| DISCRIMINATION — Race — Compensation — Ex gratia scheme for British interned by Japanese during Second Word War — Citizen of Pakistan serving in Indian army not meeting eligibility criteria — Whether criteria discriminatory on grounds of race — Whether applicant entitled to payment — Race Relations Act 1976, ss 1(1), 19A (as inserted by Race Relations (Amendment) Act 2000, s 1), 41(2)
R (Dost Mohammed) v Secretary of State for Defence [2007] EWCA Civ 983
CA: Ward, Latham LJJ and Sir Peter Gibson: 1 May 2007
The scheme adopted by the British Government in 2000 to make an ex gratia single payment of £10,000 to each surviving member of five specified categories of persons who had been imprisoned by the Japanese during the Second World War, or their surviving spouses, did not unlawfully discriminate on grounds of race against a Pakistani citizen who had been captured while serving in the Indian army and who could not meet the criteria set out in the scheme.
The Court of Appeal so held in reserved judgments dismissing an appeal by the applicant, Dost Mohammed, from the judgment of Langstaff J refusing his application for judicial review on grounds of unlawful racial discrimination as a result of the scheme announced in the House of Commons on 7 November 2000 to make single ex gratia payments of £10,000 to categories of surviving members of British groups who had been held prisoners by the Japanese.
The scheme listed those entitled to payments as including former members of the British armed forces, members of the Merchant Navy, British civilians who were interned and certain other former military personnel in the colonial forces, the Indian army and the Burmese armed forces who had received compensation in the 1950s after the San Francisco Treaty of Peace with Japan in September 1951. The applicant, a citizen of Pakistan, had served in the Indian army during the Second World War and had been imprisoned by the Japanese. He accepted that he did not meet the criteria set out in the scheme but submitted they were racially discriminatory because they included only the small proportion—mainly Europeans—of those who served in the Indian army and who had received payments in the 1950s. The scheme, he argued, was infected by unlawful discrimination contrary to the Race Relations Act 1976.
LATHAM LJ said that in R (Gurung) v Ministry of Defence [2002] EWHC 2463 (Admin) McCombe J held that the 2000 scheme was discriminatory and unlawful in relation to Gurkhas who were citizens of Nepal. Consequently, in 2003 a House of Commons statement formally extended the scheme to Gurkhas who had been captives. Here the judge, having considered Gurung’s case held, not without hesitation, (i) the ground for excluding the applicant was one of nationality, not race or colour and (ii) even if wrong about that the defence in s 41(2) of the Race Relations Act 1976—whereby a discriminatory act was not to be unlawful if made in pursuance of any arrangements approved by a Minister of the Crown—applied. The judge had properly applied the authorities: see Nagarajan v London Regional Transport [2000] 1 AC 501 and Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947. There was no issue as to the burden of proof. The judge had to be taken to have found on the balance of probabilities that the discrimination was not on the grounds of race. The real question was whether, although directing himself correctly, he came to the wrong conclusion. The view at the time was that Indian nationals who had been in the Indian army should not be included because India was not one of the Allied Powers and had concluded its own separate treaty and that Pakistan, which was an Allied Power, had been responsible for making claims on behalf of its own nationals. The vice in Gurung’s case had been to exclude the Ghurkas by equating them with Indian nationals when the reason for excluding Indian nationals had not applied to the Ghurkas. The 2000 scheme was based on the premise that those who were to obtain ex gratia payments should be British. The criteria were intended to make distinction on the basis of nationality. The judge came to the right conclusion—one that accorded with the reasoning in Gurung’s case when considering the position of Pakistan and Indian nationals. Further the judge was correct in holding that the scheme amounted to “arrangements” made “by or with the approval of … a Minister of the Crown” within s 41(2)(d) of the 1976 Act.
WARD LJ and SIR PETER GIBSON agreed.
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