THE ASSOCIATION OF BRITISH CIVILIAN INTERNEES – FAR EAST REGION v THE SECRETARY OF STATE FOR DEFENCE [2002] EWHC 2119 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 2119 (Admin)Case No Case No: CO/5300/2001Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
THE ASSOCIATION OF BRITISH CIVILIAN INTERNEES – FAR EAST REGIONClaimantTHE SECRETARY OF STATE FOR DEFENCEDefendant
Before
Mr Justice Scott BakerMr Michael Fordham and Mr Ben Jaffey (instructed by Leigh Day & Co) for the ClaimantMr Philip Sales and Ms Karen Steyn (instructed by Treasury Solicitor) for the DefendantDate 18 October 2002
[1]Mr Justice Scott Baker: The Claimant is the Association of British Civilian Internees – Far East Region (“A.B.C.I.F.E.R”). It seeks judicial review of the Defendant’s decision as to those who qualify for compensation as internees of the Japanese during the Second World War.[2]After many years of campaigning the government acceded to pressure that British groups who had been interned by the Japanese should receive ex gratia payments of £10,000 each. Dr Moonie, the Under Secretary of State for Defence, in his announcement in the House of Commons on 7 November 2000 said:
“ Those who will be entitled to receive the payment are former members of Her Majesty’s armed forces who were made prisoners of war, former members of the Merchant Navy who were captured and imprisoned, and British civilians who were interned. Certain other former military personnel in the colonial forces, the Indian army and the Burmese armed forces who received compensation in the 1950s under United Kingdom auspices will also be eligible. As I said earlier, in cases in which a person who would have been entitled to the payment has died, the surviving spouse will be entitled to receive it instead.”
Later, when the detail was worked out, the Defendant decided that in order to qualify a civilian had to be a British subject who was born in the United Kingdom or whose parent or grandparent had been born in the United Kingdom.[3]There is no doubt that many interned civilians had their hopes first raised and then dashed when the description “British civilians” was defined in the manner I have described. There are said to be about 700 involved or one third of the total number that would fall within the description British subject at the time of the Second World War. Prior to 1 January 1949, the status of ‘British subject’ was the single common nationality of all those who owed allegiance to the Crown. But the question is whether the Defendant’s decision can be assailed in law.[4]The claim is put in four ways: i) Breach of a legitimate expectation of receipt of ex gratia payments. ii) The decision was irrational. iii) Breach of Article 14 and Article 1 of the first protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the E.C.H.R”). iv) Breach of the common law principle of equality.[5]On 7 December 1941 Japan attacked the United States Pacific Fleet at anchor in Pearl Harbour. Attacks on Hong Kong and Northern Malaya followed very shortly thereafter. In the subsequent campaign aimed at British, U.S., French and Dutch territories around the Pacific the Japanese occupied many lands. Over 50,000 members of the United Kingdom armed forces were captured and held as prisoners of war (P.O.W.s). Of these about 1 in 4 died or were killed in captivity. The comparable figure in the European theatre was about 1 in 20. The Japanese also interned a great many civilians. It is difficult to be certain of the precise figure, but in the early 1950s the Foreign Office said there were about 17,000 with a United Kingdom residence. It has since been suggested the figure was nearer 22,000.[6]The 1951 San Francisco Treaty of Peace with Japan provided for Japanese assets to be used to pay very modest compensation to their former captives. The available assets permitted payments of up to £76.50 for P.O.W.s and £48.50 for civilians. About 8,500 civilian internees received payments under this scheme. Those qualifying as civilian internees had to be over 21 on 8 December 1941 and British nationals normally resident in the United Kingdom before internment, and to have returned to take up residence in the United Kingdom on or before the date of application. There was also provision for dependants of someone who was deceased but would have qualified.[7]Over the last 50 years unsuccessful efforts have been made to persuade the Japanese government that it has a responsibility to pay more realistic compensation to those who suffered at Japan’s hands as P.O.W.s or internees. However, the position of the Japanese government and of successive British governments is that the issue of compensation was settled by the treaty. The British government’s emphasis is said to have been on paying pensions and providing healthcare to those whose health has suffered as a result of their service rather than on paying compensation. Pressure on the British government to make some payment did not however let up and this was fuelled by the decision of the Canadian government to make payments to its Far East P.O.W.s.[8]On 10 April 2000 Dr Lewis Moonie met a delegation from the Royal British Legion at Downing Street. The meeting was informal and lasted about one hour. The Prime Minister was present for about 10 minutes half way through. The Royal British Legion outlined its case for a one-off ex gratia payment for Far East P.O.W.s in recognition of their particular suffering during the Second World War and the failure of the British government to obtain further compensation from the Japanese. The delegation estimated that about 7,000 former P.O.W.s and 3,000 widows would be eligible. There was no mention at that stage of civilian internees.[9]Following the meeting, the Prime Minister initiated a reconsideration of the long-standing government policy towards Far East P.O.W.s. During the subsequent consideration, the position of civilian internees was noted to the extent that if it was decided to make payments to former P.O.W.s it was likely that civilian internees and others would also seek payments.[10]An inter-departmental group was set up in the autumn of 2000. It comprised officials from the Ministry of Defence, the Department of Social Security, the Foreign and Commonwealth Office, the Treasury, the Cabinet Office and the Treasury Solicitor. There is a detailed note dated 2 November 2000 (pages 341-348 of the bundle). In it the group advised ministers of the available options and asked for three questions to be decided: i) Whether to maintain the policy of making no payments at all or to set up an ex gratia scheme; ii) If it was decided to set up an ex gratia scheme, whether it should apply to Far East P.O.W.s only, or be extended to include merchant seaman, civilian internees and surviving spouses of all groups; and iii) Whether any scheme should be administered by the War Pensions Agency (‘W.P.A’) or by a trust fund.[11]Not surprisingly, one of the issues addressed by the working group was the numbers affected and consequently the likely cost to the Treasury. It was pointed out that the numbers were difficult to gauge because there are no central records. Thus the figures being worked on were no more than best estimates. Those figures were 5,500 to 6,500 Far East P.O.W.s plus 4,500 widows; 2,500 civilian internees plus 1,200 widows; 500 merchant seaman, including widows. It should be noted that the figure of 2,500 was provided by the Claimant.[12]It was never seriously questioned that the amount of any ex gratia payment should be £10,000. The note records that if the scheme was to include civilian internees, merchant seamen and surviving spouses, the approximate additional cost would be £87 million. The Claimant pointed out in argument that this figure was arrived at as follows; Internees 2,500 Widows of internees 1,200 Merchant seaman (including widows) 500 Widows of Military 4,500 8,700 8,700 x £10,000 = £87 million. The Claimant places some reliance on this as illustrating that the Defendant was anticipating making payments to some 3,700 civilian internees and surviving spouses and that this fits in precisely with its understanding of the meaning to be attributed to “British civilians” in Dr Moonie’s statement.[13]On 6 November 2000 the government decided to set up an ex gratia scheme to be administered by the W.P.A. It included “surviving civilians who are United Kingdom nationals and were interned by the Japanese in the Far East during the Second World War” (See p.345 of the note of 2 November 2000) and their surviving spouses. The evidence of Mr McKane is that the government’s intention was that only civilians with a strong link to the United Kingdom would be eligible for such a payment, but that at that stage there was no discussion of the precise criteria on which such a link would be assessed.[14]On the following day, 7 November 2000, Dr Moonie made the statement in Parliament to which I have referred at the start of this judgment. It is a great pity that the government’s intention as to those who should qualify for the payment was not expressed at the time with greater clarity. The hopes of a significant number who were interned by the Japanese have been raised only to be dashed, and considerable distress has been caused as a result. I can well understand the feeling of those who were ‘British enough to be interned but not British enough to receive the payment.’ This is of particular poignancy when seen in the context that the payment was not expressed as compensation but as recognition of a debt of honour owed by this country to the British people who were detained by the Japanese during the Second World War (see Dr Moonie’s letter, bundle P.754). The question is not, however, whether the decision to define British as requiring birth in this country or a blood link with it is unjust but whether it is unlawful.[15]When Dr Moonie made the announcement he also made it clear that it would take a little time for the appropriate regulations to be made. One problem was that recipients should not lose entitlement to welfare benefits.[16]What is clear is that no one speaking on behalf of the government ever expressly represented that all civilian internees who fell within the definition of British subject prevailing in 1941 would be entitled to an ex gratia payment.[17]The meaning of ‘British’ has changed over time. At the time of the Second World War there was a single concept of ‘British.’ The status of ‘British subject’ was until 1 January 1949 the single common nationality of all those who owed allegiance to the Crown. It was a large group comprising not only the population of the United Kingdom, but also the populations of all the British dominions and colonies. All British subjects had the same equal status of ‘British’, a status governed by the British Nationality and Status of Aliens Act 1914. They were all equally entitled to a British passport; they each owed the same allegiance to the Crown. But times have changed and the British State is very different from and considerably smaller than it was at the time of the Second World War. Many former colonies, dominions and possessions are now independent states. Some of those states have set up their own ex gratia payment schemes for example, Canada, Australia, New Zealand and the Isle of Man. Obviously it is up to each state to decide the ambit of its own scheme and the criteria for eligibility. Many former British subjects now fall under the umbrella of other states and different schemes. Many P.O.W.s and civilian internees who were British subjects during the Second World War had, (and have) no real or significant connection to the United Kingdom. On the other hand, there are plainly a number who, although not born here or with a parent or grandparent born here, have maintained a strong connection and allegiance.[18]On the same day that Dr Moonie made his statement in the House of Commons the W.P.A published a leaflet which said under the section headed: who can claim the ex gratia payment? :
“….(d) surviving British civilians who were interned by the Japanese in the Far East during the Second World War; and….”
[19]On 15 November 2000 there was a meeting between government representatives and the Claimant to discuss various issues relating to the ex gratia scheme. The notes of the meeting are at p.345 et seq in the bundle. One of the issues raised was: nationality and what constitutes ‘British’; and what is the impact of any change in nationality since imprisonment? It is not recorded that the Claimant or anyone else suggested that the issue had been definitively solved by Dr Moonie’s statement. Mr Burnham says there was no discussion of the definition of ‘British’ and that Mr Bridge, representing the Claimant, was concerned to establish whether individuals who had become citizens of countries other than the United Kingdom since the Second World War would be ineligible for the payment as a consequence. Mr Bridge was eventually told that this would not impact on eligibility. Mr Burnham made it clear that the W.P.A did not ‘own’ the policy and so would funnel all issues around eligibility and entitlement through the inter-departmental group dealing with the special payment issue.[20]The inter-departmental group met on 22 November 2000. One of the issues it decided was that ‘U.K national’ should be defined as those civilian internees who were British at the time of their incarceration. Those who became British citizens only subsequently would not be eligible for payment. Mr McKane makes the point in his evidence that the group did not intend to make any decision as to the definition of ‘British’ for the purpose of the ex gratia scheme and that that issue was not considered at this meeting.[21]At some point, the inter-departmental group obtained advice on the meanings given to ‘British’ in various Acts of Parliament, and when it met on 29 December 2000 noted that they had not defined what was meant by ‘British’ in relation to the scheme. By this point, claims were being received. Some would obviously qualify as ‘British’ under any definition; others, although not born in the United Kingdom had strong links with this country, for example because it was their parent’s birthplace. The group concluded that such people should be eligible if they had ‘very strong links’ with the United Kingdom. But they did not define ‘very strong links’ and made no decision about whether those who had such strong links but were not presently resident in the United Kingdom should be eligible.[22]The majority of straightforward claims were processed by the end of January 2001 and a press release of 31 January 2001 records that over 14,000 payments were about to be issued. It was at about this time that the W.P.A required clarification of the definition of ‘British’ so as to be able to process some of the less straightforward claims.[23]On 8 March 2001 Mr Martin, the chairman of the Claimant, wrote to the W.P.A pointing out that some of his members were becoming concerned that they had not been paid when colleagues had. Verification of nationality was a problem and some of those born abroad, mainly in China or Hong Kong and one or both of whose parents had been born abroad felt that some form of discrimination existed. Mr Martin pointed out that this was a sensitive area requiring attention and asked for action before it caused more distress. He went on:
“I believe you are trying to get clarification of nationality questions from the policy makers so that you can progress blocks of claims rather than ask individuals for proof which they may find difficulty in obtaining. This sounds sensible, but it does not deal with the growing concerns of people some of whom are elderly and have heard nothing further from you since initial acknowledgment of their claims.”
The Defendant cites this letter as supporting the contention that the Claimant understood that Dr Moonie in his statement to Parliament was not, when speaking of ‘British groups’, intending to refer to ‘British subjects’ in the technical legal sense that that term bore at the time of internment. In my judgment however the letter of 8 March 2001 is directed more to the question of proof than to the meaning of ‘British’.[24]It was on 21 March 2001 that the critical decision was made by the inter-departmental working group on behalf of the Defendant that the civilian internees who were born in the United Kingdom and those who were not born in the United Kingdom but at least one of whose parents or grandparents were would count as ‘British’ for the purposes of the scheme. Others would not. Mr McKane points out that the group was guided by the ministerial intention that a claimant should have had strong links with the United Kingdom. This was in line with the criteria for eligibility for a war pension.[25]Interestingly, in a submission by the Claimant to the W.P.A dated 17 April 2001 is the statement:
“…. The interpretation of British nationality will be the test of the extent of the generosity of the government’s Ex Gratia. It is a sensitive area for those affected and will be regarded as discriminatory by those excluded.”
There is no suggestion that the Defendant had already, by Dr Moonie’s statement, committed himself to a definition of British in accordance with the British Nationality and Status of Aliens Act 1914. The picture is much more consistent with the Defendant’s case that the Claimant was well aware that the nationality criterion remained to be clarified.[26]There was a meeting on 24 April 2001 at which the chairman and vice chairman of the Claimant expressed their concerns to Mr Burnham about the blood link criteria. He in turn informed the inter-departmental working group and the blood line link was confirmed to Mr Burnham on 22 May 2001 and by Dr Moonie in Parliament on 11 July 2001. He said:
“The ex gratia payment announced on 7 November 2000 is being made to the various British groups who had been held prisoner by the Japanese during the Second World War. The eligibility criterion for civilian claimants has recently been clarified, but there has been no change in the intended scope of the scheme. British subjects whom the Japanese interned and who were born in the United Kingdom, or had a parent or grandparent born here, are eligible for the payment.”
His assistant private secretary expanded in a letter to Mr Bridge dated 20 July 2001:
“On the matter of the definition of ‘British’, I should point out that we have not changed the definition: no definition was given by the Minister in Parliament on 7 November nor, I believe, was one set out by officials at your meeting with the W.P.A. later the same month. The definition set out recently has been issued to provide necessary clarification of the meaning of the term ‘British’ in the context of civilian claimants under this scheme. The government’s intention has always been that eligibility for this group should be dependent on a direct link to the United Kingdom at the time of captivity by birth or by parentage.”
It should be borne in mind however that it is the objective meaning of the representation rather than the government’s intention that matters. Legitimate expectation[27]The Claimant’s contention is that it, or rather its members, have a substantive legitimate expectation that all who were interned in the Far East by the Japanese during the Second World War, and who were British subjects at the time are entitled to an ex gratia payment of £10,000 from the government of the United Kingdom. There are four potential hurdles for the Claimant to cross in order to substantiate this claim. They are: i) That the Defendant made a clear and unequivocal representation; ii) That the expectation is confined to one person or to a few people giving the representation the character of a contract; iii) That it is reasonable for those who have the expectation to rely upon it and that they did so to their detriment; iv) That there is no overriding public interest that entitles the Defendant to frustrate the expectation.[28]The need for a clear and unequivocal representation is well established in law. Bingham L.J (as he then was) said in R v The Inland Revenue Commissioners ex p MFK Underwriting Agencies Limited [1990] 1WLR 1545 at 1569G that it is necessary that the ruling or statement relied upon should be clear and unambiguous and devoid of relevant qualifications. In my judgment that criterion is not met in the present case. When he made the statement Dr Moonie expressly said that he was not going into detail about the new scheme and that it would take a little time for the appropriate regulations to be made. He did not say clearly and unambiguously that all civilians who were interned by the Japanese during the Second World War and who were then British subjects would be entitled to receive a payment of £10,000. The reference to British civilians was not clear and unequivocal. No definition was given in the statement of 7 November 2000 and although on one view this could be interpreted as those civilians who were British subjects in accordance with the nationality laws at the time of internment, that was not the only interpretation and, so far as it is relevant, certainly not the one that was intended. The statement was also open to the interpretation that the detailed criteria of who qualified were yet to be worked out; that some form of nationality requirement would be required.[29]The fact that in the months that followed the Claimant did not treat the statement as clear and unequivocal is in my view confirmation that it was not. Furthermore, the eligibility of some of the military personnel was also left open to clarification. Dr Moonie referred to “certain other former military personnel in the colonial forces”. There were loose ends to be tied up. It was also apparent that it would require time to make the appropriate regulations.[30]If the statement is to be read in the way for which the Claimant submits, there would be no exclusion for those civilians who qualify under the scheme of other governments e.g. of Australia or New Zealand. But the Claimant certainly envisaged that detailed rules would exclude such people from the British scheme (see July 2001 newsletter).[31]The lack of clarity of the representation is alone, in my judgment, fatal to a legitimate expectation claim. But the Claimant has difficulties with the other hurdles as well. A small determinate group[32]In R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 , 242H Lord Woolf M.R., as he then was, in giving the judgment of the court said:
“Nevertheless, most cases of an enforceable expectation of a substantive benefit……..are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract.”
Laws L.J. touched on the same point in R v The Secretary of State for Education and Employment ex p Begbie [2000] 1WLR 1115 at 130H –1131D. Mr Sales submits that this is not a case where the expectation is confined to one person or a small determinate class. The representation was made not directly to a small number of individuals but to a large indeterminate class. The representation bears none of the characteristics of a contract. The Claimant, on the other hand, says that no more than about 700 people are affected.[33]I do not regard this point as fatal in itself to the claim. The relevance of the size of the class to whom the representation is made is really only an indicator that the decision challenged lies in what Laws L.J. called the macro-political field, a field in which the court hesitates to interfere. Reasonable reliance and detriment[34]The Defendant’s submission is that no member of the class to whom the representation was made had the subjective expectation that is claimed or, more particularly, relied on the statement to their detriment at any time before Dr Moonie clarified what was meant by ‘British subject’ on 11 July 2001. True it is that many will have had their hopes raised of a payment of £10,000, but there is no evidence of anyone, for example, incurring expenditure in anticipation of such a payment. Bearing in mind(i) that there was no clear and unequivocal statement that all internees who were British subjects during the Second World War would qualify;(ii) that no representation was made individually to anyone that they personally were entitled to receive an ex gratia payment of £10,000 and(iii) that it was made clear no one would be eligible for payment until their claim had been accepted and considered by the W.P.A, it would in any event not have been reasonable for any individual to act in reliance on an expectation of receipt of £10,000.[35]The necessity to establish detrimental reliance in legitimate expectation cases remains the matter of some debate in the courts. In my respectful view Peter Gibson L.J. accurately stated the present state of the law in Begbie at 1124B:
“…..it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation.”
[36]Whilst moral detriment could in some circumstances be sufficient (see Schiemann L. J in R (Bibi) v Newham London Borough Council [2001] 1 WLR 237, 250), bitter disappointment is not enough, certainly in the present case, (see Laws L.J in Begbie at 1131G). In any event, it seems to me, the absence of detrimental reliance in a case such as the present is highly relevant to the underlying issue of abuse of power; in particular whether it would be conspicuously unfair to hold the Defendant to the representation. Overriding public interest[37]As Lord Hoffmann observed in R v East Sussex County Council ex p Reprotech (Pebsham) Limited [2002] UKHL 8 para 34 whilst there is an analogy between the public law concept of legitimate expectation and a private law estoppel, it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. The Defendant’s case is that even if all the other elements of legitimate expectation are made out, it is still not unfair or an abuse of power to override that expectation. This is not a case where individuals were intentionally induced to believe that they were going to receive ex gratia payments and the court should be slow to fix the government with the consequences of an unintentional misrepresentation. See Peter Gibson L.J. in Begbie at 1127B.[38]A further factor is that this is a case that involves quite substantial expenditure of public money. On the basis that 700 internees have been excluded by the blood link requirement, the cost to the exchequer would be £7 million, but the figure of 700 could prove to be an underestimate. It is for the democratically elected government and not the courts to decide how public funds should be spent and how scarce resources should be allocated between competing claims.[39]In my judgment the claim that the statement of Dr Moonie on 7 November 2000 gave rise to a legitimate expectation and that it would be an abuse of power not to satisfy that expectation fails. The starting point is a promise by the government that it will make payments that it is under no legal obligation to make (albeit a strong moral case can be made out). The Claimant is saying essentially that the ambit of the scheme is not as wide as it had been led to believe. But in reality there was no warrant for concluding that the scheme was to include every internee who was a British subject at the time of internment, no matter how loose his connection with this country. And having read carefully all the documents I do not think the Claimant interpreted the statement that way at the time it was made. True, with hindsight the position should have been clarified by the Defendant earlier and it is regrettable that it was not.[40]Wherever one draws the boundaries of a scheme of this kind, there are bound to be some anomalies and unfairness. But I accept the submission of Mr Sales that this cannot dictate the lawfulness or otherwise of the scheme. Nor is it in my judgment relevant that a few payments were made to those who did not qualify with the blood link. It seems to me that some errors were an inevitable consequence of trying to implement the scheme as quickly as possible.[41]The claim for breach of legitimate expectation fails because, essentially, on analysis there was no clear and unequivocal representation. Irrationality[42]Here the claim is put on the basis that to impose a requirement of a link with the United Kingdom is irrational i.e. outwith the broad band of criteria that the government could reasonably adopt.[43]Given that the expression “British groups who were held prisoner….” was an undefined expression, there were numerous reasons why the Defendant should have chosen to limit it in the way that he did. First there is the break up of the British Empire. The British state is much smaller and very different from what it was at the time of the Second World War when the status of British subject was the single common nationality of all those who owed allegiance to the Crown. It was reasonable for the Defendant to take the view that the scheme should be limited to persons with some close connection with the United Kingdom and, following from that, to determine the criteria.[44]Second, the Defendant could have limited eligibility to those who were registered to receive payment under the 1950s settlement, but that would have excluded civilian internees who were under 21 when Japan entered the war in 1941. The criteria in fact chosen were essentially more generous. The 1950s criteria were “British nationals normally resident in the United Kingdom before internment, who returned to the United Kingdom on being released”.[45]Many of Britain’s former colonies dominions and possessions are now independent states and it is a matter for their governments to decide whether to set up their own schemes and if so to decide on the criteria for eligibility. Several have done so. The Defendant could have set the requirement that civilians were domiciled in the United Kingdom immediately prior to their internment, as the Australian Government has done, or that only those who had the requisite link with the United Kingdom at the time of their internment and were also present day United Kingdom citizens qualified, as New Zealand decided. Canada’s ex gratia scheme did not extend to civilians at all. There was therefore a wide selection of possibilities.[46]The next reason was that an eye had to be kept on the P.O.W position. Any decision that all civilian internees who were British subjects in 1941 – 45 were entitled to receive an ex gratia payment of £10,000 could have had a serious knock on effect to P.O.W.s. The cost to the United Kingdom taxpayer of an extension of entitlement to all P.O.W.s when they were imprisoned, regardless of the force or unit in which they were serving, could be an astronomical figure.[47]Further, there was the question of the cost of the civilian aspect of the scheme itself. The government was entitled to take the view in spending the taxpayers’ money on making ex gratia payments that the recipient had to have had strong links with the United Kingdom at the time of internment. There are many other claims on public finds. What, for example, of those with strong United Kingdom links who were held as P.O.W.s in Europe? And that is quite apart from the pressures of education, the health service and so forth. It is not for the courts to trespass into what are essentially political decisions. Also, although the number excluded by the blood link requirement is said to be about 700 there could well be many more; one simply does not know.[48]Finally on this point, it is clear that the Claimant itself envisaged that some rules would be required to define who was eligible for payment because it accepted that those who had received ex gratia payments from other governments should not qualify.[49]It seems to me, therefore, quite impossible to conclude that the Defendant’s decision was irrational. The E.C.H.R[50]The Claimant relies on Article 14 of the E.C.H.R read with Article 1 of the First Protocol. Article 14 provides :
“The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”
[51]Article 1 of the First Protocol provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provision shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
[52]The Claimant seeks to erect an argument on the basis of obiter views of Stanley Burnton J. in R (Carson) v Secretary of State for Work and Pensions [2002] EWCA 978 (Admin) that a state benefit may be a pecuniary right protected by Article 1 of the First Protocol. Suffice it to say that there are two views about the application of Article 1 of the Protocol to situations of statutory entitlement and I do not intend to enter that debate. Mr Sales submits that the present case is clearly covered by Stran Greek Refineries v Greece (1994) 19 EHRR 239 para 59 where the court emphasised that in order to ascertain whether the applicants had ‘a possession’ for the purposes of Article 1 of Protocol 1 the court must ascertain whether the judgment at issue had given rise to a debt in the applicant’s favour that was sufficiently established to be enforceable. He also relied on National and Provincial Building Society v United Kingdom (1997) 25 EHRR 1271. Accordingly, it seems to me plain that ex gratia payments, unenforceable by action under domestic law clearly fall outside the scope of Article 1 of the First Protocol. The common law principle of equality[53]Mr Fordham, for the Claimant, relies on the principle that rules must not be partial and unequal. The Defendant has failed to recognise some who were British citizens at the time of internment. He relies on R v Immigration Appeal Tribunal ex parte Begum [1986] Imm AR 385 where Simon Brown J, as he then was, struck down a paragraph of the immigration rules as unreasonable and thus ultra vires the enabling statutory power. Mr Sales, however, draws my attention to Matadeen v Pointu [1999] 1 AC 98 and in particular the words of Lord Hoffmann at 109E:
“Of course persons should be uniformly treated, unless there is some valid reason to treat them differently. But what counts for a valid reason for treating them differently? And perhaps more importantly, who is to decide whether the reason is valid or not? Must it always be the courts? The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. These are questions which the elected representatives of the people have some claim to decide for themselves. The fact that equality is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle – that it should always be the judges who have the last word on whether the principle has been observed. In this, as in other areas of constitutional law, sonorous judicial statements of uncontroversial principle often conceal the real problem, which is to mark out the boundary between the powers of the judiciary, the legislative and the executive in deciding how that principle is to be applied.”
The inequalities of treatment in that case were not subject to constitutional review. The remedy was judicial review of the decision maker’s decision, according to public law principles.[54]The conclusion that I draw from this is that if the decision assailed in the present case withstands attack on the ground of unreasonableness there is no basis for concluding that it falls on the ground of inequality. Conclusion[55]I have great sympathy for those who were British enough to be interned by the Japanese in the Second World War because they were British citizens at the time according to the wide definition that then prevailed, but do not have a sufficient blood link connection to qualify for an ex gratia payment under the scheme. However, the government having decided, as it is entitled to, that a line is to be drawn requiring either birth in this country or a blood link inevitably there will be anomalies. But I have to decide whether the Secretary of State has acted unlawfully, broken any principle of law in defining the boundary of the scheme as he did. Despite Mr Fordham’s valiant attempt to shoehorn the facts into a number of different legal principles, I remain unpersuaded. Accordingly this claim for judicial review must fail. - - - - - - - - - - LORD JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this claim fails. MS STEYN: My Lord, I have no application. LORD JUSTICE SCOTT BAKER: Thank you very much. MR JAFFEY: My Lord, I do have an application for permission to appeal. I can be very brief, and I will simply say this: The purpose of the scheme is to compensate those with very strong links to the United Kingdom. The means chosen by the Secretary of State to do that is a blood link test. ABCI, however, says that this purpose and the means do not begin to match up, and I suggest, your Lordship, there is a possibility of the Court of Appeal taking a different view. And even if your Lordship is not persuaded of that, I submit this case is of sufficient public importance that the claimant should have the opportunity to put their point of view before the Court of Appeal. LORD JUSTICE SCOTT BAKER: Ms Steyn. MS STEYN: My Lord, I oppose the application for permission to appeal. In my submission there is no real prospect of the Court of Appeal taking a different view, and it is a matter that should be left to the Court of Appeal to consider if the claimant wishes to seek leave to appeal. LORD JUSTICE SCOTT BAKER: I think you are going to have to go to the Court of Appeal to apply for leave. I have come to a clear view in this case, and I do not think there are any other circumstances to justify my granting permission. MR JAFFEY: My Lord, I am grateful. LORD JUSTICE SCOTT BAKER: Thank you very much.

Cited in 1 later judgment