Memorandum by the Parliamentary and Health
Service Ombudsman (DH 03)
A DEBT OF HONOUR
INTRODUCTION
1. This Memorandum provides information
about the report of my investigation into the administration of
the ex gratia scheme for British groups interned by the
Japanese during the Second World War. The scheme was the responsibility
of the Ministry of Defence (MoD).
2. My report—A Debt of Honour—was
laid before both Houses of Parliament on 12 July 2005, pursuant
to section 10(3) of the Parliamentary Commissioner Act 1967. I
reported that I had found that maladministration had caused injustice
to those whose complaints I had investigated, but that the Government
did not propose to remedy that injustice.
BACKGROUND TO
MY INVESTIGATION
3. I launched an investigation of a complaint
by Professor Jack Hayward, which was broadly representative of
others I had received from people in a similar position to him,
in June 2003.
4. The scheme which was the subject of his
complaint was announced to Parliament on 7 November 2000. The
Minister announcing it said that it aimed to reflect the Government's
belief that "the country owes a debt of honour" to both
those in the armed forces and those civilians who had been interned
by the Japanese and who had been subject to cruel and inhuman
treatment. The Minister said that those who would be eligible
for payment under the scheme were, in his words, "British
groups" "British civilians" and "UK citizens".
5. Although Professor Hayward's complaint
was originally referred to my predecessor in December 2001, consideration
of it was suspended while the Courts considered an application
by the Association of British Civilian Internees (Far Eastern
Region) (ABCIFER) for judicial review of the eligibility criteria
for the scheme. That application was unsuccessful. In giving judgment,
the Court of Appeal said, "We do not think that the introduction
of this scheme was well handled by the Government".
6. Following the conclusion of those proceedings,
I decided to conduct an investigation into Professor Hayward's
complaint, which was that he had been caused injustice by maladministration
in the way in which the scheme had been devised, announced, introduced
and administered.
KEY ISSUES
THAT I INVESTIGATED
7. The principal issues covered by my investigation
were:
(i) in relation to how the scheme
had been devised: whether officials had drawn up options as to
whether such a scheme should be established—and, if so,
had formulated criteria as to who should be eligible for it—appropriately;
(ii) in relation to how the scheme
had been announced: whether the Ministerial announcement had set
out the scope of the scheme clearly;
(iii) in relation to how the scheme
had been introduced: whether early payments made under the scheme
had been determined in line with clear eligibility criteria that
were consistently applied; and
(iv) in relation to how the scheme
had been administered: whether the late introduction of an eligibility
criterion had led to unequal treatment of those whose claims were
determined following its introduction, and whether the new criterion
had been explained properly to those who might be affected by
it.
MY FINDINGS
8. My findings are set out in paragraphs
135 to 210 of my report. These were, in summary:
(i) that 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) that 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) that, at the time when the "bloodlink"
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) that, as part of the administration
of the scheme, the failure to inform applicants that the criteria
had been clarified, when they were sent a questionnaire to establish
their eligibility, constituted maladministration.
9. I also expressed concern that the Government
was unable to provide evidence of the basis on which early payments
under the scheme had been made and that thus I had been unable
to determine fully whether the scheme had been operated properly
from its inception. In addition, I expressed my disappointment
that no review of the scheme had ever been undertaken in the light
of the criticisms of it by the Courts, in Parliament, and elsewhere.
RECOMMENDATIONS
10. In considering whether Professor Hayward
and others in his position had suffered an injustice, I found
that he was entitled to expect that the scheme would be devised
properly, with clearly articulated eligibility criteria. In my
view, he was also entitled to expect that he would be provided
with pertinent information and that the scheme would be operated
properly. This did not happen.
11. I therefore recommended:
(i) that the MoD should review the
operation of the ex gratia scheme to enable it to be satisfied
that the late introduction of the "bloodlink" criterion
had not led to unequal treatment of Professor Hayward and others
in a similar position to him compared with those whose applications
were determined prior to the introduction of the criterion;
(ii) that the MoD should fully reconsider
the position of Professor Hayward and those in a similar position
to him, who had been denied a payment when their application was
considered after the late introduction of the "bloodlink"
criterion;
(iii) that the MoD should apologise
to Professor Hayward and to others in a similar position to him
for the distress which the maladministration identified in my
report has caused them; and
(iv) that the MoD should consider whether
they should express that regret tangibly.
12. In addition to these recommendations,
which were specific to the subject matter covered by my investigation,
I also made three more general recommendations. These were:
(i) that ex gratia schemes
should be devised with due regard to the need to give proper examination
to all of the relevant issues before the scheme is announced or
otherwise advertised;
(ii) that, once advertised and implemented,
any changes to eligibility criteria in such schemes, if such changes
are needed, should be publicised and explained to those potentially
affected by the changes; and
(iii) that, where such schemes are
the subject of large numbers of complaints alleging maladministration
or of other criticisms from the courts or in Parliament, it is
good administrative practice to review the relevant scheme.
THE GOVERNMENT'S
RESPONSE
13. I raised my more general recommendations
with the new Cabinet Secretary following the publication of my
report. I will take forward these recommendations in dialogue
with him and with Government more widely, in order to seek to
avoid a repetition of the maladministration identified in my report.
14. In relation to my findings that were
specific to this investigation, as will be seen from paragraphs
219 to 222 of—and the annex to—my report, the Government
did not accept all of my recommendations.
15. The MoD has only agreed to implement
the third and the fourth recommendations and has done so by way
of a Parliamentary Written Statement, which set out the terms
of the Government's apology to those caused distress and outrage,
and by a decision to make a consolatory payment of £500—as
a tangible expression of their regret for this distress and outrage—to
each person denied payment because they did not meet the "bloodlink"
criterion. I understand that the Minister is sending an individual
letter of apology to all those qualifying for the payment.
CONCLUSION
16. As I said in the introduction to my
report, I considered it appropriate to lay this report before
Parliament for a number of reasons:
— First, while the report set out the
results of my investigation into Professor Hayward's complaint,
his was only one of a number of complaints about the same matters
received by my office. Thus, the representative investigation
I conducted into his complaint had application to other people
in a similar position to Professor Hayward.
— Secondly, the complaint related to
public policy issues that have been of interest to Parliament
and which had been debated there on a number of occasions.
— Thirdly, the report contained a number
of general recommendations which have significance beyond the
particular scheme complained about and are relevant to other ex
gratia schemes operated by public bodies.
— Finally, because the Government—exceptionally—did
not accept all of the recommendations I made to remedy injustice
caused by maladministration. That is rare.
17. I have laid my report before Parliament
and my work on this investigation is now complete. It is now for
Parliament—through this Committee—to consider the
reasonableness of the Government's response to my recommendations.
I am happy to offer the Committee any information or assistance
it requires in that respect.
November 2005
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