Clause 2 - Reform of system for redress of individual grievances

Armed Forces (Service Complaints and Financial Assistance) Bill [Lords] – in a Public Bill Committee at 10:15 am on 10th February 2015.

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Photo of Kevan Jones Kevan Jones Shadow Minister (Defence) 10:15 am, 10th February 2015

I beg to move amendment 23, in clause 2, page 2, line 15, at end insert—

‘(2A) If the person referred to in subsections (1) and (2) is deceased, the complaint may be made or maintained by his or her next of kin, or personal representative.”

The Minister did not allow me to intervene, but I am not sure where the process of removing an ombudsman is in the Bill. The Minister indicated that the Secretary of State could do this. Could she clarify this important point?

In clause 2, we are getting to the meat of the operations of the ombudsman. Amendment 22 would allow a third party to take over a complaint in the event of the death of the complainant. Currently, if the complainant dies the complaint will die with them, which will prevent the individual who has passed away to get any justice. Also, I think that some improvements in the system that could be argued for would not be looked into. This is very relevant if you look at Lord Justice Blake’s report on Deepcut, for example: if any of those individuals had made service complaints and then tragically committed suicide while the complaint was ongoing, the complaint would have died with them. It was clear from Lord Justice Blake’s report that there were issues around not just one but all four of those individuals that could have implications, not just for them personally, but for the wider culture and other events taking place at the time at Deepcut.

The Minister has argued that common sense would be the order of the day in terms of whether the ombudsman would be able to continue a complaint after death. The thread running through all the Government’s resistance to the amendments proposed by the Select Committee and the Opposition is that there is no need for them in the Bill, but I am of the opinion they are needed, because they give clarity for the complainant to know that their complaint will be taken seriously in the event  of a death, and for the ombudsman in relation to any doubt about being able to pursue those complaints should he or she wish to do so.

I know that the Minister argued on Second Reading that it would be unfair to the person being complained about if they could not make a proper defence against the person who had complained, but many such cases, we are not just talking about the complaint. We will come on to the meat of what the ombudsman is in the next group of amendments, but the important point is that, yes, someone will make a complaint, but often that will throw up other issues that are both relevant to their complaint and have wider policy implications for the way the armed forces operate. As we know, most complaints are about service life—for example, pay and holiday allowances—so if the complaint dies with the person, that would be unfair.

It is important that family members should be able to continue with complaints. I am thinking about the cases not only at Deepcut, but at Catterick and the death, for example, of Lynn Farr’s son, Daniel. Had he made a complaint, it would have been wrong if that had died with him, because the family would not have felt that the complaints had been dealt with in detail. Some of the broader policy issues that related, for example, to his death would also not have been brought to the attention of the ombudsman and the chain of command, and some of the changes that were subsequently made in his case would not have been made.

I turn to amendment 24 and 25. Amendment 24 relates to—

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Order. Those amendments are grouped separately.

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

It is not as simple as saying that this should not be in the Bill; this is actually a matter of principle. With great respect to the hon. Gentleman, I think he misses entirely the point of the complaints procedure. A service complaint is a personal grievance based on the complainant’s experience of what has taken place and their view of the redress that they want. That can be, “I did not get my allowance to which I was entitled—that is my complaint. The redress I seek is that I get my allowance.” Another example could be, “I’ve been bullied by Sergeant Bloggins. The redress I seek is that he is disciplined in some way.” That is what this is all about: a complaints system based on an individual grievance and the redress that they seek.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

This is where the Minister fundamentally misunderstands the role of the ombudsman. For example, if somebody had been bullied, as she suggested, and that led to the individual’s death, even if they had put a complaint in, it would die with them. There may well be issues relating not only to that individual’s complaint but to other events taking place in and around the particular establishment or unit that need addressing. Having dealt with a lot of the families from Deepcut and other instances involving bullying, I can tell her now that they will feel very aggrieved if there is a cut-off for those types of complaints.

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

I was going to say that I was grateful for the intervention, but if I may say so, it is further evidence that the hon. Gentleman does not understand the reality of his own amendment. If a death occurred—these things are deeply regrettable and mercifully rare—the proper place to deal with it, because it would be an unexplained, unexpected death, would be at a coroner’s inquest. [ Interruption. ] I am being passed notes, which are all very helpful, but bear with me.

If someone dies and it is believed that there may be a link between their death and a complaint that they may or may not have raised in the current or the new system as we anticipate it, it matters not, because the coroner’s court intervenes for the reason that it is an unexplained, unexpected death, and I have complete confidence and faith in the coronial system to do exactly what is required in those cases. Let us remember that the coroner is not looking at whether it was Sergeant Bloggins who particularly—

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

No, I will not give way, because this is a very important point that needs to be understood by all of us on the Committee. Not only is there the coronial system, with all the rigour of the coroner, all the powers available to them and the findings that they can go on to make, but there are our own—“our” meaning within the armed forces—internal systems: the service inquiries, which are conducted with vigour and without fear or favour. Those two features, in my view, can give any family in 2015 confidence that in the event of one of their loved ones suffering in this way, the right thing will be done. I will now give way, but briefly.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

It is strange that although this is supposed to be a debate, the Minister seems reluctant to enter into any type of dialogue. She should read Lord Justice Blake’s report. If she thinks that the coronial system in every part of this country—I accept that it has been improved since the appointment of the Chief Coroner—is the method for dealing with this matter, she is mistaken. She says service inquiries are rigorous. I am sorry, but they were not rigorous in, for example, Deepcut and other cases. If she thinks that families will accept that they should rely on that, I can tell her now that they will not.

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

The Bill does not seek to preclude the pursuance of a complaint in the event of the complainant’s death. The Bill does not prevent that from happening. Indeed, it is absolutely the view of the Ministry of Defence, the armed forces and myself that in certain circumstances that should be possible, and that is what the Bill gives: flexibility, if it is in the interests of justice, for the complaint to be continued in any event. We have examples of where people have started a complaints process—it has been commenced and gone through— and unfortunately the complainant has died, but notwithstanding that, the complaint continues to resolution. It may be that the complaint is about a pension or an allowance or about bullying, and those hearing the complaint have heard all or most of the evidence that they need to and they know that continuing the complaint will not cause any disadvantage to anyone. I do not believe that the Opposition appreciate that, either.

Let us put ourselves in the position of the person against whom the complaint is made. Let us say that we are Sergeant Bloggins or a member of his family. We want to ensure that when he denies an allegation of, for example, bullying, he too has the right to have his case and all the evidence properly heard. If unfortunately the complainant is dead and there cannot be that sort of testing of what the complainant has apparently alleged, because that person is no longer with us, there is a real danger that the person against whom the complaint is made will suffer an injustice. That would not be right or fair.

Photo of Andrew Bridgen Andrew Bridgen Conservative, North West Leicestershire

If the member of service personnel who made a complaint to the ombudsman tragically dies, what does my hon. Friend envisage the relationship will be between the coroner and the ombudsman’s office while they investigate the complaint made?

Photo of Anna Soubry Anna Soubry The Minister of State, Ministry of Defence 10:30 am, 10th February 2015

When there is an unexpected, unexplained death, the coroner in any event steps in and does their brilliant work. If a complaint has got through the complaints system all the way to the ombudsman—we are talking not only about the ombudsman but about the whole of the complaints system—it will be looked at, as the Bill allows, on the basis of whether it is in the interests of justice for that particular complaint to continue. There are instances when we have no objection to a case continuing because it can improve our system, whether it is in relation to allowances, or because it is an allegation of a more serious nature. For all those reasons, I urge everyone to vote against the well intentioned, but wrong, amendment. It really is not needed and the danger is that it will create—

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

No, I am sorry; I want to complete my remarks. The danger is that it could cause great injustice to others whose voice will effectively be lost, because this is simply the wrong thing to do.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

Although I support of the Bill as a whole, I am sympathetic to the aims of amendment 23. The Minister said that it raised matters of principle about the actual purpose of the Bill—by implication, saying that this was about establishing a complaints process for living service personnel—but there is a wider principle at stake, which is that the whole value of a complaints system is not only for the complainant, but for the entire organisation and the whole structure. That is the value of a complaints process in business, in government, and, indeed, in the military: it enables the organisation to do its business better to avoid such complaints arising in future. So there is a wider principle that says we should see complaints through, especially when they have been initiated, and they should not simply fall when somebody involved in the making of the complaint dies.

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

Does the hon. Gentleman accept that they absolutely will not fall? If the circumstances are right and it is in the interests of justice, we want such complaints to continue, but under the amendment there  would be no discretion involved. That is why it is wrong. This is about an individual’s complaint in their service, as is common in all complaints systems. That is why it is not in the terms that he puts in.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

I am not quite sure I follow the logic of that. The Minister is saying that if the complaint cannot be pursued within the internal system after the person has died, we are to rely on the coronial system or the courts to be the proper place for such complaints. That is no more desirable than pursuing the complaint internally.

The Minister’s answer to the point about the fair right of reply for the people being complained against—this was the case made by her noble friend Lord Astor in the House of Lords—is also slightly curious. Again, if we rely on the coronial system to pick up the complaint, exactly the same principle would apply there and in any other court or complaints process once the person involved had died. Liberty and others make the point that the right of the surviving person who has been complained against to make their own case is not inhibited by continuing with the complaint. They can still put their own side of the argument, and they will have the right to make assertions that are less open to challenge than they would have been if the complainant had survived, so, in a sense, they are in a stronger position.

The amendment is difficult for me. A good principle has now been explored in the House of Lords, on Second Reading and now in Committee, and there comes a point when we have to look at supporting such amendments to make such changes, because it matters to the families of service personnel. I remain sympathetic to the amendment, although I am happy to once against listen to the Minister’s remarks.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

The new Service Complaints Commissioner has said:

“There is merit in allowing discretion for an individual’s personal representative or a family member to make or continue a complaint on behalf of a complainant who is deceased or otherwise unable to act.”

I am sure that the hon. Member for Cheltenham is aware of that. The complaint on behalf of a complainant who is deceased or otherwise unable to act should be allowed to complete. The Service Complaints Commissioner is concerned about that being allowed in all circumstances. She has said that there will be circumstances where it is not appropriate for a complaint to continue and where

“fairness may be compromised in progressing a complaint in the absence of evidence from the Service person. The Services will also have to consider the entitlement of the personal representative or family member, particularly if there is disagreement between immediate family members.”

She concluded that

“some flexibility in this matter is the best approach, perhaps giving the Services (and the Ombudsman) discretion to investigate complaints made by the personal representative or a family member. The Ombudsman could play a valuable role in reviewing whether the discretion was exercised properly, reasonably and fairly.”

The amendment that my hon. Friend the Member for North Durham has tabled would allow that to happen, and it would also send the message to family members  that a complaint does not have to die with their loved one. Thinking back to the case of Anne-Marie Ellement, an examination of the service complaints system in relation to her death found no complaint from her. However, Lieutenant Colonel Jeremy Field, who was head of Army complaints at the time, told us in evidence that he did an exhaustive search, but because of the chaos in the system, a complaint may well have been lodged but he could find no evidence of it, so we do not know for certain that no complaint had been made in that situation. Families should be allowed to continue a complaint if it has been established and if there is no injustice in completing it. I believe that the amendment addresses those issues.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

We seem to be having a rerun of Second Reading. The Minister has a hugely inflated opinion of the coronial system, but it does not reflect my experience of the way it actually operates. If she had ever had any dealings with the Middlesbrough coroner, for example, she would have very little faith in his ability to investigate deaths in a timely manner. That is important for family members, and I think it comes down to the way in which she has looked at the Bill right from the beginning. The Bill is being seen as establishing a complaints system for the individual, but it is not. One good thing that Susan Atkins has done is to draw wider lessons from problems that originate in a complaint but which demonstrate that broader issues in a unit, or in the service as a whole, need to be addressed.

The Minister talks about injustice, but I feel that the injustice for families would be if a complaint died with an individual and the ombudsman had no opportunity look at the issues that related to them. The Minister is putting too much emphasis on future Secretaries of State, and that is why the Bill needs to be changed.

Photo of Brian Binley Brian Binley Conservative, Northampton South

Is it not true that if the coroner service is it fault, it is necessary to reform the coroner service? That is not the point of the debate, however. The coroner is designed to be the last line of defence for all people in this country. If the coroner decides that there is a case to answer, their decision tips off other authorities to become involved. That is the role of the coroner. Having been in exactly that position as a result of some untimely deaths in a care home, we managed to get the coroner’s rules changed, to my relief and to the relief of many others. We are getting two things mixed up here and we need to be a bit careful.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

No, I am not. I totally agree that coroner services need reform. That is why Opposition Members and I argued for the appointment of a Chief Coroner, which the hon. Gentleman and his colleagues voted against and resisted up to the last minute. I think that the Chief Coroner will make a difference over time, but we are talking about the role of the service complaints ombudsman and whether he or she—it will be a she in this case—should have the ability to investigate a complaint after someone dies. Without that, the complaint finishes at that point.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

I am sorry. The Minister is relying on the flexibility of the Minister of the day or the chain of command to continue the case. As I said earlier, I am not prepared to leave it to future Ministers of whichever political persuasion.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

I will, actually, because I believe that Committee should be about debate. I hope that the Minister gives this courtesy in future.

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

That is a little harsh, because I certainly gave way to one intervention. May I make clear that, if a complaint is in process, it is not for the Minister to say yea or nay to whether it should continue? Once in the system, be it the complaint made to the commanding officer or the complaint that has failed and gone on to the ombudsman, it is for the system to decide whether to continue the complaint in the event of the death of the complainant. For some complaints we would definitely say, “Please let it continue,” because we want a determination, whether on pay or allowances or an allegation of bullying. The Bill as drafted leaves discretion. The amendment would take that away, which would be very bad.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

No, it would not take away discretion—the Minister is talking complete nonsense. It allows the ombudsman, who is outside the chain of command and away from Ministers, to make that decision. I always get worried when people talk about “the system” because I am not sure what the system is.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

Well, does it have an independent mind that allows it to decide whether a complaint should go forward? No, it does not. It is impacted on and influenced by the chain of command, Ministers and the Ministry of Defence. [ Interruption. ] The Ministers chuckles, but she should tell me what the system is. Does it automatically decide whether complaints should go forward? No, it involves the chain of command and Ministers may be able to influence it. The amendment would allow the ombudsman to continue with a complaint.

I accept that the ombudsman may make decisions in some cases that complaints will not go any further, but the amendment would allow her to do that. A theme runs through the Bill and what the Opposition and the Select Committee are interested in doing is giving as much power as possible for making decisions to the ombudsman rather than future Ministers or the chain of command. In the years I have been dealing with this subject, I have found that that is exactly what the families of those who die in service require and, I think, that would also lead to an improved system. We saw that with the introduction of the Service Complaints Commissioner, which the chiefs say has improved the system. That would also provide an extra spotlight to be put into parts of the system, as the Minister refers to it, and lead to improvements.

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

The hon. Gentleman is being a little naughty. When I say “the system” I mean the complaints system as detailed in the regulations, not the system as  he interprets it, which involves others. I think my language was accurate, because I was talking about the service complaints system as outlined in detail in the regulations.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

In terms of the system, people have to make a decision on whether a complaint goes forward. What I am arguing, as others have argued, is that that decision should lie with the ombudsman. That makes the decision independent and prevents the Minister or the chain of command from influencing the system.

Photo of Andrew Bridgen Andrew Bridgen Conservative, North West Leicestershire

I am listening with great interest to the hon. Gentleman’s remarks, and he has some good points. Would he support an amendment to the effect that where a complainant unexpectedly died, in whatever circumstances, it would automatically go to the ombudsman for determination?

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

No, because that is silly. If someone dies of a heart attack or is killed in a car crash, for example, why should the case go to the ombudsman? We are talking about complaints already initiated. It would clog up the entire ombudsman system if, for example, people died from natural causes or tragic accidents.

Photo of Andrew Bridgen Andrew Bridgen Conservative, North West Leicestershire 10:45 am, 10th February 2015

I meant that if a person made a complaint, it would automatically go to the ombudsman if they passed away after that.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

The hon. Gentleman is therefore agreeing with the point I am making. That would allow the ombudsman then to decide whether the case would go forward. If the hon. Gentleman is arguing that anyone who dies in service should automatically go before the ombudsman, I do not agree.

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

As the hon. Gentleman knows, if it is about pay and allowance, there are other ways for the family of the deceased to pursue the matter, and rightly and properly so. It would go to the Service Personnel and Veterans Agency, which would undoubtedly determine it to the benefit of the family.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

As the former Minister in charge of the SPVA, I hold it in hugely high regard, but I must say that that is not always the case; the decision sometimes ends up on the Minister’s desk.

The Minister is returning to the idea, as she has on numerous occasions in this debate, that somehow the ombudsman just deals with trivia about people’s pay and terms and conditions, or their mattresses being too hard or too soft. That is not the case. If she had read around the subject before this debate, she would know that we are talking about complaints that in some cases are very serious: bullying, intimidation and, in the most extreme cases, as my hon. Friend the Member for Bridgend has described on numerous occasions, sexual assaults and other incidents that have gone unreported.

I do not accept the idea that if someone is in that appalling situation, the system should decide whether their complaint should go forward. The ombudsman should consider that complaint. That would give confidence. If the Minister met some of the families—

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

I am not suggesting she has not, but if she has met some of the families involved in Deepcut or of those who have died in service, she will know that they would not trust the system to take care of their loved ones’ complaints.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

The hon. Gentleman is being unfair on the Minister, who has never suggested that the issues it is intended the ombudsman will handle are not serious. I am now slightly confused. Haven risen to speak in sympathy with the amendment, he now seems to be arguing that it should be the ombudsman who decides whether a complaint goes forward. As I understand the Minister’s remarks, that is already the case. What the amendment says is that the next of kin or the personal representative of the deceased should make that decision. I would like him to clarify exactly which argument he is making. He seemed a moment ago to be saying that it should be the ombudsman’s decision, but as I understand it, it already is.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

The fact is that in bullying, harassment and similar cases, it is important that family members have the ability to do so. Under the Minister’s proposals, the system would close that down. There are two important issues: that families can ensure that a complaint goes forward, and ensuring that lessons are learned. It will not bring those individuals back—that was the tragedy of Deepcut and other cases—but that is the important point.

Photo of Oliver Colvile Oliver Colvile Conservative, Plymouth, Sutton and Devonport

What a delight it is to serve under you, Mr Chope. On a minor point, surely sexual assault is an issue for the police to take up as well.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

Well, it is; the hon. Gentleman is right that the service police should investigate, but I ask him to read some of the cases that have emerged where such complaints have not been referred to them, either because the immediate chain of command, though aware of the matter, did not report it, or sometimes—I think things have improved in the past few years—because the service police did not take the cases seriously. It is right that in a perfect system, what the hon. Gentleman suggests should happen. It would be good if the ombudsman could examine the chain of command in such instances. There are later amendments dealing with the service police.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Division number 4 Decision Time — Clause 2 - Reform of system for redress of individual grievances

Aye: 7 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

I beg to move amendment 40, in clause 2, page 2, leave out lines 25 and 26 and insert—

“(a) for the establishment of a centralised tri-service administrative office for the processing of service complaints; and

(b) for service complaints to be submitted to that office before being passed to an officer of a specified description;”

To help the Committee, I will not press the amendment to a vote. It is a probing amendment on an issue I want the Minister to consider. Much of it comes from extensive discussions with Lieutenant Colonel Jeremy Field, now retired. He was given the job of creating and rolling out the Army’s first ever Service Complaints Wing in 2010, and was given six months to do it. In evidence to the Defence Committee he said he was

“shocked at how little knowledge there was about Service Complaints, how little interest the chain of command took in Service Complaints and the fact that there was no overall oversight as each command was responsible for Service Complaints within its geographic boundaries and all had different systems.”

He set up a system in which all service complaints were sent to him at Army headquarters and he read each one, as did a lawyer. A lawyer was there in case any possible criminal act had occurred. In that case the complaint was stayed pending a Royal Military Police investigation. In several cases that led to the Service Prosecuting Authority deciding that court martial proceedings against respondents were appropriate.

Complaints were allocated to a caseworker, who would liaise with the deciding officer with process advice and maintain an overview of each case with monthly updates. The legal officers provided the necessary legal advice to the deciding officer as the service complaint progressed. In 2010 that brought a chaotic system into some sort of structure.

I mentioned on the previous amendment that Colonel Field had been asked whether a complaint had been made in relation to the late Corporal Ellement. His words may help the Minister:

“I checked our data base and found that we had no record of a complaint. However, if she had made a complaint through her chain of command, given the haphazard system that was in operation before my 2010 changes, it may not have been recorded.”

The Navy has 10% of all bullying, discrimination and harassment complaints, and the RAF 38%; it is thought that that is based on its high number of women. The Army has 43%.

The amendment indicates the need to examine the introduction, tri-service, of a centralised complaint wing, and we have seen such centralising in the Army. Best practice could then be shared, and professionalism and expertise could be built. The work load could also be shared, depending on who was carrying the most complaints. There could be greater trust, in that a single-service ethos would not influence investigations. Delays would also be reduced. Where there was the potential for conflict, or a concern that the chain of command was involved in the complaint in any way, the case could be passed to another service.

Those are my suggestions to the Minister. She can take them away and do with them as she wishes. I merely propose the amendment in the hope that it will be taken into consideration. I do not want to press it to a vote.

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

This is a good example of where I agree with so many of the sentiments expressed by the hon. Lady, but the question is how we achieve what she proposes. I am more than happy to discuss the issue with her, but I am not persuaded by the arguments in favour of the amendment, and I would certainly resist it.

Let me briefly set out those arguments, because I think that would be helpful. The hon. Lady is right that we need to have consistent handling of service complaints, but the independent scrutiny the ombudsman brings will help to ensure that we do, and an awful lot of work is, of course, already going on in the services to achieve that.

There are no plans at present to set up a tri-service unit. Each service will rightly retain responsibility and accountability for the welfare of its personnel in the widest sense. The nature of the complaints raised, and the efficiency with which they are handled, are a key aspect of that. It will be open to the commissioner, and then the ombudsman, to comment on how the efficiency of the process in any service at any level could be improved.

I very much like the idea of a complaint going straight to a specified officer—straight to the commanding officer—from the very beginning, so that he or she not only takes responsibility for that complaint, but knows exactly what is going on in their unit or under their command. If there are any difficulties, they can take responsibility for making sure things are done properly.

At the moment, therefore, I am not convinced by the hon. Lady’s argument, although I do not disagree that there is more to be done. However, I am confident that our ombudsman will continue to look at that and make improvements.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

As I said, I do not intend to push the amendment to a vote. Evidence came to me of the need to professionalise the examination of complaints in the armed forces. Far too often, junior officers with little understanding of bullying, harassment and discrimination were providing support to commanding officers. If we are to take these issues seriously, there needs to be professionalism and a concerted effort to have consistency of practice across the three services. The concept behind the amendment was to introduce the idea of a tri-service unit. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence) 11:00 am, 10th February 2015

I beg to move amendment 24, in clause 2, page 2, line 33, leave out “three” and insert “six”

This probing amendment goes to the heart of the system. It is important not only that we have a system that is adjudicated on, but that it is fair to the individual. The amendment would increase the time within which someone could bring a service complaint from three to six months. It is important to have a system that is accessible. There was a lot of publicity around the most recent armed forces Act to try to ensure that all ranks understood not only their responsibilities under it, but the complaints procedure. On the question of time limits, nothing should prevent someone from bringing what they feel is a genuine complaint. I accept that  three months is standard for employment tribunals and other ombudsman services, but the reason for asking for an increased time limit is the unique nature of our armed forces. Deployment make may make it difficult for an individual to bring a complaint within the time limit. They could be posted to areas overseas where the last thing on their minds is meeting a time limit to make a service complaint.

That will also allow the individual to seek the necessary legal advice and to seek alternative resolution to this system. The Service Complaints Commissioner’s complaint, particularly to the Army, concerns the length of time it takes to deal with complaints. She has done a valuable job in highlighting that. The time taken to deal with complaints would be unacceptable in any other walk of life. I do not think that this would lead to any further delay, because it would be at the beginning of the process. The amendment is to probe whether there will be any flexibility. I know that employment tribunals allow for exceptional circumstances in which time limits can be extended.

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

I am grateful to the hon. Gentleman. This is always difficult because we want to make sure that the period of time is not so long that people begin to forget various events or that material is lost. On the other hand, we do not want to make it so short that people are precluded from making their complaint. I pray in aid of my argument that we have got the balance right that in the regulations that prop up this legislation, which I hope hon. Members have had the opportunity to look at, regulation 6, “Period for making a service complaint: further provisions”, makes it clear that where a service complaint is made after the three-months, where the specified officer—in other words, the person to whom the complaint is made—takes the view that,

“in all the circumstances it is just and equitable” for it to be made outside the three-month period, that flexibility is there. In the event of the specified officer finding against a complainant, it is open to him or her to go straight to the ombudsman and say, “This is maladministration; this is not right. I am asking the ombudsman to look at that decision because he or she has not made that decision on the basis of justice and equability.” So I think that all the provisions and safeguards are there.

We want three months because we think it strikes the right balance but it also sends out a message to everybody, notably to those who are dealing with complaints, that we will no longer tolerate delays of the sort that hon. Members are very much aware of. We want to make it clear that we want a fair and just system with expedition at its heart.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

I beg to move amendment 5, in clause 2, page 3, line 12, at end insert—

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

This is another amendment that came from the House of Commons Defence Committee. The purpose of the amendment is to secure a degree of independent scrutiny  of the regulations by requiring the Defence Council to consult the ombudsman. If there is resistance I will be pressing the amendment to a vote.

The Committee considered that there should be a degree of independent scrutiny and input into the content of the regulations for the procedure of making a complaint and determining the admissibility of service complaints. The Committee recommended that the Bill be amended to require that. To go back to the speech of the Committee Chairman during the Second Reading debate, this is about the scope and powers of the ombudsman.

These issues were discussed when we took evidence. Rev. Nicholas Mercer argued that the Defence Council was not sufficiently independent—either organisationally or institutionally—to make the regulations on its own. Liberty argued that civilian best practice suggested that processes for internal grievances in employment tribunals could not be defined solely by the employers, and that there should be an independent element in offering advice and views to the Defence Council on the regulations. The Royal British Legion support the amendment. The Equality and Human Rights Commission said that the Defence Council should be required to consult the ombudsman before making the regulations on the procedure for making and dealing with service complaints. The Geneva Centre, which covers the role of the ombudsman around the world, points out that

“an ombudsman institution is independent from the government and…is not part of any of the bodies” that it oversees.

Therefore the importance of institutional independence of ombudsmen from Governments is absolutely critical. As I said earlier, the UK is unique in having the only armed forces ombudsman that oversees the armed forces’ own internal complaints system. If we are to open up that system, the least we can do is allow the ombudsman to be party to the writing of the regulations.

In relation to this matter the new service complaints ombudsman has said:

“A requirement for the Defence Council to consult the Ombudsman on the procedure for making a complaint and determining admissibility would be a helpful clarification.”

It seems to be common sense that the ombudsman looks at the regulations and is party to the writing of them, so that, again, the issue of trust, transparency and flexibility is built into this legislation from the start.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

I rise to support my hon. Friend on amendment 5. I know that there has been discussion in this Committee and also at Second Reading of the fact that the ombudsman should not try to interfere with the chain of command in any way. However, in this situation she would not be doing so: it is about consultation. If there is an opportunity for the ombudsman at least to look at the regulations and possibly use the knowledge she has built up to inform them, that would help the Defence Council and the Secretary of State. It is also important that, as my hon. Friend said, it would lead to the fact that these have been scrutinised by an external body, so that it is not just the system writing the regulations or putting in things that might lead to issues that need amending later on.

From the Secretary of State’s point of view and that of the Defence Council, this should be a helpful move—except that people would object to this if we were saying that the ombudsman in some way had a veto over the regulations. That is not what the amendment says; it says that the ombudsman should be consulted and have an input into that. It would raise the profile and effectiveness of the ombudsman and be helpful in developing her role and standards in the armed forces and the system as a whole.

Photo of Derek Twigg Derek Twigg Labour, Halton

I do not want to repeat what has been said. My hon. Friends the Members for Bridgend and for North Durham made the points well. This is not a veto, but it is common sense to consult someone with all that experience who knows the system in detail and whether it is working well. The more they can do that within a framework, the better it is for getting regulations and changes in place. It is difficult to understand why that would not be a good thing and I look forward to hearing the Minister’s views. As my hon. Friend the Member for Bridgend said, it is about consulting people who are in the best position to provide a view. I cannot see why the ombudsman would not be in a position to do that very well.

We all know that there can be good and bad regulations. I have always found that if one consults those in a good position to provide advice, it might prevent future problems and bring about better regulations. This is a highly sensible, logical approach, clearly set out by my hon. Friend. I hope the Minister will take account of those views and agree.

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

Of course consultation is a good thing; that is exactly what we do. Hon. Members know that the previous Service Complaints Commissioner has been involved in the work so far on the draft regulations, as would be expected. We do not have a difficulty with the principle; it is a matter of whether it should be on the face of the Bill. We do not believe it should be, which is why I urge hon. Members not to support the amendment.

The provision does not need to be on the face of the Bill, because it is there and it is set out in principle in any event. There is another important reason why it should not be on the face of the Bill. The ombudsman will be investigating whether there has been maladministration in individual cases. It would be—and I think it is—strange and might affect his or her role and how it is seen, through a legislative requirement, that she has been formally involved in how the procedures have been formulated. She is not part and parcel, formally, legislatively, of the system and that is absolutely right, but the principle of consultation is there.

The ombudsman, as now with the Commissioner, will be able through her annual report and at any time to make comments about how the process might be improved. It is really important to assure hon. Members of the incredible power that the ombudsman has through her unfettered powers to put into her report anything she wishes. At any time she can speak to any Minister, talk to any member of the media, any Committee, any MP and so on, freely and frankly on any matter. That is what matters, but if she is put in the formal process through law, not only is it unnecessary but the danger is  that she is seen as part of the process when we want her to stand independent of it. That is why the amendment should be resisted.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

I wish to press the amendment to a vote.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 11.

Division number 5 Decision Time — Clause 2 - Reform of system for redress of individual grievances

Aye: 7 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence) 11:15 am, 10th February 2015

I beg to move amendment 25, in clause 2, page 4, line 16, leave out “six” and insert “twelve”.

I say at the outset that the amendment will not be pressed to a vote today; it is a probing amendment and shares the arguments—which I will not repeat—that were advanced for amendment 24. This amendment would increase the time limit for an appeal from six to 12 weeks; I will not reiterate the points that I made  about service life but it is to make sure that individuals are not hampered in any way in terms of putting in an appeal, should they wish to seek redress of a service complaint because of operational tempo or service life. It is a probing amendment and I will not repeat the arguments that were made for amendment 24 as they are the same. I am interested to hear the Minister’s reply.

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

Essentially, I would make the same arguments that I advanced when we considered extending the time period to three to six months. I am reminded that it is set out in regulation 11(2). Again, it is not an absolute; there is a process whereby, if in normal circumstances it is just and equitable that the six weeks should be extended then that power is there, as you might expect. We hope that we have struck the right balance so that things are dealt with as swiftly as they possibly can be but in a fair and just way. If for reasons of operations—a submariner often goes away under the water for some six months, out of contact with anybody—in those circumstances it would clearly not be just and equitable for it not to be heard outside the specified period, that is what the regulations allow.

My view is to resist the amendment and I hope that the hon. Gentleman understands that it is for good reason, because fairness and justice are there in the regulations.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Mark Lancaster.)

Adjourned till this day at Two o’clock.