England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/08/2006

Mr Justice Langstaff:

1. The claimant Dost Mohammed was born in 1921 in a village in British India which now forms part of Pakistani Punjab. In 1941 he joined the Indian Army because, as a British subject, he wanted to fight against the Japanese and the Germans. He signed up, and swore an oath of allegiance to the British Crown, after which he left India on 23rd January 1942. He was taken prisoner by the Japanese in February 1942-and was held for 3% years by them in Singapore under appalling conditions. On 14th August 1945 he was released. Throughout his time in captivity he remained loyal to the Crown.
2. Ex Gratia payments have been made to a number of former members of the Indian Army by the UK government, under a scheme for which the defendant as Secretary of State for Defence is responsible. The claimant applied for such a payment on 20th October 2005 in accordance with what he understood to be the scheme; though he appreciated it would be refused by the Veteran's Agency (to whom the application was directed) because he did not satisfy the terms of the scheme as they stood. His application was refused. He claims that the refusal to make such an ex gratia payment to him (a) constitutes unlawful discrimination against him, contrary to the Race Relations Act 1976 as amended, and (b) is irrational, as failing to recognise the principle of equality which is part of the common law. He says that those of a different colour, national origin and nationality have been treated preferentially as far as receiving payments under the scheme is concerned.
3. The defendants say (in summary) that the reason he received no payment upon his application is that he is a Pakistani national, and as such is lawfully excluded from the scheme. So far as the Race Relations Act is concerned the exclusion is lawful by application of the terms of Section 41(2) of that Act and, so far as the common law is concerned, because it is reasonable for a state to give preference to its own nationals.
4. The relevant Law.

The Race Relations Act 1976 provides, so far as is relevant, as follows:

"Section 1(1)	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.
Section 3(1)	... "racial grounds" means any of the following grounds, namely colour, race nationality or ethnic or national origins.
Section 19B	(1) it is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.
Section 19C	(3) Section 19B does not apply to any Act of, or relating to, making or approving arrangements, or imposing requirements or conditions, of a kind excepted by Section 41
Section 41 (2)	Nothing in Parts II to IV shall render unlawful any act whereby a person discriminates against another on the basis of that others nationality or place of ordinary residence or the length of time for which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom, if that act is done -(a) in pursuance of any enactment or Order in Council; (b) in pursuance of any instrument made under any enactment by a Minister of Crown; or (c) in order to comply with any requirement imposed by a Minister of the Crown.. ..by virtue of any enactment; or (d) in pursuance of any arrangements made (whether before or after the passing of this Act) by or with the approval of, or for there time being approved by, a Minister of the Crown; or (e) in order to comply with any condition imposed...by a Minister of the Crown."

5. In Nagarajan v. London Regional Transport [2000] 1 AC 501, H.L. the House of Lords considered the proper interpretation of the Race Relations Act 1976. Though directly concerned with a claim under Section 2 of that Act (victimisation) the speeches in their Lordships House considered Section 1. Lord Nicholls said (at 510):

"To be within Section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to enquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable, or unfavourable, is a consequence which follows from a decision. Direct evidence of any decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced or inferred, from the surrounding circumstances.

The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. For the purposes of direct discrimination under Section 1(1)(a), as distinct from direct discrimination under Section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant.

Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign."

6. He went on to note that a person who genuinely believed that the treatment to which he subjected another had nothing to do with that other's race might be motivated subconsciously to act as he did. If the reason he acted as he did was race, his own ignorance that this was so would not avoid his action constituting discrimination on the ground of race.
7. Lord Steyn in a fully reasoned speech agreed (see particularly at 520 to 521)' and Lords Hutton and Hobhouse agreed with both judgments.
8. In Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947, [2001] UKHL 48 Lord Nicholls made a further contribution to understanding the force of the phrase "on racial grounds". Again, the context was a claim of victimisation. At paragraph 29 Lord Nicholls dealt with the expression "by reason that" (in the phrase "...treats the person victimised less favourably than.. . he would or treat other persons, and does so by reason that the person victimised has.. ."). In Nagarajan (at 5 12) he had held that that expression was interchangeable with the words "on racial grounds" in Section l (l )(a). In Khan he explained:

"Contrary to views sometimes stated, the third ingredient ("by reason that...") does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening the court selects more or one of them which the law regards as causative of the happening. Sometimes the court may look for the "operative cause", or "effective cause". Sometimes it may apply a "but for" approach. For the reasons I sought to explain in Nagarajan v London Regional Transport, a causation exercise of this type is not required either by Section 1(1)(a)or Section 2. The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."

9. In R (European Roma Rights Centre and others) the Immigration Officer at Prague airport and another [2005] 2 AC 1 ( [2004] UKHL 55 ) the lawfulness of procedures adopted by British immigration officers temporary stationed at Prague airport fell for consideration. It was alleged that would be travellers of Roma origin were treated less favourably than were non Roma travellers. In particular, it was alleged they were subjected to longer and more intrusive questioning, required to provide proof of matters which were taken on trust from non-Roma, and that far more of them were refused leave to enter than were non-Roma. The discrimination issue was addressed in the speech by Baroness Hale of Richmond, with whom Lords Bingham, Steyn,

Hope and Carswell agreed. At paragraph 73 she noted:

"Once treatment less favourable than that of a comparable person... is shown, the court will look to the alleged discriminator for an explanation. The explanation must, of course, be unrelated to the race or sex of the complainant ... If the difference is on racial grounds, the reasons or motive behind it are irrelevant: see, for example Nagarajan v London Regional Transport.

74. If direct discrimination of this sort is shown, that is that. Save for some very limited exceptions, there is no defence of objective justification. The whole point of the law is to require suppliers to treat each person as an individual but not as a member of a group. The individual should not be assumed to hold the characteristics which the supplier associates with the group, whether or not most members of the group do indeed have such characteristics, a process sometimes referred to as stereotyping….

10. Applying this to the facts under consideration she held at paragraph 82:

"The Roma were being treated more sceptically than the non-Roma. There was a good reason for this. How did the immigration officers know to treat them more sceptically? Because they were Roma. That is acting on racial grounds. If a person acts on racial grounds, the reason why he does so is irrelevant: see Lord Nicholls of Birkenhead in Nagarajan…"

11. None of this law was controversial before me. Nor, for present purposes, were the conclusions which McCombe J. reached in Gurung v Ministry of Defence [2002] EWHC 2463 (Admin). That case concerned an application by Nepalese nationals who served during the Second World War as members of the Ghurkha Rifle Brigades, were captured by the Japanese, and ill-treated. Each was excluded from a scheme of ex gratia payments of compensation to former P.0.W.s of the Japanese announced by the Defendant in 2000. On the material before him, he concluded that a line was being drawn between persons who had been governed by one military code (that of the UK) as opposed to another (that of India). He concluded that the decision was one which was based upon race. The three Ghurkhas had been "treated like any other Sepoy" because they (like other "Sepoys") "were not European." Accordingly he required the Defendant to think again.
12. In the course of his judgment, however, McCombe J. commented that citizens of Pakistan who were members of the (British) Indian army had been reasonably excluded from UK compensation arrangements in the 1950s', because their new independent nation had made its own arrangements with Japan. (See paragraph 54).
13. Neither party before me contends that the decision in Gurung is conclusive of any issue that I have to decide. Both argue that it is persuasive, and Mr Sales for the Defendant argues that McCombe J.'s comments were not only an intrinsic part of his reasoning so as to be (at least part of) the ratio of his decision but also informed a recasting of the compensation scheme which was intended to eliminate the defects to which his judgment had drawn attention.
14. In his judgment, McCombe J. spoke of the "...principle of equality which is the cornerstone of our law" (paragraph 55). It was not in dispute before me that equality of treatment is a principle of lawful administration in English law. This has not only powerful support from beyond the corridors of the Royal Courts of Justice (see: "Is Equality a Constitutional Principle?" (1994) Current Legal Problems 1 at page 4, where Jowell declares it a constitutional principle, expanding upon it at page 7, and a lecture by Lord Steyn on 18 September 2002 in honour of Lord Cooke of Thornton, published at [2002] EHLR 723) but was also recognised by Baroness Hale in the Roma case (paragraph 102):

"The norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law"

and per Lord Steyn (paragraph 46):

"State practice virtually universally condemns discrimination on grounds of race. It does so in recognition of the fact that is has become unlawful in international law to discriminate on the grounds of race… the moral norm has ripened into a rule of customary international law. It is binding on all states…"

and, of course, as Rabinder Singh QC for the Claimant observes, norms of customary international law are automatically recognised by the court as part of the common law Triquet v Bath (1764) 3 Burr 1478 per Lord Mansfield) and Trendtex Trading v Central Bank of Nigeria [1977] QB 529, per Lord Denning MR at 554).

The Scheme, and its predecessors

15. The scheme under which the Claimant a plied for payment was promulgated following a Parliamentary Statement of the 5 November 2003. The reasons why he was excluded from benefit under that must be examined, to see whether it was on racial grounds, remembering to distinguish carefully that question from that of motive of the person drawing the distinction, and remembering that motivation may be both entirely benign and reasoning may be subconscious, (as explained in the case law to which I have referred).
16. The scheme was said to have "extended" the scheme of 2000 considered in Gurung.
17. The scheme of 2000 within its terms provided for payment of £10,000 per person to 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 interred. So far as military personnel were concerned those eligible were "(a) surviving former members of the UK armed forces who were held as prisoners of war by the Japanese during the second world war: (b) surviving former service men who received payments under Article 16 of the 1951 Treaty of Peace with Japan, under the auspices of the UK government;....and (e) the surviving widow or widower of a deceased person who would otherwise been entitled under category (a), (b)…"
18. On the 5th November 2003, the Parliamentary Under Secretary of State for Defence said in a written ministerial statement;

"The government have carried out a detailed review of the eligibility for the ex gratia payment scheme established in 2000 for Far East prisoners of war. This follows the ruling in the High Court by Mr Justice McCombe in November 2002.

I am now able to announce that, that in accordance with the principles set out in the judgment of the court, the scheme will be formally extended to include those Ghurkha Far East prisoners of war (FEPOW) who were held captive by the Japanese in the second world war and who, in 1951 when the Peace Treaty between the United Kingdom and Japan was signed, were citizens of Nepal…."

19. One issue (to which I will return later in this judgment) is whether the policy said to be extended was at the same time qualified so as to reduce, rather than extend, its scope by requiring any former serviceman who had received payments under Article 16 (category (b) of those set out above) not to have been a national of any state, other than the UK, which was one of Allied Powers during the Second World War. The Defendant contends this is so: the Claimant asserts it is not.
20. The evidence put before me by the Defendant in the first witness statement of Jonathan Iremonger of 2 May 2006 described that the government intended to cure the illegality identified by McCombe J. by extending the FEPOW scheme to cover former Ghurkhas who were Nepalese .citizens in 1951. He did not in that first statement suggest that a decision had been made to limit any further claim from those within category (b) in the 2000 scheme on the basis of their nationality. He did, however, state that the government proceeded on the basis that the judgment established that citizens of India and Pakistan who had been members of the (British) Indian army were reasonably excluded from compensation arrangements in the 1950s' because the nations of which they were citizens had made their own arrangements with Japan.
21. In his second witness statement he said that the Secretary of State redrew the eligibility criteria in accordance with the reasoning of Mr Justice McCombe (paragraph 31, second witness statement, 16 May 2006):

"The new policy was to pay all members of the Indian army save those who, in 1951, were nationals of states which had concluded their own Treaty arrangements with Japan"

22. This does not deal with category (b) directly, but Mr Iremonger commented that the redrawing of the criteria post Gurung:

"also means that any individual who was Australian, Canadian, New Zealander, Pakistani, Indian etc and who did receive payment in 195 1 as a member of the (old) Indian or Burmese army should not have received payment under the FEPOW scheme."(paragraph 33)

23. Mr Sales argues for the Defendant that the words used "to extend the scheme" indicated an acceptance of the principles in the judgment of Mr Justice McCombe, which he identified as including the principle that it was proper to draw a distinction between nationals of India and Pakistan on the one hand, and Nepalese, or others who were nationals of states which did not form part of the Allied Powers, on the other. The statement in Parliament was not a full and detailed statement of what the parameters of scheme were to be. It spoke broadly about Ghurkhas being included. As a matter of fact, the practice adopted was to include Nepalese Ghurkhas, but to exclude those Ghurkhas who were nationals of India, and Pakistan, and to admit those who were not Ghurkhas, but nationals of Nepal who served in, for example, the Assam Rifles. He accepted that there was no formal statement of this scheme, as so implemented, but submitted that the policy was to be understood by reference to the practice and its underlying rationale. He argued that it was not necessary to formulate the scheme so as to take into account a class which in practical terms did not exist (nationals of states other than Britain who were within category (b)). It was not incumbent on the Government to formulate the policy so as expressly to take into account every conceivable case that might come forward.
24. For the claimant, Rabinder Singh QC summarised his argument in eight points. First, the criteria for eligibility for payment under the 2000 scheme were expressly linked to those for benefit under the 195 1 Treaty. Second, the 1950s scheme used criteria which distinguished between those members of the (old, British) Indian Army who were subject to British Military Law and those subject to Indian Military Law. Third, that distinction was inherently based on race, since "Europeans" were subject to the former, and "native Indians" to the latter. Fourth, in 2000 the criteria were extended in one respect, to include Ghurkhas -but that did not cure the fundamental problem identified in the Gurung judgment, that the criteria were themselves racist. Fifth, it is irrelevant that the Defendant whether in 2000 or today did and does not intend to discriminate, or has acted with benign motives. Sixth, since the distinction is not based on nationality, the defence under section 41(2)(d) of the Race Relations Act is not available to the defendant. Seventh, there are in any event no "arrangements" approved by the Minister of the Crown within the meaning of that sub-section, and eighth an application of the case of Hampson v Department of Education and Science [1991] 1 AC 171 demonstrates that the discrimination involved cannot be said to be mandated by such arrangements as there were.
25. Against this legislative and case law background the essential issue becomes, in my view, one of fact: on what ground was the claimant excluded from benefit under the terms of the 2003 policy? Since the 2003 policy "extended the scheme of 2000, which provided that those eligible for payment would be "surviving" former servicemen who received payments under article 16 of the 195 1 Treaty of Peace with Japan, under the auspices of the U.K. government," it is necessary to see for what reason the claimant did not receive such a payment. If it was on the ground of his race that he was not eligible for a payment in 195 1, then to base entitlement under the 2000 scheme upon the receipt, or non-receipt, of payments under the 1951 treaty would be to apply a criterion which was inherently racially discriminatory, however much the motivation may have been otherwise. If the 2003 scheme does not modify such a short-coming so as to remove any reliance upon race as a reason for refusal of eligibility, it would be racially discriminatory for the claimant to have been excluded under the 2003 scheme. Unless statute by application of section 41(2)(d) rescues the position, to rely upon such a criterion as a reason for determining eligibility under the 2003 scheme would not be a reason permissible in public law: it would undermine the rationality of the exclusion of the claimant.
26. If, however, the evidence properly understood is to the effect that entitlement to payment under the auspices of the U.K. government under article 16 was denied to someone in the position of the claimant not because of his race, but because of his nationality, the exclusion would not inevitably be irrational. The effect of the scheme of 2000, as extended in 2003, would be to draw a distinction, based on nationality, in respect of those who served in British forces during World War II between those who, by the time effect was given to Article 16 of the 1951 treaty, were nationals of independent states whose governments were in a position to enter into their own arrangements with Japan, and others. If such was the position, it is difficult to see on what ground this could be said to be irrational (unless nationality as a sole criterion offends against the Race Relations Act: which it will, in light of the wording of section 3(1), unless section 4 1 (2)(d) applies).
27. The Treaty of 1951

By the San Francisco Treaty of 8th September 1951 provision was made, amongst other matters, for reparations to be paid for damage and suffering caused by Japan to the Allied Powers during the war. Article 14 entitled the "Allied Powers" to have a right to seize, retain, liquidate or otherwise dispose of Japanese property within their jurisdiction. This gave rise to a civilian compensation scheme, which is not otherwise material to the present litigation. However, both parties placed before me some contemporaneous documentation relating to Article 14, seeking to draw parallels between the approach under that and under Article 16. By Article 16 it was provided:

"As an expression of its desire to indemnify those members of the armed forces of the Allied Powers who suffered undue hardships while prisoners of war in Japan, Japan will transfer its assets and those of its nationals in countries which were neutral during the war, or which were at war with any of the Allied Powers, or at its option, the equivalent of such assets, to the International Committee of the Red Cross which will liquidate such assets and distribute the resultant fund to appropriate national agencies for the benefit of former prisoners of war and their families on such basis as it may determine to be equitable."

28. By virtue of Articles 23 and 25 Ceylon and Pakistan were Allied Powers (so, too, were Australia, Canada, and New Zealand: but neither India nor South Africa were so identified). On 9th June 1952, India concluded its own Peace Treaty with Japan. By Article VI of that Treaty, India waived all reparation claims against Japan, and, except as was otherwise provided in the Treaty, waived all claims of India and of Indian nationals arising out of action taken by Japan and its nationals in the course of its prosecution of the war. Thus by 9th June 1952 India as an independent state had on behalf of its nationals waived any claim such a national might have arising out of Japanese action during the war.
29. Article 16 of the San Francisco Treaty envisaged the ICRC determining the basis upon which assets would be distributed to "appropriate national agencies". There is no evidential material before me capable of illuminating the basis upon which the ICRC itself exercised this power of determination. However, it appears plain that the appropriate national agency would then be tasked with distributing the benefit to those former prisoners of war contemplated by Article 16. It is also plain that so far as the United Kingdom was concerned lists were compiled of potential beneficiaries under Article 16 for submission to the ICRC.
30. If the basis of inclusion/exclusion of an individual in or from these lists was, or was in part, on grounds of race then the only legitimate inference is that any determination of the ICRC as to distribution between Allied Powers was itself based (as far as the U.K. was concerned) in part upon race, and the denial of any payment under Article 16 to the claimant and others who were then Pakistani nationals would be on racial grounds.
31. Rabinder Singh Q.C. for the claimant invites me to conclude from the available evidence that the exclusion of those in a similar position to the claimant from the lists, hence benefit under Article 16, was in fact on racial grounds. Mr Philip Sales, for the defendant, submits this is a matter of fact for determination by the court. The statements of Jonathan Iremonger argue that the evidence shows it was not.
32. In Gurung v Ministry of Defence Mr Justice McCombe considered whether the exclusion of Ghurkhas who were Nepalese nationals, but who had served in the British Indian Army during World War II was on racial grounds. He had to consider essentially the same legislative and factual background as is currently in issue. The conclusions he came to in Gurung, though not binding upon me, deserve respect. Both parties before me place reliance upon certain aspects of them. He said, at Paragraph 50:

"...the government's primary objective was to afford compensation to U.K. citizens and to those for whom the U.K. government had accepted responsibility in dealing with compensation paid under the 1951 Treaty. That excluded the Ghurkhas. The government also feared that inclusion of the Ghurkhas would mean that no valid distinction could be drawn between them and any other former P.O.W.'s who had been serving in armed forces raised "throughout the British Empire"… it can be seen… that the defendant referred to the "British Empire" for these purposes as including the Dominions. This is also clear from the letter of 4 September and 8 October 2002 passing between the parties' Solicitors… when the claimants' solicitors sought explanation of the government's answers that to extend the criteria in the manner contended could (or would) cost "hundreds of millions of pounds"; the reply makes clear that it was the Dominions that were in mind.

51. The problems for the defendant, as it seems to me, are first, whether the 1951 criteria were rational criteria in 2000 and, secondly, the rationality of the conclusion that to include the Ghurkhas inevitably brought into question the position of the citizens of former Dominions also.

52. It is understandable in 195 1, and hence in 2000, that the U.K. government saw no need to provide for citizens of those states which in their own right, had concluded Treaty arrangements with Japan. That includes 3 out of the 4 Dominions and Pakistan, who were parties to the 1951 Treaty, and India, which had included a separate Treaty. India was not a signatory to the 1951 Treaty with Japan and "it was indeed for this reason alone that non-European members of the former Indian army who are now nationals of the Republic of India were ruled out as illegible for benefit" (…letter of 1 January 1955...)


53. The decision was then made to exclude the Ghurkhas because:

"There is no analogy between the status of European members of the Indian army. The "native" personnel of the Indian army were recruited from Ahirs, Dogras, Garhwalis, Ghurkhas, etc and the fact that the Ghurkhas, coming from the independent Kingdom of Nepal, were recruited under special Treaty arrangements made no difference to their status when mustered in the Indian army. They were paid like any other Sepoy and were subject to the same code of discipline (the Indian Army Act)…"

Why they were "treated like any other Sepoy"? The answer is surely because they (like other "Sepoys") were not European. The allocation to the Indian Code of Discipline was based upon race, as I have endeavoured to explain above. No amount of semantic analysis of the ancient Acts can hide that fact.

54. Citizens of India and Pakistan who were members of the (British) Indian army were recently excluded from U.K. compensation arrangements of the 1950's because their new independent nations made their own arrangements with Japan. Citizens of the Dominions had gone to war under the auspices of independent governments that (with one exception) made similar arrangements with the former enemy. The Ghurkhas were excluded on the basis of a constitutional distinction which was in fact founded upon race.

55. The embarrassment to government in that exclusion is palpable in the 1955 correspondence. The adherence to the same distinction in 2000, particularly if the racial nature of he disciplinary distinction originally made in the 19th century was not appreciated (as it seems clear it was not), appears to me (with genuine respect to the aims of the scheme) to be irrational and inconsistent with the principle of equality that is the cornerstone of our law. The "open floodgates" argument, based upon the perceived parallels with Dominion citizens, is difficult to follow in the light of the facts before the court."

33. The reasoning of McCombe J. was thus conducted in two stages. He first determined that the 195 1 criteria were not rational criteria to apply to Ghurkhas, being based as they were upon the race of the person concerned. Secondly, any issue as to a flood of costs consequences could not be relied upon by the defendant to argue that an otherwise irrational policy might be saved, because on the facts it appeared to the court that citizens of India and Pakistan were excluded not because of their race, but rather because they were nationals of states which had made their own arrangements with Japan. Although I see it as an intrinsic, though secondary, part of Mr Justice McCombe's reasoning that no "floodgates" argument was available, it is not, and could not be suggested that this ratio is binding upon me: and it is clear from the paragraphs which I have cited that the decision in Gurung rested heavily upon the court's perception of the facts before it.
34. It is also clear that the correspondence originating in the early 1950's which has been placed before me goes further than that which was before McCombe J. (see for instance, paragraph 13 of his Judgment: not only the letter of 4 July 1953 but others which it appears were not before him have been placed before me). Whilst paying due respect to the factual findings to which McCombe J. came, I have to determine for myself whether or not the available evidence appears to show that the exclusion of former members of the Indian Army who were at the time of exclusion Pakistani nationals was on the grounds of race.
35. Prior to the conclusion of the Second World War those serving in the Indian Army could be separated into two groups: those who were "natives of India", and those who were not. The former were subject to Indian military law; the latter to British military law. The relevant legislation is extensively reviewed in paragraphs 24 to 29 of his judgment by McCombe J., whose analysis therein I accept and adopt.
36. "Put shortly, the Indian Articles of War did not apply to any British born subject, or to any legitimate Christian lineal descendant of the same, whether in the paternal or maternal line: a "native of India" was, on the other hand, a person triable and punishable under Indian military law. In his witness statement (prepared for the Gurung case, but relied upon also in this) David Omissi, a Senior Lecturer in Imperial history at the University of Hull, who is acknowledged to be the U.K.'s leading academic of the Indian Army, drew attention to the racial nature of the distinction based upon whether a proponent was triable and punishable under Indian military law or British military law. He drew attention to notes to Section 180(2) of the Indian Army Act 1881 reproduced in the 1914 Manual of Military Law which expressly stated: "half-castes and persons born in India but of certain degrees of European descent, specified in the Indian Army Articles of War, are, for the purposes of this Act European": see also paragraph 12, 16, and generally. His conclusions (which are consistent with the material he exhibited, and which has not been contradicted in the present proceedings on behalf of the Secretary of State) make it (as he puts it):

"quite clear that the distinction was drawn between "European" and "natives of India", rather than between "British" and "Natives of India" -and, in any event, Indians were, in common with those with a direct connection with the U.K., "British" prior to independence."

37. Accordingly, by the end of the Second World War there had been a long standing practice when talking about the Indian Army to use the word "European" to denote someone of white racial origin, as opposed to "native of India", which would denote the opposite. Any use of the phrase "European" in correspondence at or about that time has therefore to be scrutinised to see whether it repeats or adopts the racial distinction drawn in the military codes, as Rabinder Singh Q.C's second proposition asserts, or whether it has some different force. It certainly cannot be assumed that it is simply the latter.
38. The first potentially relevant document, minutes of a meeting held at the Ministry of Pensions on 24th September 1952, does not assist either way: reference was made (page three) to a comment that "United Kingdom Officers of the Indian Army and Royal Indian Navy" should come within a scheme of distribution under Article 14 of the 1951 Treaty.
39. The next relevant document I have appears to be a confidential memorandum from E.J. Emery to Mr Anderson of 16th April 1953. The San Francisco Treaty was by now over 18 months old. With effect from 15th August 1947 (therefore 5 1/2years earlier) power had been transferred from the UK to the independent governments of India and Pakistan. Pakistan had been a signatory in its own right to the 195 1 Treaty. India had concluded its own separate Treaty with Japan on 9th June 1952. Accordingly, this letter, and all those which follow, were written and received by persons who must be taken to have known that the interests of Indian and Pakistani nationals had already been represented by their own sovereign states.
40. The memorandum reads, so far as material:

"We have not, so far, taken any informal soundings of the Indian authorities as to what their reaction would be likely to be if the United Kingdom were to include the 700 European Officers, ex members of the Indian Army, in their list of ex prisoners entitled to a share of Japanese assets under Article 16 of the Japanese Peace Treaty, and to exclude Indians who were prisoners of the Japanese."

41. . This draws a distinction between "European Officers" on the one hand, and "Indians" on the other. Whereas if that paragraph stood on its own the expression "European" might be thought to relate to racial origin, rather than nationality, the paragraph which follows indicates the converse. It reads:

"Our feeling is that, in view of the government of India's general attitude to the settlement with Japan, they would be likely to make a claim under Article 16 of the Treaty for Indian ex prisoners and the terms of their own Peace Treaty with Japan seem to confirm this.. .you will see that in that Treaty: -… b) India waived all reparation claims against Japan. and (c) "...India waives all claims of India and Indian nationals arising out of action taken by Japan and her nationals in the course of the prosecution of the war…" (Article 6(b)

It may be that Article 6(b) of the Indo-Japanese Treaty quoted above would be sufficient answer to the International Red Cross Committee if they were to question the omission of Indians in our list of potential beneficiaries under Article 16 of our Treaty. .."

42. This suggests to me a distinction based upon Indian nationality, as opposed to a racial criterion.
43. However, this letter is reflective of the concern of Mr Anderson of the Commonwealth Relations Office which he had expressed to Mr.Peters in a letter of 2ndApril 1953. This set out his thoughts whether the 700 or so "European ex Officers Army should be treated as eligible for inclusion in the United Kingdom lists of beneficiaries under Article 16 of the Japanese Peace Treaty." In paragraph 3, Mr Anderson said:

"...as you know the Indian Army was a corps of the United Kingdom forces under the Army Act and therefore all members of it, whether Indian or European could, on that criterion alone, be regarded as included in the words "those members of the armed who suffered ...whilst POW's". In the context of the Japanese Peace treaty, however, the major criterion is whether a country is an Allied Power. Since India is not an Allied Power, it seems it is unlikely she would ask us to stake a claim under Article 16 of the Peace Treaty (since she could not in any case stake a claim herself) for those elements of the old Indian Army i.e. the Indian elements, whose interests she could be most expected to champion, nor object to the inclusion under the United Kingdom umbrella of the European elements of the old Indian Army who are distinguished from their Indian colleagues by their close connection with the British services as such.. ."

44. He saw force in the fact that European Officers of the Indian Army were included in the distribution under Article 14 of the Peace Treaty (to which the minutes of the meeting of 1952, mentioned above, refer).
45. This letter makes it clear that he was seeking to draw a distinction between those for whom the United Kingdom should take responsibility for distributing compensation, and those whom it need not. Thus he indicated that whereas all of the members of the Indian Army could, as he viewed it, be regarded as included in the words "those members of the armed forces of the United Kingdom who suffered.. .while POW's.. .", the European ex officers of the Indian Army could appropriately be included in the persons to whom the United Kingdom share of Article 16 assets might be distributed. It is unclear whether the distinction made between "European" and "Indian" was one that merely echoed the (race-based) distinction made in military law prior to the end World War II: the word used is "European" as opposed to "non-Indian". However, as I have pointed out, the response from Emery to Anderson to the same subject of concern, though not (it would appear) to the letter to Peters itself is more indicative of an approach based on nationality.
46. A letter of 24th April 1953, from Major General Bishop to John Pilcher of the Japan and Pacific Department, Foreign Office, commented on Anderson's letter to Peters. It reported the view of the Commonwealth Relations Office, which was strongly of the opinion that the claim for inclusion in the list of European ex officers should be admitted: it had always been an accepted principle that Indian Army officers should received no lesser privileges than those accorded to the officers of the British Army.

"As a further instance of the acceptance by us of this moral responsibility I would mention the Armed Forces scheme of compensation for loss of effects by officers in Malaya and Burma and Far Eastern Theatres of War when those theatres were overrun by the Japanese in December 1941, and succeeding months. The European officers of the Indian Army were accepted for inclusion in this scheme on the grounds that they were recruited, trained and gazetted to the British Army in the same way as officers who remained with the British Army throughout their whole careers."

47. This, as it seems to me, draws a distinction between "European" and "other" officers of the Indian Army, which qualifies the otherwise race neutral "accepted principle" that Indian Army officers should received no lesser privileges than those accorded to the officers of the British Army. It appears to echo the distinction in military law prior to end of World War II.
48. On May 15th 1953, Patrick Stobart of the Foreign Office wrote to Anderson to offer preliminary conclusions, following discussions with the legal advisors to the Foreign Office. This letter is important. I shall therefore set out much of it. It says:-

"...2. First and foremost, we do not consider that India has any locus standi to claim benefits under Article 16 of the Japanese Peace Treaty since she is not an Allied Power for the purposes of that Treaty. Furthermore she has signed a separate Peace Treaty with Japan which contains in Article 6 a specific waiver of claims by India and by Indian nationals.

3. We agree with your view that it would be extremely difficult to exclude from benefits under Article 16 the European ex officers of the Indian Army. On the other hand, we might well run into equal difficulty in persuading the International Committee of the Red Cross to exclude Indian citizens from the distribution if their European counterparts had been included. We suggest that the best way of avoiding this possible predicament would be for us not to take a stand on inclusion or exclusion of members of the former Indian Army until this problem has been raised by the ICRC, but we should be prepared to explain to the committee the embarrassment which the question would produce. We might add that we would prefer to leave it to the committee to settle this problem along lines which appear equitable to them and which are consistent with what is being done elsewhere.

4. Meanwhile we should, I think, include the European ex officers in our totals of British prisoners formerly in Japanese hands, and be prepared to defend their inclusion to the committee if required. In this connection we agree that the arguments set out in paragraph 4 of your letter under reference have considerable force. We shall also have to be prepared for possible, though not probable, Indian claim for similar treatment of Indian nationals. As regards this last contingency, we naturally feel very diffident about offering an opinion on a complicated subject which is outside our province, but we wonder if the true view of the position might be that the Indian Army, although part of Her Majesty's Forces, was a body of men distinct from the United Kingdom forces and whose proper description was "Her Majesty's Indian Forces"...

6. We realise that our suggestion that the International Committee be .left with the task of deciding the question according to general equity involves the danger that they might consider Indian nationals to be entitled to benefits under Article 16. Such a decision would reduce, of course, the benefits accruing to United Kingdom citizens and might therefore cause some outcry among ex service organisations here. Furthermore, if the Indians were allowed to benefit, the whole question of the entitlement of the Indonesians and Filipinos would similarly be raised. Notwithstanding these dangers, we are inclined to think that the best method of reconciling all these possibly conflicting interests would be to leave the decision in the hands of the committee as a neutral arbiter. The committee would naturally have to take into account the views of all the beneficiary states, since they might well object to their respective allocations being diminished and might therefore oppose any sum being dispersed to Indians."

49. On 4th July 1953, Anderson replied. His letter acknowledged that the proposal was to do no more than:-

"...include the European ex members of the former Indian Army in our totals of British prisoners formerly in Japanese hands, and be prepared to defend their inclusion to the ICRC if required."

50. Thus far, the correspondents had dealt with the position of European, as opposed to Indian members. There was no express reference to Pakistani members of the former Indian Army. This omission might tend to suggest that the focus was more upon a distinction between those who were "European" and "non-European" reflective of the military distinction applying prior to the end of World War II. The position in respect of Pakistan was addressed in a letter from Mr Sigsworth of the UK High Commission in Karachi, to Mr Gordon of the Commonwealth Relations Office in London. The letter refers to a press announcement in the Pakistan Times of 18th April 1953, indicating that Pakistan was attempting to compile a complete record of former Japanese prisoners of war. In the final paragraph it went on to say:-

"We take it any compensation claimed by the United Kingdom government does not include any allocation to Colonial governments for sharing out among their employees, including their pensioners who may be citizens of Pakistan. We should be grateful for your comments on these points and on the suggestion that we should perhaps explain that as the position of Pakistan in regard to Section 16 of the Japanese Peace Treaty is uncertain, for this reason we would prefer not to approach the government of Pakistan… and suggest they should inform all enquirers from Pakistan that their applications for compensation in respect of periods spent as Japanese prisoners of war should be sent to the Pakistan authorities."

51. Mr Gordon replied on 13th August 1953 to say, amongst other matters:

"Article 16 provides that Japanese assets in neutral and ex enemy countries be used through the medium of the International Red Cross for the benefit of members of the armed forces of the Allied Powers who suffered undue hardships while prisoners of war in Japan. It would seem that the press announcement is directed to the provision of the material which will enable the Pakistan government to formulate a claim on the International Red Cross for a share in the proceeds. The position of Pakistan as a signatory while India is not, and that no separate Pakistan army existed during the war may pose a pretty problem, but fortunately it is not for us to provide the solution.

Thus it could be taken that only members of the armed forces are concerned in the present enquiry or any potential distribution by Pakistan at any rate at Japanese expense…"

52. In the meantime, the correspondence in relation to the distinction between European and Indian officers and men was continued by Mr Anderson who on the 8th August 1953 sent a further letter to Patrick Stobart. He restated the pre-war distinction between European and native officers and men in the (British) Indian Army. Paragraph 3 of the letter, is however, of importance. It reads:-

(3) The distinction between the European and the Indian element of the Indian Army was always clear cut and precise and has never occasioned any difficulty. For instance, in 1950 we obtained the agreement of the Treasury to the application to the European officers of the Indian Army of the Armed Forces Scheme for Compensation for loss of effects by officers of the British Army in the Far East. In the discussion which led to agreement on this question the possible repercussion in regard to Indians was raised, but was answered sufficiently by the facts that the United Kingdom government had no jurisdiction over the "native" troops, and that the question of compensation for them was one which rested properly on the government of India." (Emphasis added).

(4) We hope you will agree that the above, read in conjunction with my letter to Peters of the 4th April, provides us with ample arguments for rebutting any Indian claim for similar treatment for Indian troops, and for satisfying the International Committee of the Red Cross if necessary…

(6)We therefore suggest that we should include European members of the former Indian Army in our lists and be ready to defend their inclusion with more robustness than your letter of 15th May suggests."

53. A Mr Morris replied on behalf of Stobart, on August 14th . He said the letter provided a very good case for including European officers and non-commissioned officers of the former Indian Army in the lists which were being prepared for the purposes of Article 16

"...and for distinguishing such officers and N.C.O.'s from non-Europeans serving in the Indian Army who were subject to the Indian Military Code."

54. Whereas the thrust of Anderson's letter to Stobart had been that India should take responsibility for Indians (a distinction based on nationality) the clear division between "Europeans" and "non-Europeans"…subject to The Indian Military Code" in Morris's reply is strongly resonant of the racial distinction adopted prior to the end of World War II.
55. It appears it was not for some time thereafter that lists of names were sent to the ICRC for its consideration. Letters relating to distribution under Article 14 of the 1951 Treaty were exhibited before me, presumably to found an argument that a parallel was to be drawn between the approaches under respectively Articles 14 and 16. Thus on 29th May 1954, Mr Spicer wrote to Mr Ludgate at the Ministry of Pensions, suggesting that there was a choice to whether Japanese assets in the U.K. (the subject of Article 14 distribution) were to be shared amongst those ex-prisoners of war who "are or were U.K. nationals", on the one hand, or amongst those who "are members of U.K. based units" on the other. I have, ultimately, decided that the parallel is of little direct help, though it does indicate to me that the link in the minds of those distributing Article 14 monies was based on a criterion other than race. This impression is fortified by a hand-written draft letter from Mr Cortazzi to Spicer of 3 1st May 1954:-

"The Indians and Pakistanis served in Indian not U.K. forces and their position is similar to that of Australian and other Allied Forces. The Pakistan government has benefited by Article 14 and could have applied the assets she obtained to Pakistani POW's from the Indian forces if she so wished. If the Pakistan government do not assume this obligation we can hardly be expected to assume it for them."

56. So far as Article 16 was concerned, Mr Cortazzi of the Foreign Office was also involved. A meeting was held in his office on Wednesday 23rd June 1954. The day before that a (Mr?) Marjoram sent a minute to a Colonel Sawers. This related to the preparation of lists of former prisoners of war in Japanese hands which were to be submitted to the ICRC. In a central paragraph it recorded that the totals given by the U.K. to the ICRC "...included all personnel of the British Army captured by the Japanese, irrespective of nationality. They did not include totals of Colonial and locally raised troops which the Colonial Office undertook to provide." (Again, emphasis supplied). At the meeting on the following day it was noted (Item 4 of the minutes) that the Army list sent to the ICRC did not include the names of officers and other ranks of the Indian Army, but only officers and other ranks who had been seconded to it. The minutes then recorded:

"it had been agreed by the ICRC that all British nationals serving with the Indian Forces should be included in our lists and it was accordingly agreed that the.. (the next word is indecipherable on the photocopy provided to me) ..would prepare a list of British personnel of the Indian Army as soon as possible and after checking, where necessary, with Commonwealth Representatives in London and Service Ministries should forward it to the Foreign Office for dispatch to the ICRC". (Emphasis added).

57. At this stage (the stage of actually forwarding lists to the ICRC) the question of inclusion or exclusion from the list was thus expressly based upon nationality. The meeting was followed by a letter from Mr Anderson, referring back to it, on 13th July 1954. In this letter, sent to Canada House, New Zealand House, and Australia House, Anderson asked if he could be told if there were any additions and deletions that they would wish the Commonwealth Relations Office to make to, or if there were any queries they might have in respect of, the lists. His letter continued:

"You will see that the list is silent on the nationality of the persons concerned, i.e. whether they are United Kingdom, Canadian or Australian etc nationality. To have included this information would have involved the examination of many hundreds of individual records of service -which would have taken many weeks and would have delayed the preparation of the list. In any case we do not in every case possess the records of service of all men n the list so the list compiled on a nationality basis could not have been complete,

Where, however, there is any doubt as to the nationality of any individual on the lists (and, of course, the initials of the Christian name as given in the list should suffice in most cases to identify doubtful cases) it would be a simple matter for us to look up the individual's record of service."

When read together with the minutes of the meeting of 23rd June, this indicates to me that the basis upon which the lists of names was put forward was not race nor colour, but nationality.

58. The critical issue of fact to be addressed before me is the ground for the inclusion (or as it may be, exclusion) of the name of the claimant from the list being put forward. That list includes the list first submitted to the ICRC, and the supplementary lists referred to in the correspondence in mid 1954. It appears to have been in 1954 that the list was finally submitted. The contemporaneous evidence, so far as it goes, suggests that nationality was the ground for selection for this list. Moreover those compiling the list would no doubt be aware of a letter received on 1st July 1953 from the High Commissioner to Pakistan, addressed to the Japan and Pacific Department of the Foreign Office. This stated that the exact number of Pakistani prisoners of war (as defined in paragraph 1 of recommendations made by a working party in the implementation of Article 16) was being ascertained, and would be communicated to the ICRC. Thus, apparently, not only was nationality the express reason for inclusion or exclusion from the list but there was every good reason why this should be so, so far as Pakistani ex prisoners of war were concerned, for it would appear that the government of Pakistan was itself looking after their interests.
59. At a time, seemingly after this submission of lists to the ICRC, the particular position of Ghurkhas became the subject of correspondence. Anderson, who had been party to much of the earlier correspondence to which I have referred, said in a letter of lst January 1955 to Cortazzi:

"... neither the Ghurkhas' country of domicile (Nepal) nor the country in whose armed forces they were serving at the time of capture (India) was a signatory of the Japanese Peace Treaty and this criterion would appear to render them prima facie ineligible. It was indeed for this reason alone that non- European members of the former Indian Army who are now nationals of the Republic of India were ruled out as ineligible for benefit."

60. I do not find this reasoning easy either to understand, or to reconcile with former correspondence. Paragraph 4 of the letter, quoted in full by McCombe J. in Gurung, clearly distinguishes between "European members of the former Indian Army" and "native personnel" upon a basis which appears to me, as it did to McCombe J., to be that of race. It provoked a reply. On 13th January 1955 Higgins wrote to Anderson. He accepted "the main legal point" he derived from Anderson's letter, which was that members of the Indian Armed Forces "which for this purpose includes the Ghurkha troops but excludes European officers" were not eligible because they were not members of the Armed Forces of an Allied Power.
61. The fact that Anderson, who had, as the contemporaneous correspondence demonstrates, been centrally involved in the U.K. arrangements for distributions under Article 16, should approach the exclusion of Ghurkhas on a basis which adopted the racial distinctions implicit in the position prior to the end of World War II has caused me to question whether this approach infected the exclusion of those who by 1953/4 were Pakistani nationals and had been former members of the (British) Army of India. A number of the letters and memos from the early 1950s, in the run up to the submission of the lists to the ICRC, have resonances of the military law distinction that to modern ears are uncomfortable. Others are clearly based on differences not of race, but of nationality. The two are capable of running into one another, for I apprehend that to a civil servant of 1953 racial origin and nationality may have seemed to run together (the material before me contained, for example, the assertion that Europeans in India at independence would not have been domiciled there, so as to become Indian nationals.) Yet it is from this somewhat patchwork picture that the factual position has to be derived, to answer a question which is relevant in the context of the twenty-first century: was race, or was nationality the ground for inclusion in, or exclusion from, the lists sent to the ICRC?
62. There is no direct evidence available, now, more than 50 years later from those concerned at the time. Mr Iremonger gives evidence about the intention of the U.K. government, but this is entirely derived from an interpretation of the same letters and documents which I have reviewed. The claimant is in no better a position. Each party makes submissions as to how I should understand the correspondence. Much of the witness statements of each party is directed to that process, rather than to giving evidence. I have to draw my own conclusions. I confess that at the outset of the hearing, I was inclined to regard "European" as a surrogate for "white", and thus to be racial (as Rabinder Singh QC argued), as opposed to being a synonym for "British" (as Mr Philip Sales maintained). It has not therefore been without hesitation that I have eventually come to the conclusion that the reason for exclusion of those in the position of the claimant was their nationality (as opposed to their race or colour).
63. It is reassuring that McCombe J. appears, on the basis of the correspondence he reviewed, to have come to a similar conclusion as to the reason for exclusion of Indian and Pakistani nationals.
64. I agree with McCombe J. that there is nothing irrational about a policy which excluded from benefit those who were nationals of states that made their own arrangements, on those nationals' behalf, in respect of Article 16 distributions.
65. It follows from this conclusion that the policy of 2000, whether extended or restricted in 2003, was not in my view based upon an untenable distinction between "European" (meaning "white") and others ("'non white", or "native"), but upon "European" used as a synonym for "British". The language used in the early 1950s' undoubtedly had echoes of a distinction made on a racial basis, but was in fact, where relevant, being utilized to express a distinction based upon nationality.
66. The claimant argues that the fact that Pakistan and India had made their own arrangements with Japan could be no reason for the exclusion of Indian or Pakistani nationals from the compensation scheme under the 195 1 Treaty, because India did not conclude a peace treaty with Japan until June 1952. This argument misses the point, to be derived from the chronology, that the eventual decision as to which names to include or leave out of the lists to be submitted to the ICRC was not made until some time after that date, and I reject it.

The Race Relations Act

67. My conclusion as to the ground for inclusion/exclusion is also sufficient to answer the challenge to the present policy based upon the repugnance with which the common law views discrimination on the grounds of race. It may not, however, be sufficient to answer the challenge which is brought under the Race Relations Act. In his skeleton argument, Rabinder Singh QC contended that section 41(2) of the Race Relations Act 1976 is inapplicable here, since (first) the discrimination he puts in issue is not on the basis of the claimant's "nationality or place of ordinary residence or the length of time for which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom", but is, rather, on the grounds of "race" or colour. This specific argument must fail, in view of my conclusion as to the grounds for exclusion/inclusion.
68. This leaves the issues which he raised in his seventh and eighth broad heads of argument.
69. In Hampson v Department of Education and Science [l991] 1 AC 171 the House of Lords considered the meaning of section 41(1)(b) of the Race Relations Act, which provided that nothing in Parts II to IV of the Act would render unlawful any act of discrimination done "in pursuance of any instrument made under any enactment by a Minister of the Crown". This did not permit any discriminatory act unless that act were mandated by the instrument. Thus, the decision of the Secretary of State that the applicant in that case did not merit qualified teacher status because the teaching course she did in Hong Kong was not comparable to a course within the Education (Teachers) Regulations 1982, as it was not for three years nor of a high enough standard, was not protected by section 41(1)(b). His decision was one which involved discretion on his part, and was not one required by the Regulations. The essence of their Lordships reasoning is apparent from the speech of Lord Lowry, at 1 81-2, where he said that the inference to be drawn from the wording of the statute was that "... if the discriminatory act is specified in an enactment, Order or instrument, but not otherwise, it is done "in pursuance of' that enactment, Order or instrument and protected by section 41." Thus if there is discretion, or the exercise of judgment is necessary, to determine whether an act which has the effect of disadvantaging an individual on a discriminatory basis should or should not be done, then it is not an act to which the statutory defence can apply, since more than one outcome is possible.
70. The defendant accepts that the same principle applies to the application of Section 41 (2) (d), which as has been seen exempts acts done "in pursuance of any arrangements made by or with the approval of, or for the time being approved by, a Minister of the Crown". He claims that the scheme here permits of no choice. The evidence of Mr. Iremonger (in paragraphs 40-43 of his first witness statement) is that if an individual who fought in the (old) Indian or Burmese armies is a national (or was in 1951 a national) of a state which was then in a position to make its own arrangements with Japan he is not eligible for benefit under the 2003 policy, nor is his widow. Those who are, or were, Indian or Pakistani fall within this category. So also would any Australian, Canadian or New Zealand applicant. It was not enough to be "Ghurkha": nationality was determinative. He records that, consistent with this approach, some 23 applications from members of former Ghurkha units were refused. The arrangement, approved by the Minister, is to pay those who were included in category (b) in the 2000 scheme, except where they were at the time of Article 16 distribution nationals of India, Pakistan, Australia etc.; and to pay those who were not so benefited, but (as in the case of Ghurkhas) would have been but for their race.
71. I accept the evidence of Mr. Iremonger that this is the way in which the policy has been applied: there is no evidence to the contrary. A well understood policy as to payment or refusal comes in my judgment under the general heading of "arrangements made". Does this apply also to a policy which -as this one -appears to have operated but not to have had any clear formal expression until evidence was required in the present case?
72. On this part of the case, Rabinder Singh QC argues first that on the evidence there were no changed arrangements in 2003 except for extension to include Ghurkhas; next, that in any event it is an important principle of law in a democratic society that those subject to administrative action should be fully aware of their position. The law, and the policy operated under it, should be accessible. How, he asks, can a civil servant who is to apply a scheme which is not promulgated know where he is to find it? Arrangements should be clear, precisely formulated, such that the result of their application to given circumstances should be reasonably foreseeable. Six categories of person had a legitimate interest in knowing precisely what those arrangements were: the Minister, Parliament, the administrator of the scheme, a potential victim of discrimination (such as the claimant), the potential beneficiary of more favourable treatment (here, those who were eligible now but would not have been in the 1950s) and any court or tribunal being asked to review the identification and application of the arrangements in question. How is a court to be able to review the application of a policy if it is not until challenge that the details of its operation are made available?
73. I have very considerable sympathy with all these points, save the very first of them: there is indeed such evidence, at least as to the arrangements in practice. As to the other points, "arrangements" in the statute implies, to me, a formal organisation of practical measure; for others to adopt, such as might be expected to have the approval of a Minister of the Crown. It cannot simply depend on the ad hoc practice of those tasked with applying some more general framework. If this were so, then the basic framework would be that which was "approved", from which there could be departure: but the detailed practice used to implement that framework would involve a choice or judgment being exercised by the official doing so. Consistent with the approach to be taken, post Hampson, the framework would not mandate the actual practice, which could not then be said to be "in pursuance of' the arrangements approved by the Minister.
74. Mr. Sales' response to these concerns as they apply in the present case was to make five points. First, the statement in Parliament was that the Government accepted the principles set out in the judgment of McCombe J. On analysis, those principles were that there was no sensible dividing line between those in category (b) and Ghurkhas, but that there could be between those in category (b) and nationals of India and Pakistan. Second, once the special case of Ghurkhas was put to one side, the distinction was one based (soundly) on nationality. Third, the statement in Parliament was not a full and detailed statement of the parameters of the new scheme and did not purport to be: there was no statement, as such, of the scheme, but the policy was to be understood by the practice and the underlying rationale for it. New cases could be tested against the underlying principles. Fourth, as a matter of fact the scheme was applied consistently as Mr. Iremonger indicated. Fifth, the claimant's argument was to the effect that it was incumbent upon Government to reformulate the scheme to take into account the interests of every conceivable case that might come forward, at a time when there was no suggestion that those who were non-British, non-Ghurkha, and had been excluded from benefit under category (b) might wish to claim. This latter point was amplified by evidence that the same solicitors had acted for Gurung as acted for the claimant here, and had in their evidence to the court in the former case distinguished the position of Ghurkhas from that of Indians and Pakistanis (as McCombe J. indeed expressly noted). Claims by those who might fall within category (b) had been made reasonably promptly after the 2000 policy was announced, as was to be expected.
75. He conceded, however, that there was no evidence before the court that the Minister had turned his mind to the particular question now in issue, beyond publicly accepting the "principles in Gurung" -it was simply the way the scheme was operated.

Conclusions as to 41

76. It would have been relatively easy for the Ministerial statement to Parliament to say that those who were nationals of India, Pakistan or other states which made their own arrangements with Japan would not benefit, whereas those who were nationals of Nepal who had served in the (British) Indian Army would do so. Instead it made an oblique and unhelpful reference to the "principles set out" in Gurung. It did not give any further detail as to those principles. It did, however, go far enough to indicate that only those Ghurkhas who were citizens of Nepal at the relevant time would benefit. Thus the practice adopted in respect of claims by those who had served in Ghurkha units but who were Indian or Pakistani (not Nepalese) nationals was in accord with the express terms of the statement, and required by it.
77. Oblique and unhelpful as the reference to principles may be, it at least identifies for each of Rabinder Singh QC's six categories of person where they are to be found and permits of argument as to what they are, such that a court may review them even if it would wish for greater clarity.
78. It was part of the reasoning process in the Gurung judgment, even if a secondary part, that citizens of India and Pakistan were excluded from the 1951 arrangements, and that this was reasonable because their "new independent nations had made their own arrangements with Japan": see paragraph 33 above.
79. In the light of this, the reference to the "principles set out in the judgment" is to be understood as encompassing that of excluding Pakistani nationals from benefit.
80. This permits of no exception in the claimant's case, and thus the ratio of Hampson is of no assistance to him. The framework stated to Parliament was one which the Minister must be taken to have approved. It is that framework, rather than any development of it in practice, which compels the exclusion of the claimant here.
81. Although the claimant has emphasised that the Ministerial statement refers to an "extension" of the scheme, and that to exclude him is to restrict its operation, the fact is that the scheme as operated in the 1950s' did not benefit Pakistani or Indian nationals. Nor did the 2000 scheme, for it referred back to those who had benefited under Article 16. The extension may thus legitimately be understood as referring to the position of Ghurkhas, with which group the statement dealt expressly -but with the limitation, as I have noted, to those who were Nepalese citizens alone. I cannot spell out of this that to deny benefit to Pakistani nationals was to alter the scheme in an unadvertised way.
82. Accordingly, the defence contained in section 41 (2) (d) is made out.

Conclusions

83. The claimant's case rests on two pillars. The first is that, as a matter of fact, the available evidence shows that the exclusion from compensation under Article 16 of the San Francisco Treaty of those former members of the (British) Indian Army who had become nationals of Pakistan was one based on race or colour, rather than nationality. If that is wrong, but the exclusion was on grounds of nationality then the second pillar is that since the enactment of the Race Relations Act 1976 it has been unlawful to discriminate on grounds of nationality in conferring benefits under the Treaty.
84. I do not accept either. Though not without its difficulty of interpretation, the evidence shows that the ground for exclusion was one of nationality. The discrimination that this would otherwise have constituted, following the adoption in 2000 of criteria by reference to whether claimants for benefit had received a distribution under Article 16, and thus adopting the approach then, and which in any event is explicit in the current policy, was and is not unlawful because it is required by the arrangements made, which despite the deficiencies in their promulgation are sufficiently clear. The defence in section 41 (2) (d) is thus available to the defendant, and renders the discrimination not unlawful.
85. Accordingly, this application is dismissed.