Service Police (Complaints etc.) Regulations 2023
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Baroness Goldie
That the Grand Committee do consider the Service Police (Complaints etc.) Regulations 2023.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
My Lords, this statutory instrument contains the regulations required to establish the service police complaints system, which will be overseen by the newly appointed Service Police Complaints Commissioner. It also contains the regulations required to establish the super-complaints regime for the service police. These regulations, along with the establishment of the independent commissioner, will implement in full recommendation 44 of the service justice system review, carried out by His Honour Judge Shaun Lyons and supported by the former chief constable, Sir Jon Murphy.
The regulations are quite technical, complex and surprisingly bulky; they run to some 80-plus pages. As they largely mirror the legislation already in place for the Independent Office for Police Conduct—the IOPC—and the civilian police, I do not intend to go through each of the regulations in turn, which I am sure is a matter of huge relief to your Lordships. Instead, I will briefly set out what His Honour Judge Lyons said in relation to establishing independent oversight and how this helped to inform the approach taken by the MoD.
The Lyons review found that in the service police a degree of independent oversight was missing in comparison with civilian police forces, which have statutory complaints systems. His Honour Judge Lyons recommended that a new niche defence body be created to deliver this. The review suggested a small niche unit led by an appointed individual, possibly from a judicial background, operating to the same remit as the IOPC and its director-general.
Section 365BA of the Armed Forces Act 2006, as amended by the 2021 Act, established a new officeholder, the Service Police Complaints Commissioner. Last year, the MoD ran a recruitment campaign, in accordance with the 2016 public appointments governance code, for the post of commissioner. Ms Margaret Obi, a deputy High Court judge assigned to the King’s Bench Division, was appointed as the new commissioner by His Majesty the King on the recommendation of the Secretary of State. This was announced on 20 February 2023, and she began her work in February.
In line with Recommendation 44, the commissioner will have functions similar to those conferred on the director-general of the IOPC. The five main responsibilities of the commissioner will be: to secure the confidence of persons subject to service law and service discipline, as well as the wider public, in the service police complaints system; to secure, maintain and review arrangements in respect of the procedures that deal with complaints, conduct matters and death and serious injury matters; to make recommendations and provide advice in relation to those arrangements—for example, training or procedures —where the commissioner believes this may improve policing practice; to act as the review body for certain cases, specified in the regulations; and, finally, to report annually to Parliament via the Secretary of State for Defence on the delivery of the commissioner’s functions.
I would like to set out in a little more detail the responsibilities of the commissioner for deciding how the more serious complaints and other matters are to be investigated, if it is determined that an investigation is required. There are certain matters that must be referred to the commissioner, which are set out in the regulations. Where a referral has been made, the commissioner will first need to determine if there needs to be an investigation. If no investigation is required, the complaint can be referred back to the appropriate authority—in the majority of cases this would be an individual in the service police force—to be handled in a reasonable and proportionate way. If it is determined that an investigation is needed, the commissioner will have to decide on the type of investigation based on the seriousness of the case and what is in the public interest.
The different options for investigation are identical to the civilian system. They are: a local investigation where the service police force does the investigation itself; a directed investigation, where a member of a service police force is appointed as the investigator but the investigation is under the direction of the commissioner; and an independent investigation, where the commissioner carries out an investigation personally or can designate an investigator to carry it out.
In the case of the independent investigations—that is, investigations that are independent of the service police and the MoD—there will be a pool of experienced investigators, with appropriate skills, who can be called on as necessary, and they will have the relevant niche skills for particular cases. Investigators will be able to exercise service police powers in a similar way to investigators appointed by the director-general of the IOPC, who can also exercise police powers.
The Lyons review, interestingly, recognised that there would probably be very few independent investigations required. Our own analysis, based on service police data between 2018 and 2022, indicates that there could be an average of 62 formal complaints annually, with 18 cases meeting the mandatory criteria for referrals. However, it is important to note that not all referrals would lead to an independent investigation. By way of comparison, over 36,000 formal complaints were recorded in the year 2020-21 by civilian police forces across England and Wales.
As well as complaints, the new system will also cover conduct matters and death or serious injury matters, referred to as DSI matters. In lay man’s terms, these are cases where no complaint has been made but misconduct is suspected, or a death or serious injury has occurred after contact with the service police. Service police forces will be required to ensure that they have processes in place to identify and refer conduct matters and DSI matters without delay. Again, we expect only a small number of conduct matters to be referred to the commissioner that will require investigation, and DSI matters are even more rare. Between 2018 and 2022, there were no DSI-type matters recorded. Although we expect relatively few independent investigations, an effective independent service police complaints system is still vital. Your Lordships will appreciate that the way in which complaints, conduct matters and DSI matters are dealt with has a huge impact on confidence in the service police and in the complaints system.
Finally, I say just a few words on the super-complaints system, which has been included as part of this statutory instrument. The civilian police super-complaints system, on which the service police super-complaints system is based, was established to address concerns about whether the police complaints system was able to identify systemic failures in policing. It is important to note that super-complaints are not an alternative way to raise an individual complaint; rather, super-complaints are intended to raise issues or concerns on behalf of the public about harmful patterns or trends in policing by the service police which are, or appear to be, significantly harming the interests of the public.
Only a body designated by the Secretary of State can make a super-complaint. To do that, the organisation must become a designated body. That organisation must demonstrate that it meets all the criteria set out in regulations. For example, it must be able to demonstrate that it is competent in, and has considerable experience of, representing the interests of the public. Prior to the regulations coming into force, the MoD will run a six-week application window for organisations wishing to become designated bodies under the service police super-complaints system.
The statutory instrument before us today is a key element of the wider MoD programme of work to deliver improvements to the service justice system. An independent service police complaints system will help to secure and maintain confidence in the service police, it will help to drive up standards in policing and it will certainly help to ensure accountability at both an individual and force level. I beg to move.
Baroness Smith of Newnham (LD)
My Lords, I am grateful to the Minister for introducing the statutory instrument. As she pointed out, it is surprisingly weighty. I had expected the standard one-and-a-half page statutory instrument of the sort where we come to praise His Majesty’s Armed Forces and all nod in agreement, but then I picked up this document and thought, even more than ever, “Why is my noble friend Lord Thomas of Gresford not taking this?”, because I am used, on matters of service justice, to handing over to him, and he knows far more about the work of His Honour Judge Lyons than I do, so I will have to take on trust what the Minister said about this very much replicating what happens in police justice. However, I have a few specific questions, one of which was touched on in the Minister’s overview of super-complaints. I have a couple of points, in part to demonstrate that I have read the document—or at least as much of it as I could make sense of.
Regulation 10 concerns the issue of former members of the service police force. Do any time limits apply to cases being brought against former members of the force? The reason I ask that is because, over the years, when we have debated the overseas operations Bill or, indeed, the Northern Ireland legacy Bill, there have been questions about whether there should be time limits on cases being brought. I am also double-checking that resignation will not be a way out of getting out of any investigation.
Regulation 12 refers to “exceptional circumstances”. Is there a definition of what might constitute an exceptional circumstance?
Regulation 19 is on withdrawal of complaints. This may not apply in cases that might be brought against service police, but is there a danger of frivolous or vexatious cases being brought and the withdrawal of a complaint being potentially vexatious? If so, what might be done about that?
Lord Coaker (Lab)
My Lords, I thank the Minister for outlining this important SI and for the detail that was included in her opening remarks. We welcome and support the regulations relating to service police and the complaints process and look forward to their introduction.
As the noble Baroness mentioned, we rightly hold our service personnel in high regard, but they need to feel confident and expect that they will, when necessary, be protected by service police and that high standards are maintained. However, if these standards are not met, service personnel need to know that a strong, independent system is in place to investigate service police officers and hold them to account if they have not performed their duties properly. We therefore welcome the appointment of Ms Margaret Obi as the new Service Police Complaints Commissioner.
I have a couple of questions for the Minister. The Minister in the other place said that the annual budget for this new, niche independent unit will be £250,000, that there will be three members of staff and that the new commissioner will work for two and a half days a week. How has that all been arrived at? Presumably, there has been some analysis of the amount of work, and we have heard about the department’s analysis of the number of cases that there may be, but it would be interesting to hear about that. If it is clearly not enough, as it begins to operate, will the figures be reviewed on an ongoing basis or will we have to wait for the annual report to point out that it is not sufficient and that more may be needed?
The Minister will know that the new Defence Serious Crime Unit was launched earlier this year, which is also very welcome. Can she explain the relationship between the Service Police Complaints Commissioner, the new DSCU and the three investigators whom the new complaints commissioner will appoint? Who will these three investigators be and what training will they have and potentially provide to other service personnel?
Can the Minister confirm the relevance of the commencement date in Regulation 1, which talks of 19 June 2023? I think she said that the complaints commissioner is already in place and starting her work. If all these regulations will come into force on 19 June, will the new commissioner have the powers that she needs from that date? That is my understanding of it. Can the Minister confirm the relevance of 19 June?
As for the civilian police, we have just had the Casey review, which points to the cultural problems in the Metropolitan Police. Can we be assured that the super-complaints procedure, as outlined in the SI, would and should be used by the Service Police Complaints Commissioner? Could she initiate a super-complaints process herself? In other words, how is something brought to light for the commissioner to decide that there is a need to use the super-complaints process?
The Minister in the other place said,
“the service police complaints system will not, initially at least, deal with historical matters”.
I am not quite clear on this. First, is that right? Secondly, are “historical matters” anything that is complained about before 19 June 2023? I think that was the point that the noble Baroness, Lady Smith, was getting at. I may have misunderstood, but the point of this Committee is to try to get clarifications. What did the Minister in the other place mean by “not initially”? Does it mean that any historical complaint, however serious, cannot be looked at if it happened before 19 June? If I understand what the Minister in the other place said, the answer is: “Not initially, but it may be that we do”.
There needs to be clarity because this is really important. The credibility of the new Service Police Complaints Commissioner will be a little undermined if serious allegations are made but cannot be investigated because only matters from after 19 June can be investigated, and the answer is: “We can’t look at it yet because the regulations won’t allow us until they’ve been in place for 18 months, and then we can come back and have a look at it”.
I want to know a bit more about the process, which the Minister outlined a little. Who starts a complaint and how does it reach the commissioner? How does the process work? The crucial issue, which, to be fair, was acknowledged by the Minister in the other place and I am sure the noble Baroness will also acknowledge it, is: will the withdrawal of complaints be monitored? There are concerns regarding the necessary hierarchy in the services. During our debate on the Armed Forces Bill, we recognised that, although that hierarchy is clearly necessary, it can and does create a situation in which pressure may be applied on somebody in a way which causes them to withdraw something, even if it is a complaint that really should be looked at. Can the Minister reassure us that the withdrawal of complaints, which is outlined in the regulations—the Government have included it—will be monitored in the annual report?
The Minister in the other place also said that the new system will cover conduct matters and death or serious injury. He said:
“In layman’s terms, these are cases where no complaint has been made”.—[Official Report, Commons, Delegated Legislation Committee, 21/3/23; cols. 5-6.]
I am not being funny but, for this layman, how is it brought to light if no complaint has been made? I am not trying to be pedantic but, usually, something comes to light because a complaint has been made. I think the Minister said that it is where something is suspected or is thought to be happening. Can the Minister tell us what that means? Is it rumour or innuendo, or somebody said something to someone? I want to be clear about how issues with respect to conduct, for example, can be brought to light if no complaint has been made. What is the process to bring that to light and be investigated, since no complaint is necessary? Can the Minister clarify that?
Finally, will the Minister lay out some of the differences between the civilian and service complaints systems, recognising the obvious difference between service and civilian life? The Explanatory Memorandum states that the key difference is
“the lack of accelerated procedures for members of the Armed Forces”.
Can the Minister explain why? I think that I know the answer, but it would be interesting for it to be put on the record.
I finish by saying that the purpose of these questions is not to try in any way to cause the Government a problem—we are pleased to see the establishment of this system by these regulations. Indeed, the Minister made it clear during the passage of the Armed Forces Bill that she would bring forward these regulations as quickly as possible, and she has done that. We are pleased to see this new service police complaints procedure, but there are some questions, and I think it would be helpful for the Committee, and indeed those who read our proceedings, to have the Minister’s answers.
As I say, our questions are not intended to oppose but to seek clarity. If this new process and new post are as successful as we all hope they will be, then real progress will have been made. Clearly issues have arisen that have eroded trust and confidence in service personnel, and I believe that the passage of these regulations will help to restore some of that trust and confidence.
Baroness Goldie (Con)
My Lords, I thank noble Lords for their very helpful observations and the useful questions that have been posed. The noble Baroness, Lady Smith, was lamenting the absence of her colleague, the noble Lord, Lord Thomas of Gresford. I have to say, completely selfishly and wishing him no ill will, that I am delighted at his absence—I am sure that he would have pinned me to the wall with a multiplicity of technical points.
The noble Baroness raised a point about time limits for former members. The situation is that they cannot evade liability, even if they are former members of the service police force; they are still answerable and accountable, and it would still be competent under regulations to bring a complaint. Therefore, a resignation could not avoid that—I am looking to my officials for reassurance on that.
The noble Baroness also asked about special circumstances. There is no definition in the regulations, but the expression has its ordinary meaning. I know that that is not awfully helpful to your Lordships, but I think that we can take a common-sense view of this. If, by any normal assessment of the situation, it was thought that something unusual had occurred, that would constitute a special circumstance.
The noble Baroness was rightly concerned about frivolous complaints and whether they could frustrate the process. One of the tangible benefits—I hope—of having this clearly defined, legally constituted system is that frivolous complaints can probably be weeded out at a fairly early stage. I can offer to the noble Lord, Lord Coaker—I will also offer a copy to the noble Baroness, Lady Smith—a fascinating diagram that was given to me by my officials, who understand only too well my slowness in grasping these issues. I have in my hand a marvellous diagram that shows how the complaints start, where they go and what happens, including death and serious injury matters as well as conduct matters. This is a very helpful physical indicator and I am very happy to share that with noble Lords— I will get it handed over.
The noble Baroness also asked what happens if criminal matters arise. That is a very important question and is one that I posed to the officials when they were briefing me. The answer is that the commissioner has power to refer to the service prosecutor. It might be that, in the course of investigating something, behaviour emerged and the view was that it constituted criminal activity. If that is the case, it would be referred immediately to the service prosecutor. Of course, even without the protocols being in force, the service prosecutor already informally consults with the civilian prosecutor. They would work out what to do.
On super-complaints and designated bodies, I was interested to know how all this would work and what exactly a designated body would look like. My officials very helpfully provided me with information which may be of use to your Lordships. I have a list of designated bodies under the civilian super-complaints system, which may give a flavour of what we are talking about. There are numerous organisations on it, such as the Criminal Justice Alliance, the Women’s Aid Federation of England, Welsh Women’s Aid, Southall Black Sisters and Pathway Project. That is just an indication of the wide spectrum of organisational interest that I think there will be in this.
Lord Coaker (Lab)
The Minister in the other place said that it will be reviewed after 18 months. He stated:
“We are going to let this run for a bit; we will review it internally after 18 months”.—[Official Report, Commons, Fourth Delegated Legislation Committee, 21/3/23; cols. 11-12.]
Can the Minister here confirm that?
Baroness Goldie (Con)
I can confirm that. I say to the noble Lord, Lord Coaker, that we already plan to conduct a review of the regime after the first 18 to 24 months of operation. It would no doubt be appropriate at that time to consider the issue of historical cases.
I have already covered the question of who starts the complaint. If the clerk would oblige, perhaps my beautifully multicoloured papers could be handed to the noble Lord, Lord Coaker, and I will get a set to the noble Baroness, Lady Smith.
I think that I have managed to cover the main points—
Lord Coaker (Lab)
As I think the noble Baroness, Lady Smith, would agree, the Minister has made very helpful and informed responses to the number of questions raised, which will help to clarify the operation of the system. The only major issue for me is the monitoring of the withdrawal of complaints; it is really important and, again, was mentioned in the other place. I think that the Minister in the other place said that he would expect to see how well the system is operating in the annual report. The Minister here will know—I said this in my opening remarks, so will not repeat myself—that the withdrawal of complaints due to people feeling under pressure is quite a significant way of seeing whether something is working or not. Confidence in the system will show, as appropriate, that the levels of withdrawal would not be higher than you would expect.
Baroness Goldie (Con)
I thank the noble Lord; that is a very important point. It is perhaps the other side of the coin that I raised with my officials. If a complaint is investigated, the commissioner makes a recommendation, so my question was: how will the recommendations be carried out? In fact, there is provision in the regulations for that.
That brings me to the important issue of the annual report. This is where we get the light of transparency and public accountability. The noble Lord is quite correct: I think that if parliamentarians felt that, in the presentation of the annual report, it was inadequate because it did not tell them very much, they would make clear their anxiety about it. That might include a lack of information about complaints withdrawn.
From what we have gathered—I gave some figures in the course of my remarks about the data that we have —I do not think that we are anticipating a terrific number of complaints. Of course, because a system is now established and people may have greater confidence, it is perfectly possible that we might see the number of complaints increasing. I have heard the point that the noble Lord raised, and we shall take it away; I agree that it is an important part of the overall picture, not just to know how many complaints and recommendations were made and what the outcomes were, but whether there was an element of withdrawal of complaints. I thank the noble Lord for raising that point and will take it away.
I think that I have managed to deal with most of the points that have been raised. If I have overlooked anything, I shall look at Hansard and undertake to come back to your Lordships. I thank noble Lords again for their contributions, as ever. It helps very much to improve our understanding of how these arrangements will work in practice. I commend this instrument to the Committee.