Association of British Civilian Internees - Far Eastern Region v Secretary of State for Defence

Factual and Procedural Background

The appellant is an unincorporated association representing individuals and surviving spouses who were interned by the Japanese during the Second World War as British civilians. The appellant challenges the refusal by the Secretary of State for Defence to award a £10,000 ex-gratia compensation payment to certain claimants who were not born in the United Kingdom nor had a parent or grandparent born there ("the birth criteria").

The British government introduced a non-statutory compensation scheme in November 2000, following pressure from groups including a veterans' organization, providing a single ex-gratia payment to surviving British groups held prisoner by the Japanese during the war. The eligibility criteria were clarified in July 2001 to require claimants to be British subjects born in the UK or with a parent or grandparent born in the UK.

The appellant contends that the birth criteria are unlawful, arguing they are disproportionate, irrational, and breach legitimate expectations created by the initial government announcement. The claim for judicial review was dismissed by the High Court, and the appellant now appeals with permission granted by the Court of Appeal.

Legal Issues Presented

1. Whether the requirement that claimants have "strong links" with the UK at the time of internment, as evidenced by the birth criteria, is lawful or irrational.
2. Whether the introduction of the birth criteria breached a legitimate expectation created by the government's announcement of 7 November 2000.
3. Whether the scheme's exclusion of certain claimants infringes Article 1 of the First Protocol of the European Convention on Human Rights (ECHR) read with Article 14, or the common law principle of equality.
4. Whether proportionality is a separate ground of judicial review applicable in this case.

Arguments of the Parties

Appellant's Arguments

• The requirement of strong links with the UK and the birth criteria are unlawful because they are disproportionate and/or irrational.
• The government breached a legitimate expectation created by the 7 November 2000 announcement by changing eligibility criteria to exclude individuals previously considered eligible.
• The birth criteria arbitrarily discriminate between similarly situated British civilian internees, producing unjust distinctions.
• The exclusion of certain claimants violates Article 1 of the First Protocol and Article 14 of the ECHR, as well as the common law principle of equality.
• Proportionality should be recognized as a distinct ground of review beyond Wednesbury unreasonableness.

Respondent's Arguments

• The birth criteria and requirement of strong links with the UK are rational and proportionate measures to define eligibility for the compensation scheme.
• The 7 November 2000 announcement did not create a clear and unequivocal representation that all British subjects at the time of internment would be eligible.
• The government’s clarification of the birth criteria was a lawful and necessary administrative decision, not an abuse of power.
• Proportionality is not a separate ground of review in domestic law absent Community Law or ECHR rights, and Wednesbury remains the applicable standard.
• The compensation scheme does not constitute a possession under Article 1 of the First Protocol of the ECHR, and therefore Article 14 does not apply.
• The common law principle of equality does not impose a free-standing justiciable requirement beyond the Wednesbury standard, and the distinctions made fall within the Minister’s margin of appreciation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing the substantive challenge to the birth criteria and the requirement of strong links with the UK at the time of internment. It acknowledged that while proportionality is a more precise test, it remains bound by existing authority to apply the Wednesbury test of reasonableness in domestic law absent ECHR or Community law issues.

On the first level, the court held that it was not irrational for the government to require claimants to have close links with the UK at the time of internment. Given the changed geopolitical context since the war and the government's objective to pay a debt of honour, excluding those without such links was rational and reasonable.

On the second level, the court considered the birth criteria as a means to evidence close links. Although the criteria might theoretically exclude some with genuine connections and include others with tenuous ones, the court found the criteria rational, administratively workable, and consistent with analogous schemes such as the War Pension scheme.

The court rejected the appellant's legitimate expectation claim, concluding that the 7 November 2000 announcement did not contain a clear and unequivocal representation that all British subjects at the time of internment would receive compensation. The announcement was less clear than suggested, and subsequent clarifications and discussions indicated unresolved issues.

Regarding abuse of power, the court held that absent a clear promise, the case did not meet the high threshold for conspicuous unfairness or abuse of power, distinguishing it from exceptional cases like Unilever.

On the ECHR arguments, the court found that ex-gratia payments are not possessions under Article 1 of the First Protocol, and thus Article 14 did not apply. The common law principle of equality was also found not to provide a free-standing ground to invalidate the scheme, and the Minister's decision fell within a margin of appreciation.

In sum, the court found the scheme lawful, rational, and not in breach of legitimate expectation, ECHR provisions, or common law equality principles.

Holding and Implications

The court's final decision is DISMISSED the appellant's appeal and upheld the lawfulness of the compensation scheme as implemented with the birth criteria.

The immediate effect is that the government's definition of eligibility based on birth in the UK or having a parent or grandparent born in the UK remains valid, and claimants not meeting these criteria remain excluded. No new legal precedent was established beyond affirming the continued application of the Wednesbury test in this context and the rejection of a legitimate expectation claim based on the government announcement.