Armed Forces (Service Complaints and Financial Assistance) Bill [HL]

Monday 16th March 2015 Lords Chamber

Commons Amendments

15:24

Motion on Amendments 1 to 27

Moved by

[Lord Astor of Hever]

That this House do agree with the Commons in their Amendments 1 to 27.

1: Clause 2, Page 6, line 22, leave out subsection (1) and insert —
“(1) The Service Complaints Ombudsman may, on an application to the Ombudsman by a person within subsection (1A), investigate—
(a) a service complaint, where the Ombudsman is satisfied that the complaint has been finally determined;
(b) an allegation of maladministration in connection with the handling of a service complaint (including an allegation of undue delay), where the Ombudsman is satisfied that the complaint has been finally determined;
(c) an allegation of undue delay in the handling of a service complaint which has not been finally determined;
(d) an allegation of undue delay in the handling of a relevant service matter.”

2: Clause 2, page 6, line 25, at end insert—
“(1A) The following persons are within this subsection—
(a) in a case relating to a service complaint, the complainant;
(b) in a case relating to a matter in respect of which a service complaint has not been made, the person who raised the matter,
and, in relation to a case mentioned in paragraph (b), references in the remainder of this Part to the complainant and to a service complaint are to be read respectively as references to the person and the matter mentioned in that paragraph.”

3: Clause 2, page 6, line 25, at end insert—
“( ) For the purposes of subsection (1)(d)—
(a) “relevant service matter” means a matter of a kind about which a service complaint—
(i) may be made, whether or not at the time of the application to the Ombudsman such a complaint has been made, or
(ii) could have been made (but for provision made by virtue of section 340B(2)(c));
(b) the reference to the handling of a matter is to its handling before the making of a service complaint (if any) about the matter.”

4: Clause 2, page 6, line 27, after “writing”, insert—
“( ) must specify the kind (or kinds) of investigation which the complainant wishes the Ombudsman to carry out (an investigation under a particular paragraph of subsection (1) being a “kind” of investigation for this purpose),”

5: Clause 2, page 6, line 28, leave out “the” and insert “any other”

6: Clause 2, page 6, line 30, leave out from beginning to “a” in line 32 and insert—
“( ) For the purposes of this section, a service complaint has been finally determined where—
(a) ”

7: Clause 2, page 6, line 34, after “complaint”, insert “or the complaint”

8: Clause 2, page 6, line 34, after “allegation”, insert “of maladministration”

9: Clause 2, page 6, line 37, leave out “that”

10: Clause 2, page 6, leave out lines 39 to 42 and insert—
“( ) The purpose of an investigation is—
(a) in the case of an investigation under subsection (1)(a), to decide whether the complaint is well-founded and, if so, to consider what redress (if any) would be appropriate;
(b) in the case of an investigation under subsection (1)(b), (c) or (d), to decide—
(i) whether the allegation is well-founded, and
(ii) if so, whether the maladministration or undue delay to which the allegation relates has or could have resulted in injustice being sustained by the complainant.”

11: Clause 2, page 6, line 42, at end insert—
“(4A) The power to carry out an investigation under subsection (1)(a) or (b) includes power to investigate any maladministration in the handling of the service complaint where it becomes apparent to the Ombudsman during the course of an investigation that any such maladministration may have occurred.”

12: Clause 2, page 6, line 43, after “application” insert “in respect of a service complaint that has been finally determined”

13: Clause 2, page 7, line 10, leave out “investigated an application relating to” and insert “carried out an investigation under subsection (1)(a) or (b) in relation to”

14: Clause 2, page 7, line 16, at end insert “;
“(b) whether to investigate a service complaint, or an allegation, as a whole or only in particular respects.”

15: Clause 2, page 7, line 29, after “investigation” insert “under section 340H(1)(b)”

16: Clause 2, page 8, line 28, at end insert “, and
(b) any recommendations referred to in subsection (2A).”

17: Clause 2, page 8, leave out lines 29 to 32 and insert—
“(2A) Those recommendations are—
(a) on an investigation under section 340H(1)(a) where the Ombudsman finds that the service complaint to which the investigation relates is well-founded, the Ombudsman’s recommendations (if any) on what redress would be appropriate;
(b) on an investigation under section 340H(1)(b), (c) or (d) where the Ombudsman finds that the allegation to which the investigation relates is well-founded, the Ombudsman’s recommendations (if any) as a result of that finding;
(c) where, by virtue of section 340H(4A), the Ombudsman finds maladministration in the handling of a service complaint, the Ombudsman’s recommendations (if any) as a result of that finding.”

18: Clause 2, page 8, line 33, leave out “(2)” and insert “(2A)(b) or (c)”

19: Clause 2, page 8, line 36, after “maladministration” insert “or undue delay to which the finding relates”

20: Clause 2, page 8, line 38, after “maladministration” insert “or undue delay”

21: After Clause 5, insert the following new Clause—
“Transitional provision
(1) The Secretary of State may by regulations make transitional, transitory or saving provision in connection with the coming into force of sections 1 to 3and the Schedule.
(2) The power under subsection (1) includes power—
(a) to modify the operation of the old complaints provisions in relation to pre-commencement complaints;
(b) to apply any of the new complaints provisions (with or without modifications) in relation to pre-commencement complaints.
(3) Regulations under this section—
(a) may make different provision for different purposes;
(b) may make provision generally or in relation to cases of a description specified in the regulations.
(4) Regulations under this section are to be made by statutory instrument; and an instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(5) In this section—
“the new complaints provisions” means—
(a) the provisions of, or made under, Part 14A of the Armed Forces Act 2006, and
(b) section 365B of that Act;
“the old complaints provisions” means—
(a) sections 334 to 339 of the Armed Forces Act 2006 and provision made under any of those sections, and
(b) section 366 of that Act;
“pre-commencement complaint” means a complaint under section 334 of the Armed Forces Act 2006 that is made before the coming into force of section 2(2) of this Act.”

22: Clause 6, page 13, line 19, leave out paragraph (b)

23: Clause 6, page 13, line 20, leave out “Sections 4 and 5, this section and section 7” and insert “The remaining provisions of this Act”

24: Clause 7, page 13, line 25, leave out subsection (2)

25: Schedule, page 14, line 2, at end insert—
“Equal Pay Act (Northern Ireland) 1970 (c. 32 (N.I.))
A1 The Equal Pay Act (Northern Ireland) 1970 is amended as follows.
A2 (1) Section 6A (service pay and conditions) is amended as follows.
(2) In subsection (5), for paragraph (b) substitute—
“(b) the complaint has not been withdrawn.”
(3) After subsection (5) insert—
“(5A) Where the service complaint is dealt with by a person or panel appointed by the Defence Council by virtue of section 340C(1)(a) of the Armed Forces Act 2006, it is to be treated for the purposes of subsection (5)(b) as withdrawn if—
(a) the period allowed in accordance with service complaints regulations for bringing an appeal against the person’s or panel’s decision expires, and
(b) either—
(i) the claimant does not apply to the Service Complaints Ombudsman for a review by virtue of section 340D(6) of that Act (review of decision that appeal brought out of time cannot proceed), or
(ii) the claimant does apply for such a review and the Ombudsman decides that an appeal against the person’s or panel’s decision cannot be proceeded with.”
(4) For subsection (6) substitute—
“(6A) Subsection (5) does not prevent the claimant from presenting a complaint to an industrial tribunal concerning a claim in respect of the contravention of a term of service relating to membership of, or rights under—
(a) an occupational pension scheme made under section 3 of the Naval and Marine Pay and Pensions Act 1865,
(b) the Army Pensions Warrant 1977, or
(c) an occupational pension scheme made under section 2 of the Air Force (Constitution) Act 1917.
(6B) In subsection (6A), “occupational pension scheme” has the same meaning as in section 1 of the Pension Schemes (Northern Ireland) Act 1993.”
(5) For subsection (7) substitute—
“(7) The presentation of a complaint to an industrial tribunal in reliance on subsection (5) does not affect the continuation of the procedures set out in service complaints regulations.”
(6) Omit subsection (11).
(7) In subsection (12)—
(a) in the definition of “service complaint”, for “section 334”substitute “section 340A”,
(b) after that definition, insert—
““service complaints regulations” means regulations made under section 340B(1) of that Act.”, and
(c) omit the definition “the service complaint procedures”.
A3 In section 6AB (“arrears date” in proceedings under section 6A(9)), in subsection (5), for “in accordance with regulations made under section 6A(6)” substitute “by virtue of section 6A(6A)”.”

26 Schedule, page 14, line 8, at end insert—
“Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15))
“1A The Sex Discrimination (Northern Ireland) Order 1976 is amended as follows.
1B In Article 80 (orders and regulations), in paragraph (1), omit “(except Article 82(9C))”.
1C (1) Article 82 (application to Crown etc) is amended as follows.
(2) In paragraph (9B), for sub-paragraph (b) substitute—
“(b) the complaint has not been withdrawn.”
(3) After paragraph (9B) insert—
“(9BA) Where the service complaint is dealt with by a person or panel appointed by the Defence Council by virtue of section 340C(1)(a) of the Armed Forces Act 2006, it is to be treated for the purposes of paragraph (9B)(b) as withdrawn if—
(a) the period allowed in accordance with service complaints regulations for bringing an appeal against the person’s or panel’s decision expires, and
(b) either—
(i) the complainant does not apply to the Service Complaints Ombudsman for a review by virtue of section 340D(6) of that Act (review of decision that appeal brought out of time cannot proceed), or
(ii) the complainant does apply for such a review and the Ombudsman decides that an appeal against the person’s or panel’s decision cannot be proceeded with.”
(4) Omit paragraph (9C).
(5) For paragraph (9D) substitute—
“(9D) The presentation of a complaint to an industrial tribunal in reliance on paragraph (9B) does not affect the continuation of the procedures set out in service complaints regulations.”
(6) Omit paragraph (9E).
(7) In paragraph (10)—
(a) in the definition of “service complaint”, for “section 334” substitute “section 340A”,
(b) after that definition, insert—
““service complaints regulations” means regulations made under section 340B(1) of that Act;”, and
(c) omit the definition “the service complaint procedures”.
Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6))
1D (1) Article 71 of the Race Relations (Northern Ireland) Order 1997 (application to Crown etc) is amended as follows.
(2) In paragraph (8), for sub-paragraph (b) substitute—
“(b) the complaint has not been withdrawn.”
(3) After paragraph (8) insert—
“(8A) Where the service complaint is dealt with by a person or panel appointed by the Defence Council by virtue of section 340C(1)(a) of the Armed Forces Act 2006, it is to be treated for the purposes of paragraph (8)(b) as withdrawn if—
(a) the period allowed in accordance with service complaints regulations for bringing an appeal against the person’s or panel’s decision expires, and
(b) either—
(i) the complainant does not apply to the Service Complaints Ombudsman for a review by virtue of section 340D(6) of that Act (review of decision that appeal brought out of time cannot proceed), or
(ii) the complainant does apply for such a review and the Ombudsman decides that an appeal against the person’s or panel’s decision cannot be proceeded with.”
(4) Omit paragraph (9).
(5) For paragraph (10) substitute—
“(10) The presentation of a complaint to an industrial tribunal in reliance on paragraph (8) does not affect the continuation of the procedures set out in service complaints regulations.”
(6) Omit paragraph (11).
(7) In paragraph (12)—
(a) in the definition of “service complaint”, for “section 334” substitute “section 340A”,
(b) after that definition, insert—
““service complaints regulations” means regulations made under section 340B(1) of that Act;”, and
(c) omit the definition “the service complaint procedures”.”

27: Schedule, page 15, line 19, at end insert—
“Consequential revocations
10 The following instruments are revoked—
the Race Relations (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1998 (S.R. (N.I.) 1998/104);
the Equal Pay (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1998 (S.R. (N.I.) 1998/105);
the Sex Discrimination (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1998 (S.R. (N.I.) 1998/106).”

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)]

My Lords, two separate groups of amendments were made to the Bill in the other place. Commons Amendments 1 to 20 reflect changes to the Bill that were made following the Commons Committee stage. They extend the role of the proposed Service Complaints Ombudsman in a number of important ways and are the most significant of the amendments in this group. Commons Amendments 21 to 27 make some changes to equalities legislation in Northern Ireland that are needed as a consequence of the Bill and make minor changes to the transitional provisions. I therefore intend to speak mainly about Amendments 1 to 20, although I will cover the other amendments at the end.

In Commons Committee on 10 February, it was agreed that the role of the proposed ombudsman should be extended in three ways: first, that the ombudsman should be allowed to look at the substance, or merits, of an individual complaint, not just whether it had been handled correctly by the services; secondly, to require the ombudsman to look for any maladministration that may have occurred in individual cases, not just the specific maladministration alleged by the complainant; and, finally, the Bill was changed in relation to when the ombudsman can look at allegations of undue delay.

The changes that were made to the Bill in Commons Committee were recommended by the House of Commons Defence Committee in its report on the Bill which was published on 23 October last year—that is, after the Bill had left this House. It was clear when the Bill was debated in the Commons that the changes recommended by the Select Committee had cross-party support. The Government therefore accepted in principle the changes to the Bill that were made in Commons Committee and tabled a number of government amendments at Commons Report to make sure that the changes to the ombudsman’s role were clear and worked from a legal and drafting point of view. The government amendments also filled an important gap in the ombudsman’s powers to make recommendations in individual cases that had been left by the original amendments. The government amendments were agreed at Commons Report and are therefore the ones we are looking at today.

Although the amendments extend the scope of the ombudsman’s role, they follow the framework which the Bill originally set out. It is important to emphasise a point that has sometimes been lost in our debates—the ombudsman will normally become involved in individual complaints only once the consideration of it by the services has finished. That is an important point. The ombudsman is the backstop, the place of last resort on individual complaints that have been through the internal system. If complaints are successfully dealt with by the services, there will be no need for the complainant to go to the ombudsman.

It is important to make that point because of the third aspect of change agreed in the other place. This allowed the ombudsman to investigate allegations of undue delay in three different respects: as part of a maladministration investigation; where delay is alleged in relation to a complaint that is being considered by the services; and, finally, where there is an allegation of undue delay before a complaint has even been made.

It is in everyone’s interests that we have a complaints process where roles and powers are clear so that there is no confusion. It is also important that the wishes of the individual remain at the heart of the process, given that this is an individual grievance procedure, and equally that the rights of anyone alleged to have committed a wrong against another person are also protected. It remains the case that the services will, in every case, still be left to decide how to respond to any findings and recommendations made by the ombudsman, even in relation to the extended scope that the ombudsman will now have.

The Chief of the Defence Staff has confirmed that the amendments do not substantially affect the primacy of the chain of command because the Service Complaints Ombudsman can investigate the substance of a complaint only after the chain of command has done so, or where the chain of command decides not to investigate and the complainant still wishes to pursue the matter. He has made it clear that a well run organisation should have nothing to fear from the system that would be put in place if these amendments are made.

15:30

The government amendments that were agreed in the other place also made the necessary additional changes to the rest of the Bill’s provisions, so that there can be no doubt as to the precise scope of the ombudsman’s powers. Commons Amendments 1, 3 and 6 set out in clear terms that the ombudsman can investigate, first, a service complaint, when that complaint has completed the internal system. That is what makes clear that the ombudsman can look into the merits of a complaint. Secondly, the ombudsman can investigate an allegation that there has been mishandling of a service complaint, including undue delay, when that complaint has completed the internal system. This is what deals with maladministration. Thirdly, the ombudsman can investigate allegations that a service complaint has been unduly delayed, before that complaint has completed the internal system, or alternatively that there was undue delay before a service complaint is made.

For everyone concerned to have confidence in the findings made by the ombudsman, particularly where she will now be able to investigate the substance of a complaint, it will be important for her staff to have the right skills and knowledge for the job. This is something that we must now work through carefully with the Service Complaints Commissioner as part of the ongoing work to prepare for implementation of the new system.

As it is now possible to make an application to the ombudsman alleging undue delay when a complaint has not been concluded in the internal system—or, indeed, where a complaint has not even been made—it is important that the Bill sets out for the avoidance of doubt what is meant by the internal process having been completed. This is why Commons Amendment 1 introduces the new wording of “finally determined” to differentiate investigations into the service complaint or alleged maladministration which can only happen after the conclusion of the internal complaints system. This term is defined by virtue of the change to the Bill in Commons Amendment 6. I want to be clear that the phrase “finally determined” does not in any way preclude the ombudsman from looking into the merits or maladministration of a complaint. It is simply there to make it clear that she can do so only once consideration of it has been completed in the internal system by the services, and where the applicant has asked the ombudsman to investigate in accordance with the requirements of the Bill.

It remains important for the ombudsman to have a reasonably clear idea of what the applicant wants them to look into, and for investigations to remain focused and proportionate. Commons Amendment 4 would require the applicant to specify which kind or kinds of investigation the complainant wants the ombudsman to carry out. This is not an onerous obligation for the complainant but will help to focus the efforts of the ombudsman on what is most important to the applicant.

Connected with that is Commons Amendment 14, which would enable the ombudsman, as part of her discretion, to decide whether to investigate the whole service complaint or allegation, or just part of it. It will be open to the ombudsman to decide not to reopen particular aspects of a service complaint or rerun parts of the process if she is satisfied that these were adequately dealt with in the internal process. It is clearly in everyone’s interests that the new ombudsman stage does not add to the delays that these reforms are, at least in part, seeking to address.

Commons Amendment 11 sets out the changes providing for the ombudsman’s power to investigate any maladministration that she identifies in the course of an investigation into alleged maladministration or one looking at the service complaint. We want the ombudsman to be free to report on any other aspect of mishandling that she may come across, and have amended the Bill accordingly to make this clear throughout the relevant provisions. These changes do not require the ombudsman to search for maladministration in every case. That was an essential clarification made in the government amendments agreed to on Report in the Commons. There is also no power for the ombudsman to investigate the service complaint if the application does not ask for the ombudsman to do this.

It is important to stress that this change also does not give the ombudsman an unrestricted power to look into matters that are not related to the complaint being investigated. The ombudsman will not be able to investigate operational matters or to look more generally at service ethos and culture. There are other, more appropriate, forums for any such investigations. Equally, it will remain for the services themselves to grant any appropriate redress where the ombudsman finds that a complaint is well founded. It is equally important for everyone that the powers of the ombudsman are clear regarding what she can do having completed an investigation. Her ability to produce a report with findings and recommendations is fundamental to the view that many will rightly have about whether this new role really does have teeth.

The government amendments will also fill a gap here that was left following the amendments made in Committee in the other place. Amendments 16 to 20 make it clear that the ombudsman must, after carrying out an investigation, prepare a report setting out their findings and recommendations. On an investigation into the service complaint, the ombudsman will need to make findings on whether it was well founded and, if so, what recommendations, if any, to make on appropriate redress. We expect that the ombudsman will share a draft of her recommendations with the MoD and the services before making these final. This is covered in the current draft of the ombudsman regulations. The Defence Council will also retain responsibility for how to respond to any recommendations. The amendments also clarify that the ombudsman must set out any recommendations as a result of a finding of maladministration or undue delay.

Amendments 21 to 24 are of a minor and technical nature, so I do not intend to speak to them for long. The Bill originally provided in Clause 6(2)(b) for commencement regulations to make transitional provisions. Those regulations would have been subject to no parliamentary procedure. During the passage of the Bill the department has progressed its preparations for the transitional provisions. It has become clear that some of the necessary regulations might go beyond the scope of this power. This is particularly the case where it may be desirable to transfer some, or perhaps many, existing service complaints on the commencement day to the new system with all the advantages that will bring.

Amendments 21 to 23 would provide the Secretary of State with a free-standing power under a new clause in the Bill to make the necessary transitional provisions for the new complaints provisions to come into force. The transitional regulations will be subject to the negative resolution procedure. The new clause will come into force on Royal Assent. The existing power in the old Clause 6 will be removed by these amendments. Amendment 24 makes a minor and purely procedural amendment to remove a provision made in this House to recognise and maintain the privileges in the other place on financial matters.

We have identified a small amount of other legislation that needs to be amended as a result of this Bill. This is all equalities legislation relating to Northern Ireland and is covered by Commons Amendments 25 to 27. Each of the instruments that needs amending refers to the existing service complaints system and therefore needs to be updated as a result of the Bill. The amendments are similar to those being made in the Bill to Section 121 of the Equality Act 2010. These amendments will remove uncertainty by clarifying how the Bill interacts with other legislation. None of the amendments raises devolution issues.

The amendments agreed in the Commons are necessary to ensure that the provisions in the Bill are clear. They also ensure that the drafting is coherent and complete while giving full effect to the amendments agreed to in the other place, which had cross-party support and that of the Defence Committee. The Commons amendments give us a Bill and a process that will help the services understand when they can approach the ombudsman, on what matters and at what stage of the process. They will give the ombudsman the teeth needed to hold the services and the MoD to account. I beg to move.

[Lord Stirrup (CB)]

My Lords, Amendment 1 makes a very significant change to this Bill. In essence, it provides for a complainant who at the end of the full military process of investigation and hearing is dissatisfied with the judgment that has been reached to apply to the ombudsman for, essentially, a totally new hearing, not a review of whether the complaint was handled properly and appropriately, and not of whether the judgment reached was reasonable within the range of reasonable decisions that could have been reached, but an entirely new judgment on the merits of the case.

It is, of course, perfectly possible for two or more people to reach, in varying degrees, different views on the merits of a case on the same set of facts as presented. Perhaps the most obvious example of this is a dissenting judgment in the Supreme Court. This Bill, as amended, is now essentially saying that the judgment and view of the ombudsman is of more value and is more reliable than those of anyone in the military chain of command or of the Defence Council. Noble Lords will be able to judge for themselves whether they think that is a sensible thing to do. All I will say is that having been in the position of having to review many such hearings and judgments at Air Force Board level, I certainly, to some extent or other, found in favour of the complainant on quite a number of occasions. I could not give your Lordships an exact percentage at this remove, but my sense is that it was quite a significant percentage. The sense that someone in the chain of command is automatically going to be prejudiced and unable to give the complainant a fair hearing is entirely unfounded.

Nevertheless, this Bill provides for a process that is not simply judicial review but is essentially a rehearing on the facts. Given the number of complaints that go through in any given year, and that one of the defects that this Bill was intended to address was the delay in the hearing of such complaints because of their volume, it seems inevitable that the number of complaints on merit that are to be made in future to the ombudsman following the service process will be fairly large. This means that the ombudsman will not in every instance be able to hear that case personally. Some of her deputies, some of the people in her new office, will have to do that on her behalf. Although she will, of course, be called upon to sign off the outcome in every case, it will be people from the ombudsman’s office rather than the ombudsman herself who will hear some of these retrials, if I can put it that way. Therefore, it seems to me that if we are to agree to such an amendment, the very least we must insist on is that within the regulations that will give effect to this Bill in due course, the qualifications and training that will be necessary for anybody from the ombudsman’s office to sit in judgment on such de novo hearings are set out in no uncertain terms. The Minister alluded to this in his speech, and I welcome his words, but when he sums up I ask him to reassure your Lordships that he will come back to us with a form of words which, at the very least, will satisfy us that this unfortunate amendment will do as little harm as possible.

[Lord Palmer of Childs Hill (LD)]

My Lords, first, I take the opportunity to thank the Minister, my noble friend Lady Jolly and other noble Lords for their input into this Bill. I think it is very important. I take issue with the noble and gallant Lord, Lord Stirrup, because, when my colleagues in the other place asked me if I had any problems during earlier stages of the passage of this Bill in this House, with the Bill having started in your Lordships’ House before moving to the other place, I said that one thing that I spoke about, on which they spoke in the other place, was that the ombudsman would be able to look only at the process rather than the detail. I believed at that time, during the earlier stages of the Bill in this House, that the ombudsman should, in certain circumstances, have the ability to do so—but, as my noble friend said, this is after it has been through all the chains of command, and it is not meant to usurp any of those points.

15:45

I am very pleased with the first amendment which, as my noble friend said, is to do with the substance and merit of the complaint, not just the process. That gives some teeth to the new ombudsman, although I hope that my noble friend will address the point made by the noble and gallant Lord as to the number of cases that might build up. I am very pleased with the earlier amendments to the Bill—the later ones are purely of a technical nature.

A further point that I hope that the Minister will deal with is the number of cases in the pipeline. My belief is that there are about 1,000 cases waiting to be heard, which gives some credit and support to what the noble and gallant Lord said. Those cases will be heard under the old process, as I understand it, rather than under the new one; in other words, the ombudsman would be able to look only at the process, not at the substance. That is all very well, but when the complaint is not allowed under the old process, does the complainant have the ability to ask for it to come back under the new Act, as it will be, allowing them to look at the detail? In discussions with the Bill team, I was told that that was not the case and that once it had been allowed to go forward under the old process they would not be able to look at the substance. What would stop the complainant making a new, slightly different, complaint under the new process, thus taking advantage of the ombudsman and her staff to look into the detail? I hope that my noble friend will be able to deal with that when he replies.

The unanswered questions in the Bill are more to do with the cases in the pipeline and any transitional arrangements that need to be made rather than the very welcome amendments that have come from the other place and which I support.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I rise to speak with some diffidence, it being nearly 60 years since I completed my own national service—and I now speak as a superannuated judge. But this new power in the first amendment strikes me as a very remarkable and extreme power. It confers on the complainant an unlimited appeal right and on the ombudsman an unlimited power to hear an open appeal on the substance and merits of the complaint on a de novo basis. By definition, by this stage, the aggrieved complainant will have failed to establish and failed to persuade the various levels in the chain of command of the merits of his complaint on a number of occasions.

This new provision is strikingly different from the well known formula that appears in the TPIM Act 2011, which I take as an illustration, where review and appeal rights are thus constrained:

“the court must apply the principles applicable on an application for judicial review”.

I repeat: here there is an unlimited appeal. When promoting the Bill at Third Reading last October, the Government originally objected to any such provision on the basis that it undermined the military chain of command. It is true, as the Minister said today, that at the end of the process the ombudsman’s findings—and, if they are favourable to the complainant, recommended redress—go to the Defence Council. Frankly, the Defence Council will effectively be obliged to give effect to them, unless it chooses, as would be its right, to judicially review the ombudsman’s conclusions. If the Defence Council does not do that and does not give effect to them, it is highly likely that the complainant will judicially review the Defence Council.

For my part, I can do no more at this stage than offer such support as I can to the urging on the Government from the noble and gallant Lord, Lord Stirrup, to make sure that those who will exercise this radical new power in the ombudsman and entertain a service complaint not against the background of their own service experience, and despite its failure before the various levels of the military, will at the very least be trained so that they fully understand the exigencies of service life.

[Lord Dannatt (CB)]

My Lords, I support the observations made by the noble and gallant Lord, Lord Stirrup. It is somewhat disappointing that there is this residual difficulty in the main thrust of the Bill, which one very much supports—it is perhaps a regret that we have to have an ombudsman at all, but that is where we are.

I simply make two points. The first is in support of what the noble and gallant Lord, Lord Stirrup, said: if this goes through, those who take part in this process must be properly trained so that they understand the circumstances and context in which the cases come. Secondly, I simply observe that the cause of a large number of the cases in the pipeline is excessive delay, often occasioned by complaints not being investigated at a low enough level in the chain of command process. In reading noble Lords’ comments in this short debate, I hope that every effort will continue to be made to streamline the process such that complaints can be dealt with speedily at a low level, so that we do not get the backlog of the size that we currently have. This will lead to much greater efficiency in the system, which will bring satisfaction and resolution through speedy agreement.

[Baroness Manzoor (LD)]

I congratulate my noble friend on the amendments that have been proposed. As a former Legal Services Ombudsman in England and Wales, I think it is right that one looks at the substance and merits of the complaint. Without that, you deal only with issues of delay. To take the point that the noble Lord made, any decent, transparent, effective and efficient ombudsman can take into consideration different complaints and the time that they will take. If you allow a draft report to the defence side or to the service side, will the complainant also get the option to comment on the draft report? After all, the role of an ombudsman is to be independent, transparent and fair in every way.

[Lord Thomas of Gresford (LD)]

My Lords, I speak as chairman of the Association of Military Court Advocates—I declare an interest; I am not expressing the view of that association.

I very much welcome the extension of the role of the ombudsman to considering the merits of a particular issue. I approach it from the point of view of the complainant and the complainant’s family, and the importance of the confidence of the public in the system of justice in the Armed Forces. From the point of view of recruitment and retention of service personnel, it is very necessary that those who undertake the burdens of service life should feel that they have a fair and just system of complaint. As I expressed when the Bill went through this House, the weakness of simply looking at process was that a decision on process would not be satisfactory to the complainant and their family. They would want an ombudsman to act like an ombudsman and to look at the merits of a particular case. I am grateful that the Government have moved in that direction.

[Lord Craig of Radley (CB)]

My Lords, following the Government’s defeats on this Bill in the other place, their initial reaction was to consider how best to reverse them when the Commons amendments were considered in your Lordships’ House. I shared that reaction. Not to reverse the defeats would be a further withdrawal from the position adopted by the Government and reaffirmed in correspondence that I had with the Minister of State, Anna Soubry, following the Bill’s consideration in this House. She wrote to me:

“The bill as it currently stands”—

that was before the defeats in the Commons—

“gets the balance right between having a strong and independent Ombudsman and preserving the PRIMACY of the chain of command. It is that balance that I wish to maintain”.

We now have this run of government amendments reflecting their new position. No doubt this change of heart within government has been brought about in part by the imminence of Dissolution, in part by the weakness of their position in this House on this matter, and in part by the acceptance by the Chiefs of Staff, albeit on the basis of shotgun pressure upon them, that the Bill as amended is the least bad of the possibilities likely to be available. However, is not that latter acceptance itself due in part to the character of Nicola Williams, the nominee for the new post of ombudsman, and the position that she has adopted of recognising the ethos and value of the chain of command? Whether she accepts, as Anna Soubry stated, the primacy of preserving the chain of command remains to be judged.

However, in due time, will her replacement be as savvy? We are legislating about principles, not personalities. I am also concerned to learn that the ombudsman’s office may be 20-plus strong, not all of them lawyers, as will be the ombudsman, and so probably less qualified to undertake systemic examinations of complaints handlings, let alone of actual complaint topics.

Moreover, there seems to be no presumption of improvement in the working of the chain of command over time in dealing with complaints—in fact, the opposite. The default presumption is that complaints will continue to be subject to systemic and irreversible maladministration, as bad as or even worse than it is today. Once again, it is the unspoken but damaging inference that civil authority does not believe that the military chain of command is ever really competent or trustworthy, or is ever really worthy of being upheld or supported. Such an attitude would concern me very greatly.

The Human Rights Act 1998 flew in the face of and upturned long-standing Armed Forces legislation. It removed the majority of the Armed Forces’ legal processes from the chain of command and was damaging to the sense of trust. For example, the convening and review of courts martial are no longer exercised by the chain of command.

The Human Rights Act and other, more recent, statutes affecting the position of the chain of command have served to chip away at and undermine the essential and irreplaceable value of trust and support up and down the chain of command. Although each individual change may seem not to be too damaging or serious, it is the cumulative impact of a number of statutes on the values of the chain of command that worries me and that must be considered. Such values are vital to the use of armed forces in peace or war and to success in operations.

Will the Minister give an undertaking that, as and when there are significant improvements in dealing with complaints by the chain of command, the size and scope of the ombudsman’s team will be reviewed? Otherwise, and given those improvements, there will surely be a temptation to avoid idle hands and deploy the efforts of the 20-plus in systemic work which might, on balance, prove to be inimical to and derogatory of the standing and desired primacy of the chain of command. I look to the Minister for that assurance.

16:00

[Lord Rosser (Lab)]

My Lords, I thank the Minister for his typically calm and measured explanation of the amendments made to the Bill in the other place, which we support and which I understood—I hope not wrongly—had the support of senior serving military personnel. The amendments were among those called for by the Common Defence Select Committee in its report published last year, and were opposed by the Government in Committee in the Commons in the same way that proposed changes to the Bill, some along similar lines, were rejected by the Government during debates in this House.

The Government were clearly unhappy about their defeat in the Commons when one part of the coalition broke ranks and voted with the Opposition. Fortunately, good sense prevailed and the Government themselves put forward amendments on Report in the Commons to make sure that the changes adopted in Committee worked correctly from a drafting point of view.

The changes made in Committee extended the role of the ombudsman in three ways. The first, as the Minister said, was that the ombudsman should be allowed to look at the substance or merits of an individual complaint and not just at whether there had been maladministration in the way the complaint had been handled by the services. The second was that the ombudsman should not just look at any maladministration alleged by the complainant but should be able to consider any other maladministration that comes to light. The third change agreed at Commons Committee stage allows the ombudsman to investigate allegations of undue delay in the laid-down circumstances to which the Minister referred in his introductory comments.

Clearly, one effect of the Commons amendments is to increase, potentially, the workload of the ombudsman. The Minister in the Commons said that the effect of the amendments carried in Committee, against the Government’s wishes, would be to extend the role and remit of the ombudsman. In opposing in Committee the extension of the power of the ombudsman to look at any maladministration that came to light—not just maladministration alleged by a complainant—the Minister in the Commons said that it was undesirable and might add considerably to the time it took each case to be concluded.

Now that the Government have accepted the outcome of the votes in the Commons Committee, could the Minister say, in the light of the comments from his ministerial colleague in the Commons to which I have just referred, what further additional resources will be provided to the ombudsman in the light of the extension of the role and remit of the position? How much additional money will be provided over and above that originally required before the role and remit was extended by the Commons amendments, and how many additional staff do the Government now consider the ombudsman will require when the position of ombudsman finally comes into being? One would assume that, without additional resources, there would be a danger that effective delivery of the extended remit provided for by the Commons amendments we are now considering would be put in jeopardy.

I will raise a few specific points about some of the Commons amendments. Commons Amendments 1 and 2 refer to “a person”, “the complainant” and “the person who raised the matter”—that is, always in the singular. Does that mean that the ombudsman cannot consider a complaint about the same matter made by, say, half a dozen people? In that situation, will the ombudsman have to treat them as six individual separate complaints even though they relate to the same issue?

Commons Amendment 21 refers to the transitional provisions,

“in connection with the coming into force of sections 1 to 3 and the Schedule”,

and gives the Secretary of State powers,

“to modify the operation of the old complaints provisions in relation to pre-commencement complaints”,

and,

“to apply any of the new complaints provisions … in relation to pre-commencement complaints”.

Can the Minister say a little bit more about what the Government envisage in respect of the transition provisions? The noble Lord, Lord Palmer of Childs Hill, also referred to this issue. Will an individual who has a complaint being considered by the Service Complaints Commissioner at the time that the new position of Service Complaints Ombudsman, with the enhanced remit, comes into being, be able, if they so wish, to have that complaint considered under the enhanced remit of looking at the complaint itself rather than just the issue of maladministration under which it would currently be considered? If not, will the individual be able to submit the complaint again to the ombudsman asking for the substance of the complaint to be considered?

The Minister referred to what the ombudsman could and could not investigate. Commons Amendment 1 states:

“The Service Complaints Ombudsman may … investigate … a service complaint”,

among other issues. Who defines how much information, what kind of information, what kind of inquiries and how extensive those inquiries need to be in order to “investigate” a service complaint in order to determine findings and make recommendations to the Defence Council? Is that a decision for the ombudsman alone? Is it for the ombudsman alone to decide whether, in order for it to be undertaken properly, the investigation needs also to investigate factors and events surrounding and prior to the issue giving rise to the complaint? Is it for the ombudsman alone to decide how wide-ranging or narrow the recommendations to the Defence Council should be? When is it expected that the new position of Service Complaints Ombudsman and the associated new system of enhanced remit will come into effect? In addition, why are the Commons amendments relating to Northern Ireland, to which the Minister referred, being brought forward at this late stage in the passage of the Bill?

We fully support the Bill and we welcome the Commons amendments. We believe that the new arrangements will lead to a better, more widely accepted and more effective means of addressing situations that inevitably will occasionally arise, where things have gone wrong or have been felt by Armed Forces personnel to have gone wrong, and have not been resolved to the satisfaction of those concerned. We wish the new Service Complaints Commissioner well in her current role and we also wish her well when the commissioner becomes an ombudsman, with an enhanced remit and enhanced powers. We also hope that the concerns that have been expressed this afternoon will, as we believe, prove unfounded.

[Lord Astor of Hever]

My Lords, I thank noble and noble and gallant Lords for their general support for these amendments. I will do my best to answer their questions.

The noble and gallant Lord, Lord Stirrup, pointed out, quite rightly, that there would be a larger number of complaints. Obviously, people in the ombudsman’s office will have to take on a lot of that workload so it is really important that the staff she takes on have the right skills and qualifications for the job and are properly trained. We are well aware of that. This is something that we must work through carefully with the Service Complaints Commissioner as part of the ongoing work to prepare for the implementation of the new system.

I can say to the noble and gallant Lord and other noble Lords who are interested in this issue that my noble friend Lady Jolly and I met Nicola Williams last week and we were very impressed by her. I have arranged for her to meet any interested Peers at 11.30 am on Wednesday 25 March in Room 10A. My office will write to all those noble Lords who we think might be interested. However, I can tell noble and noble and gallant Lords that she is well aware that those people working in her office must be properly selected and must have the adequate training. We discussed that at great length with her. She has considerable experience as an ombudsman and I am sure that she will carry on the good work of the previous commissioner, Dr Susan Atkins. She agrees that it is important that she and those working in her office have a thorough understanding of how the services operate. She assured me that she will be making frequent visits to all three services and will encourage those who work in her office to do the same thing so that they understand the ethos of the services. She understood that that was a really important point. I can give the noble and gallant Lord the assurance that we will come back to the House before the regulations are considered.

I thank my noble friend Lord Palmer for his support. He asked how many cases are in the pipeline: I understand that it is about 1,000. My noble friend asked what would stop a complainant making a slightly different complaint. Recent complaints on the same matter will, as now, not be permitted.

In a speech that I very much look forward to reading in Hansard, the noble and learned Lord, Lord Brown, was concerned that this would undermine the chain of command. We have been clear from the start that the authority of the chain of command should not be compromised by the creation of an ombudsman. Maintaining the integrity of the chain of command is essential for our ability to deploy battle-winning forces. We have achieved the right balance with these reforms and the Chief of the Defence Staff has confirmed that the amendments made in the Commons do not substantially affect the primacy of the chain of command because the Service Complaints Ombudsman can investigate only the substance of a complaint after the chain of command has done so or where the chain of command decides not to investigate and the complainant still wishes to pursue the matter. The noble and learned Lord also mentioned the selection and training of those working in the ombudsman’s office. This is an issue that we take very seriously.

I thank the noble Lord, Lord Dannatt, for his support and my noble friend Lady Manzoor, who I understand was Legal Services Ombudsman for England and Wales and therefore knows a lot about this issue. I also thank my noble friend Lord Thomas of Gresford.

The noble and gallant Lord, Lord Craig, asked whether we will review the size of the team if the services get their act together. We will obviously keep the numbers under review and we hope that, if things go well, the number of people working in the office will be reduced. The number must be proportionate, but it is important to point out that the ombudsman’s office can investigate only matters arising from this legislation; they cannot go off and consider other things.

I thank the noble Lord, Lord Rosser, for the Opposition’s support for the Bill. The noble Lord asked me several questions. He pointed out that the commissioner’s role will be expanded and asked what additional resources the office would get. We envisage the extra cost to be around £500,000 and anticipate that her staff numbers will rise from nine up to 20.

16:16

The noble Lord asked what would happen if six different people were to make a complaint. This would be up to the commissioner to decide. The noble Lord also asked the same question as my noble friend Lord Palmer: what happens if a complaint is already in the pipeline? The complainant will not be able to make a complaint about the same issue twice under the new system.

The noble Lord asked what “investigate” means in Amendment 1 and who would decide. It would be for the commissioner to determine, but the investigation could relate only to a service complaint or an allegation of maladministration.

The noble Lord also asked when the new system would come into effect. Before the new system can be introduced, the services and the commissioner’s office need to convert their current structure and processes to the new ways of working. We also need to put the necessary regulations in place and issue guidance to personnel on how the new process will work. Much initial work has already been done, but it is important that we get it right. We therefore expect the new system to be introduced by the end of this year. Nicola Williams will be appointed as the Services Complaints Ombudsman by Her Majesty once the Bill is brought into force.

The noble Lord asked why the Northern Ireland amendment is so late. It is because we did not have the approval of the Northern Ireland Office to do it earlier.

The noble Lord, Lord Dannatt, asked me about delays to complaints. I can provide him with an assurance that we will continue to bear down on delays in handling complaints. All three services are working hard to clear the backlog of complaints and to make sure they are dealt with as quickly as possible.

My noble friend Lady Manzoor asked whether the complainant would have the opportunity to comment on draft reports. That will be a matter for the ombudsman. We anticipate that happening at least in cases where the chain of command is asked to comment.

[Lord Rosser]

Perhaps I may ask the Minister to clarify the response that he gave to me on additional finances and staffing. Is the additional £500,000 as a result of the extension of the remit that is covered in Commons amendments, or was it the amount that was going to be needed anyway in additional money to cover the changes in the Bill as it was originally worded? Was the increase in staffing from nine to 20 also to cover the changes in the Bill as it was originally worded? Surely if the remit has now been extended in the way that it has under the Commons amendment, does that not require additional resources and additional staffing? I was not entirely clear from the answer that the Minister gave to me whether that was what the £500,000 and the increase in staff from nine to 20 covered.

[Lord Astor of Hever]

My Lords, I stand to be corrected, but I think that the extra cost of £500,000 would have arisen anyway and we would have needed to increase the number of staff from nine to 20 anyway under the original Bill.

[Lord Rosser]

Does that mean that, if that was what was deemed necessary under the original Bill, no further money is coming forward to take account of the enhanced remit—and it is an enhanced remit—under the Commons amendment and there is no provision for any additional staff?

[Lord Astor of Hever]

My Lords, I need to check on this, but the message that I received was that everything would come out of the £500,000 and that the staffing level would be adequate for the additional responsibilities.

Motion agreed.