Second Reading

Armed Forces (Service Complaints and Financial Assistance) Bill [HL] – in the House of Lords at 3:08 pm on 23rd June 2014.

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Moved by Lord Astor of Hever

That the Bill be read a second time.

Photo of Lord Astor of Hever Lord Astor of Hever The Parliamentary Under-Secretary of State for Defence 3:09 pm, 23rd June 2014

My Lords, the welfare of our service personnel is one of the most important responsibilities of government. In enshrining the principles of the Armed Forces covenant in legislation this Government have signalled their determination to meet their obligations to our service men and women, their families and veterans. A fair, effective and efficient system for handling internal complaints in the Armed Forces is an essential part of our duty to service personnel, and it underpins operational effectiveness.

The unique nature of military service means that members of our Armed Forces do not have the same opportunities for redress on employment issues as civilians. For example, they cannot always make claims to an employment tribunal in the same way that civilians can. I am sure we all understand why this is so, but it does mean that we have a duty to ensure that there is a fair, effective and efficient system in place to deal with any complaints and grievances that service personnel may have in relation to their service. This is not just right as a matter of principle, it supports operational efficiency; having unresolved complaints impacts on morale and breeds discontent, which can undermine our fighting capability. Having a system that is not fair or effective could also lead to a perception that the concerns of Armed Forces personnel are not taken seriously. This could ultimately lead to problems with recruitment and retention as well as morale. A robust complaints system is therefore not a “nice to have”, but an integral part of the relationship between the society our Armed Forces serve and those who are willing to lay down their lives to defend it.

Before going on to discuss the main changes to the service complaints system which are being introduced by the Bill, it might be helpful if I set out some of the underlying principles behind the new system. First, I believe it is right that it should be the Armed Forces that are responsible for dealing with any complaints from service personnel. I cannot emphasise this point strongly enough. It is for the chain of command to ensure that complaints are dealt with fairly and that the appropriate redress is given where complaints are upheld. It is important that, where something has gone wrong, it is the organisation itself that should put it right. That is its responsibility and no one else’s. The role of the ombudsman in dealing with complaints should therefore be about making sure that the systems we have in place are working and that complaints are properly dealt with. The ombudsman’s oversight of the system will also provide us with lessons for further improvement that will benefit individual service personnel and our overall effectiveness.

Secondly, it might be worth setting out what is and what is not covered by the complaints system, and therefore this Bill. Service men and women, who include reservists when they are subject to service law as well as regulars, can make a complaint about any issue connected with their service. Although the issues that attract media attention tend to be around bullying and harassment, the majority of the complaints raised relate to pay and terms and conditions of service, so it is important to realise that complaints cover a very wide range of issues. It is also worth being clear about what is not covered by the complaints system. Matters relating to potential criminal offences such as sexual or physical assaults would be dealt with through the service justice system rather than the complaints procedure. There are also matters that are likely to be excluded by the regulations from consideration under the complaints process, as they are now, because they have their own separate procedures. This would cover things such as pensions and court martial decisions.

We want the new process to be quicker while retaining the principle that complaints are resolved at the lowest level possible in the chain of command. A new feature is therefore that a complaint will be assigned quickly to the person or group of people who have the authority to deal with it instead of it being escalated up the chain of command until it reaches that point, as is the case now.

I would like to turn to the proposals covered by the Bill. The current service complaints system was set up by the Armed Forces Act 2006. We have worked hard since then to make that system operate as fairly, effectively and efficiently as possible and many service complaints are dealt with promptly and successfully. However, the Government recognise that performance is still not good enough and have concluded that it can be significantly improved.

That view is supported by Dr Susan Atkins, the current Service Complaints Commissioner, who has frequently characterised the system as ineffective, overloaded and beset by delay. In her annual report on service complaints for 2013, which was published on 27 March 2014, Dr Atkins said that she could still not provide an assurance that the current system was working and was critical of how long it took to resolve complaints, particularly those relating to bullying, harassment and improper behaviour. She also raised the issue of the level of manpower needed to support the system.

The House of Commons Defence Committee has also taken a close interest in these matters over many years, and published a report on the work of the Service Complaints Commissioner on 12 February

2013. The report raised concerns about the workings of the complaints system and recommended the creation of an Armed Forces ombudsman.

We have been operating the current system for six years. Over that time we have developed our understanding of what works well and, in particular, what can cause undue delay. With that information, and the invaluable independent insight provided by the commissioner in her annual reports and by the Select Committee, we have worked closely with Dr Susan Atkins on the most appropriate way to reform the service complaints system. I would like to express our gratitude for her work on the current system over those six years and for the advice and assistance she has given more recently on developing a new and improved system. Dr Atkins’s unstinting efforts in support of our Armed Forces were recognised by the award of a CB in this year’s Birthday Honours.

The Government’s intentions for reform were set out in a Written Ministerial Statement on 13 March this year, and this Bill makes the legislative changes needed to take forward those reforms. The changes set out in the Bill are aimed at strengthening and streamlining the service complaints system. They are supported by the Service Complaints Commissioner and by the services. I would like to emphasise the support of the Armed Forces for these reforms because it is a concern that has been raised with me by a number of noble and noble and gallant Lords.

The services fully support the need for reform of the service complaints system and have been fully involved in drawing up the proposals in the Bill. The service chiefs’ particular concern was to ensure that the chain of command was preserved under any new system, and they are content that that is the case. The services therefore support the proposals in the Bill, which strike the right balance between creating strong and independent oversight and maintaining the authority of the chain of command.

Clause 1 creates a new Service Complaints Ombudsman to replace the existing Service Complaints Commissioner. The ombudsman will be appointed by Her Majesty on the recommendation of the Secretary of State. Clause 2 replaces the existing service complaints system with a new statutory framework, while retaining important elements such as the requirement for independence in handling certain types of complaint.

A central feature of the new framework is that the Service Complaints Ombudsman will have a power to consider whether a service complaint has been handled properly, once it has completed its normal internal stages. The ombudsman will also have strong new powers to compel the production of documents or other material. This contrasts with the arrangements for the Service Complaints Commissioner, who cannot become involved in the handling of an individual complaint other than to monitor its progress. Under the new system, where the ombudsman finds no evidence of maladministration the complaint would remain closed.

However, if the ombudsman considers that there has been maladministration—and potentially injustice—in the handling of a complaint, he or she would make recommendations to the Defence Council for action to be taken to put things right. This could include, for example, reconsidering the complaint afresh or rerunning a particular part of the process.

The Defence Council would remain responsible for the decisions taken in response to the ombudsman’s recommendations, thereby maintaining the authority of the chain of command, with the ombudsman being informed of those decisions and the reasons for them. Cogent reasons would need to be given for rejecting any recommendation.

Service personnel will have a new right to apply to the independent ombudsman if they believe that the handling of their complaint has been subject to maladministration, instead of having the right to pursue further appeals within the internal complaints process. The reduction in the number of automatic appeal levels will also shorten and speed up the process while remaining fair.

The ombudsman will, in turn, be able to concentrate attention on the cases of potential maladministration, including those which may have systemic implications. The reforms also include a new process of assigning a complaint to someone who has the authority to deal with it and grant appropriate redress. It replaces a process that, under the current system, is inefficient and can add considerably to the time taken for a complaint to reach a conclusion.

The ombudsman would also have a new role at an earlier stage of the complaints procedure. Where the chain of command has decided not to allow a complaint to be considered within the service complaints system, because, for example, it is out of time or excluded on other grounds, a service person could ask the ombudsman to determine whether that decision was correct. A decision by the ombudsman will be final.

At the same time, the ombudsman will maintain the vital role which Dr Atkins performs today of offering an alternative route for a service man or woman or other person who does not wish or is not able to approach the chain of command directly to have their concerns fed into the system. This remains an important safeguard, especially where allegations of bullying or harassment are involved. Finally, the requirement for an annual report to be laid before Parliament would continue, taking account of the new functions of the ombudsman.

The proposals that I have outlined represent a significant change to the way that service complaints are handled. The aim is to reach conclusions more quickly while maintaining fairness. The creation of the new role of the ombudsman will also strengthen the level of scrutiny and independent oversight that complaints are subject to.

Clause 4 deals with financial payments to charities and other organisations which support the Armed Forces community. One of the best signs that the Armed Forces covenant is working is the extent to which groups in the voluntary and community sector are involved in supporting our service personnel, veterans and their families. Many of these groups are small, locally based and run by dedicated volunteers. They help bind the services to our communities and provide the sort of active, caring and focused support that is needed. I am sure that we would all wish to pay credit to the invaluable work that they do.

The Government need to work in partnership with such organisations and that includes providing financial assistance where appropriate. During the past four years, the Government have committed £105 million to delivering the commitments of the covenant. The Armed Forces covenant grant fund has distributed £55 million through both the community covenant grant fund, which strengthens ties and understanding between the Armed Forces and the wider community, and through funding which backs projects supporting the broader aims of the covenant. A further £10 million of the community covenant funding, and a one-off payment of £40 million in support of veterans’ accommodation, is set to be distributed this year. We are also developing proposals for management of the future Armed Forces covenant fund, which is set at £10 million per year from this year onwards. It is essential that the Armed Forces community gets the maximum benefit from these significant sums of money.

The funding covered by Clause 4 is aimed at organisations rather than individuals. Organisations working with the Armed Forces community are based throughout the United Kingdom and we want them to be able to benefit from these funds wherever they are located. However, the use of covenant funding is currently constrained by two pieces of legislation: Section 31 of the Local Government Act 2003 confines payments to local authorities to England and Wales while Section 70 of the Charities Act 2006 limits financial assistance to charities and other benevolent institutions which provide a direct or indirect benefit to England. We have got around these restrictions on a temporary basis by making payments under the Appropriation Act but this is not a long-term solution. Clause 4 would therefore enable financial assistance to be given to organisations that support the Armed Forces community wherever they are based.

I very much look forward to the debate on the Bill this afternoon. Today’s Armed Forces are committed to ensuring that complaints from service personnel are taken seriously and handled fairly and effectively, and that lessons are learnt when things go wrong. No member of our Armed Forces should lack confidence in the system for dealing with their complaints. The proposals set out in the Bill will both streamline and strengthen that system. The Bill will support the interests of complainants and create a strong and independent ombudsman. The measures in it underline the commitment of this Government to the principles of the Armed Forces covenant and the obligations we owe our service personnel, veterans and their families. I beg to move.

Photo of Baroness Dean of Thornton-le-Fylde Baroness Dean of Thornton-le-Fylde Labour 3:26 pm, 23rd June 2014

My Lords, I thank the Minister for the wide-ranging and very balanced way that he introduced the debate this afternoon. I commend the Government for listening to the wide range of voices, whether representative of the Armed Forces, the Defence Select Committee in another place or—perhaps most importantly—the commissioner in the annual reports she has given the Government since the 2006 Act was introduced. Her continual message has been that, although it is important to have complaints, the system was not and is not working satisfactorily. We owe a debt to Dr Atkins and her very small team for their work over the last years and the support they gave in drafting this Bill.

I can well understand the reservations that noble and gallant Lords might have about elements within the Bill and—perhaps—the conflict within the chain of command. However, having read the Bill, I do not think that that problem is there. Certainly, the Defence Council assures me on that. It is actually quite a narrowly drawn Bill. Had the complaints systems worked well, as we all hoped, we would not be discussing this Bill today but we are where we are. The system has not worked. As the Minister rightly said, we have to consider the welfare of our Armed Forces personnel and how they see the complaints system working for them. All the surveys confirm that it has not worked. Therefore we have the Bill today. I welcome it very much indeed. It simplifies the decision-making.

This House has a reputation for improving Bills when they come to us. I look forward to discussing a number of areas within this Bill. One or two changes may be necessary. For instance, the Bill permits those who may have left the services and are no longer covered by services law to bring a complaint within a specific time period. Is the intention within that to permit, perhaps in a situation where an individual former member of the services has died, that his or her family can bring a complaint? Would that be within the remit of the Bill? If a member of the Armed Forces makes a complaint and subsequently passes on, will it be possible for that complaint to be fulfilled to the end and a decision made on it?

Much in the Bill is left to regulation. The Secretary of State can draw up various aspects of what will and will not take place. As we all know, regulation is normally decided after the Bill becomes an Act of Parliament. It leaves an awful lot to confidence that the regulations will meet what was intended under the Bill, and we need to probe that during the Bill’s stages in the House.

Independence of an ombudsman covering whatever field—whether the people covered by the complaints system see the ombudsman as independent—is very important. During the Bill’s passage, I want to probe how independent the ombudsman will be. For example, in the course of her work, she will accumulate a lot of data, a lot of information. Will the ombudsman have the authority and remit to be able to conduct research, which might be most helpful in some cases, bullying being one that comes to my mind?

The Bill provides for the method by which an individual applies to have a claim of maladministration dealt with. We would hope that it is not so complicated as to put people off—in other words that they are not required to cite this or that particular clause or article in their written submission.

The Minister dealt with financial support at the end of his presentation. I was very pleased to see that in the Bill, although one could argue that it is an entirely separate issue. It is a very good innovation to add it to the Bill, and I welcome it very much. Apart from the money that the charities raise and spend so well in supporting our Armed Forces veterans and their families, it helps to spread the message in our communities about the good work that our Armed Forces do in a way that is not “official speak”, but showing the lives that our service personnel give to their country. I very much welcome that aspect of the Bill.

I close where I started, and underline my view that the Bill will not interfere with the chain of command. That would be damaging to the Armed Forces. We must maintain that while ensuring that our Armed Forces personnel feel that any complaints they have can be dealt with fairly, in a balanced way and, perhaps most of all, expeditiously. That will enable us to discharge our responsibility to our Armed Forces, together with the annual report that will go to the Secretary of State, who will then lay it before Parliament to judge whether this method is succeeding.

I wish the Bill well and look forward to the discussions that we will have on it.

Photo of Lord Palmer of Childs Hill Lord Palmer of Childs Hill Liberal Democrat 3:32 pm, 23rd June 2014

My Lords, I, too, welcome the Bill. We have already heard a detailed explanation of it from the Minister and the noble Baroness, Lady Dean. I certainly do not intend to repeat what they said.

The Bill deals with three matters: the creation of a Service Complaints Ombudsman; the reform of the service complaints system; and ensuring financial assistance to charities and other organisations which support the Armed Forces community. The heads of the three Armed Forces have, as we have been told in this debate, publicly stated their support for the Bill, but I look forward to meeting the representatives of the service chiefs and the current commissioner between Second Reading and Committee, so that I and other noble Lords can have their first-hand assessment before we reach Committee on this very useful Bill. I am sometimes wary of public statements when we do not get to grips with the actual person who made the statement. There is no suspicion that what we have been told is not the case, but that would be useful.

I shall concentrate on the ombudsman and the service complaints system. I hope that my noble friend Lady Garden will deal with Clause 4, so I will leave that for the moment, and that my noble friend Lord Thomas will share with the House his vast experience of military court advocates, which have a bearing on the Bill.

The current Service Complaints Commissioner stated, as we have heard, that she could not provide an assurance that the current system was working in its present format. She was also critical of the length of time that it took to resolve complaints, particularly those relating to bullying and harassment. I am pleased that the Bill makes the legislative changes required to take forward the needed reforms. The current Service Complaints Commissioner has also stated that the Bill will bring,

“substantial improvements to the fairness of the complaints system, the time it takes for complaints to be resolved and increase the level of confidence Service personnel have in the process”.

One criticism that has been made is that the ombudsman will not apparently have the power to undertake on her own initiative a thematic inquiry into issues of the public interest. I agree that the Bill is correct in leaving the power to investigate the substance of individual complaints within the current internal system, thus not intruding into the chain of command. However, the question is: if there are substantial systemic issues, which always happen in any organisation, should the new ombudsman have the power to highlight these issues and make recommendations to the Defence Council? I hope that when he replies, my noble friend the Minister might deal with that aspect.

My attention has been drawn to the office of the Canadian ombudsman—as the old adage says, “Don’t reinvent the wheel”. Could the Minister comment on why the UK ombudsman will not have two powers held by the Canadian equivalent? First, there is the ability in compelling circumstances to deal with the substance of the complaint as distinct from only investigating the process. Secondly, there is the power to issue reports concerning any investigation considered to be in the public interest—the noble Baroness, Lady Dean, referred to that to some extent. I see that as being when the system is not working and when it goes beyond dealing with the faults in the process of any individual case.

I hope that my noble friend the Minister will be able to explain why new Section 340L makes no reference to the sanctions which would apply if the ombudsman’s investigation shows maladministration. What compensation should the aggrieved party receive? Would the complainant receive the compensation, or would the guilty party just be fined by the Defence Council? I have seen so much of this in local government, where an ombudsman may find against the local authority, or whatever, and the local authority is fined a modest sum for some maladministration but the complainant is often left high and dry and thus has to go to some other court to get some solution.

There appears to have been general approval of this Bill, which we do not often get in this Chamber, but there is a lurking fear that an opportunity may be lost by not including in compelling circumstances an empowerment to look at the underlying complaint. That is noticeably missing from the ombudsman’s powers.

Photo of Lord Dannatt Lord Dannatt Crossbench 3:38 pm, 23rd June 2014

My Lords, in approaching the Bill I have perhaps an unsurprising ambiguity towards it, wishing on the one hand that there was no need for it yet recognising on the other that that wish is not entirely realistic. My hope for the Bill is therefore that its implementation will be done well. Implementation will be the key to the Bill’s success. As the Minister said in introducing the Bill this afternoon, whatever happens must not prejudice the integrity of the chain of command. I am extraordinarily encouraged to hear that the Chiefs of Staff have been consulted closely for their views on this and that this particular, key point is recognised.

However, there is one lurking concern: that the ombudsman process provides an alternative route if the main complaints procedure is not followed. I would hope, first, that this route would be followed rarely and in extremis. Perhaps the existence of that alternative process might be an encouragement to the chain of command to make sure that it deals as properly as it can with complaints as they come up through that chain

Secondly, in terms of implementation, the new arrangements must be properly resourced. The current Service Complaints Commissioner has done an extraordinarily good job over the past six years and I wish to associate myself with the compliments and congratulations that have been offered towards her. However, there is no doubt that her work has been made more difficult by the very small team that she had to support her and the comparative lack of resources made available to her.

The main target for the successful implementation of the Bill is to attack delay. It is well known that in many circumstances justice delayed is justice denied, and in recent years delay has been the focus of much work within the chain of command. Many of the new powers within the Bill will allow delay to be tackled, particularly in dealing with cases at the most appropriate level. Ithas not been satisfactory in the past that cases could not be dealt with at what would seem to be the logical level and have been taken up higher up the chain of command than need have been.

Delay has been attacked vigorously over the past few years, and in theory has been reduced. It does not appear to be so in all circumstances, though, because the number of cases of complaint has increased. I think that is so for two reasons: first, the fact that awareness of the complaints process and procedure has increased, and therefore more people are aware of the ability to complain about something; and, secondly, the wider litigious environment in which we find ourselves. That said, delay must be tackled; that is the key to the success of the Bill and is the key point as far as implementation is concerned.

I also welcome the fourth clause in the Bill regarding financial assistance. Anything that can be done to improve the integration between the public, private and charitable sectors in the way in which we support our veterans and their families has to be welcome. People often say, “Surely the Government should do more”, to which my reply invariably has been, “The British way in looking after our veterans and their families has been for the public, private and charitable sectors to come together”. This is a recognition that the Government, the public sector, can do more in that triumvirate, that trinity of activity, and I therefore welcome the clause.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 3:42 pm, 23rd June 2014

My Lords, I declare an interest as chairman of the Association of Military Court Advocates, which had the opportunity of discussing the Bill a week ago at a seminar at the Honourable Artillery Company premises in the City.

Dr Susan Atkins was right to draw attention to the scandals involving personnel in the BBC, the NHS and the police service in her 2013 report. They do not need repeating, but the lesson to be drawn is the reputational damage to a national organisation that fails to confront the problems in its midst and fails to deal with them fairly and promptly. She might have added Parliament itself and the political parties to her list.

It is very disturbing that the commissioner could not give an assurance that the service complaints system was working efficiently, effectively or fairly. A major concern of hers was the apparent increase in bullying and harassment of personnel in the Army, and she called for a system that would make the zero-tolerance policy in the services a reality. She also pointed to delay, as the noble Lord, Lord Dannatt, did a moment ago, as the principal reason for unfairness in the system, particularly in the Army and the Royal Air Force, and said that problems remain in the monitoring, handling and recording of service complaints. Importantly, she drew attention to the way in which slow, ineffective and unfair systems can exacerbate the wrong complained about, including damage to mental health.

Sadly, these problems were only too vividly illustrated by the tragic suicide of Anne-Marie Ellement, who suffered bullying and workplace abuse. At the inquest in March this year, the coroner referred to the fact that her reports to the chain of command of being bullied were not investigated. The announcement of the creation of an ombudsman came only weeks after that verdict was delivered, but I assume that there was work in progress since in its report on the work of the Service Complaints Commissioner, published in February 2013, the House of Commons Defence Committee gave wholehearted endorsement to Dr Atkins’s call for those powers to be that of an ombudsman. She had made detailed proposals for such a role in April 2013.

I therefore give a very cautious welcome to this Bill because I am not convinced that the proposals meet the criticisms of the previous system, and I shall be anxious to explore in Committee the weaknesses which I believe it contains. I am grateful to the Minister for his meeting with Peers last week and for his assurance that a meeting will be arranged with Dr Atkins and with the Vice Chief of the Defence Staff to thrash out any difficulties.

I very much welcome the strong powers, equivalent to those of a High Court judge, which the Bill gives to the ombudsman to call for documents and witnesses. The major stumbling block to reform is always the reluctances of the services to admit any outside interference in the running of military affairs. There was resistance to the reforms proposed to the military justice system in 2006, which are now largely accepted. It is not long since we were debating the concept of “lawfare”. I understand the high importance of the integrity of the chain of command, but, as I pointed out in our meeting with the Minister, everybody is subject to the rule of law, including the services.

The Armed Forces covenant is not a legal document, but its key principles were enshrined in law in the Armed Forces Act 2011. Under the covenant, the Armed Forces have a responsibility to maintain an organisation which treats every individual fairly, with dignity and respect, in an environment which is free from bullying, harassment and discrimination. Section C15 states that individuals must,

“have means of recourse open to them, if they believe that they are not being treated in a fair and appropriate way”.

In his report into Deepcut in 2006, Mr Justice Blake made that point. He said:

“It will be difficult for the Armed Forces to satisfy the public that they have nothing to hide in the running of their discipline and complaints system if there is a perception of unwillingness to accept meaningful independent oversight, which is increasingly seen as a necessary counterweight to the powers and prerogatives of military life”.

It must be remembered that the services compete for, and are concerned to keep, skilful and intelligent recruits in a competitive market. It is essential that those who are subject to military law and discipline should have confidence that their grievances will be properly addressed in accordance with the military covenant. As the Minister pointed out a moment ago, commanding officers control the lives of those under their command in a way that does not happen in civilian life and may subject them to punishment, and even imprisonment, for service offences. Employment tribunals have been kept at bay, save in discrimination cases, but the Armed Forces are not merely an employer; they are landlord, healthcare provider, social worker and much more.

To my mind, the most significant limitation of the Bill is that it confines the role of the ombudsman to an investigation of an allegation of maladministration in connection with the handling of a service complaint. This is covered in new Section 340H. This means that the ombudsman cannot investigate the substance of the initial incident that generates the complaint or any injustice arising out of it. His role is limited to discovering whether there are any procedural defects in the way in which the complaint was handled within the chain of command.

If the procedure was correctly followed, the ombudsman has no power to put right a decision on the merits of the complaint, no matter how perverse it appears to him to be. On the other hand, if the procedure was incorrect, the remedy is merely to return the complaint for a fresh decision within the chain of command, causing further delay and frustration to the complainant. Is it not as vital to ensure that the right decision was taken on a complaint as that it was simply procedurally correct?

Ombudsmen were introduced in the 1960s to investigate only complaints of maladministration—that is their 1960s history. However, their powers have developed. As Liberty points out in its very helpful briefing on the Bill:

“The Scottish Public Service Ombudsman, the Local Government Ombudsman for England and the Prisons Ombudsman are all empowered by statute to investigate ‘service failure’ in addition to maladministration. In its 2011 report on public service ombudsmen, the Law Commission observed that it could see no reason why the Parliamentary Ombudsman … should not have its powers increased to investigate service failure too”.

I therefore echo the thoughts of my noble friend Lord Palmer of Childs Hill, who asked whether it was possible that the Bill goes further than the individual complaint. The Minister said in opening today that the ombudsman can look at complaints that have systematic implications. Can he explain what he means by that? Can the ombudsman go beyond the individual complaint?

In its 2011 report the Law Commission also drew attention to the distinction between the findings of the ombudsman on an investigation into the facts surrounding an incident, and his recommendations. Over time, the practice has developed whereby an ombudsman makes findings of fact and of the existence of maladministration that is causing injustice to individuals, and then recommends action that the public body should take to remedy the injustice. The Law Commission concluded that recommendations should be seen in a different light. They are part of the political process, since compliance with recommendations may require the reallocation of a significant amount of public funds. However, the findings of fact are properly the province of the ombudsman.

New Section 340L deals with the ombudsman’s reports. First, it requires that the report sets out his findings, and, secondly, it requires him to set out his recommendations as a separate matter. Subsection (3) provides that the recommendations may include appropriate remedies for dealing with maladministration and with any injustice which may have been sustained. Can the Minister say whether it should be made explicit that the ombudsman may recommend compensation for the victims of maladministration or injustice? Is that to be implied in the wording of the Bill, or will it be necessary to improve and strengthen the Bill by giving the ombudsman the power to recommend compensation in an appropriate case?

In new Section 340M the Bill is silent on the issue of the ombudsman’s findings. It should be made explicit that the Defence Council is bound by those findings—it cannot open up the facts again and find differently to the ombudsman who was put in charge of an investigation. As for the recommendations, it should be made clear that the Defence Council will follow the ombudsman’s recommendations unless there are cogent reasons not to do so. At the moment, the clause is drafted in such a way that the Defence Council may quite arbitrarily reject the recommendations. Can the Minister confirm that the reasons in writing that the Defence Council may give for rejecting them may be challenged by judicial review?

The noble Lord, Lord Astor, said that the majority of complaints relate to pay and conditions. That may be so, but the public interest and concern is about allegations of bullying and harassment that fall short of criminal offences. It is important that the system deals with such allegations properly and is properly resourced with men and money to make sure that the ombudsman can do his work.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench 3:54 pm, 23rd June 2014

My Lords, I welcome the Bill, but have some reservations about it. First, I am surprised—although maybe there is a simple explanation—that Clause 4 is not in a separate part. It does not seem to have anything in common with complaints or ombudsmen. Nevertheless, welcome support has already been given to service charities and others from the £35 million LIBOR funds that have been allocated. I welcome the Minister’s information about further funds being set aside for future years. What assurances can he give the House that these welcome funds will not be reduced or forgone, whether they come from LIBOR or from the defence budget?

I turn to the principal issue of the Bill. There has been systemic evidence that the complaints system has not moved with the times, and a commendable expectation that complaints about maladministration and issues such as bullying and sexual harassment should be dealt with fairly and in a timely manner. As the complaints commissioner’s annual reports make clear in citing examples of poor handling of complaints, much still needs to be done to improve the way in which the Army and the Royal Air Force deal with complaints. The Royal Navy seems to be showing the way, with a reasonable recent record. What is not clear—and maybe the Minister can help us on this—is how much of the difficulties being faced by the Army and Royal Air Force are due to a lack of adequate resources or to conflicting issues that make a quick and timely resolution of a complaint unachievable. Are there barriers to better performance that lie beyond the control or decision of the chain of the command? The complaints commissioner herself has reported that more resources are required within the services. Is she right on this?

Unless these problems are tackled and resolved, the changes in this Bill—the substitution of an ombudsman figure for the complaints commissioner and the reduction in the appeals process from three levels to just two—will prove not to be the answer to the problem but more expensive than its predecessor. Will it turn out to be no more than costly cosmetics, because the practical difficulties faced within the services for dealing with complaints cannot be or have not been resolved?

As has been made clear by the Minister, the Government recognise the importance of retaining the responsibilities of the chain of command, even to the extent of not giving the ombudsman the final say in the outcome of his or her investigation and report. I welcome this approach because, as I have said on other occasions in this House, the whole ethos and trust between those in command and those they command are so essential to the operation, employment and day-to-day activity of the forces.

Much of the detail in the Bill will not emerge until the many regulations specified in it are published. One in particular about which it would be helpful to have further information is the reference on page 2, on lines 18 and 19, to matters of a description about which a complaint may not be made. The Minister has given the House some indication what those no-go areas might encompass, but more information would be helpful.

Another example that would benefit from further information is the procedure for the ombudsman investigations in new Section 340I on page 7. New subsection (2) states:

“The Secretary of State may make regulations about the procedure to be followed”, but new subsections (3) and (4) seem to give the ombudsman freedom to make up his or her mind on how to proceed, albeit constrained by whatever the Secretary of State has set out in his regulation about procedure. It would be helpful to our understanding all the intricacies of the regulations referred to in this Bill if drafts for regulations for more major issues could be made available before we reached Committee. Would that be possible?

The Bill introduces arrangements that may help to speed up resolution of a complaint by reducing the number of levels of appeal and setting out timescales for the submission and discharge of appeals. I welcome the latter and the intention to have a cut-off point beyond which claims cannot be made or continued. The downside to this is that future claimants may feel that their rights have been eroded. Provided that the new arrangements—not only those covered by this Bill but, most importantly, the improvements in service procedures for dealing with complaints—are seen to work well, the reduction in appeal opportunities seems reasonable and I for one conditionally accept it.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Liberal Democrat 4:00 pm, 23rd June 2014

My Lords, I start by thanking my noble friends Lord Astor—the Minister—and Lady Jolly for the information and briefings on the Bill that they have made available to Members of the House.

Although this is a short Bill, its two parts could make a significant difference to the culture and well-being of members of the Armed Forces. As we have heard, the first three clauses—the ombudsman clauses—are in response to recommendations from the Service Complaints Commissioner, the Royal British Legion and others that not all complaints are appropriately addressed under the current system. I agree with others that, in scrutinising these clauses, it will be important to take into account the calls for increased powers for the ombudsman alongside the role of the military chain of command, which has traditionally been the main route for service complaints to be addressed. Legislation should not remove from commanding officers the responsibility and authority to deal with complaints at a local level. I welcome my noble friend the Minister’s assurances on that. However, the need for independent oversight has become apparent. The Bill looks to improve that function for service personnel and, by association, their families.

As my noble friend Lord Thomas alluded to, the Armed Forces are rare in that those serving in them often depend on their service for their jobs, homes and a range of public services. Not many other walks of life call for such a range of dependencies in personal lives, and carry such consequences if things go wrong.

Clause 4 interests me greatly. As my noble friend Lord Palmer of Childs Hill indicated, it extends the agreement under the Armed Forces covenant for the MoD to give financial assistance to the Armed Forces community. Those of us who have worked with service charities know at first hand the enormously valuable work they do in giving financial support to those in need, but also moral support, advice and friendship. In adding to the money that they raise, this ongoing financial assistance from the Secretary of State will be welcome. I hope that the Bill will give us the opportunity to clarify how these funds are managed, particularly in relation to service charities, and to seek reassurances that the applications, selection procedures and administrative costs are proportionate and do not duplicate those elsewhere. We hope to hear from those who will be involved in implementing these measures, including the service charities, to ensure that the best possible use is made of the Secretary of State’s fund—money which is much needed by the service community.

We look forward to further briefings as we go into Committee and to scrutinising all the provisions in the Bill as we proceed.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 4:02 pm, 23rd June 2014

I, too, welcome the Minister’s opening remarks about the paramountcy and importance of the chain of command. I also associate myself entirely with the remarks of my noble and gallant friend Lord Craig, including those on the importance of analysing why the Army and the Royal Air Force appear to be lagging behind the Navy in implementing the 2006 measures.

What I would like to contribute to the debate at this stage is stirred by the mention by the noble Lord, Lord Thomas of Gresford, of the problems of the ombudsman having statutory powers on occasion. If ever there is a clash between the chain of command and anything statutory, we have to remember that there are two conditions in which the Armed Forces find themselves—their normal day-to-day existence, when different circumstances can prevail, and active service, when there is no room for anything other than an operational chain of command if operations are to proceed correctly.

I add two cautionary tales to explain why I am opposed to the commissioner being advanced to an ombudsman. In 1992, I was Adjutant-General, personnel director of the Army, and was sitting in the Principal Personnel Officers’ Committee with my opposite numbers from the Navy and the Air Force, when the Second Permanent Under-Secretary said to us, “You have got to decide where industrial tribunals figure in the service disciplinary chains”. Naively, I asked whether they came before or after Her Majesty the Queen, who is, of course, at the summit of it all. I was told that that was completely irrelevant because the Bill instructing that this should happen had already been given its First Reading in the House. “What Bill?”, we asked.

It eventually appeared that there was a Bill about industrial tribunals that had its origins in Brussels. When a copy came, I gave it to the director of Army Legal Services and said, “Run your eye over this, please, and come and tell me if there is anything difficult in it”. Within half an hour, he was back and he said, “This is absolutely disastrous. There is a clause in here which says that if an employee is ordered into a place of danger, he can take his employer to an industrial tribunal”. If carried to its logical conclusion, that would mean that a company could take its commanding officer to an industrial tribunal if ordered to, for example, capture a hill. I then asked the Second PUS what the offices of the German, French and Italian armies had done about the Bill. He said, “They claimed exemption for their armed forces”. I said, “Why on earth can we not do so, because all armed forces do the same thing?”. I say that merely because I suspect, having read the clauses in the Bill—many of which have been outlined, particularly by my noble and gallant friend—that the implications of the proposed powers of the ombudsman in relation to the chain of command may not have been properly thought through.

My second cautionary tale concerns coroners. We all welcome the fact that inquests will now happen more quickly, because there is nothing worse than a family having to wait for years and years before the full knowledge of the circumstances of the son’s, or whoever’s, death is known. Recently—in the past five years or more—there have been examples of coroners who, rather than just doing their job, have started to interfere with command decisions and question them in court. I submit that orders given by people on the battlefield should not be a matter for public questioning by coroners in a coroner’s court. There is a danger that the business of them doing that has undermined confidence in the whole coronial system in the Armed Forces, which is thoroughly unfortunate. I sincerely hope that the chief coroner will correct this.

I mention those examples because, while I am not opposed to there being a commissioner for complaints who is absolutely committed, first and foremost, to the rule of law in the Armed Forces—and those of us who operated on the streets of Northern Ireland, armed with our yellow cards, know how intrusive that can be—we must have a proper complaints system in which everyone has trust and which functions quickly and effectively. If that is not the case, then we must see why. I am most unhappy, however, at the thought of someone being introduced into the system with more powers than currently exist, because of the possible implications for the paramountcy of the chain of command, on which the Minister opened his address.

Photo of Earl Attlee Earl Attlee Conservative 4:08 pm, 23rd June 2014

My Lords, I, too, am grateful to my noble friend the Minister for introducing his Bill. It is clear that the old system was flawed but, like my noble friend Lord Thomas of Gresford, I am not convinced that the new one will cure the problem. It is of course heart-warming that the Government have found time for the Bill. Before saying anything substantive, I remind the House that I am still a commissioned officer in the TA, although I am not very active for a variety of reasons.

My worry is similar to that of the noble Lord, Lord Thomas of Gresford, in that, under the new system, the chain of command might concentrate on procedure to satisfy the ombudsman at the expense of resolving the grievance using skill and experience. For instance, one of the draft letters in JSP 831 looked to me to be rather formal. In certain cases, a more relaxed style might be more effective, and a good assisting officer could be helpful in this regard. Slavishly adhering to procedure can have serious disadvantages.

Many noble Lords, including the noble Lord, Lord Dannatt, have commented on delays in the system. There are time limits for the complainant and the CO respectively to make a formal complaint and for it to be determined. There does not appear to be any time to be disregarded as a result of being on operations, a point alluded to by the noble Lord, Lord Ramsbotham. Surely when deployed a complainant will have other things to worry about—as, indeed, will other parties.

For certain types of complaint the CO has 120 days to determine the matter; that is just for level 1. It seems to me, from reading JSP 831, that there is rather too much time. There appears to be no provision to require higher authority for the CO to exceed certain time limits. Where is the pressure on the system to conclude these matters speedily? It seems to me that the CO and the chain of command have to determine bullying and harassment cases quickly, no matter how painful for the parties involved. I do not understand why it appears to take so long to gather the facts. Is it just too difficult to make the decision?

If a complaint is found to be unfounded, under JSP 831, quite properly, no record is made in the respondent’s file. As we know, many of these cases are hard to determine because it is often one person’s word against that of another. What, then, happens if a new complaint is made against the original respondent by someone who does not know the original complainant and never knew a problem with the respondent had arisen before? The new CO will investigate with an open mind. However, if the CO knew that this was not the first time that this problem had arisen with this particular respondent, a different conclusion may well be reached. How is that pitfall to be avoided, both now and in future?

It is easy to think that officers and the chain of command are absolutely heartless. This is certainly not my experience, at all levels. I have always had full confidence in the chain of command. However, the problem is sometimes down to money. JSP 831 chapter 5 paragraph 5.2 indicates that the second PUS’s views must be adhered to by the defence council. Therefore, a situation can easily arise in which the complaint is well founded but the system is unable to correct it—in other words, the chain of command cannot resolve the problem. I have two questions for the Minister to write to me about. First, have I read that correctly? Can it be just that the second PUS can effectively direct the defence council? Secondly, if the complaint is well founded but to remedy it would not be good use of money available for the defence, can the grievance system find in the complainant’s favour but agree either that it would cost too much to remedy the complaint or that it would create an undesirable precedent? In many cases, just an acknowledgment that the complainant is right might be enough.

I wish the Minister well with his Bill and I hope that he can allay my concerns and those of other noble Lords in Committee. I hope we can meet the current Service Complaints Commissioner as soon as possible. I do not propose to speak to the next, more general debate because over the past few years I have not been so closely involved in defence matters.

Photo of Lord Boyce Lord Boyce Crossbench 4:14 pm, 23rd June 2014

My Lords, the financial assistance aspects of the Bill seem a welcome piece of tidying up. However, would the Minister like to confirm that COBSEO, the Confederation of Service Charities, has been informed about what is going on? I get the impression that it has not been cut in on the loop, so I should be grateful for an answer on that.

I am less sanguine about the service complaints part of the Bill concerning the introduction of a new Service Complaints Ombudsman to replace the existing Service Complaints Commissioner. I am unpersuaded by the Minister’s opening comments that an ombudsman vice the complaints commission is needed. I am quite sure that the £500,000 or so that I believe it is going to cost would be better spent on such recommendations as were made by my noble and gallant friend Lord Craig, who talked about how he might get better resources for the Army and the Air Force to speed up their processes.

The Armed Forces are a highly disciplined organisation with their own Armed Forces Act and quite different from any other organisation because of the powers vested in the command chain. I can understand the desirability of having a Service Complaints Commissioner, but I am at a loss to understand why an ombudsman is seen as necessary, and I am very concerned about the powers that are being suggested, which seem set to undermine the command chain which is fundamental to fighting efficiency. I have a suspicion that there is more than a degree of political correctness in driving this, at the expense of the ultimate goal of our fighting services, which is to fight and win.

In my general unease at what is being proposed, I have a very specific concern about new Section 340K, which allows the putative ombudsman to cut into the command chain directly and, without any recourse to the command chain, to bring to court anyone who it feels is obstructing the execution of its investigative duties. I fundamentally disagree with the assertion of the noble Baroness, Lady Dean, that the Bill does not interfere with the command chain in this respect. This role is one that, if necessary, the Defence Council can exercise already. The refusal of an order passed downwards from any part in its command chain is, in Armed Forces law, an offence which, when flouted, will see a person being subject to internal disciplinary proceedings.

I stress that that differentiates the Armed Forces from any other body where an ombudsman exists, and the adoption of the measures in new Section 340K puts the services under even further legal siege and encroachment—something that I believe the Secretary of State for Defence has previously, rightly, expressed anxiety about. In view of that, it is difficult to understand why he should support new Section 340K. It is certainly ill aligned with the Written Statement that he made to Parliament on 13 March 2014, when he said:

“The Defence Council would remain responsible for the decisions taken in response to the SCC’s recommendations, thus maintaining the authority of the chain of command”—[Hansard, 13/3/14; col. WS 188.], and thus indicating his attachment to the chain of command.

I also draw attention to the Government’s response to the House of Commons Defence Committee’s eighth report, where they say that changes,

“cannot be at the expense of maintaining the primacy of the chain of command”.

Perhaps the Minister can comment on that and, specifically, on whether new Section 340K has the explicit support of the Chiefs of Staff. My understanding is that it emphatically does not, and absolute clarity on this from the Minister would be welcome. I find it interesting that the memorandum from the MoD for today’s debate in the House of Lords is silent on new Section 340K. Would it be reasonable to suppose that this section has been included in the Bill after consultation with the services? Perhaps the Minister would like to comment on that and reflect very carefully indeed before he does so.

New Section 340J, concerning the service ombudsman asking for documentation, seems to be right and is associated with new Section 340K. However, I most strongly and passionately believe that new Section 340K is ill advised and unnecessary. It should be deleted from the Bill.

Photo of Viscount Trenchard Viscount Trenchard Conservative 4:19 pm, 23rd June 2014

With your Lordships’ leave I would like to speak briefly in the gap. I hesitate to speak in a debate in which so many noble and gallant Lords have spoken because my own military experience is but nothing compared with theirs. When I was a Territorial Army officer in the 1970s the idea that there would be an independent complaints process was so far away from the reality of how we saw things that people would have laughed. If you did not like what was done you would just leave and not turn up at the drill hall next time. I realise that things have moved on and that we live in a much more litigious society, and I am very well aware of that in my present honorary role as an Honorary Air Commodore of 600 (City of London) Squadron Royal Auxiliary Air Force.

I am very grateful to my noble friend the Minister for introducing this debate. I, too, took considerable comfort from his assurances that complaints should be heard and determined at the lowest appropriate level, and that nothing should be done that would weaken the absolute integrity of the chain of command. I readily acknowledge that service complaints panels, including the use of independent members, have been found to be useful and have provided for more transparent decision-making. Service complaints panels are generally not thought to have undermined the chain of command. Is my noble friend absolutely certain that the ability of the putative SCO—the ombudsman— to direct the Defence Council will not have the potential to undermine the chain of command? I must admit that I fear that the upgrading of the commissioner to an ombudsman does of itself seem to challenge the essential premise that the Armed Forces should retain responsibility wherever possible for handing their own complaints within the services.

The Bill changes the process in other ways. It reduces three appeals within the service to just two chances. I am persuaded that streamlining the process is necessary but I wonder whether that will be helpful. I think that it will have the effect of reducing the amount of judgment of decision-making that is done within the service and increasing the amount that is done independently outside the service. Again, on the face of it that would seem to undermine the power of the chain of command. How can a service preserve the ability to hold a service complaints panel without referral to the ombudsman or without there having to be maladministration of the service complaint? Will the service have discretion to determine the level at which a service complaint is best dealt with? Oral hearings are useful to clarify disputed facts. Will there be provision in the new system for oral hearings? The ombudsman’s costs will rise as a result of additional work necessary to enable her to determine whether there has been maladministration of a service complaint.

Clause 4 is very welcome. The extent to which the main established military charities, in addition to providing assistance to their Second World War and other veteran communities, now provide direct help to the serving Armed Forces is not widely appreciated or understood. The RAF Benevolent Fund, which I had the privilege to chair for eight years has provided more than £20 million to fund childcare centres on all the principal RAF stations. In addition, we provide substantial sums for games areas and Relate counselling for those whose relationships are under strain, often as a result of separation. As the noble and gallant Lord, Lord Craig of Radley, told the House, this is a completely different subject. Nevertheless, I very much welcome it.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 4:25 pm, 23rd June 2014

My Lords, while we support the Bill, a number of points have been and will be raised in this debate which will require either a response from the Government or probing further as we progress through the different stages of the parliamentary process. My noble friend Lady Dean of Thornton-le-Fylde, in particular, has already raised a number of points which I wish to re-emphasise.

The key feature of the Bill is the intention to replace the existing Service Complaints Commissioner with a Service Complaints Ombudsman. We have been calling for an Armed Forces ombudsman for more than a year to strengthen independent scrutiny of service complaints following a number of frank reports from the Service Complaints Commissioner, including in 2011 when she described the system as,

“not efficient, effective or fair”.

The system has not improved since then. We promised that we would introduce a cost-neutral reform through simplification of the present system to create a more powerful ombudsman. Following this pressure from ourselves and others, including the Commons Defence Select Committee and the commissioner—who has rightly been complimented today on the invaluable work that she has done—the Government finally announced that they would introduce a Service Complaints Ombudsman, and today’s Bill is the result.

We have also been campaigning strongly for the protection and promotion of our Armed Forces community inside and outside their service. For example, we campaigned for the military covenant to become part of UK law, giving members of the Armed Forces legal rights and entitlements. We have announced that we will increase protections against discrimination of the Armed Forces community in public through the Armed Forces (Prevention of Discrimination) Bill, and we have continually pushed the Government to tackle bullying, harassment and sexual assault in the armed services.

The Bill also includes a power to make payments to charities, benevolent organisations and others for the benefit of the Armed Forces community. This raises questions about how the current LIBOR funding has been allocated and spent, and therefore how any future funding would be allocated, and whether or not those in receipt of LIBOR funding have had to meet specific criteria, including on levels of performance. These are points on which we would welcome a response from the Minister and which we will be pursuing in more detail during the consideration of the Bill.

The Service Complaints Commissioner was established in 2008 by the previous Government under the provisions of the Armed Forces Act 2006 following, in particular, the concerns arising from the Deepcut review by Nicholas Blake QC into the circumstances surrounding the deaths of four trainees at an army training establishment. The current role of the Service Complaints Commissioner is to refer complaints received direct into the system and to make inquiries if a complaint is not resolved within 24 weeks. The Service Complaints Commissioner also provides an annual assurance of the complaints system to the Secretary of State for Defence and Parliament but does not have the legal power to review the handling of individual cases.

However, the commissioner has been critical of the present arrangements and how in practice they work. Indeed, in her most recent annual report, the commissioner says that for the sixth year she is unable to give an assurance that the service complaints system is working efficiently, effectively or fairly and that delay remains the principal reason for unfairness in the system. Overall, the Navy resolved 78% of new 2013 service complaints within the 24 weeks target; the Army met the target of resolution of complaints within 24 weeks in only 25% of cases; and for the RAF the figure was 23%. The commissioner also stated that she was unable to provide an assurance that the data contained in her report provided by the Army and the RAF on how complaints were handled were reliable. She also stated that service personnel lacked confidence in the system.

The current system does not offer all complainants the assurance of an independent person overseeing their complaint outside the chain of command in any effective way. No one currently has powers to recommend necessary changes when a complaint has not been handled properly. Service personnel have no recourse to other ombudsmen on matters such as housing, medical care or police services where these are provided by the Armed Forces.

Under the terms of the Bill, the service complaints ombudsman will have the legal power to review individual cases where a serviceperson feels their complaint has not been handled properly and to report its findings with recommendations for correcting any default or maladministration found. What it appears the ombudsman, like the current commissioner, will not be able to do is instigate an investigation himself. The present commissioner has apparently never been asked by the Secretary of State to report on a particular area of concern she may have outside her normal annual reporting cycle. It is not apparently because the commissioner has no areas of concern. She told the Commons Defence Select Committee that she would look at,

“cases of bullying, which include assault, and the issues to do with mental health, access to services, race [...] and the handling of those cases”.

During visits to units, she had been informed of issues that would not come to her as complaints and thought that some work needed to be done on them. She told the Defence Select Committee that ombudsmen have this broader view, and:

“They can pull together in an informed and responsible way evidence across the piece and put it forward in a way that is very valuable to the organisation that they oversee”.

The comments and views of the commissioner, including on the failings of the current complaints system, are particularly pertinent in the light of sexual assault, rape and bullying in the Armed Forces hitting the headlines when Corporal Anne-Marie Ellement committed suicide after complaining of suffering from bullying following an allegation of rape against two male colleagues, a case to which the noble Lord, Lord Thomas of Gresford, referred.

The 2013 Armed Forces Continuous Attitudes Survey found that 10% of those surveyed believed that they,

“have been the subject of discrimination, harassment and bullying”, in a service environment in the past 12 months, but only 8% of them had made a formal complaint. The reasons given for not making a complaint included:

“I did not believe anything would be done if I did complain”.

That was given by 54%, while 52% gave the reason:

“I believe it might adversely affect my career or workplace”.

I believe that 28% cited being,

“worried there would be recriminations from the perpetrators”.

The Commons Defence Select Committee said that it believed there would be value in the commissioner being able to undertake research and to report on thematic issues in addition to her annual reports.

As the noble Lord, Lord Palmer of Childs Hill, has also said, my understanding is that the Canadian forces ombudsman can initiate thematic inquiries into problems faced by sections of the Canadian armed services. Can the Minister say whether the Government have considered giving this power to the Service Complaints Ombudsman? If not, will they consider doing so, and if they have, what are the reasons for declining to go down this road?

A complaint will be considered in the first instance by the person in the chain of command who is able to decide the case and take action to put things right. There will be one level of appeal which will continue to include an independent element, as under the current system. If a complainant believes that his or her complaint has not been dealt with properly after the appeal, the complainant can ask the independent Service Complaints Ombudsman to review the case. The role of the ombudsman will be to consider whether there has been maladministration in the handling of a service complaint. This means that the ombudsman would consider whether there has been a failing in the process by which a decision has been made in the internal service complaints system, which has not been rectified, sufficient to result in an unjust outcome. A decision that the complainant dislikes, but where he or she cannot fault the process by which it has been reached, would not count as maladministration.

The Bill provides for time limits within which complaints must be raised. We will want to look at these to see whether they are reasonable and do not unfairly limit the ability of Armed Forces personnel to pursue a legitimate complaint. The Service Complaints Ombudsman’s recommendations will not be legally binding. It would be helpful if the Minister could set out why the Government believe that such recommendations will carry weight and what will happen if they are ignored, bearing in mind that the Service Complaints Commissioner in particular has not been impressed by the effectiveness of and respect for the current arrangements. It is difficult to understand why, if collectively those at the very highest levels had felt it a priority to ensure that the current arrangements worked much more effectively than they have, that would not have been the outcome.

Where are the teeth, or who will provide the teeth, to ensure that complaints are dealt with expeditiously and that recommendations made by the Service Complaints Ombudsman have some real bite and cannot be ignored without good reasons that are openly and transparently expressed? This is important. Service personnel have to obey legal commands. They do not have the rights of an employee. They are not employees with a contract of employment. They should be entitled to have access to an effective and independent means of redress against the possibility of any unacceptable and inappropriate use of power, and to have confidence in that process and procedure.

The Service Complaints Ombudsman will retain the ability to receive complaints and pass them on to the chain of command where a complainant is anxious about approaching the chain of command directly.

Service personnel will also be able to appeal to the ombudsman if their complaint is ruled to be an excluded matter or out of time. This is particularly important for people who have recently left the services but wish to complain about a wrong they feel was done during their service life. Under the current system, if the complaint is ruled excluded because it is out of time, they have no means of pursuing the matter if they are no longer serving at the time that the decision to exclude the complaint is made. In future, if the ombudsman rules that it should not have been excluded, the services will be obliged to consider it. Can the Minister say if this change would also apply in respect of a member of service personnel who had died by the time that the decision to exclude the complaint was made?

How well the Service Complaints Ombudsman system will work, only time will tell. If it is not supported by senior military personnel and Ministers, it will not secure the necessary changes and strengthened objectives that the current Service Complaints Commissioner clearly believes the new ombudsman, if provided with adequate numbers of staff, should be able to deliver. As the commissioner says in her 2013 annual report:

“Communicating the new system across the Services and educating NCOs and Officers in how to manage complaints will be key to success”.

I appreciate that these are early days, but I hope that the Minister will be able to say something today—or if not today, during the passage of the Bill—about how the new system will be communicated and what form the education in how to manage complaints, to which the commissioner referred, will take and how extensive it will be, bearing in mind that the education in managing the current arrangements does not appear to have been as successful as it might.

I note that the commissioner also said in her 2013 annual report that, while she hoped that the new system could be implemented early in 2015, in the mean time it was necessary to ensure that people with complaints to make still got the best possible treatment, with a complaint resolved within the current 24-week target. Can the Minister say, either today or subsequently, what progress is being made in increasing the percentage of complaints being resolved within the 24-week target, particularly in respect of the Army and the RAF? An improvement here might provide some positive evidence that the ombudsman will receive the support and backing to be able to deliver a new system that is of more benefit to both individual service personnel and the services themselves.

The Bill sets out the structure of the new system, including the relevant powers, role and functions of the Service Complaints Ombudsman, the Secretary of State and the Defence Council. However, it does not provide the details, which will be crucial since they could enhance or weaken the position of the ombudsman. These details will be set out in regulations. For example, Clause 2 refers to a person being able to make a complaint about,

“any matter relating to his or her service”, but goes on to say:

“A person may not make a service complaint about a matter of a description specified in regulations made by the Secretary of State”.

Clause 2 also provides for the Defence Council to make regulations,

“about the procedure for making and dealing with a service complaint”.

These regulations, known as “service complaints regulations”, will be vital, even though the Bill covers a number of factors or issues for which they must make provision.

Clause 2 also provides for the Secretary of State to make regulations about persons and panels deciding service complaints and about the procedure to be followed in ombudsman investigations, both of which are matters that, once again, could be of considerable significance in relation to the independence of the complaints procedure and the exercise of the ombudsman’s powers. We need an opportunity to see the proposed regulations before we reach Committee in this House, since they are such an integral part of the Bill and whether it will achieve its objectives, and I hope that the Minister will be able to give an undertaking on behalf of the Government that this will be the case.

The hope and expectation is that under these new arrangements for a Service Complaints Ombudsman, our service personnel will benefit from a simpler and faster system for resolving complaints within the scope of the ombudsman’s remit, in which they can have confidence. They deserve nothing less.

Photo of Lord Astor of Hever Lord Astor of Hever The Parliamentary Under-Secretary of State for Defence 4:38 pm, 23rd June 2014

My Lords, we have had a constructive and helpful debate and I am very grateful for the excellent contributions from all sides of the House.

It is clear from the debate that there is a general agreement about the need to reform the service complaints system. I think we all appreciate the importance of having a system that is fair and effective. Although the current system is satisfactory, we can—and must—do better. It is essential that our service men and women have the confidence that any complaint they raise will be taken seriously and that it will be dealt with quickly, which is not always the case at present. Having a robust complaints system is both an integral part of the covenant and a key part of ensuring operational effectiveness. The new streamlined system proposed by the Bill will ensure that complaints are properly investigated at the appropriate level and with clear avenues of appeal. The system proposed by the Bill strikes the right balance between having strong and independent oversight of the complaints process and maintaining the authority of the chain of command, as stressed by the noble Baroness, Lady Dean.

The measures set out in the Bill represent a significant improvement to the complaints system. It is clear from today’s debate that some noble Lords feel that we should go further. A number of very good points have been raised and I am sure that they will provide us with a good basis for our consideration in Committee.

I turn to some of the points raised by noble Lords and noble and gallant Lords. I may not be able to answer all questions, but, where I do not, I shall undertake to respond in writing before Committee.

The noble Baroness, Lady Dean, asked what happens to a service complaint when the complainant dies. It is the usual practice that a complaint ceases if the complainant dies before it has been concluded, but much depends on how far it has progressed and the extent to which a complainant’s evidence has been dealt with. It is only fair that all parties are able to challenge allegations made against them; for example, in complaints of bullying. Even if the complaint has to cease, it is open to the chain of command to take what lessons it can and whatever actions might be possible.

The noble Baroness asked what alternative mechanisms are available for families of deceased servicepeople to raise issues with the chain of command. Families can approach the chain of command or Ministers at any level about any matter that is of concern to them. The welfare of all personnel is of paramount concern to all in command and they therefore take such approaches very seriously. The chain of command can then decide on the appropriate action to take, which might include, for example, conducting a service inquiry to investigate in more detail.

The noble Baroness and the noble and gallant Lord, Lord Craig, asked when draft regulations would be available. An initial draft of the regulations will be available by Lords Committee stage. As the noble Lord, Lord Dannatt, said, implementation will be key.

The noble Baroness, Lady Dean, asked how detailed applications to the ombudsman need to be. We want the process to be simple for everyone to operate. The complainant will need simply to set out what they say has gone wrong in the handling of their complaint. Regulations will set out the minimum information that will need to be provided. They will not be onerous requirements. Advice and guidance published by the ombudsman are likely to be provided to help individuals, as with other ombudsmen.

My noble friend Lord Palmer of Childs Hill asked why new Section 340L does not make reference to sanctions. The ombudsman’s role is to make findings on maladministration and injustice and to make appropriate recommendations. Their role is focused on the procedure followed rather than on the merits. It is for the Defence Council to grant all appropriate redress.

I share the hope of the noble Lord, Lord Dannatt, that the existence of the ombudsman will focus the chain of command’s attention more consistently on dealing with complaints more effectively. To that end, the ombudsman will have a positive impact overall.

The noble Lord pointed out that the new ombudsman needs to be properly resourced and I entirely agree. We are discussing with the commissioner how the ombudsman’s office should be structured and resourced when these changes are implemented. There will be more staff in the ombudsman’s office. We expect their number to increase from the current nine to around 20.

The noble Lord asked why the number of complaints has increased. As Dr Atkins acknowledged, we can never be sure whether the number has risen because of a greater number of incidents or wrongs, or because personnel have increased confidence in the process. However, that rise is helpful in giving the chain of command the chance to rectify matters.

My noble friend Lord Thomas asked me to confirm that the Defence Council’s reasons for rejecting the ombudsman’s recommendations can be judicially reviewed. I can confirm that, yes. My noble friend commented that the ombudsman should be able to recommend compensation. The ombudsman will have wide powers to recommend action to put right a procedural wrong if he or she finds one. That could include that compensation be made. The Defence Council will be required to consider that fully and provide written reasons if it refuses to implement recommendations.

My noble friend asked if the ombudsman could go beyond looking at an individual complaint to look at systematic issues. The ombudsman can only consider the matter raised by the complainant but, when investigating a complaint, he or she may identify wider issues connected with that complaint from which we should learn. That is a valuable benefit of this new role.

My noble friend said that the ombudsman cannot investigate the substance of a complaint, but is limited to maladministration and binding recommendations. Ombudsmen have very strong powers to scrutinise the effectiveness of the handling of service complaints. It is expected that their findings will be followed. While we expect the Defence Council to follow the vast majority of recommendations and they will clearly have some legal effect, the scope of recommendations is potentially very wide. It is right for the Defence Council to be able to decide not to implement recommendations but only where there are very good reasons: for example, where significant resource implications are involved. The Bill does not provide for this explicitly. That is in accordance with other, similar legislation. There is well established case law on the legal effect of findings and recommendations.

The noble and gallant Lord, Lord Craig, asked what matters can be excluded. Matters that can be excluded will be very similar to the current list of excluded matters in the Armed Forces (Redress of Individual Grievances) Regulations 2007. That would include complaints about decisions made under the service justice system. The noble and gallant Lord also asked how much of the delay is due to a lack of resources. It is impossible to identify whether a lack of resource is an issue. What is clear is that inactivity, whether by the complainant or the chain of command, is too often the cause of delay—which we must tackle. Positive behaviours when handling a complaint are as important as the process being followed. We reinforce that continually.

My noble friend Lady Garden was concerned to ensure that administration costs for financial payments do not duplicate those elsewhere. We have an existing system in place to guard against this, and will ensure that we retain that in managing the £10 million that the Government have allocated for Armed Forces covenant commitments.

The noble and gallant Lord, Lord Craig, asked for an assurance on future funding. The current scheme is purely discretionary. The requirement to report publicly on spending in support of the Armed Forces community, for example in the fields of healthcare and housing, will help guard against adverse changes.

My noble friend Lord Attlee asked whether time in operations could be disregarded from time limits proposed for the complaints system. All time limits, as under the current system, will be subject to extension where that is, for example, just and equitable under the circumstances. My noble friend was concerned that the chain of command might concentrate on procedure rather than the substance of a complaint. A complaint is a sign that something is wrong and needs to be put right. Procedure is key to make sure that complaints are handled well, but we encourage an informal approach, too, so that matters are nipped in the bud quickly. Dr Atkins acknowledged that the Army has done this increasingly in recent years, particularly for complaints about bullying.

The noble and gallant Lord, Lord Boyce, was concerned that the Armed Forces were blindsided on the changes. I can assure him that the Armed Forces have been fully involved in developing the changes. That was the very first question I asked when I was briefed, and I was assured that they are completely behind the proposed reforms. We are looking to set up a briefing for all Peers with the Vice Chief of the Defence Staff before Committee, and that will enable noble—and noble and gallant—Lords to hear from the services themselves their views on the Bill.

The noble and gallant Lord asked about new Section 340K—the contempt powers. The information and contempt powers in new Sections 340J and 340K are a common feature of ombudsman legislation. The ombudsman must have fully effective powers to scrutinise the handling of service complaints. It cannot be right for the ombudsman to have to rely on the chain of command to get the information they need to do their job properly. Without those powers, we would be criticised for creating a toothless watchdog.

The noble and gallant Lord asked: has COBSEO been informed and has it been consulted? The purpose is not to change the schemes by which assistance is given to the Armed Forces community through charitable or other organisations, but to ensure that there is proper parliamentary authority for such expenditure.

My noble friend Lord Trenchard and the noble Lord, Lord Ramsbotham, were concerned that the ombudsman’s role undermines the chain of command. Although the ombudsman has strong powers to make findings and recommendations, the final say rests with the Defence Council. If it has very good reasons to depart from the ombudsman’s recommendations, that will be enough.

My noble friend Lord Trenchard asked: will the service have discretion about who handles a complaint? A key reform of the process is that a complaint will be assigned to a person or group of people who have authority to grant appropriate redress. Service complaints panels as currently defined will go from the process, but their function is retained. That includes the need for independent members to be involved, for example, in complaints of bullying.

The noble Lord, Lord Rosser, pointed out that the ombudsman must have the power to undertake reports and investigations that would detect and deal with another Deepcut. The ombudsman is undoubtedly in a good position to spot when concerns arise about a particular location or individual. However, it does not follow that the ombudsman is best placed to investigate further. However, the ombudsman can alert the chain of command at whatever level he or she considers appropriate in the circumstances—or Ministers—so that action can be taken, and refer to the matter in the annual report, giving it public and parliamentary visibility. That has a powerful effect which should not be underplayed.

The ombudsman’s focus in producing an annual report as set out in the Bill is on the way that the complaints system has operated in the preceding calendar year and on the exercise of his or her functions during that period. The Bill also provides for the ombudsman to cover any other aspect of these areas that he or she considers appropriate—or, indeed, that the Secretary of State may direct. This gives scope for the ombudsman to report on any matter that he or she considers relevant.

The noble Lord asked: what criteria have organisations had to meet to get funding, and how is funding decided? There is a rigorous application process, with decisions on funding taken by a panel of experts drawn from the service charities and government. The specifics vary slightly for each of the funds, and each project is monitored against an agreed set of terms and conditions, so there is due diligence.

The noble Lord asked a very pertinent question: how will the changes be communicated to members of the Armed Forces? There will be comprehensive communication across all three services, delivered in ways that are appropriate to each service’s needs. I hope that I have now answered most of the questions. As I said, I will write regarding any that I have not answered.

This Bill provides the legislation that we need to reform our service complaints system and ensure we can provide financial assistance to charities that support the Armed Forces community. These measures, on which there is a large degree of consensus, should be taken forward quickly and I therefore ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.