• In the case of R on the Application of British Civilian Internees Far Eastern Region v Secretary of State for Defence [2003] ewca civ 473, the principles of proportionality and rationality vary in terms of their intensity, and it is a decision for Parliament whether or not to consider proportionality as a separate means of judicial review.

Facts of the Case

  • D, who was the Defence Secretary, formed a compensation scheme for ABCIFER, which represented C, the civilian interned by the Japanese during World War II
  • C were the individuals that were refused compensation as they were not born in the UK, neither were their grandparents, and nor did they have any close relations in the UK while they were interning.
  • C subsequently applied for judicial review for the decision to refuse compensation based on the criteria for close relations to the UK on the grounds that it was irrational/disproportionate. They also argued that it did not necessarily meet their well-grounded expectations.


  • Was the criteria for compensation deemed reasonable?

Held by Court of Appeal

  • The Court of Appeal dismissed the appeal and the Wednesbury test was upheld in that it was the appropriate test to be applicable where the ECHR were not relevant.

Lord Phillips M.R.

  • The Court of Appeal was hesitant to consider reducing the importance of the Wednesbury test and that such a decision could only be made the by its seniors, that includes the House of Lords and Parliament.
  • “…we have difficulty seeing what justification there is now for retaining the Wednesbury test.  But … it is not for this court [ie. the Court of Appeal] to perform its burial rites.  The continuing existence of the Wednesbury test has been recognised by the House of Lords on more than one occasion… It seems to us that this is a step which can only be taken by the House of Lords” [35-37]

Dyson LLJ

  • The court considers whether or not the criteria is rational poses this question to the first part of the criteria: close links with the UK during the time of internment and bases their decision with consideration to the adaptation of the UK from the time of war.
  • At the time of internment, large numbers of British subjects had no links with the UK save for their being British subjects by reason of the 1914 Act. By the time the scheme came to be set up, the UK had become a medium-sized European country which had lost its empire. The situation was very different from what it was at the time of the war when Britain controlled a huge empire. No doubt, the Government could have decided to include in the scheme all those who were British subjects at the time of their internment who were not entitled to compensation from their home countries. But its failure to do so was not irrational [42]