HC Deb 07 September 2004 vol 424 cc686-700

Motion made, and Question proposed, That this House do now adjourn.—[Joan Ryan.]

8.27 pm
Mr. Andrew Dismore (Hendon) (Lab)

This debate's full title is "Compensation for former civilian prisoners of the Japanese in the Second World War". Perhaps a better title would have referred to lack of compensation for former civilian prisoners, because that is really the theme of the debate.

I became involved in this issue at the instigation of some constituents—two families in particular—to whom I shall refer later. Little did I know when I began to put their cases forward that I would end up as chair of the far east prisoners of war all-party group, and to some degree spearheading a campaign that I know has support from all quarters of the House.

The historical background is pretty well known. After the attack on Pearl Harbour on 7 December 1941, the Japanese invaded east and south-east Asia and many British nationals were captured: 50,000 members of the British armed forces were taken prisoner and an unknown number of civilians interned. The conditions in which they were held were appalling; their treatment was utterly cruel. One in four prisoners of war died in captivity at the hands of the Japanese. Of course, many films and television dramas have been produced and many books written, but none can accurately or fairly reflect the absolute horror experienced by our fellow citizens over 60 years ago.

In 1951, a peace treaty with the Japanese was concluded at San Francisco, which made arrangements, among other things, to pay compensation. A pittance was made available—£76 10s, in old money, for military prisoners of war and £48 10s for civilian internees. To qualify for that scheme, one had to be a British national over the age of 21 on 8 December 1941, normally resident in the United Kingdom before internment, and to have returned to the UK before an application for compensation was made. Approximately 8,500 civilians received compensation under those arrangements.

Of course, many more were left out, and subsequently efforts were made to persuade the Japanese to provide additional compensation—so far, and I think for the foreseeable future, fruitlessly. The Japanese simply would not reopen the issue; they claimed that the matter had been settled under the 1951 treaty. The attitude of the Japanese can be compared very unfavourably with that of Germany, which has for example reopened the issue of compensation to holocaust survivors. A significant effort has been made to provide proper restitution in respect of assets seized from families who died in the holocaust and to provide compensation as a result.

Over the years, successive Governments here have been lobbied on the issue by the Royal British Legion and, more recently, on behalf of the Association of British Civilian Internees, Far East Region—commonly known as ABCIFER. I pay tribute to the efforts of its chairman, Ron Bridge AFC, and his predecessor, Keith Martin, for their persistency and consistency in putting forward their case.

After so many years, this Labour Government acted. On 6 November 2000, a scheme was announced. A statement was made to the House on 7 November by my hon. Friend the Member for Kirkcaldy (Dr. Moonie), then Minister for Veterans, who said that the Prime Minister

initiated a reconsideration of the long-standing policy…towards …far eastern prisoners…as a result of the review, the Government have decided to make a single ex gratia payment of £10,000 to each of the surviving members of the British groups who were held prisoner by the Japanese during the second world war, in recognition of the unique circumstances of their captivity. In cases in which a person who would have been entitled to the payment has died, the surviving spouse will be entitled to receive it instead.

My hon. Friend continued:

We estimate that up to 16,700 people may be eligible for the ex gratia payments, which will accordingly cost up to £167 million to make.

He concluded by saying that

the country owes a debt of honour to them. I hope that I am speaking for everyone…

—am sure he was—

when I say that today something concrete has been done to recognise that debt."—[Official Report, 7 November 2000; Vol. 356, c. 159–60.]

I thought, on behalf of my constituents, that we had finally cracked it and got a result. I was very pleased by the announcement and I even issued a press release for my local newspaper:

This is something on which I have campaigned since I was elected to Parliament. I am delighted that Labour has put right this longstanding injustice…It is a timely reminder in the run-up to Remembrance Sunday of the suffering endured by those held in captivity in Japan under the most brutal of conditions. I hope this payment will go some way to making life a little easier for the survivors.

Hindsight shows that I spoke a little too soon, although that is not to say that the scheme has not been successful. It has been very successful. There have been 8,430 payments to former prisoners of war, 1,882 payments to former internees and 12,973 payments to spouses of deceased prisoners or internees, which is a total of 23,285 awards. However, that is 6,500 more than originally expected.

The original estimate was based on figures from the Royal British Legion of 6,500 POWs and 6,500 widows of POWs, and from ABCIFER, on behalf of the civilian internees, of 2,500, which provided for a range of 2,100 to 3,000 survivors. It did not make an estimate of the number of widows.

ABCIFER's figure was actuarially calculated, based on the original Japanese statistics relating to the numbers they held, and it has proved remarkably accurate in that there were 2,922 claims on behalf of the civilians, taking into account those that were rejected for reasons other than that for which we are here tonight. Unfortunately, that for service personnel was significantly underestimated. That is why I say that the scheme has not been an unqualified success. Initially, the Gurkhas were excluded, but in November 2003, they were accepted after they brought a case to the courts, over race discrimination, on the basis that they should have been paid out. I am pleased to say that the Government accepted the findings of the court and agreed to include them.

My main concern relates to the excluded civilian internees, whose suspicion is that the rules were changed when, owing to the number of cases, the cost turned out to be higher than expected. That is the real issue at the heart of this debate: the introduction, it appears ex post facto, of the qualification known as the blood link.

The original claim form, published in November 2000, came out soon after the announcement. I have a copy of it with me, along with the explanatory notes. It states:

This leaflet describes the new scheme that will be administered by the War Pensions Agency…and explains how to make a claim. Who can claim the ex-gratia payment?…(d)—

I will not list those categories that are not relevant—

surviving British civilians who were interned by the Japanese in the Far East during the Second World War; and (e) the surviving widow or widower of a person who would otherwise have been entitled… providing they were still married at the time of death.

There is no reference in the explanatory notes, or on the claim form, to the place of birth of the claimant, the claimant's parents, or the claimant's grandparents. On the face of it, there is no reason why there should be, because the assumption, based on the original statement in the House, was that if one was British enough to be interned by the Japanese in those appalling conditions, one was British enough to receive compensation.

The nationality rules at the time of the second world war were that a person inhabiting a colony or dominion of the Crown was British, independent of whether they or their parents or grandparents had been born in the United Kingdom. They became a British subject when the colony was annexed, or having moved there and become naturalised, or having been born there. That is under the British Nationality and Status of Aliens Act 1914. There was a single and equal status of British subject throughout the United Kingdom and dominions. Such persons were entitled to a passport issued by the Crown describing them as British subjects. They owed an allegiance to the Crown. They had the right of abode in the United Kingdom and throughout the Crown colonies.

Claims were being processed pretty rapidly after that initial announcement in November 2000. By 1 February 2001, some 14,000 payments had been made. By March 2001, however, ABCIFER started to realise that some claims were being unexpectedly rejected, and it took that up with the Government. On 21 March 2001, the interdepartmental working group, which had been involved in producing the scheme, decided to restrict the scheme to claimants born in the United Kingdom or to those who had a parent or grandparent who was born in the United Kingdom. The Government say that there has been no change in the rules, and that that was what was always intended. I have no reason to suggest to the Minister that that is not necessarily true. Whether or not it is true, however, bearing in mind that that expectation was raised, the effect has been to create both a feeling of unfairness and a series of anomalies when the new rules are combined with the way in which the system is administered. I will refer to some of those anomalies shortly.

ABCIFER has been tenacious in challenging this ruling. It has referred the matter to the ombudsman, whose report we are still awaiting, and the matter is in the hands of the Commission for Racial Equality, because the rule discriminates unfairly against certain ethnic groups. ABCIFER also took a legal action in the courts for judicial review. Unfortunately, however, that case failed, not on the substantive issue but on relatively narrow points of law. It is worth while quoting not the ratio of the Court of Appeal's conclusions, which were on those narrow points of law—judicial review is difficult to achieve in relation to an ex gratia scheme, as the court said—but the overall conclusion:

Naturally, we feel very great sympathy for all those who suffered appalling ill-treatment at the hands of the Japanese during their captivity. We also well understand that many civilians had their hopes of receiving compensation raised by Dr. Moonie's announcement of 7 November 2000, and that they have been extremely disappointed, and indeed angered, by what they see as a subsequent and unfair change of heart on the part of the Government. But anyone who seeks to challenge as unlawful the content of a non-statutory ex-gratia compensation scheme faces an uphill struggle. We do not think that the introduction of this scheme was well handled by the Government.

That is the real issue.

Clive Efford (Eltham) (Lab)

The great-grandparent of one of my constituents went to the far east to represent the Government. There was no question about his nationality, that of his grandparents or that of his own parents; but having been born abroad and then spent a period of internment as a result of the occupation, he is refused any form of compensation—despite having spent a great deal of his formative years in internment. That clearly is not fair on him, and I think he is entitled to some kind of recompense.

Mr. Dismore

I entirely agree, and I shall be giving a number of similar examples.

Let us examine some of the anomalies. First, there are those who have been paid. Under the grandparent rule, foreign nationals who were never British themselves have been paid. Stateless people and United States citizens have received money. People who have renounced British nationality have been paid. People who have never set foot in the United Kingdom have been paid. So far there have been 847 payments to overseas residents. Irish citizens who can show a grandparent link before 1922 have been paid. Some can do so, although all the records were destroyed in 1916, by reference to birth announcements in local newspapers. Birth records relating to the period between 1860 and 1886, when the grandparents would have been around, were destroyed.

I have heard of the case of a man whose father was born in Shanghai. Although there is no grandparent link, he has been paid because under the 1860 treaty with China, at the time of his birth British law applied extra-territorially. In 1860, Shanghai was classified as British. That seems a bizarre anomaly. People who have not been detained or interned have also been paid. Anyone covered by the 1950s scheme, whose rules I mentioned earlier, has been paid. A good example is that of diplomats put under house arrest by the Japanese. They were never put in internment camps, and in the summer of 1942 were freed in return for the repatriation of Japanese diplomats. Although they had not been interned, they were paid.

Then there are children under five with mixed parentage. I know of an example of someone with a Chinese mother. It was Japanese policy not to intern those under five who were born of mixed parents. Such people have been paid. People who were resident in Red Cross camps, not interned but usually dependants of people who were—generally wives and children of mixed marriages—were not detained, but free to move around freely in the camps. I am thinking of, for example, the Dominican monastery at Rosary Hill in Hong Kong and the camp at Bahau in Singapore. Although never interned by the Japanese, they have been paid.

Perhaps there is a fear of a "floodgate" rule—a fear that if we allow people who may not have a European background to qualify, there will be a huge rush of claims. There will not. In Shanghai, police constables were mainly Indians and Nepalese, and in Hong Kong and Singapore mainly Indians and Chinese. They were never interned by the Japanese; in fact, they were used to maintain the police service under Japanese—and in the case of Shanghai, French—officers. Given those anomalies, there is no risk of large numbers of claims.

Mr. Roger Gale (North Thanet) (Con)

I congratulate the hon. Gentleman on securing the debate. Like us, he knows that this is not a party political issue; we are all here to represent relatively few constituents. I am sure he would not wish to suggest, however, that those whom he has just listed should not have been compensated. Does the fact that they were compensated not indicate that in November 2000 the Government intended to be generous? Is that not borne out by the letter from the Prime Minister to Keith Martin, Ron Bridge's predecessor, in November 2000? In that letter the Prime Minister wrote:

I am so glad that we have been able, at last, to give proper recognition to the terrible experience of the civilians interned in the Far East".

I am sure that is what the Prime Minister meant at the time, and it seems a matter of great sadness that the scheme has been sullied by this relatively parsimonious restriction.

Mr. Dismore

I am grateful to the hon. Gentleman for that intervention. He is right: the intention was to be generous and an enormous amount of money has been spent, yet we are spoiling the ship for a relatively small amount of tar. I do not want to deny any of those people whom I have quoted the right to compensation; I simply want to contrast their cases with my next series of anomalies concerning people who were rejected.

I referred earlier to Shanghai. The birth certificate of a father who was born in Bombay was virtually identical to that relating to the Shanghai case, yet the claim was rejected. I should have thought that, in the days of the British empire, Bombay was regarded as rather more British than Shanghai. That is a complete anomaly. Let us consider some other cases that were rejected. Women who obtained their nationality by marriage, stuck by their husbands when they were interned and were interned themselves, have received no compensation. People—usually of European parentage—who were naturalised before the last war and served in the British Army in the first world war, or in the colonial administration, have not received payment. We should also remember those born in colonies such as British India; indeed, I have already referred to one such person.

Irish people who cannot produce a copy of their local newspaper to show that their grandparents were born in Ireland have been rejected because the records were burned in 1916. The British far east Jewish community is almost entirely excluded; indeed, the two cases in my constituency to which I referred fall into that category. Some 314 UK residents—people who have lived in the United Kingdom and contributed to its economy for most of their lives since the war—have been rejected under this bizarre ruling.

This issue arose during Defence questions in November 2001, and a few such examples were given. My hon. Friend the Member for Luton, North (Mr. Hopkins) referred to the case of Dr. Mark Erooga, who was naturalised in 1940, swore allegiance to the King, served in the Hong Kong defence reserve and was interned in 1941 while working at Kowloon hospital. After the war and until his retirement, he worked in the national health service from its inception, yet he was not compensated. The hon. Member for East Worthing and Shoreham (Tim Loughton) referred to a Mrs. Leeson, who was interned as a child in Singapore, where her father died. She lost her documents while fleeing from the Japanese. There was also the case of Mrs. Pyett, who was separated from her parents and interned in Singapore at the age of seven. Her stepmother received compensation, even though she did not marry Mrs. Pyett's father until 1947. Mrs. Pyett received no compensation.

Let me turn to cases in my constituency. Mr. Isaac Shalom Abraham was born in Shanghai on 12 October 1934; by then, Shanghai's status had changed. His paternal grandfather was born in Baghdad under the Ottomans, but he had a UK passport; his paternal grandmother's birthplace was unknown. His maternal grandfather was born in Russia, and his maternal grandmother was born in Russia, or in Poland under Russian rule. His father was born in British Bombay in 1891 and his mother was born in Russia. His parents took him as a child to Shanghai in 1910, where he married. He was arrested in Shanghai and interned on 5 April 1943 until August 1945.

Mr. Abraham and three of his siblings now live in London. He remained in the camp in Shanghai until March 1948, as a British citizen under British administration. He came to Britain in November 1949, having been evacuated by the RAF from Shanghai to Hong Kong on 16 May 1949. After qualifying here, he worked as a schoolteacher for nearly 30 years, and he worked for a further 10 years within the Jewish community. He has lived in Britain all his adult life. He was interned because he was a British subject, and he finds it impossible to understand—as do I—why he has been excluded from the compensation scheme.

The second case from my constituency concerns Mrs. Sophie Sopher, née Hardoon, who was interned by the Japanese in Stanley camp. Nothing is known of Mrs. Sopher's grandparents. Her mother was born in Baghdad under the Ottoman empire. Her father was born in Bombay in British India, and Mrs. Sopher herself was born in British India. Mr. Hardoon, her father, had been working in Hong Kong, where he was detained by the Japanese. The family were interned until 1945, and they were then repatriated to Bombay, in British India. Mrs. Sopher's father, Mr. Isaac Hardoon, died soon afterwards in Australia. Mrs. Sopher came to the UK in June 1964, and upon her marriage she became a UK citizen in 1969. Her sister, Mrs. Elias, provided a graphic account of her wartime experience, in which she said:

The Japanese had already been to the British consulate to get a list of British passport-holders. They came to our house and told us to get into a van. They hit my father because he was not quick enough. We were all taken to the camp. When we came out four years later, ill and malnourished, our house had been pulled down. We all suffered from beri-beri, typhoid and diphtheria. My brothers had been beaten. My father was so ill that he could not be treated and he died a few months later.

What makes the case even more bizarre is that although Mrs. Sopher and her sisters have not been compensated, their two elder brothers have been, even though they had exactly the same parents. That seems to me to be an utterly bizarre anomaly in the administration of the scheme—and these people cannot understand why. It is not surprising that they have a sense of grievance. The Hardoon family believed that they would be paid out, but they have not been.

The problem is compounded by evidence that has recently come to light about the failures of successive Governments to reopen the 1951 treaty with the Japanese—despite our right to do so in the 1950s and subsequently. I have with me a Foreign Office paper, FO 371/115281, of 25 May 1955. It is headed, "Claims against Japan" and it states:

Article 26 of the Treaty of Peace with Japan states that, should Japan make a peace settlement or a war claim settlement with any State granting that state greater advantages than those provided by the San Francisco Treaty, those same advantages shall be extended to the parties to the San Francisco Treaty…Japan has recently signed a Peace Treaty with Burma…which gives Burma greater advantages in respect of reparations than those enjoyed by the parties to the San Francisco treaty…Japan has also recently signed a War Claims Agreement with Switzerland which…constitutes a greater advantage".

Under the heading "Discussion", it states:

Those states which are parties to the San Francisco Treaty are thus entitled to claim from Japan benefits similar to those stipulated

in the new treaties. It continues:

The Japanese realised the risk of that happening when they were negotiating the agreement with Switzerland…In agreeing to the San Francisco Treaty Her Majesty's Government waived a very large proportion of their just claims against Japan".

Under the heading "Recommendation", it states:

It is recommended that we should not invoke Article 26"—

meaning the right to reopen the treaty—

Nor should we do so in regard to any similar Article of any Peace Treaty or reparations agreement which Japan may conclude with another country in the future unless there is a material change in circumstances. We should not of course give any publicity to this decision.

It is signed by Mr. Crowe on 25 May 1955.

Since then, at least 12 countries have signed peace treaties with Japan that give far better terms than under the San Francisco treaty. On 19 December 1955, however, it was decided that we should not reopen the treaty. That was confirmed in a document signed by Mr. Coplestone of the Treasury, which stated that

the Financial Secretary has accepted the conclusion…on general grounds of foreign relations, despite the possibility or domestic political embarrassment in connection with Allied prisoners of war… no publicity should be given to the decision… we retain our freedom to use this legal entitlement to claim on Japan…as a bargaining counter in negotiation or other claims against Japan.

That cynical approach betrayed former prisoners and internees of Japan.

If the Government are not prepared to examine the scheme further, pressure to reopen the San Francisco treaty of 1951 will continue. In 1998, the Government reviewed it and said that it was time-barred, as it was so long ago. That argument has been refuted by a series of four legal opinions obtained by former POWs and internees, most recently from Professor Ian Brownlie, QC—an extremely eminent international lawyer, of whom I suspect most hon. Members will have heard. He argued a similar point successfully in an international law case in Australia. I have a post-graduate degree in international law myself, albeit a long time ago. Having read these opinions, I believe that there is a strong argument for reopening the treaty.

What is the way forward? We should either reopen the treaty with Japan and seek reparations similar to those negotiated with Germany—we should at least use further legal opinion to check whether that is an option—or the Government should compromise on the strict rulings made in the schemes.

There are two possible compromises. First, the Government could pay those who claimed before 25 June 2001, when the blood link rule was first announced to claimants who were then rejected. That compromise assumes that the people involved claimed correctly as internees and British nationals. Of the 851 cases that were rejected, some were rejected on grounds other than the blood link, so the correct figure would therefore probably be below 600. The maximum cost of that approach would be about £6 million.

A cheaper compromise for the Government would be to pay out on the basis of residency in the UK. Claimants who had resided in the UK after the war for 20 or 25 years, and were still resident here, would be eligible for payment. That would cover the relevant people in my constituency, and those referred to by my hon. Friend the Member for Eltham (Clive Efford). The maximum number of people involved would be 314, and in fact the number would probably be rather lower, as some would be rejected for other reasons under the scheme. The total payment would amount to nearer £2 million than £3 million. That is a small amount compared with the overall cost of the scheme.

The Government were extremely generous when they set up the scheme, as was noted earlier. However, that generosity has been tarnished by the exclusion of such a small number of deserving cases. The problem has been compounded by the anomalies raised by the people who have been covered by the scheme in rather questionable circumstances. We are talking about a few hundred people at most, to whom this country's debt of honour remains unpaid.

The far east campaign used to be known as the forgotten campaign. The former internees are mostly very old now, but they will not allow themselves, or their suffering, to be forgotten. They will not go away. Next year is the 60th anniversary of VJ-day. It is time for these people to have closure in this matter, and for justice to be done. It is time for us to pay these poor internees their due.

8.56 pm
Mr. Austin Mitchell (Great Grimsby) (Lab)

I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) on securing this debate, and on his powerful advocacy of his case. I am grateful to have the opportunity to make a short contribution, of which I have made both the Minister and my hon. Friend aware. There is no need for a longer speech, as the case is both simple and straightforward, as my hon. Friend said.

This matter began with a great and magnanimous gesture by my right hon. Friend the Prime Minister. In the 1955 peace treaty, the Foreign Office did not pursue the matter of British prisoners, so as not to complicate the negotiations. My right hon. Friend was made aware in 2000 of the fact that the Foreign Office had kept quiet about the problem. He was told that preparations were in hand to bring a case before the European Court of Human Rights, which would be heard in May 2001. He realised the difficulty of the situation and understood the failure of the Foreign Office in the matter, and he agreed that such a case should be prepared.

On 7 November 2000, my right hon. Friend the Prime Minister made a statement in the Army museum that prisoners of the Japanese would be paid compensation. He also said that civilians who were interned because they were British citizens would benefit from that compensation. That was a magnanimous and wise gesture. My right hon. Friend said that the matter involved a debt of honour—as, indeed, it does.

A meeting of the relevant departmental officials took place in the Cabinet Office on 27 November 2000 to rough out how the compensation was to be paid. The minutes of that meeting state that

there was nothing to suggest from this initial response to the announcement that the original estimates of the numbers of

Japanese prisoners of war

were wide of the mark.

The minutes also stated:

UK nationals' should be defined as those civilian internees who were British at the time of their incarceration; those who became British citizens only subsequently would not be eligible for payment.

That was the position. My right hon. Friend the Prime Minister made a clear announcement and a magnanimous gesture, which was followed by a clear statement—by him and by officials—that the compensation would be paid to people who were interned because they were British at the time. However, matters went downhill from there.

The War Pensions Agency had led the earlier meeting to which I have referred, and it supported the wider definition—that compensation should be paid to all those who were British at the time. However, the agency was subsequently transferred to the Ministry of Defence, which took a different view of the matter. It was the MOD that introduced the notion of a blood link with the UK. It is important to note that that was not the case at the time. These people had British passports, were British citizens and were interned by the Japanese because they were British citizens. At the time, it was totally accepted that they were British.

The Ministry of Defence introduced the later concept of a blood link to the United Kingdom. That was an irrelevant thing to do. Migration and movement patterns are complicated, but those people were children of empire, and it was an empire that sprawled across the continents. There were Jews who went from South Africa to India and then further east to work as British citizens, holding British passports. There were civil servants, and the children of civil servants who had gone perhaps a generation or two before to work in the Indian civil service or on the concessions in China. Those children were born in the place where their fathers and mothers acted as officials. Children of empire are a race in themselves in a sense, scattered as they are over the globe. At the time, though, they were entitled to British passports and were recognised as British citizens. They were interned by the Japanese for that reason.

The later decision was irrelevant, and it was hurtful. People—most of them very old—who have been proud of being British have suddenly been told in the evening of their lives that they are not British. "No," they have been told, "we want nothing to do with you, and there is no compensation for you because you are not British." They have been told that, even though the fact that they were British was why they were interned.

It is a cheapjack decision. I am not sure how many people have been excluded—400 or 500, I just do not know. Perhaps the Minister can tell us. We will save perhaps 500 times £10,000 by taking this hurtful decision, which is peanuts.

The decision is also racist: many of the people concerned are of mixed racial origins, particularly women who married British citizens. My hon. Friend gave several examples of people of different races born in the British concessions in China. The decision is arbitrary. It is unreasonable. The Court of Appeal, of course, found it perfectly legal: it would, because the scheme is an ex gratia, and Government Departments can do anything they want with ex-gratia payments. They can decide they should go to Fred and not to Joe, and it is up to them to define whom the payments go to. The court did say, however, that the whole business had not been well handled, and that is putting it fairly mildly. The fact that the scheme is legal does not make it right. It is wrong. It is immoral.

Adjournment debates are not the occasion for Damascene conversions, and my hon. Friend the Minister has had to put up with long letters from me and other Members—

The Parliamentary Under-Secretary of State for Defence (Mr. Ivor Caplin)

indicated assent.

Mr. Mitchell

I see the Minister nodding vigorously, but I do not expect him to get up and say, "My God, you are right. Why did we not think of all that at the time? Policy will be changed immediately." Adjournment debates are not famous for that, and I do not think that I have ever produced that effect myself. I hope, however, that my hon. Friend will think seriously about the points that we have made. I hope that he will realise that a wrong has been done to a small number of people who have suffered because they were British and who should not now be deprived of the compensation that is their due. I hope that he will accept, too, that we shall not give up. This argument will go on and on; we shall raise it along every available path, and several are still open and in play. We shall continue to fight until the Government give way on this point of honour.

9.4 pm

The Parliamentary Under-Secretary of State for Defence (Mr. Ivor Caplin)

I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) on securing a debate on such an important subject. A number of right hon. and hon. Members on both sides of the House have shown a significant interest in it, and that is demonstrated by the number of them in the Chamber tonight. My experience of Adjournment debates is that they are usually attended by you, Madam Deputy Speaker, me and the hon. Member whose debate it is.

I also welcome my hon. Friend's chairmanship of the all-party group on parliamentary far east prisoners of war and civilian internees and all those hon. Members who are members of it. I have said before in the House that I would be happy to meet the group if it had a point to raise that had not previously been considered. However, let me establish the history of the subject as this is the first time that the House has had the opportunity to debate it formally since the initial announcement.

The Government established the far east prisoner of war and civilian internee ex gratia payment scheme in November 2000. My hon. Friend the Member for Kirkcaldy (Dr. Moonie) announced that in the House on 7 November that year. The scheme was intended as a tangible recognition of the unique circumstances of the captivity of those held prisoner by the Japanese during the second world war, something that is recognised by the whole House. Under the scheme, those former prisoners of war and civilian internees who qualify, and the surviving spouses of those who had died before the scheme was announced, receive an ex gratia payment of £10,000 each. Nearly 24,000 payments have been made, totalling nearly £240 million to date, and claims continue to be received. It is important that I make it clear that there are no financial constraints. We will continue to pay out on all valid claims and we have, as I have said, already exceeded the initial budget that was allocated, which was mentioned by my hon. Friend the Member for Hendon.

The scheme has been the subject of legal challenge concerning the eligibility of both former Gurkha prisoners of war and civilian internees. I intend to concentrate initially on the issues raised for civilian internees, which was the thrust of my hon. Friend's remarks. The scheme is and has always been intended to be for those who had close links with the United Kingdom at the time of their captivity. For former prisoners of war, that link is demonstrated by their service as part of our armed forces. For former civilian internees, the connection is demonstrated by their having been a British subject who was born in the United Kingdom or who had a parent or grandparent born here. I must emphasise that there has been no change in our view of those who should be eligible for the scheme.It was, however, necessary early on to clarify the meaning of the term "British" in the context of civilian claimants, and the criterion agreed was the birth link to the United Kingdom.

I thought that it would be helpful to place on record the legal process that has occurred. The birth link requirement for former civilian internees has been challenged in the courts by the Association of British Civilian Internees, Far East Region. The association was granted permission for a judicial review in 2002 and in October that year the courts found in favour of the Ministry of Defence. The association then appealed against the judgment. The case was heard in March 2003. The Court of Appeal, however, again found in favour of the Ministry of Defence and the appeal was dismissed. The association was refused leave to appeal to the House of Lords and this lengthy process finally ended last summer in a rejection of their petition seeking leave to appeal to the House of Lords.

The birth link criterion and the way in which it was introduced were most carefully considered by the courts. The Court of Appeal examined both the limitation of eligibility for the scheme

to those British subjects who had close links with the UK at the time of their internment

and the use of the birth link to establish those close links.

Their lordships also concluded that it was impossible to say that the close link criterion was irrational, or that it was irrational to introduce the birth link criterion to demonstrate a close link to the UK. Their lordships concluded that different criteria could have been devised to demonstrate the close connection: for example, one way would have been to follow the example of the Australian Government, whose equivalent scheme requires claimants to have been domiciled in Australia immediately prior to internment. In this country in the 1950s, only those British civilians who were "normally resident in the UK" before captivity and who had taken up residence in the UK after their release were eligible to receive compensation payments made in connection with the San Francisco peace treaty.

For the present scheme, the Government chose to apply a more generous criterion than those used for the administration of the 1950s scheme by adopting the birth link criterion. Their lordships dismissed the argument that the chosen criterion was irrational because it ignored the close links that some former internees had developed with the UK since the war. Government policy was to pay only those who had close links with the UK at the time of that internment, and that policy was held to be rational.

The birth link requirement was designed to give scope to the original intention of the scheme. As my right hon. Friend the Prime Minister confirmed in May 2002, in a letter to my hon. Friend the Member for Great Grimsby (Mr. Mitchell),

It was never the Government's intention to extend the Scheme to civilian internees without a close link to the UK at their time of internment.

Mr. Gale

The Minister is hiding behind legality. Will he tell the House why the people in question were interned by the Japanese?

Mr. Caplin

If the hon. Gentleman will forgive me, let me point out that tonight's debate is about the Government scheme for civilians who were interned. I am taking this first opportunity to lay out the whole process that has occurred in the past four years. I hope that by the end of my speech, which is very technical and legal in nature, he will accept that our reasons are obvious.

I have mentioned the legal challenge concerning former Gurkha prisoners of war. The House will be aware that following a successful legal challenge, the ex gratia payment scheme has been extended to include those former Gurkha soldiers held prisoners of war by the Japanese who were Nepalese citizens at the time of the negotiation of the peace treaty with Japan in the early 1950s.

My hon. Friend the Member for Hendon referred to article 26 of the 1951 peace treaty concluded between the allied powers, including the United Kingdom, and Japan. It has been suggested that the Government seek to reopen the peace treaty under article 26 on the issue of compensation, as a means of obtaining payments for those former civilian internees who do not qualify for the ex gratia payment scheme. Many hon. Members have written to me about that matter. It is claimed that the Government's decision not to seek to reopen the treaty in the 1950s deprived former civilian internees of compensation from the Japanese.

As my hon. Friend said, the matter has been considered. In 1998, the Government's position was made clear: we did not believe that there were viable legal grounds on which to seek to reopen the 1951 peace treaty. Officials from the Ministry of Defence and the Foreign and Commonwealth Office have looked again at the matter, but we still hold to that view. When negotiating the peace treaty, the Government of the day, as one of the allied powers party to the process, were negotiating as a sovereign state about its claims against Japan under international law. Exceptionally, the peace treaty made specific provision under article 16 to indemnify those members of the armed forces who had been prisoners of war, but no such provision was made for other individual citizens of the belligerent powers. However, payments were made to former civilian internees in the 1950s by the British Government using the Japanese assets that they received under article 14 of the treaty, which, it should be remembered, were for them to use as they decided.

The question of who might have benefited, and how, if the British Government had tried to re-open the peace treaty is purely speculative. Article 26 speaks of greater advantage being received by any state under a subsequent agreement, but does not provide for a comparison to be made between sums paid to individuals. The agreement that Japan subsequently reached with Burma was negotiated along the lines of article 14, but it went further by agreeing that Japan would provide products as well as services to Burma. The agreement made with the Swiss Government covered a different category of damage that was not explicitly covered by the peace treaty, and of course Switzerland, a neutral country, was not one of the allied powers.

The comparison sometimes made between the amount of money paid to individual Swiss citizens and the amount received by civilians paid by the British Government is, I have to say, not valid. Britain's decision to make payments to former civilian internees did not arise from an express provision in the peace treaty. It was the British Government's decision, and the amounts available to be paid to individuals were in direct relationship to the value of the Japanese assets held that were available to be liquidated and the number of those eligible for payment under the scheme that was established. Former prisoners of war received a payment under article 16 of the treaty, which was overseen by the International Committee of the Red Cross, and a further payment from the sale of the Burma-Siam railway. When the British Government decided to use the money that it received under article 14 to make payments to individuals, it divided it to make additional payments to former prisoners of war and also to former civilian internees. The eligibility criteria for the civilian internees covered British adults—initially only the head of the family, but subsequently both parents, if both were interned—who were normally resident in this country before internment and who returned here after their release. Children who had been interned were not eligible to receive such payments.

That is why we made the right and proper decision to establish the ex gratia payment scheme. It recognised the unique circumstances of those detained by the Japanese and that the schemes set up in connection with the peace treaty in the 1950s provided a good and effective model for our scheme. In the case of civilian internees, the eligibility criteria of the current scheme were set wider than those of the 1950s scheme so that, unlike then, those interned as children were included and normal residence in this country before internment, and return to this country afterwards, was not required, as it was in the 1950s.

There are many people who are not eligible for payments under the scheme for a number of quite different reasons. My predecessor and I have said many times that their strong feelings and disappointment are appreciated and understood. Any scheme of this nature, however, must have boundaries, and, wherever those boundaries are set, those just outside them will feel that they have not been recognised. The Government have, however, set what we feel to be reasonable and fair boundaries for the scheme and, as I said earlier, nearly 24,000 people have already benefited from it.

I know that the House is always interested in detailed statistics about the number of payments made to specific categories of civilian claimants and the numbers of claims that have been rejected. My hon. Friend has shown specific concern about issues connected with residence in this country since the war and the date by which claims were made, and my hon. Friend the Member for Great Grimsby also referred to that. I also know that there is concern that we have not always been able to supply the figures that hon. Members have sought. I confirm that where the figures are available, we have provided them, and I refer the House to replies to several parliamentary questions that were answered on 8 April 2003, 26 January 2004 and 1 July 2004. However, in some instances, the information sought is not available without checking many thousands of claim forms.

Many claims come from the surviving widow or widower or the person held by the Japanese. In the statistics held, claims from surviving spouses are listed together for all groups and not broken down according to the category of the person imprisoned. Requests for statistics on former civilian internees cannot always be broken down. In other instances, the information now asked for was not required as part of the process of validating the claim and was not sought from claimants, so it is not held by the Department.

I appreciate the concern of my hon. Friend the Member for Hendon and the arguments that he advanced about why and how some people should and could be included in the scheme. I understand his view that the number of people he seeks to include in the scheme could be relatively small. I am afraid, however, that the introduction of new criteria such as those that he suggested this evening would leave us open to complaints of unfairness from former civilian internees who still fell outside the scheme because they met neither the existing nor the new criteria. It would also leave us open to complaints from other groups who would like new eligibility criteria to be introduced for the scheme so that they, too, could be included. Ultimately, the result would be to call into question the integrity of the whole scheme, and I do not believe that that is the House's intention.

I said earlier that I would of course examine new issues that any Member of the House wishes to raise. I noted the points made by my hon. Friend the Member for Eltham (Clive Efford) and I will certainly study the detailed points made by my hon. Friends the Members for Hendon and for Great Grimsby to see whether a further response would be appropriate.

Richard Younger-Ross (Teignbridge) (LD)

rose—

Mr. Caplin

I am afraid that I will not give way.

In conclusion, I am afraid that I cannot consider any suggestions that effectively seek to reopen issues that have been settled by the judicial processes of the United Kingdom.

Question put and agreed to.

Adjourned accordingly at twenty-two minutes past Nine o'clock.