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Defending the Indefensible a Report by the Parliamentary Ombudsman On Defending the Indefensible A report by the Parliamentary Ombudsman on an investigation of a complaint about the Ministry of Defence and the Service Personnel & Veterans Agency HC 1462 Defending the Indefensible A report by the Parliamentary Ombudsman on an investigation of a complaint about the Ministry of Defence and the Service Personnel & Veterans Agency Seventh report of the Parliamentary Commissioner for Administration Session 2010-2012 Presented to Parliament pursuant to Section 10(4) of the Parliamentary Commissioner Act 1967 Ordered by The House of Commons to be printed on 13 September 2011 HC 1462 London: The Stationery Office £20.50 A report by the Parliamentary Ombudsman on an investigation of a complaint about the Ministry of Defence 1 and the Service Personnel & Veterans Agency © Parliamentary and Health Service Ombudsman (2011) The text of this document (this excludes, where present, the Royal Arms and all departmental and agency logos) may be reproduced free of charge in any format or medium providing that it is reproduced accurately and not in a misleading context. The material must be acknowledged as Parliamentary and Health Service Ombudsman copyright and the document title specified. Where third party material has been identified, permission from the respective copyright holder must be sought. Any enquiries regarding this publication should be sent to us at [email protected] This publication is also for download at www.official-documents.gov.uk This document is also available from our website at www.ombudsman.org.uk ISBN: 9780102974997 Printed in the UK by The Stationery Office Limited on behalf of the Controller of Her Majesty’s Stationery Office ID: 2452063 09/11 PHSO-0136 Printed on paper containing 75% recycled fibre content minimum 2 Defending the Indefensible Contents Foreword .......................................................................................7 Introduction ...................................................................................13 Historical perspective ...........................................................................13 Seeking compensation ...........................................................................13 The original ex gratia scheme ....................................................................14 Legal and administrative action ..................................................................15 Mrs Elias – court action ..........................................................................16 The second scheme – the revised scheme .........................................................16 The third scheme – the injury to feelings scheme ..................................................17 Going forward ...................................................................................17 Mr A’s complaint to the Ombudsman ........................................................18 The Parliamentary Ombudsman’s jurisdiction and role ......................................19 The basis for my determination of the complaints ..........................................20 My approach ....................................................................................20 The Ombudsman’s Principles ....................................................................20 The investigation ..............................................................................22 The events leading to Mr A bringing the complaint to the Ombudsman ...................23 Internment during the Second World War ........................................................23 Mr A’s personal experience .......................................................................23 Post-war events .................................................................................24 The original ex gratia scheme ....................................................................24 Criticism of the original ex gratia scheme: maladministration ......................................24 The second scheme – the revised scheme .........................................................26 A report by the Parliamentary Ombudsman on an investigation of a complaint about the Ministry of Defence 3 and the Service Personnel & Veterans Agency Criticism of the original scheme: unlawful indirect race discrimination .............................27 The injury to feelings scheme – development and announcement ..................................27 Eligibility – British subjects and British protected persons .........................................28 The handling of the claims made by Mr A and his siblings ..........................................29 What my investigation found – ‘Findings of fact’ ............................................31 General findings of fact ..........................................................................31 Basis for the decision of the court ..............................................................31 The injury to feelings scheme ..................................................................32 The definition of ‘British at the time of internment’ and British protected person status ............34 Specific findings of fact ..........................................................................35 The handling of Mr A’s claims ...................................................................35 My findings of maladministration and injustice ..............................................38 Maladministration ...............................................................................38 The basis of the injury to feelings scheme .......................................................38 The fairness and consistency arising from the design of the injury to feelings scheme ...............39 The announcement of the injury to feelings scheme .............................................39 The invitation to apply for claims under the injury to feelings scheme .............................40 The retraction of the earlier apology to Mr A ....................................................40 The failure to deal with Mr A sensitively, bearing in mind his circumstances and the intentions of the original ex gratia scheme ...................................................40 Findings: maladministration ......................................................................41 Injustice ......................................................................................42 Findings: injustice .............................................................................43 My recommendations for remedy ............................................................44 Putting things right for Mr A and his siblings – injury to feelings payment ..........................44 Putting things right for Mr A and his siblings – further injustice suffered ...........................44 Response from the Ministry of Defence .....................................................46 Response on behalf of Mr A and his siblings .................................................47 Conclusion ....................................................................................48 4 Defending the Indefensible Annex A – British nationality law: subjects, citi]ens and protected persons ................49 Annex B – Chronology of events .............................................................52 Annex C – Development and implementation of the injury to feelings scheme ...........72 Annex D – Significant correspondence .......................................................86 Annex E – Court decisions: Mrs Elias .........................................................97 Annex F – Significant internal Ministry of Defence and agency documents ............... 101 ,I\RXZRXOGOLNHWKLVUHSRUWLQDGLIIHUHQWIRUPDWVXFKDV'$,6<RU ODUJHSULQWSOHDVHFRQWDFWXV SKVRHQTXLULHV#RPEXGVPDQRUJXN ZZZRPEXGVPDQRUJXN A report by the Parliamentary Ombudsman on an investigation of a complaint about the Ministry of Defence 5 and the Service Personnel & Veterans Agency Foreword This is the report of my investigation of a When Mr A brought his complaint to me, I thought complaint brought by Mr A (who has subsequently the indications of maladministration were so died) on behalf of himself and four of his siblings strong, and the consequent injustice so clear, about the Ministry of Defence and the Service that I should be able to persuade the Ministry Personnel & Veterans Agency. Mr A complained of of Defence to put things right without the need unfair treatment by these bodies, in particular for for a second investigation. I wrote to the then wrongly rejecting his and his siblings’ applications Permanent Under-Secretary, and my staff met with to the ‘injury to feelings’ payment scheme. his officials to discuss the case, but the Ministry of This was a scheme designed to acknowledge Defence maintained their position. They continued the impact of the application, by the British to defend the indefensible and made a second government, of an unlawful criterion in the original investigation inevitable. If they had not done so, the ex gratia compensation scheme which they had matter might have been resolved before Mr A died. devised to compensate British prisoners of war and British civilian internees held captive by the I am laying this report before Parliament for two Japanese during the Second World War. reasons: first because of its connection with my earlier report; but primarily because it is the I have upheld his complaint. Mr A and his siblings worst example I have seen, in nearly nine years were indeed treated unfairly,
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