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R (on the application of British Civilian Internees - Far Eastern Region) v Secretary of State for Defence

[2003] EWCA Civ 473

Case summary last updated at 05/01/2020 18:59 by the Oxbridge Notes in-house law team.

Judgement for the case R (on the application of British Civilian Internees - Far Eastern Region) v Secretary of State for Defence

Govt announced a non-statutory compensation scheme for British citizens who were interned by the Japanese during WWII, but later govt said that  it would only compensate those who had either been born in England or had English parents at the time of the interning. Ps sought to challenge the latter limb under judicial review. CA said that the later “clarification/modification” was not Wednesbury unreasonable nor disproportionate. 
 
Dyson LJ: “We have difficulty in seeing what justification there now is for retaining the Wednesbury test” but said that because of its endorsement by several HL authorities he could not “perform its burial rites”. Keeping Wednesbury and proportionality in separate compartments is “unnecessary and confusing” (per Lord Slynn in Alconbury). He says that proportionality is more “precise” test, while Wednesbury has been adapted anyway in recent years so as to cover more than merely the most extreme decisions, and is moving towards a proportionality-style test. 

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