Armed Forces (Service Complaints Miscellaneous Provisions) Regulations 2015

Monday 7th December 2015 Grand Committee

Motion to Consider

16:36

Moved by

[Earl Howe]

That the Grand Committee do consider the Armed Forces (Service Complaints Miscellaneous Provisions) Regulations 2015.

Relevant document: 11th Report from the Joint Committee on Statutory Instruments (Special attention drawn to the instrument)

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, my department has laid a single instrument for the Committee’s consideration today. These regulations are required as part of a package of measures to implement a new service complaints process and a Service Complaints Ombudsman for the Armed Forces.

The new legislation is designed to provide a streamlined and more effective internal redress system for our Armed Forces, and new, strengthened external oversight through an ombudsman. It will come into being on 1 January 2016. The new system is provided for in new Section 365B and Part 14A of the Armed Forces Act 2006, as inserted by Sections 1 to 3 of, and the schedule to, the Armed Forces (Service Complaints and Financial Assistance) Act 2015.

This instrument is intended to promote fairness in the new system by preventing conflicts of interest and ensuring that complaints are dealt with by those who have the right experience and knowledge to properly assist the complainant. It also covers procedural matters that provide essential safeguards and aspects of independence for our Armed Forces personnel.

The regulations include four important things, which I shall deal with in turn. First, as for the existing system, we have made rules on who cannot be appointed to deal with a service complaint; for example, because they are implicated in the matters complained about. The second important aspect of the regulations is that we have set out those matters that cannot be raised as a service complaint. This is not a new aspect to the complaints process. These are provided for in the regulations that cover the current system, and have been updated in this instrument to take account of the new process and of experience.

We are excluding for the first time challenges to decisions made in the internal redress system because under the new legislation the ombudsman will be able to review or investigate them. Similarly, the regulations exclude complaints about decisions made by the ombudsman. It is the ombudsman who provides external oversight of the complaints system so it would be contradictory for the complaints system to be able to overturn decisions of the ombudsman. Challenges to the decisions of an external ombudsman are best made in the courts.

A newly excluded matter, which I should mention in particular, is that we have decided to exclude complaints alleging clinical negligence or personal injury against the Ministry of Defence, so these have been added to the list of excluded matters. The redress system is not appropriate for deciding the complex, specialised medical and legal issues that can arise in clinical negligence and personal injury cases. It will remain possible, however, to make a service complaint if a person believes that we have not provided medical care when it was our responsibility to do so. As under the existing system, the regulations also exclude matters for which there are more appropriate alternative remedies. For example, challenges to decisions made at court martial are best decided through the appeals system.

The third important effect of these regulations is to set out when at least one independent person must be appointed for deciding a service complaint. The main circumstance is where a complainant alleges bullying or similar misconduct. This is the same as under the current system and it is there to provide an extra safeguard for fairness in such sensitive cases, and to give a measure of external oversight as part of the internal system.

The fourth main effect of the regulations is the setting out of the matters that must be reported to the Service Complaints Ombudsman when an allegation of a wrong suffered by a service person has been referred by the ombudsman to the chain of command. As with the Service Complaints Commissioner now, the ombudsman will be able to receive allegations of wrongs done to service personnel. For example, a family member of a service person will be able to approach the ombudsman with their concerns. The ombudsman will be able to refer those cases to the chain of command and to track what happens. The regulations will ensure that the ombudsman is kept updated on progress and is able to respond to queries, if raised, without compromising her investigative role.

The Joint Committee on Statutory Instruments has scrutinised this draft instrument and, in doing so, has brought to our attention three drafting points, which we will seek to correct at the earliest available opportunity. However, we do not expect that these points will affect the practical working of the regulations.

On the first point that has been raised with us, we accept that the definition of the expression “in writing” has been included unnecessarily in Regulation 2(1).

On the second point that the committee has brought to our attention, we will seek to provide further clarity at Regulation 6. This regulation provides for the start of the three-week period within which the ombudsman is to be notified of certain events in connection with the progress of a matter that has been referred by the ombudsman as a potential service complaint. It also provides that the ombudsman is to be notified of each event that is listed in the regulation. We will seek to clarify the exact moment of the day from which the three-week period applies and to clarify that the period applies separately to each event that appears in the list.

The third of the JCSI’s points relates to a provision in the schedule to these regulations that excludes a right to make a complaint where there is a right of review as to certain service police or prosecution matters. The committee has said that the regulations refer incorrectly to those rights of review being “under” the code in which they appear, rather than being mentioned “in” that code. Again, we will look to make the correction at the earliest available opportunity.

I hope noble Lords will support these regulations. I beg to move.

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for introducing this instrument, which effectively—with, I believe, four other negative instruments—gives effect to the Service Complaints Ombudsman, established by the 2015 Act, which some of us were privileged to flog through a few months ago.

The concern goes back to the tragic deaths at Deepcut between 1995 and 2002 and the subsequent inquiry. The outcome of that inquiry was the creation of the Service Complaints Commissioner. That role was taken up by a splendid lady, Dr Susan Atkins, who, having taken up the role, declared it not effective, efficient or fair. I commend the Government for reacting to her criticism. My party has long been calling for the introduction of an Armed Forces ombudsman, so we welcome the Act and the instruments designed to put it into effect. Labour is determined that all members of the Armed Forces who serve this country with such professionalism and distinction should be saved from bullying, harassment and other inappropriate or illegal behaviour. Ensuring that this is achieved forms a core component of the Armed Forces covenant. Hence, we support not only this affirmative SI but the negative SIs that go with it.

16:45

However, I have studied the Explanatory Memorandum, the regulations and the Act, and I have to say that it is all stunningly obscure. I did some research to try to find out what we were trying to achieve. Interestingly enough, the office of the Service Complaints Commissioner set out in an information sheet how she will be different from the ombudsman. She says that the extra powers allow her to:

“review and overturn decisions by the chain of command to exclude a complaint or not allow a complaint to proceed, for example, for being out of time … review the handling of a Service complaint once it has finished the internal process, if the complainant feels something is wrong with the way it was dealt with … in certain circumstances, investigate the substance of a complaint once it has completed the internal process”,

and finally to,

“recommend action to the Defence Council to put matters right”.

In the round, put like that, this is a commendable package, but Her Majesty’s Official Opposition have to ask whether the regulations achieve those objectives—to use what I believe is a military term, do they do what it says on the can? I therefore felt a need to probe into them and understand them. Why is it particularly important in this case? It is important because service personnel, of course, have no trade union. Similarly, there was no formal consultation even for these instruments, because in many ways there was nobody to consult. Therefore, it is more important that the limited parliamentary scrutiny we have is of reasonable depth.

I could have looked at every bit of the regulations to see how they cross-referred but I did not have the energy or the time. However, I lighted upon Regulation 3(2), which says:

“A person may not make a service complaint about—”.

However, Regulation 3(2)(a) says that,

“a decision under regulations made for the purposes of section 340B(4)(a) (admissibility of the complaint)”.

Superficially, that looked rather worrying. I then went into the 2015 Act because, while the regulations refer to the 2006 Act, the 2015 Act introduced the new sections into the 2006 Act. New Section 340B(4)(a) says:

“Service complaints regulations must make provision … for the officer to whom a service complaint is made to decide whether the complaint is admissible and to notify the complainant of that decision”.

Superficially, these two things seem to contradict each other. We have a paragraph that says “you cannot make a service complaint about” and refers to Section 340B(4)(a), which says you are unable to make a complaint about the officer who decides that a complaint is not admissible.

Fortunately, I came across Mr Morrison, who has been my tutor on service law over a number of years—on all occasions on the end of the telephone; nevertheless, what little I know he helps me with. He points out that you have to read Section 340B(4)(a) with paragraphs (b) and (c). Subsection (4) states:

“Service complaints regulations must make provision”—

and paragraph (b) of that subsection states:

“for the Service Complaints Ombudsman, on an application by the complainant, to review a decision by the officer to whom a service complaint is made that the complaint is not admissible”.

So you have to read Section 340(B) with paragraphs (a), (b) and (c), and paragraphs (b) and (c) come to life only under the negative instruments which we do not have before us—perhaps we should have done—and therefore paragraph (a) does not contradict itself internally and they all fit together.

I go through all that only to illustrate how incredibly obscure the legislation is at face value. There is clearly a difference between a complaint and an appeal. Essentially, the ombudsman is an appeal service where the complainant is able to appeal the way his complaint is handled. I think that is right. Will the Minister assure me that I have that roughly right—I hope that someone can generate a quick note that says yes—and agree that the regulations are deeply obscure? The problem of the complexity of the detail was illustrated by the JCSI’s concerns. The Minister handled that point by saying that he accepts its criticism and will revise it at a suitable date.

How will this be presented to the average sailor, soldier or airman? You cannot refer him to these regulations. I understand that they will end up in joint service publications and that there will be other material. Will the Minister affirm that there will be a considerable effort to consolidate the legislation into a workable document so that members of the Armed Forces are able to take advantage of the new Act and so that this important step in the creation of the ombudsman is not wasted by the fact that the average person it might affect cannot understand how it works? How can we be assured that the translation into plain language, for want of better, does not defeat the intent of the legislation—in other words, that the strength of the Act is fully clear to the service person?

I assume that the Minister will refer to the commissioner, Nicola Williams, who seems to be an equally splendid lady. I hope he will assure me that she will be fully consulted in the generation of the appropriate joint service publication and any material which is generated to ensure that members of the Armed Forces understand what new capabilities they have. I hope he will also assure me that she will be absolutely satisfied that that material treads what is for any normal human being an extremely difficult path in moving from the legislation, which amends a previous Act, to the order through all four instruments to a situation where the objectives are achieved and expressed in terms that people can understand without in any way diminishing the power of the two Acts and the orders.

Finally, almost in passing, I mention that the previous commissioner from time to time expressed her concerns about the extent to which she had sufficient resources to do this job. I would value an assurance from the Minister that he is confident that there will be sufficient resources for the new office so that this new and important capability—the new ombudsman function—will be able to operate satisfactorily.

Assuming that I receive appropriate assurances on all those points, I enthusiastically welcome the instrument. After the Deepcut tragedy and the issues of bullying, which even now one gets a little hint of but way back was all too prevalent, the Government have moved in the right direction—the direction we pressed for in our amendments in the other place—to a good position. I know that there is a very delicate balance in introducing an ombudsman in the military but I think we are quite close to the right place. It is important that the ombudsman is effective and properly resourced and that the intent is communicated to all service personnel.

[Earl Howe]

My Lords, I am very grateful to the noble Lord, Lord Tunnicliffe, for setting out his concerns so clearly. I am the first to agree that he has raised a very important issue in relation to Regulation 3(2) and the need for clarity for service personnel. Clearly, there must be a fair system for checking whether a decision that a complaint is inadmissible has been properly taken. I agree that the effect of the regulations may not be self-evident to the casual reader. In my experience, that is not unusual, but it is certainly a real issue.

The regulations exclude a complaint being made about a decision by the relevant officer, usually the commanding officer, that a complaint was inadmissible because, for example, it was excluded under these regulations or it was made too late. However, such complaints are excluded only because the main regulations which set out the procedures for making and handling a service complaint provide instead for the complainant to go straight to the ombudsman, who can review any decision made by the officer to rule a complaint inadmissible.

There is a duty to make regulations to provide for this under new Section 340B(4)(b) of the Armed Forces Act 2006, which the noble Lord rightly mentioned. The provision is in the Armed Forces (Service Complaints) Regulations 2015, but these are part of a suite of regulations subject to the negative procedure so they are not being debated today. The noble Lord was absolutely right to draw attention to those regulations and to say that they should be read with the regulations we are now considering.

It is fully recognised that it would be difficult and unacceptable for service personnel to have to navigate the different sets of regulations in order to find out what they were entitled to do. To make things clear, there will be a joint service publication explaining the entire process, including how to make a service complaint and the right to go to the ombudsman. The aim in that regard has been to make the language as straightforward and accessible as possible. I can tell the noble Lord that the ombudsman will indeed be consulted and will provide advice. Moreover, I can reassure him that the current commissioner, who will in turn become the new ombudsman, has been closely involved in considering all the regulations and the joint service publication to ensure that the details of the system will be clear and will meet expectations. So I hope the noble Lord will be reassured that his point is well made and well received.

The noble Lord asked whether the ombudsman will be sufficiently resourced for implementation in January. The commissioner has assessed the likely volume of cases that will come her way in the first quarter of 2016 and has structured her new team to meet that expected demand. This year she has recruited an additional 15 staff, of whom 11 are investigators. The commissioner is pleased to acknowledge that the MoD has met her requests this year for additional resource to carry out the new role. The ombudsman is responsible for determining her own staffing needs. Having said that, her office will be keeping the staffing numbers under review as they gain experience of carrying out the new role. However, we believe that the ombudsman-to-be is satisfied that all is in place to handle the likely volume of cases that she will be required to consider.

I hope that that answers the noble Lord’s questions satisfactorily and that he will be sufficiently reassured to be able to give these regulations his approval. I am grateful to him for his general welcome of the instrument.

Motion agreed.