Armed Forces (Service Complaints and Financial Assistance) Bill [HL]
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The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
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.
Lord Astor of Hever
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.