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

Lord Palmer of Childs Hill Excerpts

Monday 20th October 2014 Lords Chamber

It really is not clear why the Government are not prepared to go down the road of giving the ombudsman statutory powers to investigate thematic issues other than at the direction of the Secretary of State. What in reality are the concerns that cannot be overcome? What do the Government consider the ombudsman might do that would be unacceptable or would compromise national security if he or she had the right to investigate thematic issues of concern on their own volition? The recommendations arising from such an investigation would not be binding. They would have to go to the Secretary of State or Defence Council, who would decide whether to accept them in full or in part or not at all. Therefore, what is the concern that is so strong that a measure that would certainly enhance both the reality and the appearance of independence of the ombudsman cannot be countenanced? I beg to move.

[Lord Palmer of Childs Hill (LD)]

My Lords, it is to the credit of your Lordships’ House that we have a Bill with only one amendment. It is a compliment to all sides of the House that we have managed to get a Bill that has got to this stage. I am a fairly new addition to this place but one amendment to a Bill seems a massive achievement. However, it is even greater than the noble Lord, Lord Rosser, just said. I believe that we have achieved an awful lot in the Bill and the amendment is almost clutching at straws or trying to find problems. I find that the commissioner—the ombudsman—will be able to take matters to the Defence Council and the problems described seem more in the realms of fantasy than reality.

As I see it in the Bill, in reality we have the ability to conduct investigations—I do not read it as saying that there can be no investigation of any sort. I do not think that the proposal by the noble Lords, Lord Rosser and Lord Tunnicliffe, gives the ombudsman that much more power than is there already. The ombudsman may investigate if a matter is,

“deemed to be in the public interest”.

In fact, most problems occur when particular members of the Armed Forces suffer some sort of bullying or have some complaint. That is where the complaints arise, rather than the big systemic complaints to which the noble Lord, Lord Rosser, referred. I do not see that the amendment is needed. There have been a lot of reassurances; they may not all be in the legislation but can be found in Hansard. But it has been proved that assurances given in Hansard can be taken and used in the appropriate manner.

If there is a vote, I shall certainly vote against the amendment, but I take this opportunity of asking my noble friend the Minister whether he would comment on a specific case. Perhaps he could say how, bearing in mind the comments of the noble Lord, Lord Rosser, the approach to that specific case would be helped and enhanced by the new legislation that we seek to pass. I refer to the case, reported over the last few days, of former Corporal Neathway, a paratrooper who was disabled. It took three years for his complaint to surface and for it to be seen that his commanding officers, at lower staff level and brigadier level, had not done what was necessary. What would happen under the new legislation, after the efforts of your Lordships’ House, with all the faults that the noble Lord, Lord Rosser, has sought to expose, if the case of this former corporal in a parachute regiment happened now rather than three years ago?

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

My Lords, the issues covered in this amendment have already been the subject of useful and detailed debates in Committee and on Report. I said on Report on 29 July that I would consider the issue further so that we could return to it this afternoon.

The Bill provides that the ombudsman’s primary function will be to investigate and report on allegations by complainants that there has been maladministration in handling their complaint. The reports from the ombudsman will contain binding decisions on whether there has been maladministration and whether, as a consequence, injustice has or could have been caused. The ombudsman can also make recommendations for remedial action including the reinvestigation of the complaint, suggested improvements to the way in which investigations into such allegations are carried out, or specific actions that would make the complaints system more effective. In addition to this, there is nothing to stop the ombudsman commenting on any underlying concern or pattern of behaviour that has given rise to the complaint.

As I said on Report, we envisage that, when the ombudsman considers it appropriate, he or she will publish information on any matters of general concern arising from the operation of the service complaints system, however such matters come to the ombudsman’s attention. We do not think that a statutory power needs to be provided for the ombudsman to be able to do this. We want the ombudsman to raise such issues as quickly as possible. When systemic failings are identified, it is important that they are brought to our attention so that they can be put right when possible.

My noble friend Lord Palmer of Childs Hill raised the really important issue of the Neathway case and asked how that case would be covered by the Bill. The Bill will mean that the complaints process in future is quicker; anyone who is unhappy with how their complaint has been handled will be able to approach the ombudsman—for example, if they believe that their case has taken too long to resolve. The ombudsman’s independent oversight will give the Armed Forces lessons in how to further improve the process.

A service complaint panel has reached a determination about the service complaint made by ex-Corporal Tom Neathway, the panel on behalf of the Defence Council has formally apologised to ex-Corporal Neathway and has made recommendations for the Army to consider. The Army has appointed a commanding officer unconnected with the events to consider all matters arising from the service complaint panel’s determination.

The Bill also provides that the ombudsman must produce an annual report. This will be able to look widely at the complaints system, the sort of cases it handles and what sort of failings and misconduct the system has identified. As I have said before, this is a wide and appropriate role for the ombudsman to have, using his or her knowledge and experience of the complaints system and any information that has come to light through that process, whether from the complainant, families, service welfare organisations, MPs or the services themselves. The ombudsman therefore has the ability to report on any underlying themes. The current commissioner has used her annual reports to comment on issues such as the effectiveness of the Army’s zero-tolerance policy on bullying.

The ombudsman can therefore report on a wide range of issues relating to the effectiveness, efficiency and fairness of the service complaints system, including on any systemic issues that have come to his or her attention. This can be done immediately through individual investigation reports, or by publishing information of general concern, or through the annual report.

The aim of this amendment, however, is to allow the ombudsman to carry out investigations into wider issues, such as a culture of bullying at a particular location, and to produce reports on those issues. Consequently, its purpose is to introduce a new role for the ombudsman that goes beyond that set out in the Bill.

There are three important reasons why we do not want the ombudsman to have such a power. First, carrying out such investigations would divert the ombudsman from their primary role of making the complaints system work better and, in particular, hold the chain of command to account in its handling of service complaints. Secondly, the ombudsman might not be the best person to carry out such an investigation. Such investigations might require the full-time dedication of a number of people with specific skills and expertise, such as investigators and lawyers. Finally, it is the chain of command that is responsible for the welfare of its people and for the environment in which they work. We would expect the ombudsman to bring any systemic failings to the attention of the individual service concerned, and to the Ministry of Defence, so that they can put things right. However, it is not for the ombudsman, in the manner of an inspectorate, then to go on to examine these issues.

I hope that I have made the Government’s position clear. We do not want the ombudsman to highlight any thematic issues they come across and to make these concerns quickly and publicly available. However, we do not want the ombudsman and supporting staff then to go off and investigate these matters. Giving him or her the power to do so would significantly change their role and distract them from the main task of making the service complaints system better.

As we have now reached the final stage of our consideration of this Bill, I thank all noble Lords for their work on it. I agree with my noble friend Lord Palmer and I also thank him for his support on this amendment. We have had some excellent debates on a number of issues, some of which we have looked at in considerable depth. I hope that all noble Lords feel that there has been adequate time for scrutiny. I am particularly grateful to the noble Lord, Lord Rosser, for the constructive way that he has put the Opposition’s case, and to my noble friends Lord Thomas and Lord Palmer and others for their expert contributions. I also thank my noble friend Lady Jolly for her assistance, and officials both in this House and in the Ministry of Defence for ensuring the smooth running of the Bill.

With that, I ask noble Lords to reject this amendment.