COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE ELIAS
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
CLAIM No: 5CL12683
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE LONGMORE
| SECRETARY OF STATE FOR DEFENCE
|- and -
|MRS DIANA ELIAS
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MR RABINDER SINGH QC, MS HELEN MOUNTFIELD, MS CLAIRE McCANN & MR JOHN HALFORD (instructed by Bindman & Partners) for the Respondent
Crown Copyright ©
Lord Justice Mummery :
Challenge to the Compensation Scheme
Earlier challenges: ABCIFER and Gurung
"40. …Looking at the matter entirely generally, it seems to us that it would have been possible rationally to establish a scheme for payment to the entire class of those who were British civilians at the time of internment. It would also have been possible, without acting irrationally, to exclude certain categories from the entire class. But the criteria for their exclusion would, by definition, have had to be rational. It would clearly not have been rational to exclude people on the grounds of their physical characteristics or their gender or their religious beliefs. No reasonable decision maker could decide, when setting up a scheme to meet the debt of honour owed by this country to those British civilians who were interned by the Japanese, that such criteria should be reasons to disqualify a claimant to compensation. Just as in satisfying the requirements of proportionality, so too in meeting the Wednesbury test, the measures designed to further the objective must be rationally connected to it …"
"41. But it would have been rational, for example, to exclude those who were entitled to compensation from another country. It would be reasonable to take the view that the objective of paying the debt of honour to those who were British subjects at the time of internment did not require payment to be made to internees who were entitled to be compensated by other countries. We do not believe that any of this is controversial.
42. What is in controversy is whether it is rational to limit the beneficiaries of the scheme to those British subjects who had close links with the UK at the time of internment. In our view, it is impossible to say that the close link criterion is irrational. At the time of internment, large numbers of British subjects had no links with the UK save for their being British subjects by reason of the 1914 Act. By the time the scheme came to be set up, the UK had become a medium sized European country which had lost its empire. The situation was very different from what it was at the time of the war when Britain controlled a huge empire. No doubt, the Government could have decided to include in the scheme all those who were British subjects at the time of their internment who were not entitled to compensation from their home countries. But its failure to do so was not irrational."
"86. In our judgment, whether the question is considered in Wednesbury terms, or on an application of a free-standing principle that like cases should be treated alike unless there is a valid reason for treating them differently, the complaint in the present case must be rejected. We have already given our reasons for concluding that the decision to exclude those who did not satisfy the birth criteria was not unreasonable in the Wednesbury sense. If a free-standing principle of equality were to be applied, it would have to be on the basis that the court would give the minister a margin of appreciation to determine whether there was a valid reason for treating internees differently. In our view, the minister's decision to exclude those British subjects who did not satisfy the birth criteria fell comfortably within the margin of appreciation that should be accorded to him by the court. Our reasons are essentially the same as those which led us to conclude that the challenge to the birth criteria fails on an application of the Wednesbury test."
Appeals from judicial review and discrimination damages judgments
Issues on the judicial review appeal
1) Direct race discrimination
The judge dismissed the direct discrimination ground. He decided that Mrs Elias was not treated less favourably "on racial grounds." Such grounds are defined in the 1976 Act as including "national origins." The judge held that, on the basis of the authorities binding on him, the concept of "national origins" was used in the legislation in the sense of race, not citizenship, and that the express criterion of place of birth is not a forbidden ground of discrimination, nor is it inextricably linked to a forbidden ground of discrimination. The birth link criteria do not require all applicants under the Compensation Scheme to be of UK "national origin." Further, a person of UK national origin would not necessarily satisfy the birth link criteria. The judge concluded-
"50. …I accept that the effect of adopting the criteria used in this scheme is likely to produce a very similar outcome as would have resulted had a national origins criterion been adopted. Nevertheless, it is not an identical form of differentiation."
2) Indirect race discrimination
At a late stage the Secretary of State conceded that the application of the birth link criteria inevitably involved indirect discrimination, as "they treat less favourably those who are of non-British origin" (paragraph 53 of the judgment). The only issue was whether the indirect discrimination was objectively justified and whether the birth link criteria were a proportionate means of achieving a legitimate aim. The judge made a declaration that the criteria introduced in 2001 constituted unlawful indirect discrimination contrary to section 1(1A) and/or section 1(1) (b) of the 1976 Act. He made an order that the decision of 28 July 2004 refusing to make a payment to Mrs Elias under the Compensation Scheme be quashed.
The judge made those orders on the following bases. First, the birth link criteria were indirectly discriminatory. Secondly, the criteria served a legitimate aim of limiting eligibility to a category narrower than all applicants who were British subjects at the date of internment by requiring close links with the UK. Thirdly, the criteria chosen were not proportionate to the aim of the measures. The judge said it was a case where the court should carefully scrutinise the justification claimed, because the extent of the discrimination on the grounds of national origin "is very marked indeed" (paragraph 84). The judge said-
"89. …The criteria chosen were very closely linked to national origins. Using the criteria was by no means the only way in which the Minister could achieve his legitimate objective. He could have chosen criteria which narrowed the category of British subjects without linking them so closely with descent and national origins. For example, a simple link to, say, a period of residence in the United Kingdom within the period leading up to the internment, or the adoption of criteria based on domicile would have done so. It would, of course, still have involved a disparate impact statistically and the less favourable treatment of those who were not British nationals, but it would in my judgment have been proportionate to the objective being sought."
3) Fettering discretion
The judge rejected the argument that the Secretary of State had unlawfully fettered his discretion by refusing to consider Mrs Elias as an exceptional case for compensation because of her circumstances, in particular her extreme suffering. The Veterans Agency had informed Mrs Elias that, as administrators of the Compensation Scheme, they were entirely bound by the conditions for eligibility laid down by the government, that they had no discretion to act otherwise and that they could not change the rules or make exceptions for the particular circumstances of individual claims. While accepting that it would be open to the government to have provided for the possibility of exceptional cases in the Compensation Scheme itself or to amend the Compensation Scheme, the judge held that the law did not require the Secretary of State to consider whether to make an exception for an applicant, who did not meet the criteria set for determining eligibility for an ex gratia payment. The criteria did not have to be flexible or allow for exceptions. The judge concluded-
"36. I see no basis for saying that because the government agrees to make payments in a certain class of situations, that it is now obliged to consider applications from those who do not fall within the rules in a different way than it would otherwise have done. In my judgment it is not obliged in every case effectively to consider extending the scheme on a case by case basis beyond the scope which it has carefully delineated. The court's task is to give effect to the scheme established by the Crown in the same way as it would a scheme established by legislation. It is no more an unfair or unlawful exercise of power for the Crown, acting through a Minister, to refuse to consider exceptional cases under the common law scheme than it would have been under a statutory scheme. Moreover, in so far as Parliament authorises funding for the scheme itself, there would be no authority to make payments outside the terms of the scheme. "
The judge declined to order that the sum of £10,000 compensation should be awarded to Mrs Elias in consequence of his judgment in her favour on indirect discrimination. He held that her remedy was to bring a claim in the County Court for damages for race discrimination. It was submitted on behalf of Mrs Elias that, as a result of his ruling on indirect discrimination by the birth link criteria, the unlawful criteria should now be stripped out of the Compensation Scheme, leaving her with an absolute entitlement to a payment of £10,000 under it, plus interest. She should be put in the same position that she would have been in, had the Compensation Scheme not unlawfully discriminated against her on the ground of race in the first place. She should be placed in the same position as the many people, who have already received payments of £10,000 each under the Compensation Scheme. It is not suggested that other people will have to repay what they have received, but they will have been treated more favourably than Mrs Elias, if she does not also receive a payment of £10,000.
The judge accepted the submission of the Secretary of State that the Compensation Scheme was not the only possible scheme that could be adopted and that it was open to the Secretary of State to formulate lawful limiting criteria, other than the impugned criteria, which would nevertheless exclude Mrs Elias.
He identified a second difficulty in the relief claimed by Mrs Elias: what would be the lawful scheme, if the unlawful elements of the Compensation Scheme were stripped away? It might not be accurate to say that the birth link criteria were unlawful in their entirety. A criterion limiting eligibility to the birth of the claimant in the UK might be lawful. The proper relief in the judicial review proceedings was to require the Compensation Scheme to be re-formulated and for Mrs Elias' application under the Compensation Scheme to be re-considered according to the new criteria.
Issues on the discrimination damages appeal
1) The financial compensation issue.
Is Mrs Elias entitled to damages for financial loss of £10,000, plus interest? Or is she entitled to a sum equal to the financial loss which she will suffer by reason of the set off rules, which will be applied to her benefit entitlement by reason of the increase in her capital? The benefit entitlement refers to means-tested credits, such as pension credit, housing benefit and council tax benefit. I need not deal further with this point, as the parties have agreed that, should the court decide that Mrs Elias was entitled to be put in the financial position which she would have been in had she received £10,000 under the Scheme, they would seek to agree the mechanics of how this should be done and the amount required to be paid, with liberty to apply to the court, if there were subsequent difficulties about quantum.
2) Injury to feelings.
Should the court increase the award of £3,000 for injury to feelings? This issue involves the application of the guidelines for the award of damages for injury to feelings in discrimination cases laid down by this court in Vento v. Chief Constable of West Yorkshire Police  EWCA 1871;  ICR 318 at paragraphs 65 -68 (Vento). Although the guidance was given to employment tribunals dealing with cases of sex and race discrimination in the employment field, it was not suggested that there should be a different approach to the assessment of damages for injury to feelings in this case.
3) Aggravated/exemplary damages.
Should awards have been made to Mrs Elias for aggravated and exemplary damages?
1) Report of the Parliamentary Commissioner on 12 July 2005 (HC 324) This report on "A Debt of Honour: The ex gratia scheme for British groups interned by the Japanese during the Second World War" was published less than a week after the judge handed down judgment on the judicial review application. Documents relevant to the formulation of the birth link criteria were obtained by the Parliamentary Commissioner which had not been disclosed in the ABCIFER case or to Mrs Elias during the course of the litigation. The Parliamentary Commissioner for Administration (the Ombudsman) found maladministration in the formulation, announcement and operation of the Compensation Scheme. She made recommendations for remedying the injustice found by her. Not all of the recommendations have been accepted by the Secretary of State. On 13 July 2005 an apology was given in the House of Commons by the Parliamentary Under-Secretary of State for the distress caused by the way the Compensation Scheme was introduced and announced and for the administrative failings. Further comment was postponed until the final outcome of this case is known.
The Parliamentary Commissioner made some damning findings, in particular, that the Compensation Scheme was not devised in accordance with good administrative practice; it had been announced before its criteria had been fully determined, the meaning of "British" having been discussed for the first time after the announcement and after the first payments had been made; clear criteria were required in order to avoid unnecessary distress or inconvenience and to produce consistent outcomes and equal treatment; the criteria chosen were surprising as a means to repay "a debt of honour" to those who were "British enough" to be interned by the Japanese, though their fairness was a matter for the courts, not for the Parliamentary Commissioner; not all applicants had been afforded treatment equal to those whose applications had been determined before the introduction of the criteria; the Compensation Scheme had not been reviewed in the light of criticisms by the courts and others; and the justified feeling of outrage and distress by those who were implicitly "not British enough" to receive a payment constituted an injustice caused by maladministration. The Parliamentary Commissioner reported that
"…many people have suffered outrage at the way in which the scheme has been operated and distress at being told that they were not 'British enough' to qualify for payment under the scheme." (paragraph 206)
2) Report of the Public Administration Select Committee(PASC) 12 January 2006. The report agreed with the Parliamentary Commissioner. Evidence was given to the Committee by Mr Donald Touhig M.P., Minister for Veteran Affairs. Evidence was also given by Mr Jonathan Iremonger on behalf of the Secretary of State about the problems of defining "British" in the eligibility criteria and the limits of the responsibility of the UK government to the large number of people, who were British subjects at the time of the Second World War. Soon after giving his evidence in December 2000 Mr Touhig announced a review of the way in which decisions had been made to distribute payments under the Scheme before March 2001 by reference not to the birth link criteria, but to the 1950s scheme.
3) The internal review of the early operation of the Compensation Scheme. This was explained in the evidence of Mr Jonathan Iremonger on behalf of the Secretary of State.
4) Disclosure of fresh documents. Allegations are made of inadequate disclosure of documents in the ABCIFER case and in the judicial review proceedings. They include an unsigned note on a fax dated 6 November 2000; a letter of 10 November 2000 from an official in the Ministry of Defence to other officials to clarify a misunderstanding about the Ministerial announcement; a paper submitted by the War Pensions Agency to the Cabinet Office on 4 May 2001 about the need for extension of criteria relating to eligibility with particular reference to a class of persons in the position of Mrs Elias; and an internal note dated 9 May 2001 from a Ministry official expressing reservations about the proposal to extend eligibility.
5) Announcement by the Minister for Veteran Affairs. On 28 March 2006 Mr Donald Touhig announced that the Compensation Scheme would include a provision rendering eligible those who have resided in the UK for at least 20 years since the end of the Second World War. Although this provision would cover Mrs Elias, it does not affect her appeals, save that it is accepted by Mrs Elias that she would not be entitled to double recovery under both the original criteria and under the new criteria based on residence. If she is entitled to be paid the sum of £10,000 under the original scheme, she will be entitled to interest, which she would not receive on a payment to her under the revised scheme.
Race discrimination law
"(1) ….shall, in carrying out its functions, have due regard to the need-
(a) to eliminate unlawful racial discrimination; …"
"(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination."
"(a) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or ..."
"any of the following grounds, namely colour, race, nationality or ethnic or national origins;"
"(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but-
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it."
"a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls."
"A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
"(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but-
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim."
"(iii) any other form of social protection; and
(iv) any form of social advantage
which does not fall within section 20."
" any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."
Direct race discrimination
Indirect race discrimination: justification
Failure to address potential race discrimination
Standard of scrutiny
"50. The applicants complain of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14.
51. Article 14 does not prohibit a Member State from treating groups differently in order to correct "factual inequalities" between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article …….. A difference in treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. …
52. The scope of this margin will vary according to the circumstances , the subject matter and the background ( see Petrovic v. Austria …) As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. …On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. ….Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation."
Fettering common law power : general
Form of relief in judicial review
Damages for discrimination: general
Financial compensation issue
Injury to feelings
" … this court [the Court of Appeal] is less well placed than either of the tribunals below to say precisely where it stands on the scale of such injuries."
Aggravated and exemplary damages issue
(1) The eligibility criteria did not directly discriminate against Mrs Elias on racial grounds.
(2) The eligibility criteria indirectly discriminated against Mrs Elias on racial grounds.
(3) The eligibility criteria had a legitimate aim.
(4) The eligibility criteria were not proportionate to the aim to be achieved.
(5) The eligibility criteria were not objectively justified and were therefore unlawful.
(6) It was lawful for the Secretary of State to refuse to make an exception to the eligibility criteria for the case of Mrs Elias and there was no unlawful fettering of his common law powers in refusing to depart from the eligibility criteria and to recognise her claim as an exceptional case.
(7) The quashing of the eligibility criteria on the ground of indirect discrimination did not entitle Mrs Elias to payment of any compensation under the Compensation Scheme or to damages for race discrimination. The public law duty of the Secretary of State was to apply lawful criteria to the application for compensation. It was possible to replace the unlawful criteria with lawful criteria which would exclude Mrs Elias from the Compensation Scheme without contravening the 1976 Act or any other statutory provision or legal principle.
(8) The County Court claim for financial loss for race discrimination was rightly dismissed. There was no evidence that Mrs Elias had suffered financial loss. The unlawfulness of the eligibility criteria entitled her to have them quashed, so that they could not be applied to her claim, but the resulting absence of criteria did not entitle her to compensation. As they could be replaced by lawful eligibility criteria excluding her from the Compensation Scheme she had not suffered and would not suffer any financial loss.
(9) As for damages for injury to feelings, there was no error of legal principle in the award of £3,000 nor was it plainly wrong, even though I would have been inclined to award a larger sum.
(10) There was no error of legal principle in the refusal of HHJ Harris to award aggravated damages or exemplary damages nor was he plainly wrong in holding that the legal requirements for making such awards had not been satisfied on the facts of this case.
Lady Justice Arden:
Significance of this case
" When this country legislated to ban both race and sex discrimination, there were some who thought such matters trivial, but of course they were not trivial to the people concerned. Still less trivial are the rights and freedoms set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). The state's duty under art 14, to secure that those rights and freedoms are enjoyed without discrimination based on such suspect grounds, is fundamental to the scheme of the convention as a whole. It would be a poor human rights instrument indeed if it obliged the state to respect the homes or private lives of one group of people but not the homes or private lives of another.
 Such a guarantee of equal treatment is also essential to democracy. Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being. The essence of the convention, as has often been said, is respect for human dignity and human freedom: see Pretty v UK (2002) 12 BHRC 149 at 184 (para 65). Second, such treatment is damaging to society as a whole. Wrongly to assume that some people have talent and others do not is a huge waste of human resources. It also damages social cohesion, creating not only an underclass, but an underclass with a rational grievance. Third, it is the reverse of the rational behaviour we now expect of government and the state. Power must not be exercised arbitrarily. If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions. Finally, it is a purpose of all human rights instruments to secure the protection of the essential rights of members of minority groups, even when they are unpopular with the majority. Democracy values everyone equally even if the majority does not."
Section 71 of the Race Relations Act 1976
Direct and indirect discrimination
"[The] limitations of the principle of formal or procedural equality have led to attempts to develop the concept of substantive or material equality. Here we can identify three different, but overlapping, approaches. The first is equality of results. Apparently consistent treatment infringes the goal of substantive equality if the results are unequal. Inequality of results itself can be understood in three senses. The first focuses on the impact of apparently equal treatment on the individual. The second is concerned with the results on a group (e.g. women, ethnic groups, people with disabilities etc.), and the third demands an outcome which is equal, for example equal remuneration for women doing work of equal value with that of men, or equal representation of women and men in the same grade.
The concept of indirect or adverse impact discrimination is that an apparently neutral practice or criterion has an unjustifiable adverse impact upon the group to which an individual belongs. The best-known examples are recruitment, promotion or selection criteria for lay-offs with which it is significantly more difficult for members of a disadvantaged group to comply. It is thus results-oriented in the first sense, in that the treatment must be detrimental to an individual, but it also involves equality of results in the second sense. However, the concept of indirect discrimination is not redistributive in the third sense. If there is no exclusionary practice or criterion or if no significant disparate impact can be shown, or if there is an objective business or administrative justification for the practice, then there is no violation."
"…The government faces many competing claims on public funds from many different quarters, and has to strike a balance or compromise between those competing interests"(witness statement dated 5 June 2002 made in the ABCIFER litigation)
"…although the member states must, in the organisation and application of their social assistance systems, show a certain degree of financial solidarity with nationals of other member states (see Grzelczyk v Centre public d'aide socialeOttignies-Louvain-la-Neuve (Case C-184/99)  ICR 566, 599, para 44), it is permissible for a member state to ensure that the grant of assistance to cover the maintenance costs of students from other member states does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that state.
 In the case of assistance covering the maintenance costs of students, it is thus legitimate for a member state to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that state."
" Mere generalisations … are not enough to provide evidence on the basis of which it could be reasonably considered that the means chosen were suitable for achieving that aim."
"… I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question [state of emergency threatening the life of the nation for the purposes of art 15 of the European Convention on Human Rights], because they were called on to exercise a pre-eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did. Any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical. Reasonable and informed minds may differ, and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen. It would have been irresponsible not to err, if at all, on the side of safety. As will become apparent, I do not accept the full breadth of the Attorney General's argument on what is generally called the deference owed by the courts to the political authorities. It is perhaps preferable to approach this question as one of demarcation of functions or what Liberty in its written case called 'relative institutional competence'. The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. The present question seems to me to be very much at the political end of the spectrum (see Secretary of State for the Home Dept v Rehman  UKHL 47 at ,  1 All ER 122 at ,  1 AC 153, per Lord Hoffmann). The appellants recognised this by acknowledging that the Home Secretary's decision on the present question was less readily open to challenge than his decision (as they argued) on some other questions. This reflects the unintrusive approach of the European Court of Human Rights to such a question. I conclude that the appellants have shown no ground strong enough to warrant displacing the Secretary of State's decision on this important threshold question."
"In very limited circumstances, a difference of treatment may be justified where a characteristic related to racial or ethnic origin constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission."
Lord Justice Longmore:
Mr Sales for the Secretary of State submitted that a requirement that a claimant was born in the United Kingdom or had a parent or grandparents born in the United Kingdom could not be direct discrimination on grounds of "national origins". To my mind, that is a somewhat controversial proposition. An important part of one's origin is the place where one is born; usually the place of one's birth constitutes one's national origin. One would not expect that, because, in a few cases, a person's birthplace was not the same as his place of origin, it would be right to say that a birthplace criterion is non-discriminatory, since it cannot be right to assess the question whether discrimination has taken place in relation to a person's national origins by reference to the fact that a small number of people may happen to have been born in a country different from the country which would naturally be described as being the national origin of such person.
It is now conceded that the scheme is indirectly discriminatory but the Secretary of State seeks to justify that indirect discrimination by reference to what is said to be the legitimate aim of confining the benefit to those with close links to the United Kingdom. After some hesitation, I have concluded that this is, indeed, a legitimate aim. The reason why it is legitimate to seek to limit the benefit in this way is the same reason as that given by Dyson LJ in the ABCIFER case (paragraph 42) for concluding that the birthplace criterion was not irrational viz that, although civilian internees in Hong Kong and elsewhere were interned because they were British subjects, by the time the compensation scheme came to be set up
"the United Kingdom had become a medium size European country which had lost its Empire".
This is to accept geo-political reality and to my mind entitles the Secretary of State to seek to confine the compensation to those who have, at the time of the inception of the scheme, a real link with the United Kingdom.
'either the imposition of the birthplace/bloodlink criteria was justified by the close links of the applicants with the United Kingdom as defined by descent in which case it was inescapably and avowedly intended to discriminate between different categories of British internees on grounds of descent and thus should logically constitute impermissible discrimination on grounds of national origin;
or the birthplace/bloodlink criterion was an adventitious factor in which case reliance in it cannot be said to be a proportionate means of achieving the supposedly legitimate aim of making payment only to those with close links to the United Kingdom.'
The only way to resolve this paradox is, in my judgment, to hold, as the judge did, that while it was legitimate for the scheme to require that qualifying applicants should have a close link to the United Kingdom, the chosen criteria were disproportionate. On this aspect of the matter I therefore agree with Mummery LJ that the judge's decision should be upheld. In all other respects I also agree with the judgment of Mummery LJ.
"The wind dies, and is forgotten, but some of the seeds it blows about will be fertile in the end",
The Race Relations Act is one of the most fertile of those seeds and has proved a most beneficial instrument. It is perhaps right that it should be by reason of that Act that the acknowledged debt of honour owed to prisoners of war incarcerated in the Far East should now be appropriately discharged.