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

Where neither European Union law nor rights under the European Convention on Human Rights are engaged, the legality of an administrative decision remains governed by Wednesbury unreasonableness rather than proportionality. A measure must nevertheless be rationally connected to its objective.

The Government may define eligibility for a non-statutory ex-gratia compensation scheme by clear and administratively workable criteria, provided that the distinctions drawn are rational. Substantive legitimate expectation ordinarily requires a clear and unequivocal representation. Without one, only exceptional and conspicuously unfair conduct amounting to an abuse of power will suffice.

An association representing former British civilian internees and their surviving spouses challenged a non-statutory scheme providing £10,000 ex-gratia payments to British groups held by Japan during the Second World War. Civilian claimants had to show that they, a parent or a grandparent had been born in the United Kingdom. The Administrative Court dismissed the claim for judicial review.

The association appealed, contending that the requirement for a strong link with the United Kingdom at the time of internment, and the birth criteria used to establish it, were disproportionate or irrational. It also alleged breach of legitimate expectation, discrimination contrary to article 14 read with article 1 of the First Protocol to the European Convention on Human Rights, and breach of a common law equality principle.

1. The appeal was dismissed. The court held unanimously that the compensation scheme was not unlawful.

2. Proportionality had not supplanted Wednesbury unreasonableness in domestic judicial review where neither European Union law nor Convention rights were engaged. Although proportionality supplied more precise and sophisticated criteria, decisions of the House of Lords required the Court of Appeal to treat Wednesbury as continuing to govern. Any change was for the House of Lords. Even under Wednesbury review, however, measures adopted to further a policy objective must be rationally connected to that objective.

3. The scheme was non-statutory and was created under the Government's common law powers. The Government could rationally restrict payments to former British subjects who had a close connection with the United Kingdom when interned. The historical breadth of British subject status did not compel the Government to compensate every former British subject, and the exclusion of persons eligible for compensation from another country was also rational.

4. The birth criteria were a rational, clear and administratively workable means of identifying the required historical connection. Other criteria, including domicile or residence, could have been chosen, but the court's task was not to select the best scheme. The possibility that a claimant might qualify through a grandparent despite having little practical connection with the United Kingdom did not render the scheme as a whole irrational. The extension to grandparents was also consistent with the analogous war pension criteria advocated by the appellant.

5. The announcement of 7 November 2000 did not clearly and unequivocally promise payment to every civilian who had been a British subject when interned. The announcement, leaflet and claim form indicated that eligibility details remained unresolved, and the appellant's contemporary conduct showed that it understood questions about eligibility still existed.

6. In the absence of a clear representation, a substantive unfairness challenge can succeed only exceptionally, where conspicuous unfairness amounts to an abuse of power. The appellant had not been misled into detrimental reliance. The Government's poor handling of the announcement created scope for misunderstanding, but fell far short of abuse of power.

7. The Convention claim also failed. Once the asserted public law right to payment was held unfounded, it could not constitute a possession within article 1 of the First Protocol capable of engaging article 14. The court did not determine whether English law contains a free-standing equality principle. Even assuming such a principle, the Minister enjoyed an appropriate margin in determining valid grounds of differentiation, and the birth criteria fell comfortably within it.

1. Court of Appeal (Civil Division): By [2003] EWCA Civ 473, unanimously dismissed the appeal, awarded the respondent the costs of the appeal and refused permission to appeal to the House of Lords.
2. Administrative Court: Scott Baker J dismissed the claim for judicial review in a reserved judgment handed down on 18 October 2002. No citation is stated in the judgment.