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

Lord Dannatt Excerpts

Monday 16th March 2015 Lords Chamber

[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.