The Ombudsman's Report
3. On 12 July 2005 the Ombudsman published a report
on 'A Debt of Honour': the ex gratia scheme for British Groups
interned by the Japanese during the Second World War. The
report was presented to Parliament under section 10 (3) of
the Parliamentary Commissioner Act 1967 which provides:
(3) If, after conducting an investigation under
this Act, it appears to the Commissioner that injustice has been
caused to the person aggrieved in consequence of maladministration
and that the injustice has not been, or will not be, remedied,
he may, if he thinks fit, lay before each House of Parliament
a special report upon the case.
It is only the third time a Parliamentary Commissioner
has used this power.[3]
4. Full details will be found in the Ombudsman's
report. In summary, the case arose from a complaint of maladministration
from Professor Jack Hayward who, as a boy, had been a British
civilian internee in the Far East during the Second World War.
On 7 November 2000, the Government had announced the introduction
of an ex gratia scheme for former Prisoners of War (PoWs) and
civilian internees in the Far East. Although, in general, policy
was not to offer compensation to those who had been imprisoned
during hostilities, an exception was made "in recognition
of the unique circumstances of their captivity". As the Minister
said:
if we look back at the histories, we come across
a simple, stark fact that makes clear to everyone the enormity
of what happened: of the 50,016 British service personnel who
were reported captured by the Japanese, 12,433 died or were killed
in captivity. In other words, conditions were so bad that one
in four did not survive.[4]
5. The ex gratia scheme was to extend to "British
civilians". Professor Hayward and others duly made claims.
What they did not and could not know was that at the time of the
announcement the Government had still to work out the details
of eligibility: the meaning of "British" was to become
one of these.
6. As Mr Touhig said, "at the time of the conflict
of course a great deal of the world, in quotes, was British, it
was part of the Empire".[5]
Many people held British passports even though their parents and
grandparents had not been born in the United Kingdom. The Ombudsman's
report notes:
65. The circumstances of the interned British civilians
also differed widely. Some had been born in the UK and had gone
out to the Far East on colonial service or business with a view
to retiring back in this country. Others belonged to old colonial
families who had given generations of service to the British Empire
overseas. Often, successive generations were born in British colonies,
were educated in the UK, and later retired here. There were also
those who were then British subjects by virtue of the fact that
they had been born in a British colony, who had had no close link
with the UK itself or who had never visited this country, but
who had since become nationals of other countries. ….
66. There was a change in the definition of British
with the passing of the British Nationality Act 1948, and many
former British internees at that time or thereafter became citizens
of independent countries such as Australia, Canada and Pakistan.[6]
7. In the years immediately after the war, many former
colonies became independent, and their citizens ceased to be "British".
A peace treaty was signed at San Francisco in 1951. The British
Government used money from the sale of Japanese assets to pay
compensation to some former PoWs and civilian internees. Compensation
for civilians was restricted to those who had been normally resident
in the UK before the war, had returned to take up residence in
the UK, and who were over the age of 21.[7]
The compensation scheme did not require any "blood link"
to the United Kingdom (such a blood link was not essential to
British nationality until the passage of the British Nationality
Act 1981). Some 8,500 civilians received payments under the scheme.
8. The 2000 scheme was intended both for PoWs and
civilian internees. The former PoWs were eligible if they were:
- a surviving former member of
HM Armed Forces who was held as a Japanese prisoner of war in
the Far East during the Second World War;
- a surviving former service personnel who received
payments under Article 16 of the 1951 Treaty of Peace with Japan
under the auspices of the British Government. These were certain
members of the then colonial forces, Indian Army and Burmese Armed
Forces;
- a surviving former member of the Merchant Navy
who was imprisoned by the Japanese in the Far East during the
Second World War. For the purposes of this scheme, a member of
the Merchant Navy is a person who has been employed, or engaged
as, or for service as, a mariner in a British ship.[8]
9. In contrast, there was no reference to any qualification
of the term "British civilian". Payments could not be
made until Social Security regulations had been put in place to
ensure the payments did not affect entitlement to benefits, but
claims were accepted and processed, and the first tranche of payments
was made on 1 February 2001, the day the regulations were approved.
The first payments to civilians were made to those who had benefited
from the compensation scheme operated in the 1950s, or whose parents
had so benefited.
10. Meanwhile, officials were trying to resolve how
"British" should be defined for the purposes of the
ex-gratia scheme. It appears that by late March 2001 officials
agreed that only those with a parent or grandparent born in the
United Kingdom would qualify. Former civilian internees whose
claims were still being considered were sent a questionnaire asking
details of the claimant's parents and grandparents, including
place of birth.
11. Initially the scheme was administered by the
War Pensions Agency (WPA), which was part of the Department for
Work and Pensions. On 8 June 2001, responsibility for the WPA
passed to the Ministry of Defence (MoD), and it was renamed the
Veterans Agency. On 12 June 2001, officials prepared a submission
to Dr Lewis Moonie MP, then the Parliamentary Under-Secretary
of State for Defence, inviting him to note the definition of British
used for the ex gratia scheme. After asking for further information,
he approved it on 19 June 2001, and on 25 June 2001 the Veterans
Agency wrote to a number of former civilian internees to reject
their claims to compensation.
12. Professor Hayward's complaint was referred to
the Ombudsman by Austin Mitchell MP on 12 December 2001. The consideration
of his complaint was delayed because the Association of British
Internees Far Eastern Region (ABCIFER) challenged the legality
of the MoD's eligibility criterion for civilians through the courts.[9]
These proceedings were concluded in April 2003. Once they were
concluded, the Ombudsman's first task was to consider whether
she was precluded from investigating by section 5(2)(b) of the
Parliamentary Commissioner Act 1967, which provides that the Commissioner
shall not investigate "any action in respect of which the
person aggrieved has or had a remedy by way of proceedings in
any court of law" unless she is "satisfied that in the
particular circumstances it is not reasonable to expect him to
resort or have resorted to it".[10]
We shall return to this later in the report.
13. The Ombudsman decided to investigate, and so
informed the MoD in June 2003. No objections were raised. The
Ombudsman's investigations revealed that:
- despite the fact that successive
Governments had been under pressure to introduce a compensation
scheme for many years, and the Prime Minister had undertaken to
look again at such a scheme on 10 April 2000, it was not until
25 October 2000 that the Prime Minister's Office asked the Cabinet
Office to convene a meeting of interested departments to provide
advice to Ministers for a review which was to be brought to a
conclusion by 8 November 2000;
- the precise details of eligibility were, as we
have seen, worked out after the initial announcement, and indeed
the initial payments, had been made;
- the announcement of the scheme, both in the House
and in written material, failed to make it clear that some details
remained to be worked out;
- the MoD was unable to demonstrate that the blood
link criterion was compatible with earlier eligibility criteria
for payment; indeed no one appears to have fully appreciated that
those eligible for payment under the 1951 scheme did not necessarily
have a blood link to the United Kingdom.
14. The Ombudsman found maladministration on four
counts:
(i) the way in which the scheme was devised constituted
maladministration in that it was done overly quickly and in such
a manner as to lead to a lack of clarity about eligibility for
payments under the scheme;
(ii) the way in which the scheme was announced
constituted maladministration in that the Ministerial statement
was so unclear and imprecise as to give rise to confusion and
misunderstanding;
(iii) at the time when the blood link criterion
was introduced, the failure to review the impact of that introduction
to ensure that it did not lead to unequal treatment constituted
maladministration; and
(iv) the failure to inform applicants that the
criteria had been clarified when they were sent a questionnaire
to establish their eligibility constituted maladministration.[11]
15. In addition, the Ombudsman was concerned that
the MoD had been unable to provide evidence that the introduction
of the blood link had not led to a change in eligibility, and
that the scheme had not been reviewed, despite criticism from
the courts, Parliament and elsewhere. The Ombudsman made four
recommendations:
212. First, I consider that the MOD should review
the operation of the ex gratia scheme…
213. Secondly, I consider that the MOD should
fully reconsider the position of Professor Hayward and those in
a similar position to him…
214. My third recommendation is that the MOD
should apologise to Professor Hayward and to others in a similar
position to him for the distress which the maladministation identified
in this report has caused them…
215. Finally, I recommend that the MOD should
consider whether they should express that regret tangibly.[12]
The MoD's Response
16. The MoD responded to the Ombudsman's report by
accepting that the scheme had been announced before the eligibility
criteria had been completely thought through, and that once the
terms of the scheme had been clarified they should have been disclosed
to those who were applying. It apologised to Professor Hayward
and others in his position, and offered them £500 as an expression
of regret. Although the £500 was felt by many of the recipients
to be insulting, and was described by the Ombudsman as "not
a large sum of money for distress" the apologies were personally
signed by the Minister and some recipients at least felt this
recognised their former suffering. [13]
17. However, the response went on to challenge the
Ombudsman's decision to undertake an investigation into the blood
link criterion, on the grounds that the matters investigated had
been dealt with in legal proceedings, and Professor Hayward could
have resorted to legal remedy.[14]
It rejected the recommendations to review the operation of the
scheme and to reconsider the position of Professor Hayward and
those in a similar position.
The Ombudsman and Judicial Review
18. We reject the MoD's contention that the Ombudsman
should not investigate complaints if Judicial Review is a possible
remedy, and that she should not consider matters which have been
subject to Judicial Review. The 1967 Act gives the Ombudsman power
to:
conduct an investigation notwithstanding that the
person aggrieved has or had such a right or remedy if satisfied
that in the particular circumstances it is not reasonable to expect
him to resort or have resorted to it.[15]
19. Judicial Review is a relatively recent remedy.
It requires considerable means to use it. As Professor Hayward
said
Why I went through the Ombudsman and not through
the courts—which the Ministry of Defence go on about—is,
happening to be a political scientist, I know that the Ombudsman
has access to papers and people. She and her staff were able to
get at some of the information which a court, I suspect, would
not have done. Therefore when she, as she has done, reported to
you and to the Department, she is putting you in a position to
see how this mess was arrived at. There are smoking guns, and
more than smoking guns—if I may put it like that. It seems
to me that the result, therefore, is that the process of going
through to look at maladministration gets at the injustice, in
a curious way, that a court of law finds difficult to get at justice.[16]
20. In
our view, the Ombudsman acted appropriately in investigating this
case. The entire basis of the 1967 Parliamentary Commissioner
for Administration Act is that it is possible for a measure to
be legal, and yet to be maladministered. The fact that legality
has been established through Judicial Review may be irrelevant
to maladministration. There may even be circumstances where the
Ombudsman feels it is appropriate to conduct an investigation
while Judicial Review proceedings are taking place, so that she
can subsequently report without delay. We would, in principle,
support this.
3 Q 1 Back
4
HC Deb, 7 November 2000, col. 159 Back
5
Q 45 Back
6
'A Debt of Honour', paras 65-66 Back
7
Ibid., para 68 Back
8
Application form for the scheme, not printed. Back
9
The Association of British Civilian Internees - Far East Region
and the Secretary of State for Defence 2003 EWCA Civ C1/2002 Back
10
Parliamentary Commissioner Act 1967 (1967 c13) s5(2), proviso Back
11
'A Debt of Honour', para 199 Back
12
Ibid., p.31 Back
13
Qq 14, 80 Back
14
'A Debt of Honour', Annex, paras 10-24. See also Q 3 Back
15
Parliamentary Commissioner Act, 1967, s5(2), proviso Back
16
Q 20 Back
