R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213

Key point

  • The restriction of compensation for wartime internment to UK born subjects or those with British parents or grandparents was racially discriminatory and disproportionate under the Race Relations Act 1979
  • The exercise of a prerogative power is not subject to judicial review for fettering of discretion as the executive has free reign in determining the exercise of prerogative powers


  • The claimant (E) was born in Hong Kong, as a British subject
  • British officials handed her into Japanese custody during the latter’s occupation of Hong Kong in World War 2
  • After her liberation in 1945, E lived on and off in the UK and then permanently became a UK citizen in 1976
  • To be eligible for the non-statutory Far Eastern Prisoner of War Ex-gratia Compensation Scheme (2000), a former internee had to have been born in the UK or have a British parent or grandparent
  • E’s application for compensation was denied as she did not meet the criteria
  • E sought judicial review on two grounds:
    1. the eligibility criteria entailed both direct and indirect racial discrimination in breach of s71 Race Relations Act 1976, which imposed on the Secretary of State the duty to have regard to the need to eliminate unlawful race discrimination in carrying out his functions
    2. the scheme was an unlawful fettering of discretion in the exercise of common law public powers

Held (Court of Appeal)

  • The discrimination was not directly racial; however, the eligibility criteria was indirectly racially discriminatory and disproportionate to its aim and thus unjustified
  • The criteria did not amount to an unlawful fettering of discretion

Mummery LJ

s71 Race Relations Act

  • ’Although place of birth is not a racial ground, it may be prohibited as an indirect form of discrimination, subject to the defence of justification’: [122]
  • There was no proper attempt to achieve a proportionate solution or effort to balance the aim of limiting the payment to UK linked people and the potential detriment of the people discriminated against
  • A three-stage test for proportionality was applied: ‘First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?’: [165]
  • The first test was satisfied: ’In my judgment, the judge was right to conclude that overall the aim of confining the payments to those with close links with the UK was a legitimate one’: [144]
  • The second test was not justified: ‘the birth link criteria produce anomalous or even absurd results, because there is no real match between the end and the means. An applicant who did not have a close connection with the UK would qualify simply because his or her mother was on holiday here at the date of birth.’: [177]
  • The third test was not satisfied: ‘there was no proper consideration of whether there were other less discriminatory means of restricting payments to those with a close link to the UK, there is no evidential basis for finding that the birth link criteria were the only criteria that were reasonably necessary and proportionate to achieve the legitimate aim.’: [178]

Fettering of discretion

  • ‘The analogy with statutory discretion, as in the British Oxygen case [1971] AC 610, is a false one. It is lawful to formulate a policy for the exercise of a discretionary power conferred by statute, but the person who falls within the statute cannot be completely debarred, as he continues to have a statutory right to be considered by the person entrusted with the discretion. No such consideration arises in the case of an ordinary common law power, as it is within the power of the decision-maker to decide on the extent to which the power is to be exercised in, for example, setting up a scheme.’: [191]

Form of relief

  • E had no claim to any kind of payment: ‘The role of the court was limited to determining the lawfulness of the scheme and did not extend to formulating or administering it or to deciding individual applications. The judge was clearly right in not acceding to the application to order the Secretary of State to pay £10,000 plus interest to Mrs Elias.’: [200]


  • ’Elias marked a green light for judicial activism in relation to the equality duties… post-Elias there has been a rapid growth in judicial review actions based upon the equality duties. ’:Judicial enforcement of the duties on public authorities to promote equality, Mark Bell, P.L. 2010, Oct, 672-687, p.678-680