Armed Forces Bill – in a Public Bill Committee at 3:15 pm on 25th March 2021.
With this it will be convenient to discuss the following:
Clause stand part.
That schedule 3 be the Third Schedule to the Bill.
New clause 9—Service complaints—
‘(1) The Armed Forces Act 2006 is amended as follows.
(2) In section 340A (who can make a service complaint?) after subsection (1) insert—
“(1A) If a person to whom the Armed Forces Covenant applied find themselves wronged in any matter relating to the Armed Forces Covenant, the person may make a complaint.”
(3) In section 340A (who can make a service complaint?) at end insert—
“(4A) Not withstanding any regulation made under subsection (4), a person may make a complaint about the delivery of the Armed Forces Covenant.””
This new clause would expand the powers of the Service Complaints Ombudsman to include matters relating to the Armed Forces Covenant. This would provide service personnel and veterans with an avenue through which they can report and arbitrate disputes regarding its delivery.
Amendment 20 would remove attempts to reduce the amount of time that service personnel have to make appeals in service complaints cases from six weeks to two weeks. New clause 9 would expand the powers of the service complaints ombudsman to include matters relating to the armed forces covenant. This would provide service personnel and veterans with an avenue through which they could report and arbitrate disputes regarding its delivery. If I may, I will start with amendment 20 on the time to appeal.
During the evidence sessions, we heard about delays at the front of the complaints system, at level 1. The target is that 90% of complaints are dealt with in 24 weeks, but that is not being met and the former service complaints ombudsman, Nicola Williams, says that that is not an appropriate metric if it cannot be met. The delays at the front of the system are the reason why people do not have confidence in it. In my previous speech, I mentioned the culture and archaic views that still persist about perpetrators, but also victims, which makes them often reluctant to come forward with a complaint. Nicola stated:
“If the initial process is taking not months but sometimes years before a level 1 decision, and then you ask the complainant to keep to a two-week appeal timeframe, with reasons, you can see how that is not exactly going to engender further confidence in the service complaints system, either from a complainant or from a respondent.”
Retired Lieutenant Colonel Diane Allen also supported that and said that reducing the right to appeal
“would not in any way help the system we have at the moment.”
She went on to say that it would be “profoundly unfair”, given that the complainant will receive MOD legal documents and be expected to understand them within just two weeks, without legal representation.
Nicola Williams said that reducing the time to appeal would:
“come across…as if you are trying to prevent people from exercising their right to appeal”.
I am sure that it is not the Minister’s intention to reduce or remove people’s right to appeal, so will he set out what his intention was, given that we have heard that the issue with delays is at the front of the system and not at the back?
New clause 9 would expand the powers of the service complaints ombudsman to include matters relating to the armed forces covenant. This would provide service personnel and veterans with an avenue through which they could report and arbitrate disputes regarding its delivery. The Minister has previously said that the covenant would be enforced via judicial review. Only one in 10 judicial reviews succeed, and the cost of unsuccessful judicial reviews is upwards of £80,000. That is why we have tabled this amendment—to ensure that access to redress is easy and accessible.
The Army Families Federation set out in written evidence that
“there is little value in a review and remediation process that might take months, or even years, to resolve.”
Stakeholders, including Cobseo, back our calls for an appropriate ombudsman to enforce the covenant. Given that complaints to the local government and social care ombudsman on the covenant are mostly about things like school transport and admissions, service families do not have the time to wait years for the outcome of a judicial review. They need an immediate response. I thank the Minister for providing a draft copy of the statutory guidance last night. I note that on page 4 there is a suggestion that the complaints process may include an ombudsman. Will that be instead of or as well as judicial review?
Mr Sunderland, both amendment 20 and new clause 9 seek to ensure that service complaints and disputes about the enforcement of the covenant are dealt with quickly and effectively, to ensure that serving personnel, veterans and their families get the best possible service as a result of the Bill. I hope the Minister will take these amendments on board.
In answer to the Opposition’s veterans spokesperson, I can say that that option is being considered as well as judicial review, not instead of. But these options are being considered at the moment as we try to find a way forward. Clause 10 and schedule 3 are part of wider reforms to support service personnel through the complaints system and to increase efficiency and reduce delays within the service complaints process.
This clause will be complemented by a programme of other changes that do not require primary legislation. The Wigston review into inappropriate behaviours highlighted a lack of confidence in the current system. The previous service complaints ombudsman for the armed forces has also made an assessment in her annual reports that the service complaints system is not yet efficient, effective or fair. It is crucial that our service personnel feel confident that complaining will not adversely impact them. Therefore, complaints must be dealt with appropriately and in a timely fashion to build that trust further.
It is key then that legislative changes are implemented to ensure that the service complaints system is more efficient. Ensuring that complaints are resolved in an appropriate timescale is part of a wider package of reform to increase trust. Clause 10 changes the minimum time limit that can be set out in regulations for submitting an appeal against a first level decision or for making an application to the service complaints ombudsman to two weeks. I should point out that bringing the minimum time limit down to two weeks does not mean that all appeal applications will be limited to two weeks regardless of the circumstance. Where a serviceperson’s duties mean that this will not be appropriate, additional time will be provided.
Clause 10 also provides the ability to set out in regulations the grounds on which appeals can be brought, for example where correct process has not been followed or where new evidence has come to light which may have had a significant impact on the original decision. At present, an appeal can be brought against a decision body where the complainant does not agree with its decision for any reason, with no limits on what that reason can be. This legislation will ensure that an appeal can be brought only where there are procedural errors or where new evidence is provided.
Schedule 3 makes a consequential amendment to equality legislation to make sure that procedural requirements remain consistent with the changes in this clause. Service personnel will not be penalised by this clause and mechanisms will be in place to ensure that individuals requiring extra time to submit an appeal will be able to do so where appropriate. We must ensure that we modernise and reduce delay in the service complaints system, creating, where we can, a consistent experience across defence and following best practice from other parts of the public sector.
The important thing to say is that everyone wants the complaints system to be efficient. It is in the interest of the complainant. It is in the interest of someone who is accused that they get a swift resolution. The evidence, as my hon. Friend the Member for Washington and Sunderland West highlighted, is that the delay does not help anyone. Part of it is due to not only the complexity of some of the cases but, in some cases, the inefficient way in which the armed services, particularly the Army, deal with them.
I do not see anything to be gained from reducing the appeal time from six to two weeks. The Minister talks about modernising the system. This seems very one-sided against the complainant. He also stated that others things that do not need legislation will be brought in to improve the complaints system. I would welcome that. It would be interesting to see them as the Bill is going through, so that we can see the whole picture. What I do not want is for the reduction to, as retired Lieutenant Colonel Diane Allen said, put people off making legitimate appeals. That does not help the individual or the military. Often lessons learned come out of disciplinary cases that can then change procedure and the way that they operate. An efficient way of dealing with them should be put in place, but not at the expense of the person making the appeal.
On new clause 9, an issue that emerged throughout our evidence sessions was how we ensure that individuals who are not receiving due regard have some way of complaining. I commend the work of the armed forces ombudsman. I remember the reaction from some people in the armed forces when that legislation went through. It was as if an independent ombudsman would cause the world to stop. It has not. It has led, rightly, to people having independent recourse when they are not happy with things that the chain of command do. From reading her annual reports, there is a long way to go.
Given that our intention in the Bill is to put the armed forces covenant partly into law as a system of redress, the Government’s initial approach—that people go down the judicial review process—is not correct for most people. It is not only time consuming but it would be beyond the financial capacity of most individuals. In its evidence, Cobseo made the important point that it wishes to see some type of redress system, which at present is an omission from the Bill. It would certainly improve things.
On ensuring that we have action, the local government and social care ombudsman said that he was already dealing with, I think, 36 complaints, mainly since 2015, relating to school transport and school admissions. I do not suggest that we should ensure that a large number go through to the ombudsman. Hopefully, if the system is working properly, the complaints should be dealt with by local councils, health authorities or others through their internal complaints procedures.
However, we all know as Members of Parliament that in some cases, with the best will in the world, the best complaints systems and the best endeavours by individuals, people do not get redress at local level. It is an omission from this Bill, and I am glad that the Minister is looking at it. I am not yet convinced that the service complaints ombudsman is the correct way to do this, or if we should extend the role of the local government and social care ombudsman or another ombudsman, and the relevant ones in Scotland—I accept that they are different in Scotland and Wales—to ensure that they have jurisdiction for this. Without that, it will be an omission that could lead to frustration that we are agreeing in law that people should not be disadvantaged and that authorities should have due regard for the covenant, but accepting that people will have nowhere to go if they do not get the service that they expect and, in some cases, should get.
It will be interesting to see what proposals the Minister brings forward. I strongly urge him to look at this area, because it will improve the Bill, not only in terms of redress but in the way in which we can ensure that people are not disadvantaged as a result of serving their country, and that there is some form of redress if that is not achieved.
The question is that the amendment be made.
On a point of order, Mr Sunderland. Could the Clerks advise whether we should make sure that Members turn their videos on when they are voting?
Thank you. We have agreed that. Could all Members have their microphones and their videos turned on when voting? We have a few technical issues, so please bear with us.