibility, we are now firmly of the belief
that the evidence of individual cases suggests that the present
stance will be impossible to defend on grounds of fairness and
logic. It does not seem that rejection of these cases will be
in keeping with the original intent and spirit of the scheme".
Ms Abraham: It looks like a smoking
gun to me.
Q18 Chairman: I wonder if that is
why we were told yesterday that Mr Burnham was not able to attend
this morning after all.
Ms Abraham: I cannot comment on
that.
Chairman: Thank you very much indeed.
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