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Clause 1 — Creation of office of Service Complaints Commission

Armed Forces (Service Complaints and Financial Assistance) Bill [Lords] – in the House of Commons at 3:42 pm on 9th March 2015.

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Photo of Rory Stewart Rory Stewart Chair, Defence Committee 3:42 pm, 9th March 2015

I beg to move amendment 24, page 1, line 9, leave out “is”

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons

With this it will be convenient to discuss the following:

Amendment 25, page 1, leave out line 10 and insert—

“(a) has been a member of the regular or reserve forces in the last five years ending with the day on which the appointment is to take effect, or”

Amendment 26, page 1, line 11, after “(b)”, insert “is”

Amendment 27, page 1, line 13, at end add—

“(4A) (a) The period for which a person is appointed shall be not less than five years and not more than seven years.

(b) A person who has been appointed as Ombudsman may not be re-appointed to the office.”

Amendment 28, in clause 2, page 3, line 15, at end insert—

“(5A) Before making regulations under this section the Defence Council must consult the Service Complaints Ombudsman.”

Amendment 23, page 5, line 15, at end insert—

“(2A) Regulations made under section 340E(1)(b) must specify that in relation to any service complaint which includes allegations of discrimination, harassment, or of being victimised as a result of making such allegations—

(a) where a person is appointed by the Defence Council for the purposes of section 340C(1)(a) or 340D(2)(d) that person must have a proven understanding of discrimination and harassment;

(b) where a panel is appointed by the Defence Council for the purposes of section 340C(1)(a) or 340D(2)(d) at least one member of the panel must have a proven understanding of discrimination and harassment.”

This amendment would require that any regulations made by the Secretary of State must specify that the person, or at least one of the panel members, involved in dealing with Service complaints involving allegations of discrimination or harassment should have a proven understanding of discrimination and harassment.

Amendment 29, page 7, line 32, leave out subsection (2).

Amendment 30, page 7, line 34, leave out from “subject to subsection (2),”

Amendment 31, page 7, line 39, leave out subsection (5).

Amendment 32, page 9, line 25, leave out paragraph (c) and insert—

“(c) provision for the imposition on those to whom reports are sent of obligations of confidentiality in the interests of—

(i) national security; or

(ii) the safety of any person.”

Amendment 33, page 9, line 30, at end insert—

“(aa) accept the findings and recommendations of the Service Complaints Ombudsman.”

Amendment 34, page 9, line 32, leave out “(if any)”

Amendment 35, page 9, leave out lines 35 to 37.

Amendment 36, page 12, line 14, at end add—

“( ) The Ombudsman may report to the Secretary of State on any matter relating to service complaints and the procedure for the handling of service complaints as the Ombudsman considers appropriate.”

Photo of Rory Stewart Rory Stewart Chair, Defence Committee

These very important amendments were tabled by the Defence Committee. We shall not press them to a vote, but we want to explain crisply and clearly why we believe them to be very important. They focus above all on four things: the independence, freedom, power and scope of the ombudsman. I shall briefly go through each of the amendments in turn.

The principle on which the Defence Committee has acted is the need to get the balance right with regard to the very particular needs of military law and military discipline, which we accept are completely different from those in the civilian sphere. The kinds of things that soldiers are required to do are quite different from those required by a conventional employer. It is not necessary to lay those differences out in detail, but military discipline and military law have been quite different from civilian law in a series of important respects for 400 years.

It is important that, along with preserving the independence of the military and of military discipline and military law, we ensure that the ombudsman is genuinely trusted and respected. The first ingredient of that is, of course, the ombudsman’s independence and making sure there are no conflicts of interest, which is what the first set of amendments in this group—amendments 24 to 27—seek to ensure. They would make sure that the individual had not been in the military—either in the regular or the reserves—in the previous five years. That conflict of interest is obvious, so it is not worth trying the House’s patience. Put simply, if someone had been a senior general a month before they became the ombudsman, there would be a potential conflict of interest in the relationships they might have developed, so we think that a five year gap is sensible.

The second ingredient, which is in amendment 27, is to push for the term to be non-renewable. That is also about having no conflicts of interest: as the ombudsman do their job, they should not be perpetually thinking about how to get the job again. Our focus is on ensuring that they do the job clearly and crisply, without worrying about whether they will be reappointed—that is independence.

The second set of amendments, Nos. 28 to 32, deals with the freedom of the ombudsman. The Committee is pushing to ensure that the Ministry of Defence and the Defence Council do not put regulations or procedures in the way of the defence ombudsman or the Service Complaints Commissioner for the Armed Forces that prevent them from doing their job. We are trying to ensure that although the Ministry of Defence can set the parameters within which the ombudsman operates, it is not in a position to micromanage individual procedures. We believe that the Ministry of Defence should consult the ombudsman on regulations. Finally, on the question of power, we do not believe that the Ministry of Defence should be able to use confidentiality as a reason for denying access to the ombudsman, except in two particular cases: the personal safety of the individual and national security. Except in those cases, the ombudsman should have the scope to pursue an investigation.

The third conceptual issue for the Committee is about the power of the ombudsman. In amendments 33 to 35, we argue that the ombudsman’s recommendations should be binding on the Defence Council. The final conceptual issue is about scope, and amendment 36 touches on thematic reviews. In other words, should the ombudsman find a systemic issue—say, repeated examples of bullying—it may think it necessary to conduct a thematic review of the broader issues.

The Committee will not press the amendments to a vote because the Government have so far addressed them in a constructive fashion. We very much welcome the fact that they have accepted our major amendment to allow the ombudsman to look not simply at maladministration but at the substance of cases. We note that the Government, in appointing Nicola Williams, have already taken into account in practice many of the recommendations that the Committee wanted. We note that in the contract negotiations with her the Government have already ensured that the ombudsman appointed has not been in the armed forces during the previous five years—in fact, Nicola Williams has never been in the armed forces—which deals with our amendments 24 to 26. We note that the Government have said that the appointment will be non-renewable, which is our amendment 27. In practice, the appointment deals with the conflict of interests problem, and we understand that the Government will set out measures in regulations to deal with our anxieties about freedom, power and scope.

However, the Committee will of course watch the Government’s performance on such issues very carefully. Given that the Government do not want to agree to the amendments, that they assure us we can trust them and say that we should look at the precedent set by the appointment of Nicola Williams, and that they will introduce individual regulations to achieve all the measures that the Committee want, we will watch them very carefully. The Committee reserves the right to reintroduce the amendments, particularly in the Armed Forces Bill to be introduced in the next Parliament, if we believe the Government have reneged on what at the moment appears to be a commitment made in good faith, to ensure that the ombudsman’s principles are upheld.

Photo of Bob Russell Bob Russell Liberal Democrat, Colchester

I am grateful to the Chairman of the Select Committee for the way in which he is setting out its views. Will he expand a little more on the concerns expressed in some quarters about the ombudsman not having any military knowledge and experience? How will she address that problem, if it is a problem?

Photo of Rory Stewart Rory Stewart Chair, Defence Committee

My hon. Friend raised that central question during the Defence Committee’s pre-appointment hearing. We were very pleased that the Committee had an opportunity to meet Nicola Williams and to conduct a pre-appointment hearing with her. We focused very heavily on whether, without military experience, she would feel comfortable in the role. We were very impressed by Nicola Williams. Her arguments and explanations were extremely convincing, she displayed real independence in her role in the Cayman Islands, and she seemed to have the right balance of independence and respect for the institution. We were very happy, as a Committee, to approve her appointment.

To conclude, this matter is very important to the Defence Committee. We are not conventionally a Committee that looks at legislation. The nature of our work is not usually to scrutinise individual Bills, because a great deal of the work of the Ministry of Defence is not connected with legislation. However, we feel that it is very important in the setting up of the ombudsman that Parliament, and the Defence Committee in particular, is carefully involved.

We accept that it is a step in the right direction that the post of ombudsman has gone from thee days a week to a full-time job, and from having five employees to having more than 20. We accept that it is a good move that the Defence Committee has the power to hold an appointment hearing on the ombudsman. We also think it is good that the Government have accepted amendments from the Defence Committee. Aside from the inherent merits of those amendments, it is simply good procedure that in setting up an ombudsman, the Executive listen to the legislative branch and give Parliament and the Defence Committee the chance to influence the procedure. The ombudsman will have trust only if they bring not just the Ministry of Defence but Parliament, the public and institutions such as the Defence Committee with them. On those grounds, I move the amendment, but will not press it to a vote.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

I shall speak briefly to the amendments tabled by the Defence Committee and to amendment 23, which I tabled.

The armed forces, as I frequently tell my constituents, are a closed institution with their own language, dress code and standards. Most personnel live a closed life that is mostly unobserved by society, but which represents the highest values of our society. The armed forces also have their own internal disciplinary system and legal system—AGAI 67. Abuses of the system can remain hidden and have done, as seen in the double jeopardy cases I have discussed in the House and in the Public Bill Committee. Those cases were revealed only because of whistleblowers.

One of the most important things we must accept about the armed forces is that innate to them is a huge desire for justice. Armed forces personnel have a huge recognition of the importance of justice and the importance of people being dealt with fairly. However, papers frequently come through my office that demonstrate that the service complaints system to date has not necessarily been working fairly.

I welcome the changes that the Minister of State, Ministry of Defence, Anna Soubry, accepted in Committee. I also welcomed her intervention on Second Reading when she revealed that the issue of double jeopardy would be addressed. I hope we shall have regular updates on the efforts to access the 587 ex-employees, 194 of whom had their service terminated and five of whom had their rank reduced.

Armed forces personnel have limited access to employment tribunals. It is therefore critical that the internal system operates well and gives a sense of confidence to armed forces personnel. We know that the delays are growing. As the number of armed forces personnel decreases, the pressure on personnel increases. The number of people who investigate and adjudicate in the matter of service complaints is also decreasing. As I have said, the creation of the service complaints ombudsman and the changes that were introduced in Committee are the last chance for the armed forces to maintain the current closed system.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

In Committee, the delays for serving soldiers and those employed by the Ministry of Defence in getting their complaints heard concerned me greatly. There are also people who have lost their jobs or who have been suspended—one of my constituents has been suspended for four years on full pay. Will the proposed changes restore much-needed confidence in the process?

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

In many respects that is the critical issue, and I hope the Defence Committee will take an active role in monitoring and adjudicating on whether we need to come back to the Bill and decide whether further changes are necessary. Papers that I received this morning tell me that 74% of the Army’s open service complaints exceed the 24-week deadline—six months—and only 51% of new service complaints in the RAF were resolved in 24 weeks during 2014. In January 2015, the Army had 724 service complaints outstanding from 2013 and previous years. The Navy had 144, and the RAF 165. Those figures are deeply worrying—we are about to introduce a new, complex system with opportunities for the ombudsman to be much more proactive in intervening in service complaints, yet we already have a huge backlog of complaints. I would like the Minister to address whether those outstanding complaints will be subject to the new rules introduced by the Bill, and whether they will be assessed under rules of maladministration. That will be one of the critical deciders as to whether there is confidence for those who have been held in the system and experienced horrendous delays.

Parliament sets the standards that it expects our armed forces to operate to, and it must have confidence that the internal military system works. As I said, Parliament has the opportunity in 2015 to review further the operation of the service complaints system, and to remove control of the system from the chain of command unless we see the changes that we want and our armed forces deserve. Internal papers that come our way suggest that, increasingly, reserves will be used to help to deal with complaints. Will the Minister say how often reserves will be used to sit on panels and change the way that complaints are dealt with?

There are positives to using reserves, because they come with a wider perspective of life outside the armed forces and know how some of the bullying and harassment, and some of the horrendous cases that have come to public attention, would be dealt with in a wider employment setting. That could be a constructive move forward, but it is important at least to be clear about what is happening, whether reserves are being used in that way, and what skills they are bringing to the complaints system and its operation.

There are a number of complaints within the current system such as poor quality entry of complaints into the joint personnel administration system, which is where complaints are held. Indeed, in December 2014 the service complaints wing identified more than 70 service complaints that had not been notified through the unit as a service complaint, and had not been entered on to the system. We therefore do not even know whether we are still getting accurate figures for service complaints. On delay, as I have said, the numbers are growing. It is important that people feel confidence in the system, and that the system is seen as robust and working.

I wish to speak briefly to my amendment 23, which deals with the training of armed forces personnel in matters of discrimination and harassment. The amendment requires that regulations made by the Secretary of State must specify that the person, or at least one of the panel members, dealing with service complaints involving allegations of discrimination or harassment should have a proven understanding of discrimination and harassment. The amendment is welcomed by the Equality and Human Rights Commission. Parliamentary questions I asked last year revealed the military’s lack of understanding on these issues. When I raised the question of how many people in the armed forces had had equality and diversity training, I was told that Royal Navy serving personnel receive two hours of training every two years. In the Army there is half an hour of training every year, and in the RAF there is two hours every three years. For new entrants to the armed forces, the Royal Navy provides three hours, the Army two hours and the RAF two and a half hours of equality and diversity training.

Armed forces personnel go to employment tribunals in very few cases involving discrimination. At the same time as I was receiving that answer from the Minister, the Ministry of Defence was being taken to an employment tribunal. In the judgment for Williams v. Ministry of Defence, the employment tribunal stated that the

“cavalier and abject failure to follow the clear guidelines provided by the Code of Practice under the Equality Act 2010 and its predecessor legislation is shocking as too is the seeming lack of knowledge of and education in issues of equality by those in higher ranks within the organisation”.

The tribunal found the claimant, the most senior ranking nurse in the Royal Navy, had suffered sex discrimination in relation to promotion. It made 13 wide-ranging recommendations, including equality and diversity training for those involved in assignment, promotion and recruitment decisions.

In another case, Boswell v. MOD, from 2013, we find yet more evidence of the impact that this lack of basic understanding can have. The employment tribunal commented that in dealing with Mr Boswell’s complaints of discrimination, the MOD had

“very much let down a distinguished and long serving member of the armed forces” and that a

“lack of proper appreciation of the importance of addressing discrimination complaints have been a very real barrier to any clear thinking on the part of the respondent in addressing the discrimination that the claimant has sought to complain of internally.”

I do not intend to press amendment 23 to a Division, but I hope that this issue will be dealt with in regulation. The Minister knows me well and knows that I will continue to monitor and pursue this matter. It is only right that the serving members of our armed forces should not face bullying, harassment and discrimination in serving their country and placing their lives on the line.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence) 4:00 pm, 9th March 2015

I begin by thanking Rory Stewart and the Defence Committee for their work on the Bill. The Committee produced an excellent report covering some major concerns about the system of redress for members of our armed forces which, I have to say, have been raised for many years. The amendments tabled in Committee and on Report today show how effective a Select Committee can be when it does its job. We covered many of the amendments in Committee, and as the hon. Gentleman said, he is not going to press his to a vote, but some of these issues will need to be looked at in regulations. I note that my hon. Friend Mrs Moon said that she would keep a close eye on the regulations, and I am sure that the Committee will as well.

The issue that amendments 24 to 28 deal with has followed me throughout my time in Parliament—I was on the Committee that discussed similar matters when we set up the Service Complaints Commissioner—so I am pleased today that we are moving to where we should have been back then, with an ombudsman with the powers and effectiveness that our armed forces require. On the commissioner’s length of service, the suggestion, which we supported in Committee, is between five and seven years, to give the person time to establish themselves and avoid the situation that we see with many public appointments where the person spends more time in the last few years trying to ensure their reappointment than doing an effective job. For that reason, we will have to consider the time limits for the ombudsman.

When we set up the commissioner, it was argued vociferously, especially by Conservative Back Benchers, that they had to have military experience, but I think the present commissioner has shown otherwise. She has done a very effective job without a service background and has earned the respect of the members of the armed forces she has worked with, and I look forward to the new armed forces ombudsman carrying on that tradition. It is important that the position be seen to be independent and that it gives complainants confidence that individuals cannot use the old boys’ network, as it was called in Committee, to influence the ombudsman or commissioner. Much strength has been gained from having someone, in Susan Atkins, who has done a forensic job and taken the trouble, time and effort to understand how our armed forces work and the cultural differences between them. As those who have dealt with them know, they are very different, have their individual cultures and in the past have differed in their implementation of various forms of discipline.

Under the amendments, the Defence Council would consult the ombudsman before making regulations, which, again, I do not see as a threat; it could help the council and the MOD ensure that regulations have an independent eye cast over them. Just as the Defence Committee has played a role in developing the Bill, so I see a role for it in scrutinising regulations and how it is put into practice. It might be a good idea for it to look back, perhaps in a year or so, to see how it has worked in practice.

Photo of Dai Havard Dai Havard Labour, Merthyr Tydfil and Rhymney

My hon. Friend was a signatory to the 2003 report that followed the Deepcut barracks incidents, when the Committee started work on such a system. I pay tribute to him and other Committee members who have worked consistently to get to this situation, and I am sure that the next Committee will be equally diligent in ensuring we go further. Would he agree?

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

What—praise myself? Surely not, so modest as I am! I wish to put on the record, however, my thanks to my hon. Friend, who is retiring at the election, for his service on the Committee. I think he has been a member for most of his time in Parliament. He has not only shown a keen interest in the subject, but cares about the issues.

I will develop the point further on Third Reading, but it is good to see this legislation coming into being. Should it have happened earlier? Yes. Do the inerrant conservatisms within the system work? Yes, I think they do. When the idea of having an armed forces Service Complaints Commissioner was brought forward, to hear some people talking about it one would have thought that the earth would stop spinning on its axis if such a person were created—but it has not: it has helped the chain of command and provided greater transparency over the tough decisions that we recognise have to be made. When this Bill comes into force, the same question will arise again—why did we not do this many years before?

Amendments 32 to 36 deal with the issue of whether the ombudsman will have teeth and whether the decisions she takes should be accepted and then enforced on the Defence Council. I said in Committee that we would support the amendments. Time will tell, but I think it would be a brave Defence Councillor or Minister who turned round and rejected a recommendation from the armed services ombudsman. What the Defence Committee wanted to achieve through these amendments will in practice become simply a part of the normal system and the Defence Council will accept the ombudsman’s recommendations.

My hon. Friend the Member for Bridgend makes a good point in her amendment 23, and I pay tribute to her tenacity in pursuing this Bill and to her broader support for ensuring that when things go wrong in our armed forces, individuals get the justice they deserve. Her amendment refers to discrimination and harassment. She makes a good point that it is important for at least one of the individuals on the board to have full knowledge and training in relevant areas. The new ombudsman can look at the issues raised today and assist the armed forces by ensuring that the personnel on the panels have the necessary training and expertise.

We shall not press for a vote on the amendments, but many of the issues that have arisen from them today will be dealt with through regulations. It is important that, in drawing them up, the Ministry of Defence takes into account the clear concerns raised by Rory Stewart, my hon. Friend the Member for Bridgend and the

Defence Committee. I would not want regulations somehow to limit or put a straitjacket on the operations of the new armed services ombudsman.

I said the same thing when the Service Complaints Commissioner was appointed, and I shall say it again. Our armed forces and the military generally have nothing to fear from this new appointment. It will enhance the transparency we expect and, if it is done properly, it will improve the problem identified by my hon. Friend the Member for Bridgend—that complaints are taking far too long to resolve. In any other walk of life, it would be unacceptable to allow such long delays. As I say, this will help the armed forces. Anyone who has ever dealt with a complaints system or disciplinary procedures knows that the quicker they are resolved the better. This helps to ensure that the system is fair and that, even if individuals do not like the outcome of the disciplinary procedures, they will at least know that their cases will be dealt with quickly and effectively.

I think that the Defence Committee has done a great job, and that the Bill has been vastly improved. I hope that some of the issues that have been raised here can be dealt with in regulations.

Photo of Anna Soubry Anna Soubry The Minister of State, Ministry of Defence 4:15 pm, 9th March 2015

I pay tribute to the Defence Committee for its work, and to my hon. Friend Rory Stewart for his sensible comments. I also pay tribute to Mrs Moon for her long-standing work, and thank her for her contribution today. I am afraid I cannot thank her for everything, because she came to see me last week and gave me part of her very filthy cold; but, as ever, she spoke with great force, and rightly made clear—as did my hon. Friend the Member for Penrith and The Border—that Members would be watching the ombudsman’s progress very carefully.

While I am confident that the hon. Lady and my hon. Friend will be back here on 10 May, I do not necessarily have the same confidence in my own return. However, I can tell them that, should I be in such a fortunate position thanks to the support of the people of Broxtowe, I too will be keeping an eye on the progress of the ombudsman, regardless of the Bench on which I find myself sitting. Of course, in an ideal world the ombudsman would not have to do any work at all. Would it not be marvellous if she had no work to do? Unfortunately, however, she will have a great deal of work to do, because we have a system that, as we know, is not performing as it should be.

When I had the great pleasure of visiting Northern Ireland and meeting my hon. Friend—as I now consider him to be—Jim Shannon, we spoke about the Bill and about the complaints system. He reminded me earlier today of the genuine concern that he feels about delay. Under the existing system, we hear all too often from members of all three services that there is too much delay, and that there is no excuse for it.

There are sometimes good reasons for delay. It is in the nature of service life that it may not be possible to find a witness—or even a complainant—for some time, because members of the armed forces may be on operations for at least six months. Someone who is serving on a submarine will be literally out of contact for those six months, or longer. Delay may also be caused by the complexity of a case, especially if it relates to allowances or pensions. However, all too often it is clearly due to the attitude that is taken. Complainants may be told, “I am very busy. I have a lot of other things on my plate. We are putting together a group of people to build a hospital in Sierra Leone. It is a crisis. It is an emergency and it is not going to wait, but your complaint can wait.”

We must change that attitude. A good, expeditious system will deliver justice. I know many people fear that false complaints will be lodged, but an effective system will ensure that only right and just complaints are dealt with, and people will then begin to have confidence in the system.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

I thank the Minister for accepting what we said in Committee, and for responding to it so positively. We felt that the delays were untenable and unfair, and were creating problems. Does the Minister think that the new system will enable people to have confidence in it, and to believe that, at long last, the delays will be reduced and they will be helped to secure the satisfaction that they seek?

Photo of Anna Soubry Anna Soubry The Minister of State, Ministry of Defence

I believe that if the Bill passes through all its remaining stages, of which there are not too many, and if we extend the remit of Nicola Williams, in whom we all have confidence, to create the role of the ombudsman—following the passing of amendments in Committee that the Government did not oppose—the system will be hugely improved, and people will have more confidence in it. It also sends out a very clear message to our armed forces that they have got to sharpen up now and absolutely make sure that when somebody makes a complaint, whether it is a more serious and more appalling bullying and harassment complaint—which mercifully are rare; we know there is nothing peculiar about our armed forces that means we have more such complaints than other professions or fields of work—or complaints about allowances or pay or whatever, it is taken seriously and is acted upon not only fairly and justly, but with all due diligence and expeditiously, so we do not have these delays.

Photo of Bob Russell Bob Russell Liberal Democrat, Colchester

Does the hon. Lady agree that what we are talking about this evening is a continuation of the good work done by the last two Governments through their respective Armed Forces BillsMr Jones and I are, I think, the only two Members who served on both occasions?

Photo of Anna Soubry Anna Soubry The Minister of State, Ministry of Defence

Yes, I do. Both the hon. Member for North Durham and my hon. Friend the Member for Penrith and The Border have said that we have seen a progression to where we are today, and we must understand and recognise that some think this is a step too far. They think we have gone too far and perceive some threat to the chain of command. I absolutely do not believe that, but things often take time to develop in the ways we want. I am absolutely confident that we have struck the right balance.

Photo of Rory Stewart Rory Stewart Chair, Defence Committee

The question of whether this is a fundamental threat to the chain of command is a central point. Although people are very polite and do not put this about, I know a lot of colleagues and people in the armed forces are concerned that this is going too far. Will the Minister lay out more clearly why this is not a threat to the chain of command?

Photo of Anna Soubry Anna Soubry The Minister of State, Ministry of Defence

This Bill—it has now been amended and we have accepted the amendments—changes the ombudsman’s remit but not her powers. Somebody who brings a complaint to Nicola Williams can be absolutely confident that it will be thoroughly and properly dealt with, and that she will be in a position to make her recommendations. She has access to Ministers and to others in the chain of command, and can go to them at any time. That chain of command is not under threat because of her. Indeed, I am confident that the creation of the ombudsman will give the chain of command the understanding—the hon. Member for Bridgend or the hon. Member for North Durham made this point—that it has nothing to fear from the ombudsman, nor from a better system, because if complaints are dealt with properly and expeditiously, and fairly and justly, we will have a better team and group of people. This will only strengthen the chain of command’s ability to conduct its business.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

Although we have heard a lot about complaints, may I put it on the record that the chain of command deals very properly with most of the problems in the units for which it has responsibility and that we are talking about only a relatively small percentage of people? I just wanted to make that point, because all we have heard is complaints, complaints, complaints. There are not many complaints from the vast number of people who are dealt with properly by the officers in charge of them.

Photo of Anna Soubry Anna Soubry The Minister of State, Ministry of Defence

I am very grateful to my hon. Friend for making that point. I thought I had made it, but there is no harm in his repeating and endorsing it. Of course the majority serve without any complaint, but sometimes, as my hon. Friend knows, in any organisation there are bad apples, and even in a modern world there are times when people are undoubtedly bullied, and are undoubtedly the subject of discrimination and harassment; there are times when we get it wrong. The hon. Member for Bridgend knows of a very good example of not bullying or harassment but what she called double jeopardy, where something has been done wrong. That may well be to the detriment of certain people, in which case they are right to raise that complaint and we need good, strong systems. No organisation gets things 100% right, and when they go wrong people must have confidence that their complaint will be dealt with fairly and justly, and that if it is not they can go somewhere else—to the ombudsman, in this instance. Now that we have agreed to the amendments tabled in Committee, it will not only be maladministration that can be taken into account. The merits of the case and the matter of delay will also be considered.

I know that we are not going to vote on the amendments, but I should like to tell the House why the Government resist them. Amendment 23 would require anyone appointed to decide on a complaint or on an appeal that related to harassment, discrimination or victimisation to have a proven understanding of such matters. We all acknowledge that these can be among the more complex complaints, as they involve relationships that have gone wrong in one way or another. However, no record is or could reasonably be kept of those who may have an understanding of such matters so that they could be called upon when required, as the amendment proposes. I understand the principle behind the amendment, and there is no doubt that it is entirely well intentioned, but I cannot agree to it—certainly at this stage—for the reasons I have just stated.

Amendments 24 to 26 would require there to be a gap of five years between a person ending their service in the regular or reserve forces and becoming eligible to be appointed to the post of service complaints ombudsman. The provision in the Bill simply requires that the individual to be appointed to the post should not currently be a member of the regular or reserve forces or of the civil service. Our people will rightly expect the ombudsman to carry out the role with impartiality and professionalism. That person should also of course be demonstrably independent of those whom they seek to hold to account for the way in which complaints have been handled. For that reason, the ombudsman will be outside the chain of command and will have access to Ministers and to all levels of the chain of command whenever he or she deems it necessary. I make no apology for repeating that the ombudsman will be able to approach the chain of command and Ministers at any time, at any level and on any issue, should they need to do so.

Being in offices that are outside the defence estate and recruiting their own staff in line with civil service recruitment guidelines will further reinforce the ombudsman’s independence from the services and from the Ministry of Defence. A further mark of the role’s independence and the security of the post holder’s tenure is the fact that the Bill provides that the post holder’s appointment will be subject to approval by Her Majesty the Queen. Yet another measure of their independence is that the House of Commons Defence Committee will conduct a pre-appointment hearing with the MOD’s preferred candidate.

Our aim is to attract high quality candidates and to get the best person for this important job. These amendments would restrict the field of possible candidates and exclude those who might have recent, relevant experience. We want therefore to retain the flexibility provided under the Bill’s current provisions, and I must stress that any previous armed forces experience can and will be scrutinised and fully assessed for any impact it might have on perceptions of the candidate’s independence. For those reasons, these proposals are resisted.

Amendments 27 would require the length of the ombudsman’s term in office, and a statement that it was non-renewable, to be set out in the legislation. It would require that the ombudsman not be appointed for less than five years or longer than seven, and that the term could not be renewed. The amendment’s aim is to ensure that the person appointed to be the ombudsman would not be influenced in their assessment of how the complaints system was operating or, in their investigation of maladministration claims, by concerns about whether they would be reappointed. It also aims to give the ombudsman, and those whom they serve, some certainty about the length of time they would be post and to make that term of office a reasonable enough length for the post holder to get to grips with the role and to see through changes.

I fully acknowledge all those aims, but I do not accept that those provisions need to be set out on the face of the Bill in order for those matters to be enforced or to give certainty and confidence. The matters have been set out in the letter of appointment for the current commissioner, and we believe that to be the right approach. We want to retain the flexibility to amend those terms of appointment if experience suggests that that might be necessary. The amendment is therefore resisted.

Amendments 29 to 31 would remove the Secretary of State’s power to make regulations about the ombudsman’s procedure for investigations in new section 340I, leaving it to the ombudsman to determine its own procedure. The Secretary of State is responsible to Parliament for the effective operation of the whole service complaints system, including the ombudsman stage, so it is right that certain basic matters are prescribed in regulations. One or two matters, such as time limits, are required to be in regulations in order for the ombudsman to be able to enforce them. The ombudsman is a creature of statute and so only has the powers Parliament provides him or her with. It is up to the ombudsman in each case to determine the procedure for carrying out any investigation. The published draft Armed Forces (Service Complaints Ombudsman Investigations) regulations make it clear that there is no intention unduly to restrict the ombudsman in how it investigates matters. Rather than restrict the ombudsman, we encourage the ombudsman to set her own details of procedural rules. The Secretary of State’s powers through regulations are supplementing powers, rather than limiting ones, in that they enable the ombudsman to have the powers she requires to be effective.

We do believe that some of those details are best set out in regulations, making clear the parameters for the ombudsman’s investigative process. Those include, for example, the ability to hold oral hearings and to provide individuals with the right to be represented at any such hearing. As this is a new ombudsman, we would like to retain the flexibility—again—to amend the procedures based on experience of the system as it develops, which is why we have not set out detailed procedural rules in the Bill. That flexibility enables the system to be more efficient, effective and independent. For those reasons, these amendments are resisted.

Amendment 32 would amend the Bill so that confidentiality obligations that could be imposed by the ombudsman on those to whom she sends investigation reports would be limited to issues of national security and the personal safety of individuals. The amendment would remove the ability to reflect any wider issues about the protection of sensitive information that is currently provided for in the Bill and in regulations. That current provision is important and should be retained. The ombudsman may need to see some sensitive information in order to be able fully to investigate whether maladministration has occurred. The ombudsman will be expected to act in accordance with the Data Protection Act 1998 in the handling and processing of personal data.

Under the Bill, the ombudsman may send an investigation report to any person she considers appropriate. We would expect the ombudsman to place confidentiality obligations on the recipient where the report contains sensitive personal data or other information confidential to the Department, including for reasons of national security. In addition, regulations may make further provision about these obligations, as specified in new section 340L(7)(c). These regulations are not aimed at curtailing freedom of speech; rather they are to ensure that sensitive information is properly protected. For those reasons, amendment 32 is resisted.

Amendments 33 to 35 seek to make the ombudsman’s findings and recommendations binding on the Defence Council. The Government have made clear in the other place and in Committee in this House their intention that the findings of the ombudsman will be binding on the Defence Council, and the services accept this. The legal effect of ombudsman findings is not specified in other legislation, and the courts have had no difficulty in determining, in those contexts, that they are binding on the receiving organisation. We simply do not regard it as necessary to specify the legal effect of findings in the Bill.

Our position in relation to the ombudsman’s recommendations is slightly different. First, as was explained in the other place and again in Committee in this House, our view is that the recommendations will clearly have some legal effect. The Defence Council will not be free simply to reject the recommendations because it disagrees with them. It would need to have very good, cogent, written reasons to do so, such as where the implementation of the recommendations in full was simply unworkable or where significant resource implications may be involved. It is right that the Defence Council should be able to reach the final decision on matters covered in any recommendations made by the ombudsman. The focus of the Defence Council will therefore be, in most cases where the ombudsman has made recommendations, to decide precisely how it will respond. That may simply be a matter of implementing the recommendation, whether it is for an appropriate apology to be made or for a part of the process to be rerun. For those reasons, the legal effect of findings and recommendations will not be specified in the Bill, and these amendments must be resisted.

Amendment 36 widens the scope of matters on which the ombudsman can make a report beyond those already provided for in the ombudsman’s annual report. They are the operation of the complaints process, the execution of their role and any other matters that the ombudsman considers necessary, or that the Secretary of State may direct. The existing provisions at proposed new section 340O are sufficient to cover what the amendment seeks to provide, and for that reason I must resist it.

I wish now to deal with the questions of the hon. Member for Bridgend. In relation to outstanding complaints to be dealt with under the new system, I hope that she will be pleased to hear that we are still looking to put in place transitional arrangements. We are not ruling the matter out on the grounds of retrospection, but we recognise that there would be a benefit in existing complaints having access to the ombudsman; we get that. Our plans will be clear in the regulations, which will be published later on this year.

On the question about reserves, we are already making sensible use of reservists in the existing process. The Army and the RAF already use reservist officers to complement complaint panels, and there is no reason why that should not continue. As is ever the case with reservists, they bring from their civilian life huge amounts of experience. That other side of their life will no doubt enhance their ability to look at complaints with a different eye and a bit of freshness that others sitting on panels may not have—I mean no criticism here—by virtue of being in service for a long time.

As I have said before during the passage of the Bill, there is no bar in this Bill to the ombudsman raising matters that concern them with whoever they wish and whenever they wish, but that does not need to be set out in legislation. The previous service complaints commissioner, Dr Susan Atkins—we pay tribute to her for her work—raised a wide range of matters with the chain of command during her tenure, and, if I can put it in this way, she took no prisoners. She also made mention of whatever matters she so chose to in her annual reports with provisions that were the same as those provided for in this Bill, so we have no reason to think that the ombudsman will not do exactly the same. For all the reasons that I have outlined, these amendments are resisted.

Photo of Rory Stewart Rory Stewart Chair, Defence Committee 4:30 pm, 9th March 2015

I reiterate what the Defence Committee said, which is that the amendments are extremely important conceptual points relating to the independence of the ombudsman and conflict of interest; the power of the ombudsman; the freedom of the ombudsman to operate; and the scope of the ombudsman. We will not press the amendment to a vote at this time. That is a good will gesture to the Government, who have made a concession on an important amendment.

I also wish to take this opportunity to pay tribute to Mrs Moon, who has been the guiding spirit and soul of this process from the beginning to the end. She has kept the Defence Committee focused and she has kept it honest. I hope that she feels a real sense of achievement at having got through this extremely important amendment.

Photo of Rory Stewart Rory Stewart Chair, Defence Committee

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.