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Final reportdoc - DRAFT 12

By Hazel Kennedy,2014-05-06 10:29
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Final reportdoc - DRAFT 12

REPORT TO THE MINISTRY OF DEFENCE ON INVESTIGATION INTO

    CIVILIAN ELIGIBILITY CRITERIA FOR EX-GRATIA PAYMENTS TO

    FORMER FAR EAST PRISONERS OF WAR

Introduction

1. On 7 November 2000 the then Under-Secretary of State for Defence

    and Minister for Veterans announced a scheme for ‘a single ex-gratia payment

    of ?10,000 to each of the surviving members of British groups who were held

    prisoner by the Japanese during the second world war, in recognition of the

    unique circumstances of their captivity’. These groups included, as well as service and other personnel, ‘British civilians who were interned’.

2. This announcement was widely welcomed at the time, as was the

    *performance of the then War Pensions Agency in making 14,000 payments within the following three months.

3. Since then, however, the scheme has attracted a good deal of criticism,

    including in Parliament, by lobby groups and by means of several judicial

    reviews, much of it focussed on the way the scheme has played out in relation

    to civilian internees. This criticism culminated in a report by the Ombudsman,

    ‘A Debt of Honour’ published on 12 July 2005, which was severely critical of

    the Ministry of Defence (MoD); a like-named report from the Public

    Administration Select Committee (PASC), published on 18 January 2006, was

    similarly critical. In essence, these criticisms focussed on the eligibility criteria

     * Some explanation of nomenclature is necessary. Until June 2001 the WPA was an

    agency of the DSS. In the files that I examined references to it from external sources

    such as the Cabinet Office were normally simply to the ‘DSS’ and I have followed that

    when quoting from the papers. Save in those quotations, references to the ‘DSS’ mean

    the central core of the Department as distinct from the Agency. As to the Agency, its main

    part was in Blackpool, but from 1999 it also incorporated a policy unit based in London.

    Where that distinction is relevant, I refer respectively to ‘Blackpool’ and ‘the policy unit’;

    where it is not relevant I refer simply to the ‘WPA’ or ‘Agency’. This point, which is of

    material importance, is more fully explored in paragraphs 65ff of Annex B. The WPA

    transferred to MoD in June 2001 and became the Veterans Agency in April 2002.

for civilian applicants which were imported into the scheme in March 2001,

    several weeks after its initial implementation, and resulting in differential

    treatment of applicants depending on date of application. These criteria were

    known as the ‘birthlink’ or ‘bloodlink’.

4. Shortly after the PASC report the then Veterans Minister appointed me

    to conduct an investigation with the following terms of reference:

    to address

    a. how the original inconsistencies arose, identifying any specific

    shortcomings in the development and implementation of policy

    b. how subsequently the departments involved failed to identify that

    there had been inconsistencies, despite the need to explain the

    Government’s position in Parliament, in the courts and to the

    Parliamentary Ombudsman, and

    c. whether there are any lessons to be learnt for the future from

    such shortcomings as are identified in the development of the scheme

    and in its administration.

5. I was asked to submit a progress report to the Veterans Minister before

    the end of March (delivered on 16 March) and a full report before the summer

    recess. This is the full report.

Approach

6. As required by my terms of reference, I have reviewed the relevant

    papers held by the MoD, including those of the former War Pensions Agency

    and its policy unit, and also those in the Cabinet Office.

7. I have also interviewed a range of people interested in the scheme:

    ? Andrew Dismore MP, chair of the Commons All-Party Group on

    former Far East prisoners of war

    ? the Ombusdman and her staff

    ? Mr Ron Bridge, the chair of the Association of British Civilian

    Internees Far Eastern Region (ABCIFER)

    ? Professor Jack Hayward, the applicant whose rejection was the

    subject-matter of the Ombudsman’s report

    ? lawyers representing applicants in the ABCIFER and Elias judicial

    reviews

    ? Lord Moonie, in 2000 the Minister who announced the scheme

    ? serving and retired officials in the Cabinet Office and MoD, including

    the Veterans Agency.

8. I am very grateful to all those I met for generosity with their time and the

    openness with which I believe all sought to contribute to the discussions.

9. I am also very grateful to the staff in MoD, including the Veterans

    Agency, who provided me with logistical support for this review. I was

    appointed as an independent person who, as a former Northern Ireland civil

    servant, has never worked for any of the departments concerned: this report

    would have been impossible without that support, but I am entirely satisfied

    that my findings have been reached independently.

Some overall remarks

10. The scheme announced in November 2000 was by any standard

    unusual: it aimed at dealing with an historical question of a most sensitive kind

    likely to arouse very deep emotions particularly amongst potential applicants

    many of whom felt strongly that their exceptional suffering at the hands of the

    Japanese had never been properly acknowledged. The 1950s scheme for

    payments to be made to former prisoners of war, financed from the liquidation

    of Japanese assets and amounting to ?76.50 for military personnel and ?48.50

    for civilian internees must have seemed, by comparison with the experience

    endured, almost as ungenerous then as it does now. On 9 March 2000 Martin Bell, the then Member for Tatton, had said in the House of Commons in relation to Far East prisoners of war: ‘…every now and then, a cause comes along that is so just, so right, so compelling and irresistible that it has to be adopted. Such is the case that I speak of today the case for a one-off British

    Government gratuity to our heroes…’. Hence the 2000 scheme sought to deal with, in the words of Ministers and titles of both the Ombudsman’s and PASC’s reports, a debt of honour. That is essential backcloth to any assessment of the scheme.

    11. This report is inevitably about shortcomings in aspects of the scheme. But I am anxious to make two preliminary points based on my investigation. The first is that, whatever subsequently transpired, the then War Pensions Agency in Blackpool (WPA) as well as others involved performed admirable feats in managing to put in place, completely from scratch and within less than three months, arrangements enabling 14,000 payments to be made on 1 February 2001 alone and to date an overall total of some 25,000 payments.

    My conversations with Agency staff in Blackpool revealed the scale, and success, of the initial effort: additional staff recruited and trained, office space identified, IT, telephone and security systems to be installed, banking processes established, forms and processes designed, safekeeping of some 70,000 important personal documents arranged and much else besides. ABCIFER and others were generous in their praise for that, and it is very unfortunate that that aspect has tended to be overlooked subsequently. Reading some of the many gracious letters of thanks from recipients further underlined for me the importance of this point, just as reading about and listening to expressions of the hurt and offence felt by those turned down brought home to me the impact of the shortcomings of the scheme.

    12. The second is that, as I hope this report will demonstrate, I have found no evidence of culpable behaviour amongst the officials involved: shortcomings and inadequacies certainly and things which, with hindsight, should have been done better, and these resulted in maladministration and distress to a group of people who had already suffered as a result of their

    internment. I seek to expose those failings frankly and fairly in this report. But I have developed the clear view, based on my discussions with those involved and on reading the original papers, that there is no ‘worm in the apple’ or individual official who could reasonably be said at any time to have acted negligently, maliciously or incompetently either as an individual or as part of a wider team. I assess that about 30 officials drawn from six departments were involved regularly in the design phase alone (October 2000 May 2001): the

    shortcomings and inadequacies represent collective and systems failures rather than egregious failures at individual level. (An example of this distinction can be taken from the failure to consider, in November 2000 or March 2001, if the provisions of the Race Relations Act 1976 might be engaged, as already acknowledged by the Government in relation to the military side of the scheme. More than a dozen officials attended these meetings, but none with specific responsibility for this particular issue. I judge that to attribute this failure to any one official or even a small group would be wholly unjust.) In fairness, therefore, I have sought to avoid naming officials save where their names are already in the public domain through witness statements etc (and where individual names are mentioned on that account, no particular culpability is implied). There may be some readers of this report who will disagree with this approach, but I believe it is the right one to adopt in the face of the facts as I have found them.

    Structure

    13. Attached to this report are two annexes. The first is a selection of dates in the development and implementation of the scheme which seem to me to have a particular bearing both on its outcome and also on an understanding of what happened. I hope it will also serve as an account of the essential development of the scheme and so put in perspective specific observations in the body of this report without having to provide an extended description of the development of the scheme as a whole, though it has not removed the necessity to provide a detailed account of particularly critical stages.

14. That is contained in the second annex which seeks to meet the first two

    items of my terms of reference. This analyses the detailed steps in the

    process at various crucial stages and is in essence the evidence underlying

    my conclusions and recommendations.

15. Accordingly, I come now to the third item in my terms of reference, and

    in effect my conclusions and recommendations.

Lessons to be learnt for the future from shortcomings identified in the

    development of the scheme and in its administration

16. Based on the analysis in Annex B, my conclusions and

    recommendations are as follows:

    a. haste made an important contribution to the failings in the

    scheme. (See particularly Annex B, paragraphs 2-17.) There was a

    range of reasons for urgency in this case, and it would be naïve to think

    that urgency can be eliminated from government business despite the

    best-planned approach to its conduct. But paradoxically that puts a

    premium on high standards of administration, rather than permitting

    something less

    b. there was insufficient administrative thoroughness, including

    research, at several points. (See for example Annex B, paragraphs 10,

    32, 37, 41-2.) This may be an unglamorous and unexciting point, but

    my analysis has shown in several places that failure to observe

    sufficiently high standards of administration ensuring that complexity

    and intricacy were both recognised and bottomed out, establishing a

    work programme setting out issues to be covered, checking that those

    issues had in fact been covered, undertaking fundamental analysis and

    research (a point of particular importance when the issue in question

    has important historical dimensions), adequately minuting meetings,

    precision in the use of terms made a material contribution to the

    problems that arose subsequently. In relation to this scheme many of

these failings doubtless flowed from the haste with which the work was

    undertaken, but it is paradoxically in just those circumstance that the

    old-fashioned virtues of ‘very good and careful work’ are the more important

    c. for what it is worth, I endorse the Ombudsman’s recommendations (paragraphs 224 and 225 of her report) that all issues

    relevant to ex-gratia schemes should be examined before

    announcement and any subsequent variations announced and

    explained to those affected. I would add two riders: first, if a scheme

    must be announced before all the issues have been examined, that

    should be clear in the announcement and a further one made when

    they have been fully bottomed-out. Second, variations to schemes,

    however immaterial they may seem, need to be examined to establish

    the extent to which they might impact on the handling of applications

    decided to that point and so to check for fairness and consistency. (See

    particularly Annex B, paragraph 11.)

d. consideration of whether any new scheme should be put on a

    statutory footing should include the argument that the very process of

    legislation can both increase confidence in the scheme and provide

    protection, in this case through potentially bottoming out definitional

    issues. (See Annex B, paragraph 12.)

e. there was insufficient consultation of a structured kind with

    ABCIFER in particular. (See Annex B, paragraph 13.) Whether

    legislation is favoured or not, there is a very strong case in devising

    schemes (or in making material variations to existing ones) for

    considering structured consultation with external stakeholders. This is

    strongly advocated in the 2004 Cabinet Office Code of Practice on

    Consultation, which allows for proportionate application according to

    circumstance, but consideration should be given to consultation, on

    pragmatic as well as principled grounds, even if time pressures or other

    factors seem to militate against it. This case amply illustrates the

potential penalties in both time and substance in not consulting in a

    structured way had ABCIFER been consulted in a consistent, formal and detailed way between 7 November 2000 and the New Year 2001,

    which would in my judgement have been possible, much subsequent

    heartache could have been avoided for both sides. Nor does the

    process have to involve written consultation such as by means of a

    green paper or other publication, or become the enemy of good

    government by unnecessarily prolonging or even paralysing decision-

    making. It should be proportionately tailored, and managed, to fit

    requirements. (I note in passing the wisdom of Don Touhig’s political

    instinct in co-opting Andrew Dismore and ABCIFER on to the group

    newly set up to thrash out future eligibility criteria for the scheme.)

f. there were striking instances where failure to translate policy

    decisions into working guidance for staff in the WPA led to excessive

    risk and to inconsistent outcomes. (See particularly Annex B,

    paragraph 37.) The implications of those decisions were not worked

    through into tests and criteria to be applied (in other words, not just the

    absence of a standard operating manual on which see the next sub-

    paragraph). It is important that departments go through this process as

    a necessary precursor to developing detailed guidance for staff in order

    to ensure that policies are fully bottomed out and capable of being

    operationalised. In this case speed seems to have initially militated against that, but it might well have uncovered the weaknesses which

    caused the inconsistencies in criteria

g. in administering schemes of this kind involving many staff

    assessing applications and particularly where judgment is required, it is

    important that standard operating procedures should be available. In

    this case again speed militated against the preparation of detailed

    guidance: a standard checklist was followed instead (and detailed staff

    guidance would not in any case have exposed the underlying problem

    of inconsistency in criteria), but it was not until January 2003 that formal

    written guidance was issued within the Agency. (See Annex B,

paragraph 37.) It is unacceptably risky to proceed without such

    guidance for more than very short periods. (That relatively few

    mistakes seem to have been made and no evidence of material fraud

    and in mentioning this point I am in no sense impugning the applicants

    or any other particular grouping involved seems to have arisen is a tribute to the staff and their direct management.)

h. there was no empirical testing of the criteria for the scheme to

    assess their likely impact, either initially or in March 2001 when the

    birthlink was adopted. (See Annex B, paragraph 14.) Time

    undoubtedly militated against this. But, as a principle, there is much to

    be said for applying the principle of empirically-based policy-making

    including road-testing of new schemes wherever possible. This is

    widely recognised but is very easily overlooked, especially when policy

    is being made at speed. Those managing the process ought to ask the

    unwelcome questions of ‘why not?’ even in such circumstances

i. the same goes for reviewing the impact and outcome of schemes

    and policies, perhaps particularly when there has been little or no

    chance to ground them empirically beforehand. Had a review or audit of this kind been insisted upon (though I acknowledge the question of

    resources would have arisen), many problems might have been headed

    off (and resources saved in the longer term). (See Annex B,

    paragraphs 77-81 and 86-87.)

j. the facts that no such review or audit of the scheme was

    undertaken and that the MoD’s monitoring of the Agency did not prompt

    one suggest that there may be a case for reviewing the governance

    arrangements between the Veterans Agency and the MoD. It is the

    case that structural arrangements between the two have changed since

    the events under review, but I recommend nonetheless that MoD satisfy

    itself that the sponsorship and monitoring arrangements, including

    informal exchanges as well as formal mechanisms, are effective

    k. there was insufficient clarity surrounding respective roles and responsibilities both between and within departments, particularly at the start, and this materially contributed to the problems at issue. The uncertainty of the relationship between the Agency’s policy unit in London and the operation in Blackpool I found particularly worrying. (See Annex B, paragraphs 56-66.) Respective roles and

    responsibilities both within and between departments must be clear at the outset of work, and any uncertainties that may later arise resolved. That should extend to clarity about the respective roles and responsibilities of the Cabinet Office and functional departments when, as in this case, the Cabinet Office is charged with providing co-ordinated advice for Ministers and then remains involved, even if only in an overseeing role, in execution of the resulting policies. Finally, the

    case for identifying a project manager with overall responsibility and authority for the scheme should always be considered; if one is not appointed, the reasons and alternative arrangements must be clear.

    There also needs to be clarity, and effectiveness, in working relations between the core department and agencies, which in this case did not

    seem up to the task at either the formal or informal level another

    factor behind the preceding recommendation

    l. I was struck that the MoD has no tailored departmental guidance for dealing with the Ombudsman’s office and inquiries from it, and recommend that this be rectified. Such dealings should not feature

    extensively in the experience of most officials. The Ombudsman concluded a total of 17 investigations in relation to the MoD in 2004-05, a fairly small number when the scale of the department is taken into account. (Perhaps unsurprisingly since the MoD does not have extensive contact with citizens other than veterans or serving armed forces personnel, I understand that the bulk of complaints relate to the Veterans Agency.) But that makes such guidance the more important, setting out the powers and role of the Ombudsman and the Department respectively, the internal process for handling complaints which should be based on best-practice principles for complaints-handling,

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