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

Lord Rosser Excerpts

Monday 20th October 2014 Lords Chamber

Moved by

[Lord Rosser]

Clause 2, page 6, line 25, at end insert—
“( ) The Ombudsman may, after advising the Secretary of State, investigate any matter deemed to be in the public interest on—
(a) any aspect of the system mentioned in section 340O(2)(a);(b) any matter relating to the Ombudsman’s functions under this Part;and make a report to the Secretary of State.”

[Lord Rosser (Lab)]

My Lords, we have had debates in Committee and on Report on giving the Armed Forces Service Complaints Commissioner, now to be known as the ombudsman, wider powers to be able to report on thematic issues without being dependent on the Secretary of State asking for such reports. One reason for providing those wider powers—which is what this amendment seeks to do—is that, under the present arrangements, the commissioner has never been asked by a Secretary of State for Defence to report on a particular area of concern that she or the Secretary of State may have. It is therefore not credible to argue that the ability of the Secretary of State to call for such reports covers the situation.

The Commons Defence Select Committee believes there would be value in the commissioner—the ombudsman—being able to undertake research into and report on thematic issues, in addition to the annual reports, and that the ombudsman’s experience on these issues should be utilised. The Defence Committee reported that, during visits to units, the current commissioner had been informed of issues that would not necessarily come to her as complaints but on which she thought some work needed to be done. Such issues, which might refer to a general culture at a particular location or unit, or more widely, of discrimination or bullying, for example, would not be covered by new Section 340L, which relates to recommendations arising as a result of maladministration. A situation or treatment of an individual or individuals could be questionable or unacceptable without there being evidence of maladministration—assuming there was a willingness to make such a complaint, which relates to process, and whether a complaint has been conducted in a procedurally sound way.

In Committee, the Minister, on behalf of the Government, expressed concern that:

“an ombudsman with a wider remit to investigate matters of their own volition, notwithstanding whether they must first notify the Secretary of State of their intentions, could overlap with these other jurisdictions and cause confusion and difficulties”.—[Official Report, 9/7/14; col 243.]

That argument does not stand up. If that is the reason for not giving the ombudsman a wider remit in relation to thematic issues, then it must equally be a matter of concern under the powers in Section 340L. In respect of those powers, the Minister has said the ombudsman could make recommendations relating to wider systemic issues as a result of finding maladministration.

One difficulty of the Bill is that it is not clear what investigations, if any, the ombudsman can or cannot carry out on his or her own volition beyond investigating an individual complaint of maladministration. The Minister said in Committee that such recommendations could relate to systemic issues, but then said that the amendment seeking to provide for this went “beyond that required”, which would suggest that the Bill does not give, in the Government’s eyes, either the wider powers sought by the Defence Committee or sought in this amendment.

The Minister also said in Committee that there was scope for the ombudsman to raise wider issues,

“in appropriate ways … and to provide an input to investigations or inquiries conducted by other appropriate bodies”.—[Official Report, 9/7/14; col. 243.]

Clearly, the latter aspect, of providing an input into an investigation that somebody else has decided to initiate, does not meet the terms of this amendment, on the ability of the ombudsman to be able to carry out his or her own investigation and make his or her own recommendations.

I also have a concern that the Minister’s comment that there is scope under the Bill for the ombudsman to raise wider issues “in appropriate ways” is mainly a reference to being able to put something into the annual report. That view has been strengthened by the Minister’s statement on Report that:

“If systemic failings are identified through the complaints system, it is important that those are brought to the attention of both the individual service and the Ministry of Defence … the Bill gives the ombudsman scope to use their judgement to cover such matters in the annual report as they think relevant to the operation of the system or to the exercise of their role. The ombudsman’s annual reports, like those of the commissioner, will be able to look widely at the system of redress, the sort of complaints that are encountered and what sort of failings and misconduct the system has to deal with”.

The Minister also said on Report that the ombudsman could make wider recommendations,

“beyond those solely relating to maladministration, to addressing the effectiveness of the redress system or other systemic issues. Such wider recommendations could concern the better handling and investigations of complaints of a particular nature, where there is a finding of maladministration in connection with the handling of the complaint at hand. In addition, such recommendations could well concern the commissioning of training in carrying out investigations into certain matters—discrimination being a good example—or appointing a subject matter expert to investigate systemic issues or concerns that have apparently arisen. It is then fundamentally down to the services to respond appropriately and we would expect them to do so”.

It is evident from those quotes from what the Minister said on Report that the Government’s position is that, while the ombudsman can draw attention to systemic issues that have apparently arisen and recommend that they be investigated, the one thing that the Government are not prepared to allow the ombudsman to do is investigate such issues of concern on his or her own volition unless required by the Secretary of State to do so—and, as we know, Secretaries of State have a track record of not asking the commissioner to do so.

Indeed, the Minister made this position clear on Report when he said:

“Although we want the ombudsman to address wider issues, including where they have identified systemic abuse, we do not want the ombudsman to have any statutory powers to investigate thematic issues. We do not, for example, want the ombudsman to have any powers to require the production of papers or to question witnesses beyond the powers set out in respect of the exercise of the ombudsman’s primary function of investigating alleged maladministration in the handling of service complaints and whether, as a result, injustice has been caused”.

So the issue is not the principle of the ombudsman being able to call for the production of papers or questioning of witnesses—since that could relate to maladministration—but instead to do so in the context of an investigation into a thematic issue of concern to the ombudsman as opposed to an individual complaint of maladministration. The reason given for this stance by the Government on Report was that they,

“do not want the ombudsman to be an inspectorate for the Armed Forces or to perform the functions of a rapporteur. … Conferring such a role on the ombudsman would also serve to divert the resources of the office”.—[Official Report, 29/7/14; cols. 1544-6.]

I hope that the second reason is not a significant one, since it appears to be saying that the reason for not allowing the ombudsman to investigate thematic issues is not related to the merits or otherwise of so doing but rather because the resources cannot be provided to allow him or her to do so.

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[Lord Rosser]

My Lords, I thank the Minister for his response. I express no surprise that the Government have not felt able to accept this amendment, since the Minister indicated to me in a recent letter that the Government would not be tabling any amendments on thematic investigations for Third Reading. As we come to the end of our consideration of the Bill, I thank the Minister and the noble Baroness, Lady Jolly, for their thoroughness and unfailing courtesy, at the Dispatch Box, in correspondence and outside the Chamber, in responding to issues that we have raised. I extend those thanks to the Bill team and to all noble Lords who have taken part.

I also thank the Minister for his kind words. I am grateful to him for having somewhat contradicted the noble Lord, Lord Palmer of Childs Hill, who clearly believes that the issue I am raising is of no significance. Indeed, I think he used the expression “clutching at straws”. The Minister clearly does not believe that the issue I am raising is clutching at straws. He has said specifically that the Government do not want the ombudsman to be able to carry out an investigation into, for example, bullying at a particular location. That is not a minor issue or clutching at straws; that would be a particularly useful and relevant role for the ombudsman to have. When the Minister talks about undermining the chain of command, it depends on whether the chain of command will regard the ombudsman as the enemy or as being of assistance to it in dealing with issues of military life and military personnel that arise. We are getting off on a very bad footing but I sense that the ombudsman will be regarded as the enemy, who should not be let out more often than is absolutely necessary.

In his response, the Minister reiterated the Government’s position: while they agree that the ombudsman should address wider issues, they do not want him to have any statutory powers to investigate those issues. The ombudsman can apparently report that there is a wider problem but he or she cannot fully investigate whether that is the case, or, if it is, the extent to which it is the case, and make recommendations. The ombudsman can do this if the Secretary of State requires him to do so but not of his own volition. We know that Secretaries of State do not ask—they have not asked the present commissioner—for such investigations to be carried out. Investigations into maladministration will not necessarily provide scope for raising matters of concern over thematic issues or abuses because such an investigation needs a specific complaint, or complaints, of maladministration. There does not have to be a procedural issue in how complaints are dealt with for there to be an issue of concern.

In conclusion, the main issue is that the Government intend that the ombudsman may only report, not investigate, concerns over systemic or thematic abuses or issues, and that it should then be up to the Defence Council or the Ministry of Defence whether any further action is taken to investigate those concerns. By definition, the ombudsman will not be able to substantiate such concerns or base any recommendations on the facts that emerge from the investigation. He or she will not have the power to investigate concerns beyond what arises from an individual complaint, not about the issue itself but about maladministration of the way a complaint has been dealt with. As the Joint Committee on Human Rights said, the appearance of the independence of the ombudsman is important to provide the necessary confidence. In opposing my amendment, the Government have not provided a sufficiently convincing explanation of the difficulties that would be caused by the ombudsman having the power to carry out investigations.

[Lord Astor of Hever]

My Lords, I may be able to help the noble Lord. In winding up, I misread one word. I said that we do not want the ombudsman to highlight any thematic issues; I should have said that we do want the ombudsman to highlight the thematic issues. That was entirely my misreading.

[Lord Rosser]

Although that sounds like a significant change in the Government’s position, actually it is not. What the noble Lord has said is that the Government want the ombudsman to be able to highlight systemic issues—that is, to say, “I’ve been told that there is a problem”—but not to investigate the issue. I am grateful to the noble Lord for correcting what he said but it does not alter the position that the Government do not want the ombudsman to be able to investigate.

There is a difference between telling somebody that there is a problem and being able to investigate it. As I was saying when the Minister intervened, the Government have not provided a sufficiently convincing explanation of the difficulties that would be caused by the ombudsman having the power to carry out investigations into thematic issues of concern of his or her own volition, even though they do not dispute that it may be necessary to carry out such investigations—but only if the Secretary of State requires the ombudsman to do it. So it may be necessary if the Secretary of State wants it but not if the ombudsman thinks it should be done. That does not add up to a credible position on the Government’s behalf, and I wish to test the opinion of the House on my amendment.

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

Lord Rosser Excerpts

Tuesday 29th July 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I am returning to an issue that we discussed in Committee dealing with service complaints: whether a service complaint dies with the complainant. If the person who has grounds for making a complaint dies, is that an end of it? I would say that, in principle, that ought not to be the case. The proposed amendment to the Armed Forces Act 2006, new Section 340A, asks the question:

“Who can make a service complaint?”.

The answer it gives is that:

“If a person subject to service law thinks himself or herself wronged in any matter relating to his or her service, the person may make a complaint about the matter”.

It says “any matter”, so it applies to any issue that may arise in which the person subject to service law thinks that he has not received the proper treatment.

We have been told that the majority of the complaints made concern the terms and conditions of service, but there is another significant body of complaints that concern bullying and harassment within the service. I am extremely grateful to the Minister and his team for permitting me and others to have discussions with the Bill team before we got to Report; it has been very helpful. However, I just compare this with other systems.

Let us suppose that the subject matter of the complaint is not just bullying and harassing but a serious assault and that that assault is referred to the police. The fact that the complainant dies does not mean that the police can take no action. Indeed, I recall a serious case of rape in which the lady concerned—the complainant, who was 80 years of age; and having made a complaint and had that complaint videoed—then died. Her death was nothing to do with the fact that she had been allegedly raped, but the video was evidence in the criminal proceedings that then followed at the Old Bailey. There is nothing unusual about an allegation of crime being pursued after the person who has been the victim of that crime has died.

Why should it be any different in the case of a person who complains of bullying and harassment—or, indeed, if there is a connection between the bullying and harassment, as happened in one unfortunate case that we discussed in Committee, when the complainant committed suicide? Why should her complaint not continue? If it is a matter of terms and conditions, that is very often a concern about finance—about money. Why should a person’s complaint that he has not been properly treated, and that he is entitled to a better rank or to a higher grade of pay than he has received, not continue after his death just as it would if it were a civil claim brought in the civil courts?

The Minister in replying on this issue in Committee suggested that it would be dealt with pragmatically and sensitively by the authorities, but I was not very clear precisely what he had in mind. He said:

“Although it is clear that cases involving a deceased service man or woman must be treated seriously and with respect, and that the family of the deceased have a right to know that the issues they raise will be seriously considered, the place to do this is not through the formal service complaints system”.—[Official Report, 9/7/14; col. 232.]

I do not really understand whether that is an invitation to the next of kin or the family of the deceased to start issuing civil proceedings or to appear in front of a coroner’s court or to report matters to the police. It seems to me that where the provision is that a person may make a service complaint about,

“any matter relating to his or service”,

their next of kin, whom service people are required to define, or their personal representative should be able to continue that complaint, or raise it themselves if it has not been raised by the complainant before death, in the ordinary way. I await with interest the Minister’s response to these concerns.

[Lord Rosser (Lab)]

My Lords, we have an amendment in this group. The noble Lord, Lord Thomas of Gresford, has made a strong case. As he said, we discussed the issue in Committee, and our amendment is the same as that which we then proposed.

We simply seek a process that would enable issues to be raised by the family on behalf of the member of the services who has died, whether the death occurs before a complaint has been made—when evidence comes to light subsequently that indicates that a complaint could be pursued—or whether death occurs when a complaint is already going through the process but has not been finalised.

Responding for the Government, the Minister in effect said that where the complainant had died, whether before a complaint had been made or after a complaint had been made but not finalised, the chain of command could decide to investigate that complaint, but that it was a matter entirely for the chain of command as to whether they did so. The Minister referred to the need for a complaints system to be fair and,

“to give equal consideration to all parties who may be involved. That means that the person making the complaint and anyone else who might be implicated in it, or otherwise affected by it, should have the opportunity to put their case”.—[Official Report, 9/7/14; col. 230-31.]

The Minister went on to say that while,

“cases involving a deceased service man or woman must be treated seriously and with respect, and that the family of the deceased have a right to know that the issues they raise will be seriously considered, the place to do this is not through the formal service complaints system. For the service complaints system to be fair, and for all of those involved to feel that it has treated them as such, it must involve all parties: the person making the complaint and those who are accused of perpetrating the wrong”.—[Official Report, 9/7/14; col. 232.]

I am not convinced that the formal complaints procedure could not handle such complaints fairly. If the evidence is not there to sustain the complaint, or there are key issues that cannot be properly investigated because the complainant, unfortunately, cannot be there, that would surely be reflected in the outcome, but that inability to obtain sufficient evidence to make a decision will not always be the case.

If, as I suspect, the Minister is not prepared to accept these amendments, or to consider the matter further, where does that leave the ombudsman in such cases? The inference must be that if a matter is not dealt with through the formal complaints system, an aggrieved party will not be able to make a complaint to the ombudsman that there has been maladministration in connection with the handling of the complaint, either through a refusal to consider it at all, or in relation to the process by which that complaint was considered.

Will the Minister also say whether or not that would be the position in respect of a complaint from, or on behalf of, a member of service personnel who is now deceased—namely, that by not dealing with the complaint through the formal complaints procedure, there could be no reference on grounds of maladministration to the Service Complaints Ombudsman? One would have thought that the ombudsman would be quite capable of making a decision on whether there was, or was not, sufficient evidence available from which to reach a fair and just conclusion.

If that is the case—I hope that it is not—and the ombudsman would have no role, do the Government really think that that is a mark of a fair complaints system which treats cases involving a deceased service man or woman seriously and with respect, and gives the family of the deceased the right to know that the issues that they have raised will be seriously considered? I am not sure that it does.

[Lord Palmer of Childs Hill (LD)]

My Lords, I intervene on just a couple of small points. I hope that the Minister will take regard of both these amendments. However, I want to highlight the difference between the two, which is subtle but important. When the noble Lord, Lord Rosser, said that his amendment was in the same form and words as it was in Committee, I was somewhat disappointed. My noble friend Lord Thomas’s amendment has some important differences from the amendment proposed by the noble Lord, Lord Rosser. My noble friend Lord Thomas’s amendment, to which I am a signatory, says that,

“the complaint may be made or maintained”,

whereas the amendment of the noble Lord, Lord Rosser, says only that it should be made. Very often, the complaint has been made before the person has died and therefore it needs to be maintained. It is not necessarily made after death.

The amendment proposed by my noble friend Lord Thomas refers to,

“next of kin, or personal; representative”.

Those are the correct terms in law, whereas the amendment of the noble Lord, Lord Rosser, talks about “relative or partner”. As we all know, a personal representative is not necessarily a relative or partner. If we are, by consensus, going to persuade the Minister and the Government to move on this issue, I hope that we will take those finer points into consideration.

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[Lord Astor of Hever]

My Lords, I am saying that the chain of command would want these matters resolved. It is part of the Armed Forces covenant that these sorts of situations are clarified.

[Lord Rosser]

May I ask a further question? In the scenarios that the Minister has referred to, if the family of the deceased were dissatisfied with the outcome, would they then be able to refer the matter to the ombudsman, on the basis that there had been maladministration, or would they not be able to make such a reference?

[Lord Astor of Hever]

The answer to that is no. The noble Lord asked me earlier whether next of kin, families or personal representatives could make applications to the ombudsman where a complaint had already been made. The answer is no; they could not if no application had previously been made. If an application to the ombudsman had been made by the complainant before they died, there may be circumstances in which that could continue, depending on the feasibility of doing so and on whether appropriate redress could eventually be granted. This would apply equally to the bringing of an appeal in the internal system. As I said to my noble friend, if there is serious redress or something that needs to be put right, that would be within the interests of the Armed Forces and I am sure that the chain of command would want the situation to be rectified.

Treating families with concerns seriously, and being seen to do so, is important if we are to maintain confidence in the Armed Forces more generally. It is in everyone’s interests to address any feelings of injustice that bereaved families may have and to reach a satisfactory outcome where possible. Where these concerns are potentially related to the individual’s death, we would expect the chain of command to consider the concerns very seriously and whether appropriate action can be taken as a result of the claims. I hope that noble Lords will gain a degree of comfort from what I have said and will be prepared to withdraw their amendment.

--- Later in debate ---

Moved by

[Lord Rosser]

3: Clause 2, page 2, line 26, at end insert—
“( ) for a service complaint against a member of the Royal Military Police to be made to an officer of a specified description;”

[Lord Rosser]

My Lords, in Committee I raised the question of the intended role for the ombudsman as regards the Royal Military Police, both in respect of complaints raised by members of the RMP in connection with their working environment and situation and those raised by service personnel about the activities of the RMP and how it had carried out its role. The Minister drew attention to the fact that he had sent me a letter on that issue two days previously, and I responded by saying that I thought it would be helpful to have the information in the letter with regard to the role of the ombudsman on the record in Hansard. The purpose of my amendment today is, I hope, to achieve that objective, and nothing more.

The Minister’s letter covered the procedures that relate to service police officers in all three services, not just those in the RMP. On the assumption that the Minister will cover the position comprehensively in his reply, I do not intend to refer to any parts of the letter, with one exception. The letter indicated that the Government were also looking at other ways in which serious allegations and complaints made against members of the service police could be investigated. I simply ask whether the Minister is able to give any sort of timescale within which that exercise is expected to be completed. I beg to move.

[Lord Astor of Hever]

My Lords, Amendment 3 deals with how the proposed service complaints system will work with regard to the Royal Military Police. I can confirm that the provisions of the Bill apply in much the same way to complaints concerning members of the service police as they do for any other service person. For example, where a service person believes they are bullied by a service policeman acting in the course of their duties, they can complain about that.

There is one exception in that service complaints cannot be made about decisions a service policeman has made following an investigation about whether to refer a case to the Director of Service Prosecutions under Part 5 of the Armed Forces Act 2006. That circumstance is specifically excluded from being dealt with as a service complaint under the current regulations, and the intention is that it will remain so under the new regulations.

The reason such decisions are excluded is that, as a matter of principle—and this is important—the chain of command should not be able to interfere with prosecutorial decisions in the service complaints system. However, as in the civilian context, there are mechanisms for challenging such decisions via the courts, either during service proceedings or by way of judicial review.

For completeness, I will make another point: a member of the service police can complain about the same matters as other members of the Armed Forces and is subject to the same exclusions and other rules if he or she believes they have been wronged; for example, about pay, appraisals or any other matter. As such, under the new process the member of the service police would also have access to the ombudsman.

As regards who the specified officer would be in respect of any service complaint—as is clear from draft regulation 3 of the draft Armed Forces (Service Complaints) Regulations—that would ordinarily be the complainant’s commanding officer. There is no separate procedure or route for service complaints about the Royal Military Police, nor is that required. The role of the specified officer is to consider whether the complaint is admissible or not. If that person decides that the complaint is inadmissible, the complainant can ask the ombudsman to review that decision, and any decision on the admissibility of a service complaint by the ombudsman is binding.

Finally, we are also considering other ways in which serious allegations and complaints made against members of the service police might be dealt with. However, there are a number of complex issues to consider, including how any new arrangement could work in the context of an operational theatre and the need for an extension of statutory powers. We expect to conclude this work in time for next year’s armed forces Bill. I hope that that answers the question of the noble Lord, Lord Rosser.

I hope that I have provided noble Lords with reassurance that the ability already exists for a service person to make a service complaint about the way in which a service policeman has conducted themselves in their role. On that basis, I ask the noble Lord to withdraw his amendment.

[Lord Rosser]

I thank the Minister for his response and for placing on record in Hansard the thrust of the letter that he kindly sent to me. I am very grateful to him for doing so and I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Moved by

[Lord Rosser]

4: Clause 2, page 6, line 25, at end insert—
“( ) The Ombudsman may, after advising the Secretary of State, investigate any matter deemed to be in the public interest on—
(a) any aspect of the system mentioned in section 340O(2)(a);(b) any matter relating to the Ombudsman’s functions under this Part;and make a report to the Secretary of State.”

--- Later in debate ---

[Lord Rosser]

We discussed this amendment in Committee. The noble Lord, Lord Thomas of Gresford, has also tabled an amendment with what I think I can describe as similar intent. The purpose of my amendment is to give the ombudsman rather wider powers to be able to report on thematic issues without being dependent on the Secretary of State asking for such reports. I do not intend to repeat all the points made in Committee in favour of such an extension of powers. However, it is worth pointing out that, under the present arrangements, the Secretary of State for Defence has never asked the present commissioner to report on a particular area of concern that she or the Secretary of State may have outside her normal reporting cycle.

The Defence Select Committee in the other place has already said it believes that there would be value in the commissioner being able to undertake research and report on thematic issues in addition to the annual reports, and that the commissioner’s experience on these issues should be utilised. The committee came to this conclusion at least partly in the light of what the commissioner had said on this matter when she appeared before the Select Committee to give evidence.

When the Minister gave the Government’s response in Committee, he said:

“The ombudsman’s scope for raising issues of concern also extends to the provisions made in new Section 340L for the ombudsman to make recommendations as a result of finding maladministration”,

and that such recommendations,

“could relate to systematic issues”.

However, the Minister also said that the amendments being debated extended the ombudsman’s remit “beyond that required”, which would suggest the Bill does not give the ombudsman the wider powers being sought by the Defence Select Committee. That committee also reported that, during visits to units, the current commissioner had been informed of issues that would not come to her as complaints but on which she thought some work needed to be done. Such issues would presumably not be covered by new Section 340L, which relates to recommendations as a result of a finding of maladministration.

I am also conscious that in Committee the Minister indicated concern that,

“an ombudsman with a wider remit to investigate matters of their own volition”—

notwithstanding first notifying the Secretary of State of their intentions—

“could overlap with … other jurisdictions and cause confusion and difficulties”.—[Official Report, 9/7/14; col. 243.]

One would have thought that that situation could arise under the powers in new Section 340L, in respect of which the Minister has said the ombudsman could make recommendations relating to wider systemic issues as a result of finding maladministration. The Bill is not at all clear on what investigations the ombudsman can or cannot carry out of his or her own volition beyond investigating an individual complaint of maladministration. I certainly do not believe that the Bill provides for what is being sought in my amendment. Neither do I think that the Bill makes clear the scenario for wider investigations carried out by the ombudsman referred to by the Minister in Committee.

Obviously I would like the Minister to accept the terms of the amendment, but if he is unable to do that I hope that he would, without commitment, at least agree to reflect further on the wording in the Bill with a view to ensuring that it is clear precisely what the ombudsman can or cannot investigate and make recommendations on beyond an individual complaint of maladministration, and thus enable further consideration to be given to this matter at Third Reading, if felt necessary. I beg to move.

[Lord Thomas of Gresford]

My Lords, like the noble Lord, Lord Rosser, I am very much concerned as to what the ombudsman thinks he can do when he has an issue before him. If he foresees or realises that there is a culture within a particular unit in the Armed Forces that involves bullying, initiation ceremonies or matters of that sort, what can he do? Is he restricted simply to reporting on an individual complaint or is he entitled to tell the defence counsel that there is a much more serious widespread issue here that has to be tackled?

When we discussed this in Committee, the Minister said that the Bill already offered,

“sufficient scope for the ombudsman to raise wider issues in appropriate ways, as they see necessary, and to provide an input to investigations or inquiries conducted by other appropriate bodies”.—[Official Report, 9/7/14; col. 243.]

It would seem from that reply—and I have had discussions with the Bill team—that the ombudsman would be entitled to file a report, and not just an annual report but a report from time to time, in which he could draw the attention of the defence counsel to thematic abuse that he has seen, from the consideration of a number of individual cases. If the Minister can confirm that, many of the concerns that the noble Lord, Lord Rosser, and I have expressed will be met. But it is not clear from the Bill’s wording, and I look forward to what the Minister says.

--- Later in debate ---

I hope that I have provided noble Lords with some reassurance this afternoon. We want an ombudsman who will be able to identify wider issues and highlight areas of systemic abuse or concern where they come to their attention. We also want any reports on such issues to be made publicly available as quickly as possible. However, having listened very carefully to the points made by the noble Lord, Lord Rosser, and by my two noble friends, I will consider this issue again before Third Reading so that we can return to it then, if need be. On that basis, I ask the noble Lord to withdraw his amendment.

[Lord Rosser]

I thank the Minister for his comprehensive reply. I will certainly read Hansard carefully. He made a number of what appear to be very clear and specific statements about what the ombudsman would and would not be able to do, but I will want to satisfy myself on the extent to which he has cleared up all the issues to which I referred. I suspect that there may still be some uncertainties. However, I am very grateful to the Minister for saying that he will reflect on the points that were made by myself and his noble friends Lord Thomas of Gresford and Lord Palmer of Childs Hill—which will, if necessary, give us an opportunity to discuss the matter further at Third Reading. In view of that, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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[Lord Deben (Con)]

My Lords, the Minister will have been under the usual pressure to say that this provision is probably not suitable for this Bill and that there are all kinds of reasons why it will not quite work. Perhaps his officials will have used the words that I well remember as a Minister: “Better not”.

I suggest to my noble friend that this is the kind of opportunity that rarely comes when a Member has raised an issue for which there is no convenient box in other Bills. I must say that the whole House owes a great deal to the noble Lord opposite for having found this moment for the amendment. I therefore very much hope that my noble friend will be sensitive to this issue. It is in line with much of what we are trying to do elsewhere and is the best way to counter the sharks. Actually, legislation does not help much with sharks because they always find a way around it, but if one can provide an alternative to the sharks, one is more likely to win the battle.

It is notable that throughout our society the encouragement of the credit union movement by all sorts of organisations—I have recently come across several examples—is something that can do only good because it uses three simple concepts. First, people need to borrow money from time to time. Even the best-organised families find that to be necessary so there ought to be a way in which they can do it. Secondly, there is no doubt that within the Armed Forces there are many for whom pay and conditions are not absolutely perfect and where there are stretching moments—perhaps more so than in other jobs. Thirdly, as the noble Lord opposite said, we owe our Armed Forces a particular debt and, because of the things we ask them to do and the places we ask them to go to, it is often more difficult for them to access the sort of short-term help that many people receive from family and friends. That just happens to be part of the conditions of being in the Armed Forces.

I very much hope that my noble friend, who has shown himself to be particularly sensitive on many issues, will be able on this occasion to give us some hope that he can persuade others to accept that this is a sensible place to put the amendment and to give some degree of creativity to a Bill which, although important, is not the most exciting to have come before this House. I have sat through most of our proceedings and I have to say that this nugget, if my noble friend is able to give it his blessing, might well be the thing that people remember the Bill for.

[Lord Rosser (Lab)]

My Lords, I congratulate my noble friend Lord Kennedy of Southwark and the right reverend Prelate on introducing the amendment and on the powerful case that they have put forward. I certainly do not intend to repeat all the points that have been made, not least because the Ministry of Defence already recognises the importance of this issue.

As has already been mentioned, the former Parliamentary Under-Secretary of State for Defence, Dr Andrew Murrison, said this year that as part of the department’s,

“ongoing efforts to better support our service personnel, the MoD is currently considering the benefits of an armed forces credit union. However, no decision has yet been taken”.—[Official Report, Commons, 24/2/14; col. 63W.]

The Ministry of Defence has, of course, introduced the MoneyForce programme to provide service personnel with advice and training on finances. Welcome though that scheme is, it does not provide service personnel with an alternative to their current arrangements. I hope that the Minister will be able to tell us when the Ministry of Defence is going to make a decision, as a military credit union would offer a financial lifeline to a great many serving personnel, veterans and their families. We support such a move, and in that I think we have the Department for Work and Pensions in our corner, as it has been supporting the expansion of credit unions across the UK since 2012, following its own feasibility study, which found that around 7 million people fall into the trap of high-cost credit.

One of the advantages of a credit union is that it can offer specialised financial products and services designed to meet the particular needs of the communities it serves. That means that the very specific circumstances and situations that military personnel, veterans and their families often face—such as living apart, or moving house a considerable number of times—can be factored in to financial decision-making and advice.

The Government—any Government—have a responsibility to source an adequate route to financial security for Armed Forces personnel, veterans and their families, under the obligations placed on them by the Armed Forces covenant, which states that, where possible, disadvantages should be removed so that military personnel are able to enjoy the same opportunities and outcomes as the civilian community. The reality is that many military personnel and their families are limited in their access to secure finance, due to circumstances arising from the duties they perform, and the service they give, on behalf of us all. I very much hope that the Minister will be able to give a helpful and meaningful response to the amendment in the names of my noble friend and the right reverend Prelate.

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

Lord Rosser Excerpts

Wednesday 9th July 2014 Lords Chamber

Moved by

[Lord Rosser]

1: Clause 1, page 1, line 9, leave out “is”

[Lord Rosser (Lab)]

My Lords, the effect of this group of amendments is to say that a person may not be appointed as the ombudsman if that person has been a member of the Regular or Reserve Forces at any time in the five years prior to the date of appointment. The Bill lays down that,

“A person may not be appointed as the Ombudsman if the person is … a member of the regular or reserve forces”.

The present system has been described by the Service Complaints Commissioner as being not efficient, effective or fair. Indeed, in her most recent annual report the commissioner says that,

“for the sixth year running I have been unable to give … an assurance that the system is yet working efficiently, effectively or fairly”,

and that delay remains the principal reason for unfairness in the system. If we are to have a new system with a service complaints ombudsman with enhanced powers, it is surely vital that, if service personnel are to have a level of confidence in the new system which they do not have in the present arrangements, the ombudsman is seen not only to have greater powers but to be truly independent of those whose actions he or she might be investigating, and of those to whom he or she would be making recommendations.

In that context, it is surely also relevant that the ombudsman will, as I understand it, have the power to seek judicial review if the Defence Council rejects the recommendation. That situation will not be achieved if the person appointed as the ombudsman is perceived to be too close to the Armed Forces establishment and too much ingrained with the culture of the Armed Forces, or one arm of them, and their way of doing things to be perceived as being truly independent. We have had an independent Service Complaints Commissioner with insufficient powers and an unwieldy system. What we do not want to move to is a Service Complaints Ombudsman with greater powers and a more streamlined system for complaints but lacking the perception of being considered truly independent. That will be a risk not just if the person appointed is,

“a member of the regular or reserve forces”,

who would rightly be debarred under the current provisions in the Bill, but if the person appointed had recently been a member of the forces, who would not be debarred under the Bill as it stands.

One amendment in this group proposes that a person who,

“has been a member of the regular or reserve forces”,

should not be eligible to be appointed as the ombudsman for a period of five years after leaving the Regular or Reserve Forces. If the concern is that this would reduce the pool of potential applicants, I suggest that is the wrong priority. The principal concern should be to appoint someone who is not only truly independent but perceived as being so. If it is seriously to be suggested that we might not be able to find an independent ombudsman in whom we could all have confidence from outside the ranks of those who have been a member of the Regular Forces or Reserve Forces in the last five years, I suggest that we have a real problem over the future of this new position.

A detailed knowledge of the culture of the Armed Forces and how they operate and function that could come only from having recently been on the inside is not, I suggest, an essential qualification for being the ombudsman. Rather, the essential qualifications are to be of an open and independent mind, with an ability to weigh up evidence and facts, sort out the salient from the irrelevant, come to reasoned and measured conclusions and be able to question and challenge, as well as to be determined not to be deflected or obstructed by anyone, whatever their level or rank, and to desire to see that justice is done, whether that means upholding or rejecting a complaint.

I hope that the Minister will understand the purpose of the amendment and what it is seeking to achieve. As I see it, the Bill as it stands could mean that a person was appointed to this post the day after they ceased to be a member of the Regular or Reserve Forces, and I am not sure that, from the point of view of being perceived to be truly independent, that is the road we should even contemplate going down.

--- Later in debate ---

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

My Lords, the amendments in this group would require there to be a gap of five years between a person ending their service in the Regular or Reserve Forces and becoming eligible to be appointed to the post of Service Complaints Ombudsman. The provision in the Bill requires simply that, to be appointed to the post, an individual is not currently a member of the Regular or Reserve Forces nor of the Civil Service. The service complaints process is in place to deal with a wide range of matters that can give concern to our personnel. For those concerns to be addressed and resolved, it is essential that everyone who might wish to use the process has confidence that it will deal with complaints in an impartial and professional way.

The need for the system to be fair, effective and efficient is already well established, and is the basis in the Bill for the ombudsman’s annual assessment in the ombudsman’s report as to how the process operated during the preceding year. In creating the new role of ombudsman, those principles of impartiality and professionalism are also the characteristics that everyone will expect to see the postholder display. Crucially, postholders must also be demonstrably independent of those whom they seek to hold to account for the way in which complaints have been handled.

That is why the ombudsman is outside the chain of command and has access to Ministers when the ombudsman considers it is necessary. The ombudsman will also be able to approach the chain of command at any level and on any issue, should there be a need to do so. The ombudsman will continue to be accommodated outside the defence estate to reinforce the independence of the role and the ombudsman will recruit its own staff in line with prevailing Civil Service recruitment guidelines. The Bill includes a new provision as a further mark of the role’s independence and security of the postholder’s tenure, in that the postholder’s appointment will be subject to appointment by Her Majesty.

The ombudsman will be a post that is of public interest. As such, the recruitment activity will include a pre-appointment hearing by the House of Commons Defence Select Committee, once a candidate selected by the interview panel has been approved by the Secretary of State. This was introduced for the Service Complaints Commissioner post for the same reasons.

In reviewing the terms that will apply to the ombudsman post, we have considered the length of engagement of other similar posts and, to answer the noble Lord’s question, we have determined that when the next recruitment campaign is run the tenure will be extended to five years. To answer his other question, the term will not be renewable. This will give any future ombudsman sufficient time to familiarise themselves in the role and then become fully effective, which would not necessarily be the case if the term was shorter. Having looked at how other ombudsman institutions in the public sector are set up, we are aware that the Parliamentary and Health Service Ombudsman has a seven-year non-renewable term. By keeping this aspect of the ombudsman appointment in the terms of appointment rather than in the Bill, we retain the flexibility to increase it in the future if experience shows that that might be beneficial.

The skills and experience that are needed for this post are those expected for any high-profile oversight role, with the additional challenges in the short term of transforming the current role of the Service Complaints Commissioner to that of an ombudsman. Proven analytical skills and the ability to make sound judgments and recommendations on the basis of evidence, along with a proven record in change management, will be key. Individuals can acquire these skills in any number of ways and it is for applicants to show how they have demonstrated them in practical terms that will be of benefit in this role.

We are clear that, on taking up the appointment, the ombudsman should not be a serving member of the Regular or Reserve Forces, nor of the Civil Service, so that the independence of the post and postholder is not in question. We do not, however, limit ourselves, as the amendment would, to those who may have left service during any particular period. Our aim is to get the best candidate for the job and to be in a position to encourage applications from as wide a field as possible. To put in an arbitrary bar would disqualify otherwise excellent candidates with potentially relevant and recent experience, a point that was well made by my noble friend.

As part of the recruitment process for posts of this nature, the recruitment consultants who are running the campaign will scrutinise closely the information provided by applicants, and will compare it to the required skills and experience that have been set out in the advertisement for the post. The consultants will also work closely in the run-up to and during the campaign with those who will be interviewing the applicants and recommending the candidate to Ministers for their approval. As has been the case in the past for the Service Complaints Commissioner, the ombudsman interviewing panel will include a mix of military and Civil Service personnel who know the complaints process well and have a clear understanding of the environment in which the ombudsman will be operating. This helps the consultants to understand in more detail the role that they are recruiting to and the benefits and disadvantages that certain areas of previous experience might attract.

The period since a potential candidate left the service might not necessarily be an issue. What may be of relevance is the role and function they carried out and the length of time they were in the service. For example, an individual who served for only a short period but who prior to joining up had experience of particular value to the ombudsman role may be an especially strong candidate who should be given serious consideration. Each candidate is therefore considered on their merits and always with the need for the chosen candidate for the post to be, beyond question, independent of those whom they will be holding to account.

As part of their checks, the consultants will clarify any potential issues that arise that they feel might raise any real or perceived doubts as to an applicant’s independence from the Armed Forces if an applicant were to go on to become the commissioner or, in future, the ombudsman. They will also look for any possible signs that an applicant might not otherwise be acceptable or might bring the integrity of the post into question, which might include, for example, whether they have been or are currently the subject of a complaint. The selection panel chaired by a public appointments assessor must also satisfy itself that all candidates can meet the Standards in Public Life principles and that they have no conflict of interest that would call into question their ability to perform the role.

There is undoubtedly a fine balance to be struck between having some relevant knowledge of the way that the services operate and being completely new to their ethos. The Armed Forces operate in a unique employment environment. Their need for strong discipline is among the factors that make them such an effective fighting force on operations. It can be difficult for someone who is unaccustomed to the way in which that discipline is instilled and maintained readily to understand how this environment differs from the civilian workplace and, indeed, how that might transfer to the way in which complaints are viewed and how the services handle them. By the same token, we need and want a fresh pair of eyes to look at our complaints process and determine what is fair, effective and efficient in the way that we deal with any complaints that might arise within that unique environment.

If an applicant for the ombudsman post had only recently left the Regular or Reserve Forces, we would still want to consider such an application. The checks and balances that we have in place as part of the rigorous recruitment process—and our need to ensure that the postholder is seen as independent—give us the flexibility to consider as wide a range of applicants as possible for this important role and to secure the best possible candidate. These amendments would lead to good candidates being excluded arbitrarily, and for that reason I must resist them. I ask the noble Lord to withdraw his amendment.

[Lord Rosser]

Will the Minister clarify a point he made? I think he said that a panel will make the appointment. If I understood that correctly, did he say that the panel would recommend a candidate or candidates to those who would make the final decision?

[Lord Astor of Hever]

I think the answer is one candidate. If I am wrong, I will let the noble Lord know.

[Lord Rosser]

I thank the Minister for that and for his response. I noted that he said that the intention was for a non-renewable five-year tenure. Obviously, one would want to reflect on that. Personally, I can see some advantages in having a lengthy period of tenure that is not renewable, because then the occupant of the post may not be tempted in their decisions to do things that might lead to the contract being renewed at the end of the period. One could see the advantages of that, but I stress that that is an immediate personal response to that point.

Obviously, I am sorry that the Minister did not feel able to go any part of the way towards the objective that the amendment sought to achieve. The noble Lord, Lord Palmer of Childs Hill, said that we should not exclude people in primary legislation. Of course, a response to that is that we should not enable somebody who left the Regular and Reserve Forces the previous day, metaphorically speaking, to be appointed to this post in primary legislation. Perception is very important here. The reality is that the proposed legislation that we have in front of us enables an appointment to be made of somebody who has literally just left the Regular and Reserve Forces. I am sorry that the Minister did not feel able to make any movement at all on that. From the nature of the response, the Government obviously do not feel able to say that there should be any minimum period before anybody from the regulars or the reserves should be able to be appointed to this position.

However, I am grateful to the Minister for the comprehensive nature of his reply. I want to reflect further on it and on the points he has made and in the mean time, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

Moved by

[Lord Rosser]

4: Clause 2, page 2, line 15, at end insert—
“( ) If the family of a person who has died during the course of his or her service thinks that his or her relative or partner was wronged in any matter relating to his or her service, the family may make a complaint about the matter.”

[Lord Rosser]

My Lords, I will be brief, not least because I assume that the noble Lord, Lord Thomas of Gresford, although he may not make exactly the same points, will make very similar points. On the issue of service complaints, the Bill refers to,

“a person subject to service law”,

who thinks that they have been wronged. It states:

“If a person who has ceased to be subject to service law thinks himself or herself wronged in any matter relating to his or her service which occurred while he or she was so subject, the person may make a complaint about the matter”.

However, it goes no further than that.

At Second Reading my noble friend Lady Dean of Thornton-le-Fylde raised the issue that when a service man or woman has died without making a complaint there appears to be no room for a family member to pursue a complaint on their behalf. There would seem to be powerful reasons that when an individual’s family or friends have information or evidence to suggest that a member of their family was treated unfairly in their service life, they should be able to take steps to find out the truth, and to be in a position, if needed, to make sure that a complaint that is going through the procedure at the time that the member of the services died can continue.

At Second Reading a number of noble Lords made reference to the case of Anne-Marie Ellement and the investigation conducted by the Royal Military Police which led to a decision being made that no charges should be brought. However, when it came, a long time later, to the inquest, it found that the lingering effect of an act of alleged rape, which was described as work-related despair and bullying, had contributed to that person’s death. There was a feeling that the information about the working and living conditions that the person endured would not have been available had it not been for the lengthy procedure in that case to get a second inquest.

Surely we ought to have a process that would enable issues such as that to be raised by the family on behalf of a member of the services who has died, whether the death occurs before a complaint has been made when evidence comes to light that indicates that a complaint could be pursued, or whether it occurs when a complaint is already going through the process but has not been finalised. Surely giving family members the opportunity to ask for a complaint to be investigated is both just for families and an opportunity for learning and improvement. I think I am also right in saying that the prisons ombudsman has discretion to investigate complaints made by the family members of deceased individuals. I hope that the Minister will look sympathetically on the issue covered in this amendment and in the amendment of the noble Lord, Lord Thomas of Gresford. I beg to move.

[Lord Thomas of Gresford (LD)]

I will speak to Amendment 5, which covers very much the same ground as that just covered by the noble Lord, Lord Rosser. However, I think that it is perhaps more succinct than his amendment. I do not think that it is necessary for the family to think that a person has been wronged. If there is a complaint, the relatives, next of kin or personal representative should be able to pursue it.

If a wrong has caused the death, the problem with the coroner’s inquest is that those proceedings are not instituted by a member of the family or next of kin but by the coroner himself. That may take time and cause delay. It seems to me that it is appropriate and would avoid a great deal of hurt for the next of kin or personal representative to be able to take the complaint to the ombudsman. That would deal with the situation where a person has died as a result of the wrong but, of course, if there is some other issue, the coroner will have no part in it at all. There again, it should be open to the next of kin to make the application, and to do it in as prompt a manner as possible. A point of principle is involved here and I look forward to hearing the Minister’s response.

--- Later in debate ---

[Lord Thomas of Gresford]

Perhaps I may speak to Amendment 5 now, because I do not propose to move it today. The second example given by the Minister makes my point, because that is a situation where a death may have been caused by the matter complained of and the complaint had been lodged—so we understand—prior to the decease of the complainant. No doubt it will be dealt with sensitively, but under the Bill the Defence Council would be entitled to say, “You can’t maintain it any further. The person has died and that’s an end of it. Under this Act, we are not going to take it any further”. The question of whether to continue with a complaint after somebody has died should not be in the discretion of the Defence Council; it should be in accordance with the Bill. It would be for the personal panel of persons appointed by the council or the council itself to determine the complaint if it were maintained, and of course it would hear the evidence.

The evidence would not be as effective from the point of view of the complainant’s personal representatives if the original complainant could not give evidence. However, that is just a matter of evidence; it is not a question of principle. As in the case to which the noble Lord referred, it might be possible to maintain a complaint on documentary evidence or, indeed, through witnesses who would have been called by the complainant in the first place in support of the complaint.

I regret to say that I do not think that the Minister’s answer deals with the point that has been raised, and I shall consider the position for Report.

[Lord Rosser]

I thank the Minister for his very full reply, for which I am genuinely grateful. The overall impression that I get is that the response is that, if there is to be an investigation in these circumstances, it will be done through, rather than outside, the chain of command. I appreciate that this is a sensitive issue but my immediate reaction is that I find it a little difficult to believe that there is no role at all for the Service Complaints Ombudsman to play, bearing in mind that the ombudsman also has to make a decision on whether a complaint can or should be pursued. Perhaps there should be a little more confidence in the ability of the Service Complaints Ombudsman to handle the matter in an appropriate way. I would hope that somebody appointed to that position would be able to do that.

However, I note, and am grateful for, the Minister’s full response. I wish to leave this in the context that we will clearly wish to consider the Government’s response carefully before deciding whether to pursue the matter further. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

--- Later in debate ---

Moved by

[Lord Rosser]

6: Clause 2, page 2, line 33, leave out “three” and insert “six”

[Lord Rosser]

The purpose of the amendments in this group is to find out from the Government why they have decided that the time limits referred to in new Part 14A, introduced under Clause 2, are deemed appropriate. The amendments suggest that they should be longer. However, at this stage the purpose, as much as anything, is to find out why the Government have decided that, for example, in new Section 340B(3) under new Part 14A the reference is to a period of three months, and in new Section 340D(3) there is a reference to six weeks. New Part 14A refers to time limits relating to the day on which the matter complained of occurred. The question is: what does that mean in the context of, for example, a matter, which is the cause of a complaint, that happened over a period of time? Does the time referred to in, for example, the two parts of new Part 14A to which I have referred apply from when the first incident occurred or from the date when the last incident occurred if the complaint has occurred over a period of time? If it is from the date of the last incident, will the earlier incidents also be considered, even though they may be well outside the time limit?

It is also possible that someone might feel they have suffered a wrong but did not realise it for some time because it is only from talking to others that it emerges that, for example, they have been treated very differently and without any obvious explanation. In those circumstances, it might not be possible to raise a complaint within the time limits laid down because the individual was not aware, within those time limits, that they had a potentially justifiable complaint. There may be other circumstances that make it difficult for people who feel they have a complaint to meet the time limits laid down. They may, perhaps, be stationed abroad or in hospital.

It would be helpful if the Minister could say why the time limits provided for in Clause 2 were deemed the most appropriate. What would happen in the kind of circumstances to which I referred? I am again asking the Minister to clarify the point, because I am not quite clear of the circumstances, if any, in which the ombudsman could decide to take a complaint outside the time limit. What discretion will the ombudsman have in that regard? If the ombudsman feels that there is good reason why things were not done within the laid-down time limits, will they have complete discretion to decide that the time limit can be extended? There appear to be references in the draft regulations—frankly, I have not had a chance to fully grasp everything that is in them—to shorter periods of time than those mentioned in the Bill. However, I stress that I am not clear whether what I am looking at in the draft regulations actually relates to the time limits laid down in the Bill. Our Amendments 6A and 8A simply say—in relation to page 3, line 3, and page 4, line 18—that:

“Service complaints regulations must not foreshorten or have the effect of foreshortening the period referred to in subsection (3)”.

I fully accept that I may have misunderstood parts of the draft of the Armed Forces (Service Complaints) Regulations—I mean that quite genuinely—but Regulation 7(2) on page 3 states:

“The Ombudsman must not consider an application under paragraph (1) made more than four weeks beginning with the day the complainant is notified of the specified officer’s decision”.

There is also a further reference on page 5, in Regulation 12(2), to the ombudsman not considering,

“an application under paragraph (1) made more than four weeks beginning with the day the complainant is notified of the decision”.

I am simply concerned that if they do relate in any way to the times laid down in the Bill, that would appear to be a foreshortening; hence these two amendments which would prevent that happening. However, I accept that the Minister may well say that what I have picked up in the draft regulations does not refer to the same things as are referred to in the relevant clauses in the Bill. It would be very helpful if the Minister could give an assurance that there is nothing in these draft regulations that foreshortens in any way the timescales laid down in the Bill. It would also be extremely helpful if the Minister could say why the Government feel that the time limits in the Bill are the most appropriate and what discretion the ombudsman will have to deal with matters that are not raised within those limits. Will it be a complete discretion or not? I beg to move.

[Lord Astor of Hever]

My Lords, the first amendment in this group would extend from three to six months the period in which a former or serving member of the Regular or Reserve Forces can bring a service complaint. The second amendment would extend from six to 12 weeks the period in which a complainant can submit an appeal about a decision taken on their complaint.

The third and fourth amendments seek to ensure that regulations do not foreshorten periods referred to in the Bill within which a complaint can be made and an appeal can be submitted. The time taken to deal with a complaint from the point at which it is first raised by the complainant with their chain of command, through to their being given a final decision, can be crucial to perceptions that the process is fair. If a complaint is particularly complex and means that a large amount of material needs to be gathered or witnesses interviewed, the time taken may be long, but the parties will most likely consider it to be proportionate and necessary for the interests of justice to be served. In other cases, an informal approach, such as through mediation or a quick discussion to sort out a minor confusion, can be equally as effective in delivering an outcome with which those involved can declare themselves content because it has given them a satisfactory result.

The time allocated in the process for the complainant to formulate their complaint can also be an important factor in whether they consider that the process is working for or against them. If the process gives them only a short time in which to put together their complaint, to gather their thoughts or any material they might need, they may feel that they are being rushed unnecessarily into making a complaint and that they would have been better prepared and would receive a better hearing if they had been given longer. If, on the other hand, they are given too long to prepare, there is a risk that the facts become less clear or are forgotten.

As in any aspect of a complaints process, the procedures should not focus solely on the needs of the complainant, but consideration must also be given to those who may be being complained about. If the period in which a complaint can be made is too long, they may be unaware that they are going to be complained about, so do not capture information or their recollections while still fresh. Fairness must therefore extend to them, especially if there may be consequences for their reputation if they are the subject of a complaint that they have behaved improperly. The time limit in the Bill for making a complaint is the same as that under the current system, which is three months. It is a period that is neither so short that the individual could not corral the facts and put together their complaint nor so long that those details will be forgotten. To extend that period to six months would risk the very problems arising that the current time limit is designed to avoid.

The same considerations influenced the provisions in the Bill for the time limit for making an appeal. At the point that the complainant is considering whether to appeal a decision that has been made on their complaint, they will have a keen sense of what it is that they are not satisfied with, whether that is about the decision itself or the way in which it was reached. The process of setting out the reasons for their appeal should therefore be a relatively quick one, compared, for example, to setting out the original complaint. As ever, there is a balance between the need to keep the process moving on and giving individuals time to gather their thoughts. A lengthy period of uncertainty on whether or not a decision will be appealed can also have consequences for any other party to the complaint, especially someone who has been complained about. For these reasons, extending the time limit for making appeals to 12 weeks is considered to be counter to the principles of fairness. Fairness also requires, however, that there should be the ability to react to unforeseen circumstances. Timescales are therefore not hard and fast, which would give the impression that there is simply a process to be followed without the chain of command being able to take a more pragmatic and sensitive approach when individual circumstances require.

I circulated an initial draft of the regulations on 9 July. As noble Lords will see from these, there is scope for those in the chain of command who are dealing with a complaint to extend both of these time limits if it is just and equitable to do so. It may be, for example, that an individual gives notice that they would be unable to respond by the time stipulated because of a personal matter, such as a bereavement, leave, training or operational commitments, or because they are about to receive medical treatment. In such a situation, it would be just and equitable to agree a new timescale but, again, one that is aimed at moving matters on as quickly as possible, with due consideration to other parties.

There is a similar provision in the new procedures in the Bill for making applications to the ombudsman which gives the ombudsman discretion to extend the time limit set out in the Bill within which complainants must make their applications—this was a point that the noble Lord asked about. The draft regulations show that the intention is that the ombudsman would be able to apply the same test to extend the time limit application if the ombudsman considers it is just and equitable to do so. As these are procedural matters, just as in the case of making an initial complaint and in making an appeal, it is right that this is spelt out in regulations rather than in the Bill.

There are two further safeguards in the Bill that aim to protect the complainant from someone in the chain of command who takes what they consider to be an incorrect decision not to extend a time limit. These are at the point at which that decision would prevent a complaint from entering the system or from progressing to an appeal stage. Under a new right, the complainant can approach the ombudsman at both junctures if they wish to have those decisions independently reviewed. If the ombudsman finds that the chain of command was wrong not to extend the time limit on just and equitable grounds, the ombudsman’s decision is final, and the complaint or appeal will be returned to the chain of command to proceed as normal.

We gave very careful consideration to these timescales and compared them with those under other procedures which, though not directly comparable, provide a useful benchmark about what is considered reasonable. In respect of matters before employment tribunals, for example, the time limit for making a claim is three months from the first incident complained of, and in respect of discrimination claims within three months of the latest incident complained of.

The noble Lord, Lord Rosser, asked when the time limits start to apply when there is a series of related complaints. I cannot read the writing on this, but I will write to the noble Lord on that.

The third and fourth amendments are also resisted. The Bill sets out minimum periods within which a complaint can be made and an appeal submitted. As such, neither of these can be foreshortened by regulations. For the reasons I have set out, we judge that these time limits are fair and reasonable, especially taking into account the important safeguard that they can be extended where it is reasonable to do so or reviewed by the independent ombudsman.

On that basis, I ask the noble Lord to withdraw his amendment.

[Lord Rosser]

My Lords, I thank the Minister for his comprehensive reply. I think he has confirmed that there is nothing in the service complaints regulations that will foreshorten or have the effect of foreshortening the time limits referred to in the Bill. The Minister has also explained why the time limits that are in the Bill have been felt to be appropriate and related them either to existing time limits or time limits that exist in other situations. I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

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Moved by

[Lord Rosser]

9: Clause 2, page 6, line 25, at end insert—
“( ) The Ombudsman may, after advising the Secretary of State, investigate any matter deemed to be in the public interest on—
(a) any aspect of the system mentioned in section 340O(2)(a);(b) any matter relating to the Ombudsman’s functions under this Part;and make a report to the Secretary of State.”

[Lord Rosser]

My Lords, proposed new Section 340O in Clause 2 provides that the Secretary of State may require the ombudsman to prepare and give to the Secretary of State a report on any aspect of the system mentioned in subsection (2)(a), relating to the complaints system, and any matter relating to any of the ombudsman’s functions in new Part 14A. These powers appear in the proposed new section about the ombudsman’s annual report on the system for dealing with service complaints. It is not clear whether proposed new Section 340O(6) relates to what the Secretary of State may require the ombudsman to include in the annual report, or whether it could also include the Secretary of State calling for an additional report at any time on a particular issue from the ombudsman outwith the annual report. Perhaps the Minister, either in his reply or subsequently, will be able to clear up that point.

Whatever the answer, the reality is that the Secretary of State for Defence has never asked the present commissioner to report on a particular area of concern that she or the Secretary of State may have, outside her normal annual reporting cycle. The Commons Defence Select Committee reported last year that the present commissioner had told it that if she were to report on particular areas of concern, she would look at cases of bullying, which include assault, and issues to do with mental health, and access to services, race and the handling of those cases. The Select Committee went on to report that during visits to units the commissioner had been informed of issues that would not come to her as complaints but on which she thought some work needed to be done. The commissioner told the Select Committee:

“That is what I would do, and that is I think what ombudsmen do. They have this broader view, whether they be the health service ombudsman, parliamentary ombudsman or the Children’s Commissioner, who today has powers to do research and inquiries. They can pull together in an informed and responsible way evidence across the piece and put it forward in a way that is very valuable to the organisation that they oversee”.

The Select Committee went on to say that it believed that there would be value in the commissioner being able to undertake research and report on thematic issues in addition to the annual reports. It said that the commissioner’s experience on these issues should be utilised.

The effect of Amendment 9 is to seek to give the Service Complaints Ombudsman the power, after advising the Secretary of State, to investigate any matter deemed to be in the public interest on any aspect of the system that is mentioned in proposed new Section 340O(2)(a), relating to the efficiency, effectiveness and fairness of the system, and any matter relating to the ombudsman’s functions under new Part 14A. That would mean that the ombudsman would be able to report to the Secretary of State on wider and thematic issues if the ombudsman felt that this was desirable and in the public interest.

The purpose of the amendment, which I hope it achieves, is to give the ombudsman rather wider powers to be able to report on thematic issues—not to appear to be dependent on the Secretary of State asking for such reports but for the ombudsman to be able to make that decision. There has clearly been support for that not only from the present Service Complaints Commissioner but from the Defence Select Committee. I should have thought that there would have been a view that it would be helpful if the ombudsman could make reports on such issues where the ombudsman felt that it was in the public interest and would make a contribution to improving an existing situation which the ombudsman did not think was entirely right or appropriate and needed addressing. I hope that the Minister will be able to give a favourable response.

[Lord Thomas of Gresford]

I shall speak to Amendment 10, which is in my name and that of my noble friends. I follow very much the thinking of the noble Lord, Lord Rosser. I think that the first paragraph of my amendment, which states that the ombudsman,

“shall investigate any matter referred to the Ombudsman by written direction of the Defence Council”,

puts clearly the Defence Council’s power to give such a written direction. I find the power given in proposed new Section 340O(6) to be slightly confusing. It is under the heading, “Annual report on system for dealing with service complaints”, but it is not at all clear that that is a wide power for the ombudsman to investigate something beyond the preparation of a report and the points on which the ombudsman makes a report in that document.

The ombudsman should have a clear power to investigate matters referred to him. Under paragraph (b) of my amendment, I argue, as has the noble Lord, Lord Rosser, that it is in the public interest that the ombudsman should on his own motion, after advising the Defence Council,

“carry out an investigation of any allegations of systemic abuse or injustice if it appears to him to be in the public interest”.

We have qualified that by saying that there should be compelling circumstances. It is not that the ombudsman could justify investigating anything. It may very well be that, in the course of the investigation of individual complaints, it will come to the attention of the ombudsman that there is a culture of abuse or bullying in a particular area. He may well feel that he would have to investigate that on his own initiative, and not await instruction, following his annual report, from the Secretary of State.

As the noble Lord, Lord Rosser, pointed out, this has the support of the committee that has looked into it, and I hope that the Minister will be open to amending the Act—if not in the precise words that I have put forward, then certainly in the spirit of my amendment.

[Lord Astor of Hever]

My Lords, these amendments would extend the ombudsman’s authority to conduct investigations beyond those matters raised by complainants about the handling of their case to a much wider range of matters, based on the ombudsman’s judgment of issues that are in the public interest. In the second of these amendments, the ombudsman would also be able to investigate the merits of individual allegations. As such, the second amendment in particular represents a significant development in the role of the ombudsman, which it is right that we have debated, as we seek to improve on the way the complaints system operates through the increased oversight afforded by a reformed commissioner role.

Observations on the way the current complaints system has operated since its introduction in January 2008 have focused primarily on the concerns that, in too many cases, the time taken to reach a conclusion is too long. While it is possible for any complaint to take longer than would reasonably be expected, particular concern has been expressed about complaints that involve bullying and harassment, where the consequence of delay can be more keenly felt and which by their nature have a more damaging effect on relationships, and in some extreme cases, on an individual’s health. The current Service Complaints Commissioner covered a range of issues in her annual reports, including delays. For example, in this year’s annual report she has made recommendations that aim to increase the services’ understanding of what the numbers and types of complaints can tell them about the effectiveness of the training they conduct in values and standards and the need to treat everyone with respect. Wider recommendations of this kind might strictly be considered to go beyond the operation of the current system or the exercise of the commissioner’s function, in that they aim to reduce the number of instances of poor treatment by one colleague against another, making a reality of the services’ zero tolerance of bullying and harassment, for example. Recommendations by the commissioner serve a wider aim however, which is to encourage individuals to speak up when they experience such behaviour, as they see that good can come from it, ultimately, if behaviour is changed.

The commissioner is able to make such comments and recommendations under current provisions in the Armed Forces Act 2006 that are replicated in the Bill before us. The focus for the ombudsman will be to provide strengthened and independent oversight of how the complaints process operates. It will hold the chain of command to account for the fairness, effectiveness and efficiency with which it discharges its responsibilities.

[Lord Rosser]

The Minister said—I think I heard him correctly—that the ability of the ombudsman to undertake the kind of reports and investigations that we are talking about is already contained in previous legislation and is replicated in this Bill. Which are the parts of the Bill that say that the ombudsman can do what we are seeking in this amendment?

[Lord Astor of Hever]

My Lords, I hope I will come to that point later in my response. The commissioner is able to make such comments and recommendations under current provisions in the Armed Forces Act 2006 that are replicated in the Bill before us. The focus for the ombudsman will be to provide a strengthened and independent oversight of how the complaints process operates. It will hold the chain of command to account for the fairness, effectiveness and efficiency with which it discharges its responsibilities, and through its investigation of individual complaints, the ombudsman will provide a valuable source of lessons that will provide resolution for the individual, and which will also support the Defence Council in its role of delivering a better complaints process.

The service chiefs are clear that the system has not been operating as efficiently as it should and accept the criticism that I referred to earlier, that too many complaints are taking too long to resolve. They are also clear that in taking forward reform of the system, it should continue to be the chain of command that investigates complaints and works with complainants to find a solution that they are satisfied with. That way confidence in the chain of command’s ability to treat them fairly will increase, encouraging more people to speak out when they are unhappy so that, ultimately, we maintain the highly effective fighting forces of which we are rightly proud.

--- Later in debate ---

[Lord Astor of Hever]

Before the noble Lord, Lord Rosser, responds, I should say that I misunderstood my brief. My noble friend Lord Palmer asked me about Canada, and the answer that I gave relates to Canada, not to the question that the noble Lord, Lord Rosser, asked. With regard to Canada, we looked at ombudsmen within the public sector in the UK but did not look at models from overseas, so we did not look at the Canadian model.

[Lord Rosser]

I thank the Minister for his reply. I hope that he will forgive me if I say that I am a little confused about the Government’s stance. On the one hand, part of the answer appeared to be—maybe I misunderstood it—that to give the ombudsman the powers suggested in the amendment could cause conflicts with other inquiries and investigations. Having said that, I got the impression that the Minister was saying that those powers were already there in the existing system, whether under new Section 340O, which deals with the annual report, or in new Section 340L, which deals with reports of investigations. I was rather getting the message that, on the one hand, it would be unacceptable because of possible conflicts but that, on the other hand, the powers were already in those two parts of the Bill to which the Minister referred.

The heading of new Section 340O is:

“Annual report on system for dealing with service complaints”,

so it is not dealing with reports outside the annual report or with something separate. It is interesting that the Secretary of State, who has the power to ask the ombudsman to prepare a report on any matter relating to the ombudsman’s functions, has never chosen to do so, as I understand it, hence our amendment saying that the ombudsman, having advised the Secretary of State, and it being perceived to be in the public interest, should have the ability to do so. That is, the ombudsman should not be dependent on the Secretary of State asking them to prepare such a report, because the Secretary of State has apparently never done so.

One finds it a little odd that, if the power is already there for the present commissioner to do this, one does not get the impression that the commissioner felt that the power was already there when one reads the commissioner’s evidence to the Defence Select Committee. The commissioner proceeded, in fact, to give a list of topics on which a wider report could have been written, which—this is the inference—she might have been interested in doing. That does not suggest that the commissioner felt that the existing legislation already gave her the power to produce the kind of reports that are referred to in the amendment.

In view of what I regard as potential slight confusion over the reply, in that on the one hand it seems to be saying that it is undesirable but on the other it is saying that the power is already there, I will want to read closely what the Minister has said before considering whether to pursue this issue any further. However, I am genuinely grateful to him for his comprehensive reply, and I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

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Moved by

[Lord Rosser]

11A: Clause 2, page 8, line 1, at end insert—
“( ) The Ombudsman must not proceed with the investigation until the Ombudsman is satisfied with the information and evidence received.”

[Lord Rosser]

This amendment, which is fairly straightforward, relates to the provision in the Bill that gives the ombudsman the power to require a person to provide documents for an investigation. However, the draft regulations appear to provide that if the documents are not received the ombudsman may proceed with the investigation and preparation of a report. Of course, the alternative remedy available to the ombudsman is to go to the High Court if the documents required are not forthcoming. The purpose of putting down this amendment is to seek to clarify two points. First, can the Minister confirm, either now or subsequently, whether the word “may” that has been used in the draft regulations —that is, “may proceed with the investigation” without having got the documents—means that and will not be interpreted as “must”?

Secondly, can the Minister confirm whether the position of the ombudsman in respect of the power to require documents is not weakened if it is already written into the draft regulations, and thus generally known, that an investigation can proceed without the ombudsman having got all the documents that are required? Why did the Government deem it necessary to put that into the draft regulations? Are they saying that the ombudsman could not have decided to start an investigation without all the documents sought without this specific provision being in the regulations? Unless the answer is that the ombudsman could not start an investigation, on the face of it, it does not seem particularly helpful to put in the regulations that documents that have been requested and required but have not been produced will not stop the ombudsman starting the investigation. That does not seem to be exactly encouraging those who have been asked to produce documents to do so.

[Lord Astor of Hever]

My Lords, I hope that I will get an answer to the noble Lord’s two questions. If not, I shall write, but I am fairly optimistic that I will be able to get an answer.

This amendment would ensure that the ombudsman’s investigations can proceed only when the ombudsman is satisfied with the information and evidence received. This may be considered desirable to ensure that the resources of the ombudsman are used efficiently. It may also be desired that the ombudsman may proceed with investigations only when they have all of the information and evidence that they need in order to do their job effectively. Otherwise, it might be argued that they could come under pressure to conclude investigations in the absence of all of the evidence that they need.

Under new Section 340I(1) in the Bill, it is for the ombudsman to determine whether to begin, continue or discontinue an investigation. Under new Section 340I(4), the ombudsman may make such inquiries as he or she thinks appropriate. Under new Section 340J, the ombudsman also has broad powers to require a person to provide documents or other information in their possession and has the powers of the High Court in respect of the attendance and examination of witnesses and the production of documents. The effect of this amendment, perhaps inadvertently, would be to limit the discretion of the ombudsman to carry out his or her investigations. It is very important that the ombudsman has all of the information required in order to carry out their role effectively, and the Bill provides for that.

Regulation 6 in the draft Service Complaints Ombudsman investigation regulations permits the ombudsman to proceed with an investigation and prepare a report under new Section 340L, whether or not they have all of the information that they have requested. That is a permissive provision, so that the ombudsman does not have to proceed with an investigation in the absence of information, but they can do so if that would be the fair thing to do, bearing in mind the need for efficiency and effectiveness.

The noble Lord asked whether the word “may” means that, and the answer is that it does. He also asked whether it weakens the position of the ombudsman’s power to get documents, and the answer is that it does not do so in any way.

I must resist this amendment. It is right that the ombudsman retains discretion on whether to proceed with an investigation in all the circumstances of the case based on the information and evidence put before them. I ask the noble Lord to withdraw the amendment.

[Lord Rosser]

I will withdraw the amendment, but are the Government saying that, without that provision in the draft regulations stating that the ombudsman may proceed with the investigation and the preparation of a report under Section 340L of the Act if the documents or other information is not provided within that period or not provided under paragraph (b), the ombudsman would not have the power to proceed with an investigation without having got those documents?

[Lord Astor of Hever]

I do not have an immediate answer, but I will write to the noble Lord on that.

[Lord Rosser]

I thank the Minister for his reply. I beg leave to withdraw the amendment.

Amendment 11A withdrawn.

--- Later in debate ---

[Lord Rosser]

I have one or two comments to make on this group of amendments. Like the noble Lord, Lord Thomas of Gresford, I am waiting to find out whether the Government’s view is that the Bill as it stands gives the Defence Council the right to reject the ombudsman’s findings on maladministration as opposed to the ombudsman’s recommendations. The Bill refers to the Defence Council deciding what action,

“to take in response to the findings”,

of the ombudsman, but it is not quite clear how the Defence Council could decide not to accept the findings without carrying out a separate investigation of its own.

The amendments also refer to rejecting or modifying the recommendations of the ombudsman. We will listen to the Minister’s response with interest, just as I have listened with interest to the arguments that the noble Lord, Lord Thomas of Gresford, put forward. On the one hand, one could say that being able to modify a recommendation might then lead to the Defence Council accepting it rather than rejecting it in totality, which I think is the point that the noble Lord, Lord Thomas of Gresford, has made. On the other hand, I suppose that one could argue that being able to modify a recommendation rather than either accepting or rejecting it, and having to explain why if the latter, could be interpreted as meaning that the Defence Council can effectively write its own recommendations on the findings of the ombudsman. That might be seen as rather weakening the objective of the ombudsman making recommendations and the Defence Council then having to decide yes or no, rather than being able to rewrite bits of them. As I say, we await with interest the Minister’s response on that.

It could mean that the Defence Council could modify only parts of a recommendation that it found, for example, inconvenient, and then announce that it would accept the rest. If the provision is for a straight rejection or acceptance, the Defence Council will know that it has to produce some pretty convincing reasons if it is to reject the recommendations in totality. It will also know that, if it is unable to modify them, it may well have to put up with parts that it simply finds inconvenient. We await with interest the Government’s response, as there are two ways of looking at the amendment and its implications.

The reality is that the Defence Council will have to show itself willing to accept the ombudsman’s recommendations if service personnel are to have confidence in the new arrangements. If the Defence Council starts rejecting recommendations because it does not particularly like some parts of them, it will raise questions about the effectiveness of the new arrangements and could lead to pressure in the future—a pressure that is already there anyway from some quarters—for the ombudsman’s recommendations to be made binding under a future defence Bill.

[Lord Astor of Hever]

My Lords, Amendment 14 would make the ombudsman’s recommendations binding on the Defence Council and would mean that the Defence Council had no choice but to accept the findings of the ombudsman in all cases. Amendments 15 and 16 aim to clarify the powers of the Defence Council in responding to recommendations from the ombudsman —to make clear that the Defence Council can reject or modify a recommendation.

It is our intention that the findings of the ombudsman in its investigation report will, in effect, be binding on the Defence Council. The Defence Council would be able to judicially review those findings if it considered them to be irrational or otherwise flawed on other public law grounds. However, we do not anticipate that happening, and expect the Defence Council to accept the findings before going on to consider any recommendations that the ombudsman may have made in the case.

There has been recent judicial consideration of the legal status of both findings and recommendations in relation to the local government ombudsman. While that consideration related to a different ombudsman, we anticipate that a court would apply those principles to the legal status of the Service Complaints Ombudsman’s findings. As such, we do not consider that it is necessary to make specific provision for this in the Bill. That is, again, in common with other ombudsman legislation.

While we accept the importance of the point being raised, and agree with it in substance, it is considered unnecessary to make specific provision for it in the Bill. The amendment is resisted for that reason.

Turning to Amendments 15 and 16, it may be helpful if I explain in more detail the role of the Defence Council when considering and responding to the recommendations of the ombudsman. The first, as I explained in my closing speech at Second Reading, argues that the recommendations will clearly have some legal effect. The Defence Council will not be free simply to reject the recommendations because it disagrees with them. It would need to have very good, cogent, written reasons to do so, such as where the implementation of the recommendations in full was simply unworkable or where significant resource implications may be involved. It is right that the Defence Council should be able to reach a final decision on matters covered in any recommendations made by the ombudsman.

Given that starting point, the focus of the Defence Council in most cases where the ombudsman has made recommendations will be to decide precisely how it will respond. That may be simply a matter of implementing the recommendations by, for example, making an appropriate apology to the complainant. It may be that the person or persons who made the final decision in the internal process will be asked to reconsider a particular piece of evidence to see whether that would have affected the outcome of their decision. There may be some cases in which the failings identified by the ombudsman are such that a full reconsideration at the final stage of the complaint process is required. That may involve the appointment of a new person or panel of persons to hear the complaint again or, for example, to hold an oral hearing to test some crucial evidence.

This is all provided for in new Section 340M. The Defence Council will not need to modify the recommendation open to it. It would simply decide to reconsider the complaint in a way that suitably responded to the recommendations after careful consideration. I hope these points I have made answer the questions of my noble friend. As such, the amendments are unnecessary, and I ask my noble friend to withdraw his amendment.

--- Later in debate ---

Moved by

[Lord Rosser]

17: Clause 2, page 11, line 25, at end insert—
“( ) an assessment of the adequacy of the resources of the Ombudsman’s office to fulfil his or her functions.”

[Lord Rosser]

My Lords, the purpose of this amendment is to make an addition to page 11 after line 25, which sets out the matters that must be covered in the annual report by the Service Complaints Ombudsman. We are proposing that there should also be a requirement for an assessment of the adequacy of the resources of the ombudsman’s office to fulfil his or her functions. I believe it has already been indicated that there will be an increase in the number of staff that the Service Complaints Ombudsman has—this has been compared with the staff of the Service Complaints Commissioner. If memory serves, I think the figure that has been mentioned is an increase from nine to 20, but I may be wrong on that.

Clearly, a key part of the ability or otherwise of the ombudsman’s office to be able to carry out the duties and responsibilities it is given under the Bill will be the resources available to it. We have already discussed today the issue of whether the ombudsman should be able to undertake thematic reviews—or already can do so under the clauses in the Bill before us. If the ombudsman is able to go down that road of carrying out that kind of review, and if that is to be done effectively, then clearly that has implications for resources. Resources can be both financial and human.

In the context of this amendment about resources, I also raise a point with the Minister that I accept may well need a subsequent response in writing. The Bill sets out the areas that the ombudsman will cover. I am not entirely sure at the moment whether that also covers the Royal Military Police, in respect of complaints both made by the police about its own working environment or whatever other issue it might be and that might be made by service personnel about the activities of the Royal Military Police or how it carried out its role. I am not clear whether those issues are ones that the Service Complaints Ombudsman would be expected to investigate. If they are not, I am then not quite clear on who deals with, for example, issues that service personnel wish to raise about the way they believe the Royal Military Police conducted its affairs in relation to those service personnel. I would be grateful for a response but accept that I may have to wait for a reply in writing.

Put simply, at the moment, the full extent of the role that the ombudsman could have is not entirely clear. Of course, that will also depend on the amount of resources needed, whether financial or human, and on the number of complaints that come in. I do not suggest that suddenly the situation will be such that morale will plummet and everyone will put complaints in. However, if people perceive the Service Complaints Ombudsman to be somebody to whom it is worth making a complaint, that might encourage some people to do so who currently would not make a complaint because they do not think much of the present system. That might have an impact on the workload of the ombudsman.

I rather hope that the response I get back will not be that there is no need for this because it is already covered in the Bill in the previous matters referred to in new Section 340O. I appreciate that that refers to,

“the efficiency, effectiveness and fairness”,

of the system,

“the exercise by the Ombudsman … of the Ombudsman’s functions”,

and,

“such other aspects of the system mentioned in paragraph (a) … as the Ombudsman considers appropriate”.

However, there is then the question of whether the ombudsman believes that the resources are sufficient to carry out that role as effectively as the ombudsman believes it should be. There are a number of uncertainties about what workloads are likely to be. Other issues about what the ombudsman’s report must cover are written into new Section 340O, too, so there cannot be an objection to writing this in. I would have thought that writing into the Bill specifically that it should also cover whether the ombudsman believes the resources are adequate to enable his or her office to fulfil their functions is entirely appropriate. I hope the Minister will agree. I beg to move.

[Earl Attlee]

My Lords, I urge the Minister to exercise some caution. The noble Lord, Lord Rosser, has made some good points, especially about possibly increasing levels of demand on the ombudsman, especially in the number of complaints. However, the ombudsman will never have completely adequate resources and may well not be able to do everything that they want. Ombudsmen will have to prioritise their activities. I can think of no Defence Minister in the last 22 years of my service in the House of Lords who would deliberately underresource the ombudsman.

[Lord Astor of Hever]

My Lords, this amendment seeks to make specific reference in new Section 340O to the requirement for the ombudsman to make an assessment in their annual report of the adequacy of the resources available in exercising their functions. This new section in the Bill requires the ombudsman to provide the Secretary of State with an annual report which he must lay before Parliament. The report must comment on the fairness, efficiency and effectiveness with which the system has operated during the preceding calendar year. It must also cover the exercise of the ombudsman’s functions during that period. Additionally, the ombudsman may include in the report any other aspect of either of those elements, as the ombudsman considers appropriate. These are clearly fundamental to any report from the ombudsman and an important product of their oversight role.

The ombudsman’s assessment of the system and the role they play in it can ultimately have a significant impact on the extent to which our personnel and the public at large have confidence in the complaints system and, as a result, are prepared to engage with it to address the concerns they feel. As with other specific areas of the ombudsman’s role, such as their power to conduct investigations, the Bill leaves it to the ombudsman’s discretion about what other issues they feel are pertinent to how the system has operated in the preceding calendar year, and how they have been able to exercise their functions. As in all matters, these will differ from one year to the next and it is right therefore that the ombudsman should be able to judge what is relevant and worth including in their annual report.

The same provisions apply to the current Service Complaints Commissioner. She has varied the issues covered in each of her annual reports, depending on what she has experienced during the report period. Those reports have included comments on the adequacy of the resources that have been made available to her office. My noble friend Lord Thomas and the noble Lord, Lord Dannatt, commented at Second Reading that it was important that the new arrangements provided under the Bill are properly resourced. We set out in the impact assessment that accompanied publication of the Bill that we are working with the Service Complaints Commissioner on the changes that her office needs to enable it to convert to the new task of the ombudsman’s role. That will require additional resources and personnel with different skills. As we made clear in the impact assessment, we anticipate increasing the number of staff from the current nine of the commissioner’s office to 20. I hope that my noble friend will be satisfied with those numbers.

The noble Lord asked me about the Royal Military Police. Two days ago, I wrote a two-page letter to him on this subject, which he may not have received. I think this goes into some detail in answering him.

[Lord Rosser]

I am aware of it and grateful for the letter. I was rather hoping that the noble Lord would refer to it, so it is on the record in Hansard.

[Lord Astor of Hever]

The letter is very detailed. Rather than reading out the main points from the Dispatch Box, I would rather refer to the letter. The discretion available to the ombudsman in Section 340O, to include such aspects of the exercise of their function as they deem appropriate, is considered sufficient to cover any eventuality that may arise, without the need to make specific reference to resources, as this amendment proposes. For that reason, I must resist this amendment and ask the noble Lord to withdraw it.

[Lord Rosser]

My immediate reaction is to say that I want at some stage to have that on the record in Hansard. I appreciate the Minister’s lack of enthusiasm for standing up to read it all out now, so I am not wondering why he is not doing that, but I may have to consider whether to table an amendment on Report to achieve that. We are always extremely grateful—and I mean this—for the letters that the Minister sends and the care that he takes to respond to questions raised. I appreciate his approach and the assistance that he provides, but I think that some letters ought to be on the record in Hansard, so I may table an amendment on Report with the purpose of getting that one on the record.

As for the rest of the amendment, I hinted that under the wording of the Bill the Service Complaints Ombudsman could probably comment if they felt that the resources that they had were inadequate—or even if they were adequate, because an assessment of the adequacy could mean that the ombudsman says that everything is fine. I do not share the view of the noble Earl, Lord Attlee, that an ombudsman would never consider what they had to be adequate—that was what I inferred from what he said. After all, if an ombudsman were to announce that resources were inadequate, they would have to submit some justification in the report, which would be, or be in, a public document. The very fact that they had to write it down and could be questioned on it might make them think very hard whether they were being reasonable in their approach.

I included the provision because I think that there are uncertainties about what the workload will be. There is the issue of the wider-ranging reviews and whether they are already encompassed in the Bill; there is the issue of the number of complaints that may come forward if people have real confidence in the new arrangements. It did not seem to me to be unreasonable to include as a requirement an assessment of the adequacy of the resources. After all, if the ombudsman is entirely happy, it is a one-sentence response: “I consider that my resources are adequate”.

[Earl Attlee]

My concern is that if the ombudsman feels that there are adequate resources, the ombudsman needs to say nothing, but if the ombudsman cannot meet all the demand and has to report on that, he or she is bound to say, “I cannot meet all the demand”, but he or she may still be an effective ombudsman, although not meeting all the demand.

[Lord Rosser]

I do not particularly disagree with what the noble Earl says—that you could still be effective without meeting all the demand. I am not sure that that knocks my view that it should be a requirement that the ombudsman makes a comment on the issue of resources within the annual report.

However, I do not seek to turn this into a major issue, as it is clearly not. It has been an interesting discussion and I am grateful to the Minister for his response. I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

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Moved by

[Lord Rosser]

18: Clause 4, page 12, line 40, at end insert—
“( ) The Secretary of State must publish an annual report on the extent to which the criteria listed in subsection (5) have been met.”

[Lord Rosser]

We move now to Clause 4, which deals with the issue of financial assistance for benefit of the Armed Forces community. It sets out that the Secretary of State can give financial assistance. Subsection (5) states that financial assistance can be given subject to conditions, which are then set out in paragraphs (a) to (e). We are talking about future funds. Some of what has been given so far has come from the LIBOR fund, which, one assumes, as time goes on, will dry up completely, as it is coming from activities which financial institutions should not be undertaking. One would hope that, in future, that source will dry up for the right reasons.

However, there will still be provision for funds. The documentation that we have had refers to the Ministry of Defence developing proposals to manage the enduring £10 million per year funding for future Armed Forces covenant commitments. It also discusses the process for assessing how money under this particular clause will be distributed and how the decisions will be made. From comments that we have heard, our feeling is that there are those who think that it has not been entirely clear how LIBOR funding has been allocated and spent and therefore how any future funding would be allocated. We have picked up comments that it has not been clear whether those in receipt of LIBOR funds have had to demonstrate their performance, that the criteria for how such funding has been allocated has not been very clear, and that it has also not been clear whether the money allocated has led to some of the intended improvements. That may or may not be the case. The purpose of this amendment is simply to provide that the Secretary of State will publish an annual report on the extent to which the criteria listed in subsection (5) have been met—that is really about what financial assistance has been given and whether the conditions laid down in Clause 4(5) have been met. Those are quite important conditions. They include,

“the purposes for which the assistance may be used”—

and—

“the keeping, and making available for inspection, of accounts and other records”.

That is another important issue and important check on how the money is being used and whether there is proper control and accountability. Bearing in mind that this is going to be in the Bill and that Clause 4(5) sets out some specific conditions, it does not seem unreasonable to say that the Secretary of State should publish an annual report on the extent to which those criteria have been met. We are talking about not inconsiderable sums of money. I hope the Minister will feel able to go down that road.

[Baroness Garden of Frognal (LD)]

My Lords, Amendment 19, which is in this group, is a probing amendment. It has largely been answered by the helpful background note circulated last week. My amendment is an additional aspect to those raised by the noble Lord, Lord Rosser.

This additional funding is a most welcome contribution to the benefit of the Armed Forces community. To the initial government grant of £30 million has been added, as the noble Lord mentioned, £35 million from LIBOR fines for Armed Forces covenant projects, and a further £40 million from LIBOR fines for a veterans’ accommodation fund. From 2015, there will be the enduring Armed Forces covenant fund of £10 million per annum. Applications are considered regionally, with the funding administered centrally by the MoD. These are very significant amounts and, as with any such funding, it is important that as little resource as possible is spent on administration and as much as possible goes direct to the people or projects to be funded. It is also important to avoid unnecessary duplication.

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[Baroness Garden of Frognal]

I thank my noble friend for such a comprehensive definition of a person.

[Lord Rosser]

I, too, thank the Minister for her reply. As I understand it, the response to my amendment is basically that the issues I raised in it are likely to be covered in the annual report on the Armed Forces covenant.

[Baroness Jolly]

Yes.

[Lord Rosser]

On that basis, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

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Moved by

[Lord Rosser]

20: The Schedule, page 14, line 14, after “340A(4),” insert “340B(5)(c),”

[Lord Rosser]

I think the Minister may have already given part of the reply to this amendment when we were discussing Amendment 7, but if he was—I thought he was—I have to say that he caught me unawares, so I did not really follow, and I will probably be asking for an element of repetition.

As the Minister knows, this amendment was prompted by the report of the Delegated Powers and Regulatory Reform Committee in respect of the Bill. The effect of our amendment, if it has been tabled correctly, is to make sure that the regulations referred to in new Section 340B(5)(c) would require an affirmative resolution. In fact, that does not appear to go as far as the Delegated Powers and Regulatory Reform Committee suggested, if we have read correctly the conclusion it reached, because it refers to the provision in new Section 340B(5), which states:

“For the purposes of subsection (4), a service complaint is not admissible if … (c) the complaint is not admissible on any other ground specified in service complaints regulations”.

The argument of the Delegated Powers and Regulatory Reform Committee is that this is an extremely wide-ranging power under which it would be open to a Secretary of State, now or in future, simply through regulations to decide that things that one might have thought acceptable to be the basis of a complaint would no longer be in that category and would be regarded as inadmissible. In its report the committee says:

“In our view the powers are potentially very significant in that they allow additional restrictions to be imposed on a person’s right to have a complaint dealt with under the new redress procedures. At the same time the powers conferred by section 340B(5)(c) are very wide: they contain no limits on the kinds of matters which might be specified in the regulations as grounds for a service complaint to be inadmissible. Given the importance of the power and its potential to limit the right to bring a service complaint, and the lack of any restrictions on the matters which may be specified under the regulations, we consider the delegation of powers conferred by section 340B(5)(c) to be inappropriate”.

I read into that that the committee would probably not feel that our amendment was sufficient; indeed, it might suggest that what should be proposed should be the complete deletion of new Section 340(5)(c). However, we have tabled the amendment in this form, saying that it should go through the affirmative procedure. Clearly, the committee’s concern was that even if nobody could have any exception to the regulations, when they come out—I hope that I correctly anticipate that nobody will have any great exception to them—nevertheless, the power is there for some Secretary of State to do something in the future which could lead to matters which one might feel should be the subject of complaint being no longer admissible, simply through regulations. That really is a very wide power indeed.

I will wait with interest to hear the Minister’s response in the light of the Delegated Powers and Regulatory Reform Committee’s views on the very wide-ranging powers within the clause. I beg to move.

[Lord Astor of Hever]

My Lords, some of my answers on Amendment 7 are obviously relevant to this amendment but I shall not repeat what I said earlier. Amendment 20 is aimed at providing a higher level of parliamentary scrutiny of any Defence Council regulations made in respect of inadmissibility grounds. At first glance, it may seem inconsistent to make the Secretary of State’s regulations specifying matters which are excluded from the service complaints system subject to the affirmative procedure, but not the Defence Council’s regulations on grounds of admissibility. There is a distinction to be made between excluded matters and grounds of admissibility, although they are closely linked. Excluded matters, as can be seen from the initial draft of the service complaints miscellaneous provisions regulations, will include, as now, matters which are subject to alternative dispute mechanisms or involve decisions of independent persons, such as judge advocates or the service police.

The two additional grounds of inadmissibility which we are proposing to include in the draft service complaints regulations have emerged during the operation of the current service complaints system over the past six years. They are grounds related firmly to the fair operation of the service complaints system itself, and are, in our view, relatively uncontroversial. There is no current intention to expand on these grounds, but the Government wish to retain some flexibility here to be able to add to the list if other grounds of a similar type emerge which are impacting on the overall effectiveness of the system, without impacting on the rights of complainants to make service complaints.

Given the distinction between excluded matters and grounds of inadmissibility, we are of the view that it is appropriate for them to be dealt with in different sets of regulations and for those regulations to be subject to different parliamentary procedures. The former go to more fundamental matters, carving out small classes of complaints from the system, so it is appropriate for them to be dealt with in regulations made by the Secretary of State, and subject to the affirmative procedure. That is the same as now in respect of the equivalent regulations. As the additional grounds of admissibility relate broadly to procedural grounds for exclusion they should properly be covered in the Defence Council regulations dealing with the internal complaints system, and there is no reason for this aspect alone to be made subject to the affirmative procedure. As was noted by the Delegated Powers and Regulatory Reform Committee, it should be remembered that the current Defence Council regulations are not subject to any parliamentary scrutiny at all. As I have already indicated, we will reflect on this provision before Report.

The noble Lord, Lord Rosser, observed that the power in new Section 340B(5)(c) is very wide ranging. As I mentioned in responding to Amendment 7, I have asked officials to consider what more might be done to limit the scope of the power. In the light of that, I ask the noble Lord to withdraw his amendment.

[Lord Rosser]

I thank the Minister for his reply. In the light of the fact that he indicated further consideration is being given to this issue, I am very happy to withdraw the amendment.

Amendment 20 withdrawn.

Ministry of Defence: Use of Biofuels

Lord Rosser Excerpts

Monday 7th July 2014 Grand Committee

[Lord Rosser (Lab)]

My Lords, I thank my noble friend Lord Soley for enabling us to debate this issue. He referred to climate change, security of fuel supplies and falling behind in research and development considerations as reasons for moving to biofuels. As my noble friend said, this is far from being the first time he has raised this question. He pursued it in an Oral Question just over three months ago when the Minister replied that,

“the Ministry of Defence uses biofuels for road transport where EU legislation obliges manufacturers to include a percentage of biofuels in the fuel they produce. The use of biofuels for marine and aviation use is governed by the requirements and approvals of the department’s equipment manufacturers. The Ministry of Defence is encouraging these manufacturers to work towards adopting biofuels in the future”.

I hope the Minister will be able to say some more today on exactly what form that encouragement from the Government is taking.

The answers given during discussion of the Oral Question at the end of March could be interpreted as meaning that the encouragement was pretty peripheral. The Minister said,

“the MoD uses biofuels for road transport where EU regulations oblige fuel manufacturers to include them, and only for that”.—[Official Report, 31/3/14; col. 742.]”

He also said that that use was limited and that the Ministry of Defence was a very small user of biofuels. Those are hardly answers that suggested that the ministry’s equipment manufacturers would be being encouraged very much in this direction.

Of course, biofuels are not the only means of reducing fossil fuel consumption and greenhouse gas emissions by the Ministry of Defence. The Minister has previously referred to more energy-efficient use of fuel, alternative technology or equipment, reducing activity levels, using alternative fuels and interoperability with our allies as other approaches to be adopted.

As my noble friend Lord Soley said, the United States Navy is looking to have by 2020 ships and aircraft using some 50% biofuels from algae rather than from farm produce, with its implications for food production; and the United States Air Force is flying some high-performance jets on 50% biofuels. Other countries, including Italy and the Netherlands, are going down this road.

The Minister has previously said that the performance of biofuels by the United States and other countries in their naval vessels and aircraft is,

“being shared through equipment manufacturers and international forums such as the Air and Space Interoperability Council”.

At the same, the Minister indicated that the,

“defence equipment and support fuel team regularly engages with manufacturers to understand the most recent research and how this might apply to the MoD’s fuel requirements in the future”.—[Official Report, 31/3/14; col. 742.]

I do not know, but the last point might include a reference to biofuel that does not use food and food products, but is generated from bacteria, using waste materials and is sometimes referred to as advanced biofuels. These do not take land out of agricultural use or impact on rainforests.

There is a target under the renewal energy directive, which requires EU countries to derive 10% of their transport energy from renewable sources by 2020. Can the Minister confirm whether the use of other forms of transport apart from road transport for military purposes is covered by the directive? I assume from his previous responses that the answer is no, but I should be grateful for confirmation of the position.

We appear to have a scenario of a Ministry of Defence watching the results of the experience of other countries in using biofuels in military ships and aircraft, and a defence equipment and support fuel team that is seeking to understand the most recent research and how it might apply to the Ministry of Defence fuel requirements in future. On top of that, we are told that the Ministry of Defence uses biofuels for road transport only in so far as there is a requirement arising from EU legislation and that for marine and aviation use the Ministry of Defence encourages manufacturers to work towards adopting biofuels in future. That does not present a picture of a Ministry of Defence that is exactly pushing the issue. Is that on grounds of cost or the impact on the efficiency of military operations? What is the attitude of the ministry’s equipment manufacturers towards using biofuels in future? What is their response to the encouragement from the Ministry of Defence, which the Minister told us just over three months ago they were receiving, and what form does that encouragement take? I hope that the Minister will be able to provide answers to these questions and other points raised in this short debate, not least by my noble friend Lord Soley.

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

Lord Rosser Excerpts

Monday 23rd June 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, while we support the Bill, a number of points have been and will be raised in this debate which will require either a response from the Government or probing further as we progress through the different stages of the parliamentary process. My noble friend Lady Dean of Thornton-le-Fylde, in particular, has already raised a number of points which I wish to re-emphasise.

The key feature of the Bill is the intention to replace the existing Service Complaints Commissioner with a Service Complaints Ombudsman. We have been calling for an Armed Forces ombudsman for more than a year to strengthen independent scrutiny of service complaints following a number of frank reports from the Service Complaints Commissioner, including in 2011 when she described the system as,

“not efficient, effective or fair”.

The system has not improved since then. We promised that we would introduce a cost-neutral reform through simplification of the present system to create a more powerful ombudsman. Following this pressure from ourselves and others, including the Commons Defence Select Committee and the commissioner—who has rightly been complimented today on the invaluable work that she has done—the Government finally announced that they would introduce a Service Complaints Ombudsman, and today’s Bill is the result.

We have also been campaigning strongly for the protection and promotion of our Armed Forces community inside and outside their service. For example, we campaigned for the military covenant to become part of UK law, giving members of the Armed Forces legal rights and entitlements. We have announced that we will increase protections against discrimination of the Armed Forces community in public through the Armed Forces (Prevention of Discrimination) Bill, and we have continually pushed the Government to tackle bullying, harassment and sexual assault in the armed services.

The Bill also includes a power to make payments to charities, benevolent organisations and others for the benefit of the Armed Forces community. This raises questions about how the current LIBOR funding has been allocated and spent, and therefore how any future funding would be allocated, and whether or not those in receipt of LIBOR funding have had to meet specific criteria, including on levels of performance. These are points on which we would welcome a response from the Minister and which we will be pursuing in more detail during the consideration of the Bill.

The Service Complaints Commissioner was established in 2008 by the previous Government under the provisions of the Armed Forces Act 2006 following, in particular, the concerns arising from the Deepcut review by Nicholas Blake QC into the circumstances surrounding the deaths of four trainees at an army training establishment. The current role of the Service Complaints Commissioner is to refer complaints received direct into the system and to make inquiries if a complaint is not resolved within 24 weeks. The Service Complaints Commissioner also provides an annual assurance of the complaints system to the Secretary of State for Defence and Parliament but does not have the legal power to review the handling of individual cases.

However, the commissioner has been critical of the present arrangements and how in practice they work. Indeed, in her most recent annual report, the commissioner says that for the sixth year she is unable to give an assurance that the service complaints system is working efficiently, effectively or fairly and that delay remains the principal reason for unfairness in the system. Overall, the Navy resolved 78% of new 2013 service complaints within the 24 weeks target; the Army met the target of resolution of complaints within 24 weeks in only 25% of cases; and for the RAF the figure was 23%. The commissioner also stated that she was unable to provide an assurance that the data contained in her report provided by the Army and the RAF on how complaints were handled were reliable. She also stated that service personnel lacked confidence in the system.

The current system does not offer all complainants the assurance of an independent person overseeing their complaint outside the chain of command in any effective way. No one currently has powers to recommend necessary changes when a complaint has not been handled properly. Service personnel have no recourse to other ombudsmen on matters such as housing, medical care or police services where these are provided by the Armed Forces.

Under the terms of the Bill, the service complaints ombudsman will have the legal power to review individual cases where a serviceperson feels their complaint has not been handled properly and to report its findings with recommendations for correcting any default or maladministration found. What it appears the ombudsman, like the current commissioner, will not be able to do is instigate an investigation himself. The present commissioner has apparently never been asked by the Secretary of State to report on a particular area of concern she may have outside her normal annual reporting cycle. It is not apparently because the commissioner has no areas of concern. She told the Commons Defence Select Committee that she would look at,

“cases of bullying, which include assault, and the issues to do with mental health, access to services, race [...] and the handling of those cases”.

During visits to units, she had been informed of issues that would not come to her as complaints and thought that some work needed to be done on them. She told the Defence Select Committee that ombudsmen have this broader view, and:

“They can pull together in an informed and responsible way evidence across the piece and put it forward in a way that is very valuable to the organisation that they oversee”.

The comments and views of the commissioner, including on the failings of the current complaints system, are particularly pertinent in the light of sexual assault, rape and bullying in the Armed Forces hitting the headlines when Corporal Anne-Marie Ellement committed suicide after complaining of suffering from bullying following an allegation of rape against two male colleagues, a case to which the noble Lord, Lord Thomas of Gresford, referred.

The 2013 Armed Forces Continuous Attitudes Survey found that 10% of those surveyed believed that they,

“have been the subject of discrimination, harassment and bullying”,

in a service environment in the past 12 months, but only 8% of them had made a formal complaint. The reasons given for not making a complaint included:

“I did not believe anything would be done if I did complain”.

That was given by 54%, while 52% gave the reason:

“I believe it might adversely affect my career or workplace”.

I believe that 28% cited being,

“worried there would be recriminations from the perpetrators”.

The Commons Defence Select Committee said that it believed there would be value in the commissioner being able to undertake research and to report on thematic issues in addition to her annual reports.

As the noble Lord, Lord Palmer of Childs Hill, has also said, my understanding is that the Canadian forces ombudsman can initiate thematic inquiries into problems faced by sections of the Canadian armed services. Can the Minister say whether the Government have considered giving this power to the Service Complaints Ombudsman? If not, will they consider doing so, and if they have, what are the reasons for declining to go down this road?

A complaint will be considered in the first instance by the person in the chain of command who is able to decide the case and take action to put things right. There will be one level of appeal which will continue to include an independent element, as under the current system. If a complainant believes that his or her complaint has not been dealt with properly after the appeal, the complainant can ask the independent Service Complaints Ombudsman to review the case. The role of the ombudsman will be to consider whether there has been maladministration in the handling of a service complaint. This means that the ombudsman would consider whether there has been a failing in the process by which a decision has been made in the internal service complaints system, which has not been rectified, sufficient to result in an unjust outcome. A decision that the complainant dislikes, but where he or she cannot fault the process by which it has been reached, would not count as maladministration.

The Bill provides for time limits within which complaints must be raised. We will want to look at these to see whether they are reasonable and do not unfairly limit the ability of Armed Forces personnel to pursue a legitimate complaint. The Service Complaints Ombudsman’s recommendations will not be legally binding. It would be helpful if the Minister could set out why the Government believe that such recommendations will carry weight and what will happen if they are ignored, bearing in mind that the Service Complaints Commissioner in particular has not been impressed by the effectiveness of and respect for the current arrangements. It is difficult to understand why, if collectively those at the very highest levels had felt it a priority to ensure that the current arrangements worked much more effectively than they have, that would not have been the outcome.

Where are the teeth, or who will provide the teeth, to ensure that complaints are dealt with expeditiously and that recommendations made by the Service Complaints Ombudsman have some real bite and cannot be ignored without good reasons that are openly and transparently expressed? This is important. Service personnel have to obey legal commands. They do not have the rights of an employee. They are not employees with a contract of employment. They should be entitled to have access to an effective and independent means of redress against the possibility of any unacceptable and inappropriate use of power, and to have confidence in that process and procedure.

The Service Complaints Ombudsman will retain the ability to receive complaints and pass them on to the chain of command where a complainant is anxious about approaching the chain of command directly.

Service personnel will also be able to appeal to the ombudsman if their complaint is ruled to be an excluded matter or out of time. This is particularly important for people who have recently left the services but wish to complain about a wrong they feel was done during their service life. Under the current system, if the complaint is ruled excluded because it is out of time, they have no means of pursuing the matter if they are no longer serving at the time that the decision to exclude the complaint is made. In future, if the ombudsman rules that it should not have been excluded, the services will be obliged to consider it. Can the Minister say if this change would also apply in respect of a member of service personnel who had died by the time that the decision to exclude the complaint was made?

How well the Service Complaints Ombudsman system will work, only time will tell. If it is not supported by senior military personnel and Ministers, it will not secure the necessary changes and strengthened objectives that the current Service Complaints Commissioner clearly believes the new ombudsman, if provided with adequate numbers of staff, should be able to deliver. As the commissioner says in her 2013 annual report:

“Communicating the new system across the Services and educating NCOs and Officers in how to manage complaints will be key to success”.

I appreciate that these are early days, but I hope that the Minister will be able to say something today—or if not today, during the passage of the Bill—about how the new system will be communicated and what form the education in how to manage complaints, to which the commissioner referred, will take and how extensive it will be, bearing in mind that the education in managing the current arrangements does not appear to have been as successful as it might.

I note that the commissioner also said in her 2013 annual report that, while she hoped that the new system could be implemented early in 2015, in the mean time it was necessary to ensure that people with complaints to make still got the best possible treatment, with a complaint resolved within the current 24-week target. Can the Minister say, either today or subsequently, what progress is being made in increasing the percentage of complaints being resolved within the 24-week target, particularly in respect of the Army and the RAF? An improvement here might provide some positive evidence that the ombudsman will receive the support and backing to be able to deliver a new system that is of more benefit to both individual service personnel and the services themselves.

The Bill sets out the structure of the new system, including the relevant powers, role and functions of the Service Complaints Ombudsman, the Secretary of State and the Defence Council. However, it does not provide the details, which will be crucial since they could enhance or weaken the position of the ombudsman. These details will be set out in regulations. For example, Clause 2 refers to a person being able to make a complaint about,

“any matter relating to his or her service”,

but goes on to say:

“A person may not make a service complaint about a matter of a description specified in regulations made by the Secretary of State”.

Clause 2 also provides for the Defence Council to make regulations,

“about the procedure for making and dealing with a service complaint”.

These regulations, known as “service complaints regulations”, will be vital, even though the Bill covers a number of factors or issues for which they must make provision.

Clause 2 also provides for the Secretary of State to make regulations about persons and panels deciding service complaints and about the procedure to be followed in ombudsman investigations, both of which are matters that, once again, could be of considerable significance in relation to the independence of the complaints procedure and the exercise of the ombudsman’s powers. We need an opportunity to see the proposed regulations before we reach Committee in this House, since they are such an integral part of the Bill and whether it will achieve its objectives, and I hope that the Minister will be able to give an undertaking on behalf of the Government that this will be the case.

The hope and expectation is that under these new arrangements for a Service Complaints Ombudsman, our service personnel will benefit from a simpler and faster system for resolving complaints within the scope of the ombudsman’s remit, in which they can have confidence. They deserve nothing less.

Armed Forces

Lord Rosser Excerpts

Monday 23rd June 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I thank the Minister for providing this opportunity to discuss the role of our Armed Forces. I also thank the noble and gallant Lord, Lord Richards of Herstmonceux, for his powerful and very clear maiden speech, which contained some important messages for us all.

This debate has been welcome and relevant. In a year of key and moving anniversaries of both the First World War and the Second World War, Armed Forces Day is nearly upon us. It is a day which provides us with an opportunity to remember and highlight the immense role that the members of our Armed Forces have played and continue to play in the life of our nation, defending us and protecting and furthering our national interests, all too often at great personal cost.

This debate is also relevant because of the major changes taking place, or about to take place, affecting our Armed Forces. They include the transition to Army 2020 with its reduction in the size of the Regular Forces and an increase in the Reserve Forces, the imminent withdrawal from Afghanistan, the implementation of the basing review, and the potential impact of the considerations that will determine the direction and content of the next strategic defence and security review—a pending review that should not, like the 2010 review, be driven almost exclusively by the amount of money available rather than by a determination of our strategic objectives and requirements, with the role, size and capability of our Armed Forces being geared to delivering those objectives.

We believe that Britain can play a positive role in the international community and that to withdraw from the world is not just undesirable but impossible. However, we also think that the United Kingdom should be realistic because there are no gains to be made from promising what cannot be delivered. Continued fiscal restraint at the Ministry of Defence requires a more enhanced understanding of what can and what cannot be achieved alone. We know that we must strengthen and deepen our partnerships with existing allies, and seek to cultivate new ones if we are to achieve our strategic objectives. We are also committed to the minimum credible nuclear deterrent which we believe is best delivered through a continuous at-sea deterrent and we will continue to look at ways in which that minimum credible deterrent can be delivered most efficiently.

One of the main priorities of the 2010 SDSR was to ensure that we emerge with a coherent defence capability in 2020. In their foreword to the review the Prime Minister and the Deputy Prime Minister said that they were determined to retain a significant well equipped Army in the context of a review that provided for a reduction in manpower over the following five years of 7,000, from 102,000 to 95,000, with a stated assumption that by 2020 we would require an Army of 94,000 personnel, a Royal Navy of 29,000 personnel and an RAF of 31,500 personnel. The reduction in the strength of the Army would enable savings to be made of £5.3 billion over the 10 years from 2011-12 to 2020-21. However, this was subsequently changed downwards to a Regular Army of 82,500, which is a reduction of a further 11,500 or some 160% of the reduction of 7,000 set out only a few months previously in the SDSR.

The 2010 SDSR set out the new defence planning assumptions that envisage that our Armed Forces in the future would be sized and shaped to conduct an enduring stablisation operation at around brigade level—up to 6,500 personnel—with maritime and air support as required while also conducting one non-enduring complex intervention, with up to 2,000 personnel, and one non-enduring simple intervention, with up to 1,000 personnel; or alternatively, three non-enduring operations if we were not already engaged in an enduring operation; or for a limited time, and with sufficient warning, committing all our effort to a one-off intervention of up to three brigades, with maritime and air support—around 30,000, two-thirds of the force deployed to Iraq in 2003.

That is what was in the 2010 SDSR when the reduction in the Army was stated as being from 102,000 to 95,000. The subsequent reduction a few months later was made on cost grounds alone, not because of any change in the defence planning assumptions. The deadline for completing redundancies was also brought forward. It was originally 2017-18, but was brought forward by the Ministry of Defence to 2015-16, because, according to the National Audit Office, of further demands on the budget requiring the department to make staffing savings earlier. The question is that with the further reduction in the size of our Armed Forces going considerably beyond that set out in the 2010 SDSR, can the capabilities set out in the defence planning assumptions at the time, which have never been changed, still be delivered now and in 2015, and can they still be delivered through to 2020 without any increase in the size of our Armed Forces, and in particular the Army?

The recent National Audit Office report on Army 2020 contains some interesting information and robust views. It makes it clear that it does not examine whether Army 2020 will provide enough military capability for the Army to meet its required defence outputs which presumably are those set out in the 2010 SDSR. That is why I am asking this question of the Minister in the light of what has happened since the 2010 SDSR and the critical report from the National Audit Office.

When told in 2011 to make further savings of £5.3 billion, the department produced a programme of change and restructuring which led to Army 2020. Eight options to achieve the required savings were produced by the department, and a panel of senior military personnel selected three of the eight options for further development. However, the panel subsequently decided that none of the shortlist of three options avoided unacceptable risk to the Armed Forces’ ability to deliver the defence outputs required by the 2010 strategic defence and security review. In other words, the department had managed to put forward eight options in a bid to secure the Treasury-demanded savings, none of which would have enabled the Armed Forces to deliver the capabilities required in the Government’s 2010 SDSR.

Instead, a hybrid option was settled on which included a Regular Army supplemented by Reserve Forces, as well as proposals for the Royal Navy and Royal Air Force. In the words of the National Audit Office report, the panel,

“decided that the option would give enough capability, compared with the three rejected options, to provide the required defence outputs and offered a tolerable level of military risk”.

That was hardly an enthusiastic or ringing endorsement of the option.

Why the reference to the comparison with the “three rejected options”? If it is an acceptable option only when compared with three that have been rejected, it raises questions about exactly what capability the hybrid option actually does deliver. What exactly is a,

“tolerable level of military risk”,

as opposed to an acceptable level of military risk? They cannot mean the same.

The National Audit Office report goes on to tell us:

“The panel did not consider whether recruiting and training the increased number of reserves was feasible as part of its assessment, or whether the requirement for reserves to undertake a substantially different role in a smaller Army would have an impact on recruitment”.

Whether the panel or someone else should have undertaken the exercise is not the question, but rather the fact that according to the National Audit Office no one did it. Presumably that means that the Secretary of State did not ask for that assessment to be made before agreeing to proceed with the hybrid option.

The National Audit Office report says:

“We have not seen evidence that the feasibility of increasing the number of trained reserves within the planned timescale, needed to provide the required capability, was robustly tested”.

To say the least of it, that seems to be something of a mistake as the essence of the hybrid option was that there needed to be a significant increase in the number of reserves, particularly Army reserves, playing a substantially different and more important role. Indeed, the NAO report specifically asserts that the Ministry of Defence did not assess whether it was feasible to recruit and train the number of reserves within the necessary timescale. If that is the case, on what basis have the Government repeatedly asserted their confidence that the required number of Army reservists would be recruited to see the trained strength increase from 19,000 to 30,000?

According to the NAO report, the Secretary of State for Defence can have had no firm basis for the statement in paragraph 1.15 of his July 2013 White Paper on Reserves in the Future Force 2020 in which he said:

“We are confident that the targets can be met”.

That statement was a statement of hope and nothing more, yet the ability of our Armed Forces to deliver the 2010 defence planning assumptions is dependent on it being achieved.

The National Audit Office report also found that recruitment targets for reserves were not underpinned by robust data and that even the working model the department now has for reserves, which contains limited historical data, suggests that it could be 2025, as my noble friend Lady Dean of Thornton-le-Fylde has already pointed out, before the trained strength of the reserves is increased to 30,000. That assessment, said the National Audit Office, assumed an increase in recruitment rates for new reserves as well as an unevidenced assumption that the percentage of reserve recruits that go on to become trained strength can be increased from the current level of 34% to 55% from 2015-16.

It seems that recruitment is falling behind. Just under 2,000 reserve soldiers were recruited in 2013-14 against a December 2012 Army demand plan requirement of 6,000, and just under 3,200 Regular Army training places were unfilled in 2013-14 from a planned allocation of 9,382 places.

It is not clear what the Government’s attitude is towards the reserves and the increase in the number of trained Army reserves to 30,000. The Government have repeatedly said that the rundown in the size of the Regular Army is not conditional on an increase in the size of the reserves being achieved, even though delivering Army 2020 involves recruiting, training and integrating an increased number of reserves into a single Army. Yet the hybrid option with its “tolerable”—not acceptable—level of military risk is dependent on that increase in the number of reserves being achieved.

I come back to the question that the NAO report did not address: namely, whether our Armed Forces, and the Army in particular, can currently meet now and in 2015, as well as in the future under Army 2020, the defence output set out in the defence planning assumptions in the 2010 strategic defence and security review. The reality is that since those defence planning assumptions appeared in the cost-reduction driven 2010 SDSR, the intended size of the Regular Army has been reduced by a further 11,500, from 94,000 to 82,500. A deliberately untested and unassessed objective of a projected increase in the size of our Reserve Army has fallen well behind schedule and a senior military panel has described the present hybrid option, even if achieved through the increase in trained reserves, as offering not an acceptable level of military risk but only a tolerable one. The conclusion must be that, at the very best, the Government, through their own actions, have placed the ability of our Armed Forces to deliver the defence outputs the Government set out in the SDSR in 2010 in jeopardy, both now and under Army 2020. Frankly, to try to maintain otherwise in the light of the further reductions in the strength of our regular forces, and the continuing failure to achieve the required recruitment levels to our Army Reserve Forces without making any changes to the defence planning assumptions lacks real credibility.

Of course it is possible, although contrary to everything the Government have been saying, that in the 2010 SDSR the Ministry of Defence made provision at a time of austerity for the size and cost of our Armed Forces to be considerably larger than was actually needed to deliver the defence outputs provided for in the SDSR. If that is the case, can the Minister confirm that such an overprovision at a time of austerity was an intended part of the 2010 SDSR? The National Audit Office has done a useful job in throwing some light on what was actually going on at the time of the SDSR and what has been going on since. It indicates that the Secretary of State is somewhat removed from his image as a safe pair of hands. The significance of the next SDSR, and the need to ensure that the demands we place on our Armed Forces, who do not let us down, are matched by the resources we provide for them to meet those demands, cannot be overstated.

Armed Forces Front-line Combat Roles: Women

Lord Rosser Excerpts

Tuesday 6th May 2014 Lords Chamber

[Lord Astor of Hever]

My noble friend is right, which is why we keep this subject very much under review. Women already serve on the front line with great distinction, and we will take into account the factors that my noble friend has mentioned, as well as other aspects, particularly the effect on unit cohesion. My noble friend mentioned other countries. That will be very relevant, although we need to be sure that the answer is right for our Armed Forces and the way they operate.

[Lord Rosser (Lab)]

On this side, we also wish to express our sincere condolences to the families and friends of the five members of our Armed Forces who have recently lost their lives on operations. We are reducing the numerical strength of our Armed Forces in Afghanistan, but the dangers remain, and the enormity of the sacrifices which young service personnel continue to make on our behalf has been brought home to us all once again.

Women currently serve in theatre as engineers, intelligence officers, medics and fighter pilots. The ban on women serving on submarines has been lifted, and increasing numbers of women have been appointed to senior military posts in recent years, but more needs to be done to make sure that our Armed Forces reflect the communities they serve, in line with a key objective of Army 2020. Serious consideration needs to be given to the further roles that women can play, including serving in front-line combat, since we need to maximise the talent and expertise available. The Minister said that the Government are looking at bringing forward the review, which is due by 2018. I wonder whether he can be a bit more specific on that. Is it currently the intention to wait until 2018, or is there an earlier target date for a decision? What are the considerations that will be taken into account by the Government in looking at the issue of women serving in front-line combat roles?

[Lord Astor of Hever]

My Lords, as I said in my Answer, we are looking very clearly into the possibility of bringing the review to an earlier date than 2018. As soon as I have any information, I will come back and report it to the House.

Armed Forces

Lord Rosser Excerpts

Monday 7th April 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I add my thanks to those already expressed to the noble Lord, Lord Dannatt, for securing this all too short debate on our reserve and regular Armed Forces. I endorse the tribute paid by the right reverend Prelate to our Armed Forces.

By now, of course, the key questions have already been raised, not least by my noble friend Lady Dean on the state of Armed Forces morale, and by other noble Lords on recent developments around the world. I wish to re-emphasise one or two points. I recognise that the noble Lord, Lord Dannatt, referred to all three armed services, and that concerns have been voiced in particular about personnel numbers in the Royal Navy. However, I wish to confine the rest of my comments to the Army.

When the announcement was made by the former Secretary of State for Defence that the size of the Regular Army was to be further reduced to 82,000—some 12,000 below the figure stated in the 2010 strategic defence and security review—he did it against the backdrop of an announcement that the size of the trained Army reserve force would be increased from 19,000 to 30,000 by 2018. He has also since confirmed that the rundown in the size of the Regular Army was linked to the increase in the size of the Reserve Forces. That would seem a logical stance to adopt since the increase in the number of reservists should be achievable if the Government are determined to provide whatever money is required to achieve that objective, although that, of course, does not necessarily mean that sufficient recruits of the required quality and skills will be secured.

That policy has now been changed by the Government, who have repeatedly declined to give assurances that the Regular Army will be reduced only in line with the intended increase in the size of the trained reserve force being achieved. That decision raises important issues. The first is that the Government must believe that a Regular Army of 82,000 is sufficient to deliver the military capacity and capability objective in the defence planning assumptions on which the strategic defence and security review is based without any increase in the size, or change in the composition, of our Reserve Forces. If the Government do not believe this—I ask the Minister to confirm the Government’s position—then declining to make the reduction in the size of our Regular Army dependent on achieving the intended increase in the size of our Reserve Forces must put the military capacity and capability objective in the SDSR at risk, and with it our national security as well. However, if the Government confirm that their position is that a Regular Army of 82,000 can deliver the military capacity objectives in the SDSR without increasing the size of our trained reserve force, that invites the question as to why we are increasing the size of our Reserve Forces to 30,000, and for what military and national security objectives are we doing so.

The Government have also inferred that the increased trained reserve force will provide some specialist skills which our Regular Forces will not possess to a sufficient degree. If that is the case—I would be grateful if the Minister could confirm the Government’s position on that point—how is it that the rundown in the strength of our Regular Army is not dependent on the increase in our trained reserve force, even in respect of these specialist skills, if our national security is to be safeguarded? I hope that the points I have just made are ones to which the Minister will respond in his reply to the debate.

Finally, reference has already been made to the House of Commons Defence Select Committee. In a recent report, that committee expressed its doubts that the Army 2020 plan represented a fully thought through and tested concept which would allow the Army to counter emerging and uncertain threats and develop a contingent capability to deal with unforeseen circumstances. It said that the Ministry of Defence needed to justify how the conclusion was reached that the Army 2020 plan of 82,000 regular and 30,000 reserves represented the best way of countering these threats. No doubt the Select Committee’s point is one to which the Minister will also wish to respond.

Defence Reform Bill

Lord Rosser Excerpts

Wednesday 2nd April 2014 Lords Chamber

[Lord Palmer of Childs Hill (LD)]

My Lords, all credit is due not only to the noble and gallant Lord and my noble friend Lord Roper but to the Labour Front Bench for starting this ball rolling and developing it into an affirmative or, perhaps I should say, slightly super-affirmative Motion, to which I hope the House will agree.

[Lord Rosser (Lab)]

My Lords, the Minister explained the background to this amendment which arose from an undertaking that he gave when we last discussed the Bill. I should like to take this opportunity to explain our position on the amendment and our views on it.

We welcome the amendment as it represents a move from the Government’s previous stance that the affirmative order without any associated requirements stated in the Bill would be sufficient, if passed by both Houses, for a future Government to change significantly defence procurement services by making arrangements for such services to be provided by a company to the Secretary of State under contract. The Government’s amendment does not go as far as we would wish, given that the Government were not prepared, as we sought, to withdraw Part 1 when it became known that they could no longer proceed before the general election with their preferred option to go down the road provided for in Part 1. We argued for a super-affirmative procedure involving an independent examination of a future Government’s case for bringing in an outside company to provide defence procurement services and for a report on that independent review by the House of Commons Defence Select Committee prior to Parliament being asked to make a decision on the affirmative order. That did not find favour with the Government either.

What we do have is the Government’s amendment providing for a report to Parliament on the options for carrying out defence procurement with a requirement, as the Minister said, that one option that must be covered in the report is the carrying out of defence procurement by the Secretary of State in the way it is carried out at the time the report is prepared. In other words, the effectiveness or otherwise of the new DE&S-plus-plus organisation that started to come into effect a couple of days ago, at the beginning of this month, will have to be compared with any other proposed arrangements that a future Government may wish to introduce. That is important because the Minister said in the debate on this issue in Committee that if it had been a matter for this Government rather than a future Government, they would have looked at the outside company option—the GOCO—only if the new DE&S-plus-plus organisation now being introduced did not transform the defence procurement operation.

If a future Government adopt the same approach, the report on the effectiveness of the new DE&S-plus-plus organisation will be crucial, as will be the objectivity of that future Government’s assessment of DE&S-plus-plus and their case for believing that the GOCO option would be more successful. Proper time will be needed to evaluate and consider the report to Parliament from that future Government, as provided for in this amendment, if that Government decide they want to go down the GOCO route and not to continue with the new DE&S-plus-plus organisation.

A big concern we have about the Government’s amendment is that it does not lay down any minimum timescale, either directly or indirectly, between the report on the options for carrying out defence procurement being laid before Parliament and the associated affirmative order being considered by Parliament. A future Government, having made up their mind that they wanted to go down the GOCO route, might be tempted to try to rush through the affirmative order. In that context, I cannot help but recall that this Government, in declining to withdraw Part 1, argued that there might in future be a need to bring in the GOCO option with a minimum of delay—an odd argument, bearing in mind that the Government themselves had just had to delay their intentions on the GOCO option by at least two or three years, but nevertheless an indication of a Government’s thinking that they might seek to make the change as quickly as possible at the possible expense of proper scrutiny. Hence my comments and concerns that the Government’s amendment does not provide any real check on such an intention by a future Government.

However, despite our reservations, we shall not oppose the Government’s amendment, as it clearly represents progress towards our position and a move away from the Government’s earlier stance. We are grateful for the support there has been from other noble Lords in pressing the Government to move from their initial stance that affirmative orders, without any associated requirements that would also have to be met, were sufficient.

[Lord Astor of Hever]

My Lords, I thank noble Lords and the noble and gallant Lord for their helpful contributions to our short debate. It is clear that this amendment attracts support, particularly from the Official Opposition, and that it would significantly improve the arrangements for parliamentary oversight should Part 1 ever be commenced. I accept the observation of the noble Lord, Lord Rosser, that our amendment does not go far enough but I think we can agree that this amendment makes a good Bill much better.

As we have, I hope, reached the final stage of the Bill in this House, I thank noble Lords for their work on the Bill. In particular, I am grateful for the contributions of the noble and gallant Lords, Lord Craig and Lord Stirrup, the noble Lords, Lord Rosser and Lord Tunnicliffe, and my noble friends Lord Palmer, Lord Roper and Lord Lee among many other noble Lords who have spoken during the course of the Bill and done so much to ensure that it leaves this place in good shape. We have covered a lot of ground including on some quite technical matters.

I am also grateful to my noble friend Lady Jolly for her assistance on the Bill and to my officials for their support and hard work. The Government have listened to the concerns that have been raised and have responded, where appropriate, by bringing forward amendments such as the one before the House today. I therefore ask noble Lords to support this amendment.

--- Later in debate ---

[Lord Astor of Hever]

That the Bill do now pass.

[Lord Rosser]

Before we go through the final stage, I should like to thank the Minister for his usual patience and courtesy in taking the Bill through your Lordships’ House, and not least for the detailed responses he has given to the amendments that have been pursued and the questions that have been asked. I should also like to thank his ministerial colleague, Philip Dunne MP, for meeting us on more than one occasion, in particular my noble friend Lord Tunnicliffe on Part 2 on single-source contracts. We extend our thanks in that regard to the noble Baroness, Lady Jolly. Having meetings with Ministers has also involved officials, and likewise we extend our thanks to them for their courtesy and helpfulness in responding to the many points that we raised.

Bill passed and returned to the Commons with amendments.

Defence Reform Bill

Lord Rosser Excerpts

Wednesday 26th March 2014 Lords Chamber

Moved by

[Lord Rosser]

8: After Clause 48, insert the following new Clause—
“Annual report to Parliament on Army’s fighting power
(1) The Secretary of State shall lay before Parliament on an annual basis a detailed report on the Army’s fighting power and shall include an assessment of progress made and any setbacks incurred in implementation of the Army 2020 plan.
(2) The first of such reports shall be laid before Parliament in January 2015, no later than 31 January 2015.”

[Lord Rosser (Lab)]

My Lords, the parents of this amendment are the members of the House of Commons Defence Committee, the majority of whom are government MPs. At the beginning of this month the Defence Committee published a report, Future Army 2020, and its conclusions were hardly a ringing endorsement of either government policy or government competence on this issue. Referring to the Government’s Army 2020 plan, the report pointed out quite fairly that it departed significantly from the announcements made in the 2010 strategic defence and security review. It went on to say that the Defence Committee had,

“considerable doubts about how the plan was developed and tested, and whether it will meet the needs of the UK’s national security”.

It expressed surprise that such a radical change to the Army’s structure, reflecting a reduction of 12,000 personnel from that announced in the 2010 SDSR, had not been discussed at the National Security Council and added:

“Even if the overall strategic vision had not changed, as the Government claims, the military ways and means of that strategy were considerably altered under Army 2020”.

The committee said that its principal concerns were twofold. The first was that the Ministry of Defence,

“has failed to communicate the rationale and strategy behind the plan to the Army, the wider Armed Forces, Parliament or the public”.

The second concern was that,

“the financially driven reduction in the numbers of Regulars has the potential to leave the Army short of personnel particularly in key supporting capabilities until sufficient additional Reserves are recruited and trained”.

The committee pointed out in its report that the Secretary of State for Defence accepted that,

“Army 2020 was designed to fit a financial envelope”,

and expressed its concern,

“that this consideration took primacy over the country’s abilities to respond to the threats, risks and uncertainties contained in the National Security Strategy”.

It expressed concern, too, at being told that it was the,

“Ministry of Defence’s Permanent Secretary who told the Chief of the General Staff the future size of the Army under the Army 2020 plan”,

and called for an explanation of the,

“apparent lack of consultation and involvement of the Chief of the General Staff in the decision-making process that has affected his Service so fundamentally”.

Such was the committee’s concern, including over lack of,

“evidence of an active experimentation programme in the development and implementation of Army 2020”,

that it has called for the Ministry of Defence to provide,

“an assessment of how the Army 2020 plans will affect the ‘Fighting Power’ of the Army providing comparable assessments of both current fighting power and projected fighting power following the completion of the Army 2020 plans”.

On top of that, the committee came out with this conclusion:

“We remain to be convinced that the Army 2020 plan represents a fully thought-through and tested concept which will allow the Army to counter emerging and uncertain threats and develop a contingent capability to deal with unforeseen circumstances. The MoD needs to justify how the conclusion was reached that the Army 2020 plan of 82,000 Regulars and 30,000 Reserves represented the best way of countering these threats”.

The Defence Committee has said other things, also stating in its report that it remains,

“to be convinced by, the Secretary of State’s explanation as to why the reduction in the Regular Army should not be dependent on the recruitment of the necessary number of Reservists. The financially driven reduction in the number of Regulars has the potential to leave the Army short of personnel in key supporting capabilities until sufficient Reserves are recruited and trained”.

That concern is borne out by the trained strength and recruitment targets for the reserves contained in the report.

Continuing, the committee expressed concern,

“that the Army 2020 plan would unravel in the face of any further MoD budget reductions or further reductions in Army personnel”,

and concern that,

“the Defence Planning Assumptions are adequate to ensure the UK’s national security”.

It went on to express,

“little confidence in the Government’s capacity to rapidly expand Army numbers should the need arise”.

Since the Government said that Army 2020 had to work and that there was no plan B, the committee continued by saying that the Government,

“owe it to the Army to ensure it does work, but, crucially, if the situation changes, then the Government must be prepared to respond decisively by providing additional resources in order to guarantee the nation’s security”.

The committee was still not finished, but went on to comment on the Government’s amendment taken in Committee in this House:

“While we welcome the Government’s commitment to publish more data on the Reserves and to put into statute a requirement on the Reserves Forces and Cadets Association to produce an annual report on the state of the Reserve Forces, we believe the Government should go further and give a commitment to provide regular updates to Parliament on progress on all aspects of the Army 2020 plan. Oral and written statements while helpful are not sufficient; a detailed annual report on the Army’s Fighting Power should be laid before Parliament setting out progress and setbacks in implementing the Army 2020 plan. The first of these reports should be laid before Parliament in January 2015 … before the 2015 General Election and to inform the 2015 SDSR”.

The purpose of this amendment is to give effect to this conclusion reached by the House of Commons Defence Committee.

There can be no doubt about the magnitude of the changes under the Army 2020 plan. The Army 2020 document itself described the Army 2020 construct as representing,

“a fundamental and imaginative break from the way in which the British Army is currently structured”,

and said that the change was,

“as significant as any seen over the last fifty years”.

Neither did General Wall, Chief of the General Staff, dispute that the plans were radical: indeed, he agreed that they were when he appeared before the Defence Committee.

The government amendment which was introduced in Committee is now Clause 47 of this Bill. The Government had no problems agreeing to annual reports by each reserves force and cadets association on the capabilities of the volunteer Reserve Forces in relation to the enhanced duties that are being placed on the members of those forces being prepared and sent to the Secretary of State and for the Secretary of State to be required by law to place a copy of each report before Parliament.

Therefore, there ought to be no reason why the Government, as now called for by the Defence Select Committee following careful scrutiny of the future Army 2020 plan, should not also agree to provide Parliament with a similar annual report on progress on all aspects of the Army 2020 plan, with its significant changes in the future role and structure of the British Army. The report, of course, would be about the Regular Army as well as the integration of the Reserves with the Regular Army. It seems rather odd that Parliament should be provided with annual reports about the Reserve Forces and their capabilities but not receive an annual report covering the position and progress of the Regular Army which, under Army 2020, is undergoing significant change, about which the Defence Select Committee has expressed real concerns and doubts in respect both of its implementation and its implications. I beg to move.

--- Later in debate ---

[Lord Astor of Hever]

I was coming on to that point in response to the point that my noble friend Lord King made.

The final issue that I need to address is the point that was raised by the noble Lord, Lord Rosser: if we are having an annual report on the reserves, why should we not have such a report on the Regular Army? The reserves are a unique set-up: part-time volunteers who juggle work, family and military commitments. In recognising the importance of the reserves and in seeking to revitalise them through the Future Reserves 2020 programme, it was considered important to have an external independent view of how we were doing because the changes impact on reservists, employers, families and communities.

The reserve associations are community-facing organisations which provide an essential bridge between our Armed Forces and the civilian population. An association exists for each of 13 administrative areas of the United Kingdom. They provide advice and support on behalf of our volunteer reserve forces and cadets, work with the chains of command of the Royal Navy, the Army and the Royal Air Force and establish and maintain links with the community. They therefore have the knowledge, skills and experience to report effectively and independently on the Future Reserves 2020 programme. Clause 47 puts that into statute. The reserve associations would not be able to fulfil that same role for the Regular Army, as that is not where their expertise lies.

My noble friend Lord King mentioned the reserves, and that recruiting got off to a bad start. My noble friend Lord Lee also asked about this. In the Ministry of Defence, we have given a lot of time to this issue. We are working hard on it. We have recently increased the bounty to encourage regulars to join the reserves, which was a point which my noble friend also made. Over the past three or four weekends, I have been out to see reserves training in Scotland and different parts of England. I can report that morale is high. The senior officers to whom I have spoken are optimistic that we shall reach the numbers that we have set out, so I am confident. I had organised for the noble Lord, Lord Rosser, and two or three other Peers to visit the recruiting centre in Upavon. We had to cancel that because we had a Statement in the House, but I think that it is in the grid to have another visit there.

My noble friend Lord Palmer asked what manpower would be needed to prepare the report. The answer is a small number. My noble friend also asked what information is already in the public domain. The answer is plenty—the annual report and accounts and the Army 2020 update both cover progress in detail. He asked whether revealing deficiencies might help our enemies. We would not wish to reveal any weakness that may help our enemies, which will and does limit what we can release.

The noble Lord, Lord Ramsbotham, referred to “radical change” that had not been discussed by the National Security Council. I had better write to the noble Lord as I have quite a lot of information here that I am not going to be able to read out.

The noble and gallant Lord, Lord Stirrup, asked whether we were spending enough on cyber. The Government have recognised the importance of addressing the cyber threat to the UK and we have established a joint cyber unit of regulars and reserves.

I hope that I have answered most of the questions, but if I have not I will certainly write. I have set out why I do not believe the amendment should be accepted and I ask the noble Lord to withdraw it.

[Lord Rosser]

My Lords, first, I thank the Minister for his reply and all noble Lords who have participated in this debate. I am grateful to my noble friend Lord Davies of Stamford for responding to the point made by the noble Lord, Lord Hamilton of Epsom, and do not intend to pursue it any further in the light of the response that my noble friend gave on that point.

A number of concerns have been raised. One is about the potential security implications of producing the report called for in the amendment and, indeed, the report called for by the Defence Select Committee. Since the report would be prepared by the Government and by the Secretary of State for Defence, one would assume that that in itself was a safeguard against anything being revealed that would put at risk our national security.

The issue was also raised that the report refers only to the Army and not to the other services. Obviously, that was in the light of the fact that this has come from a Defence Committee report which was geared to looking at the Army and Army 2020. Of course, if that is felt to be a major stumbling block, there is no reason at all why the Government—if that is their objection—could not come back at Third Reading with an amendment that included the other two forces. The alternative, of seeing this amendment not go through because it does not refer to the other forces, would simply mean that we end up with no report at all.

It is also worth stressing that the key element of the Defence Select Committee’s concerns was actually on the progress being made on the implementation of the Army 2020 plan. I went through the comments that it had to make at some length, because the comments were geared to real concerns about whether the plan would or could be implemented as intended and what the implications would be if it were. It was in that context in particular that the committee called for reports on the progress of all aspects of the Army 2020 plan.

I feel that I have addressed some of the concerns that have been raised. There can be no security implications when the report will be produced by the Government and the Secretary of State for Defence—they are not going to start revealing things that will be of use to those who are hostile to us. The concerns that have been expressed over the implementation of the Army 2020 plan are over how it is going to be implemented, whether it will be implemented as intended and what the implications will be. Primarily what is being sought are reports updating us on the progress that is being made and, as the Defence Select Committee said, detailing any setbacks there have been.

There are reports about what is happening with the reserves. I do not accept the Government’s argument that that is totally different from what is being asked in respect of the Army 2020 plan. They are both reports on progress being made towards implementing objectives set out for our future Army strength. In view of that, I wish to test the opinion of the House.

--- Later in debate ---

[Lord Craig of Radley]

My Lords, that is obviously most welcome news and I thank the Minister and the Government for making it clear at this stage. On that basis, I will be prepared to withdraw my amendment. However, for the purposes of the debate, I beg to move.

[Lord Rosser]

My Lords, I speak to Amendments 10 and 11. In Committee, we argued that Part 1 of the Bill should be withdrawn, following the Government’s decision not to proceed with their proposal for handing over defence procurement to a company under contract to the Secretary of State. That decision was made following a lack of bidders. Instead, the Government announced their intention to go down the road of further developing the DE&S organisation in the Ministry of Defence by setting it up as a bespoke central government trading entity with effect from next month.

[Lord Trefgarne (Con)]

I hesitate to interrupt the noble Lord, but I was expecting there to be a separate debate on Amendment 11 in his name. I am a little confused by the procedure that he is now proposing.

[Lord Rosser]

I understand that I am in order in speaking to the amendments in the group. The two amendments in my name are Amendments 10 and 11, but I will refer later to Amendment 9, which has already been moved. I have been advised that I am not out of order in making the contribution I am making, so I intend to continue.

[Lord Trefgarne]

In fact, it is open to any noble Lord to ask to have a particular amendment debated separately. I do not propose to do so on this occasion, but it is open to any noble Lord to do so if he wants.

[Lord Rosser]

I was talking about our view that Part 1 should be withdrawn and about what happened in Committee. The Government declined to withdraw Part 1. We felt, and still feel, that it should be deleted because it provides for an untested and untried major change in defence procurement which the Government do not now intend to introduce and for which they cannot and will not be able to produce any evidence that it will provide a better alternative at some time in the future than either the existing arrangements or, significantly, the further developed DE&S model, which is not even yet up and running. That will now be a matter for a future Government, if that future Government decide to proceed with the GOCO option.

In Committee, we also moved an amendment, which we regarded as very much second-best behind the withdrawal of Part 1, for a super-affirmative order which would be required to be passed by both Houses before Part 1 could be brought into force. We have included a similar amendment in the group that we are discussing. I do not intend to go through in detail the arguments that we put forward in Committee in support of the super-affirmative. They are recorded in the Hansard of the Committee stage. They set out in detail what the super-affirmative would provide for as set out in these amendments.

The super-affirmative order is not something novel. It has been used by this Government. They added the super-affirmative procedure to the recent Crime and Courts Act in respect of any future order made by the relevant Secretary of State to modify the functions of the National Crime Agency. That super-affirmative provision in the Crime and Courts Act requires the Secretary of State to consult the persons who would be affected by an order to modify the functions of the National Crime Agency and lays down minimum periods for consultation and subsequent scrutiny. It also requires the Secretary of State to have regard to any recommendations or representations made by Parliament during the scrutiny period with the subsequent option of laying a revised draft order. I again simply make the point that we are not talking about a minor change that might be made in the future on the basis of affirmative orders but about an untested and untried major change in defence procurement involving more than £10 billion of taxpayer expenditure each year.

The amendment that has been moved by the noble and gallant Lord, Lord Craig of Radley, is an improvement on the current provision in the Bill, and we heard from the Minister—if I understood him correctly—that he will come back with an amendment at Third Reading which will be in line with that moved by the noble and gallant Lord. However, while that amendment provides for a White Paper and an impact assessment, it does not provide for an independent assessment or the involvement of the Defence Select Committee prior to an affirmative order being considered. It thus appears not to provide any minimum timescale between the production of the White Paper and the impact statement for consultation and scrutiny before any vote in Parliament.

It is worth pointing out that government departments do not always produce adequate and appropriate information to support orders they place before Parliament. We had yet another example of this only last night in this Chamber in respect of a Home Office order. Your Lordships’ Secondary Legislation Scrutiny Committee had criticised the poor quality of documentation produced by the Home Office accompanying the order and had written to the Minister of State concerned to voice its detailed concerns. When the committee received the Minister of State’s reply, it found that letter equally disappointing and wrote in its report on the order being considered last night that,

“we found the letter to be no more convincing on the merits of the policy than the Explanatory Memorandum”.

Our super-affirmative would address those potential concerns about the quality of documentation as there is provision for independent assessment and the involvement of the Defence Select Committee.

I take note of the intervention by the Minister to indicate—if I can use the expression—the Government’s acceptance of the amendment in the sense that the Minister intends to come back with a government amendment which, as I understand it, will say either the same thing or much the same thing as the amendment tabled by the noble and gallant Lord, Lord Craig of Radley. Obviously we will want to look at the amendment that the Government table at Third Reading and determine whether to support it or whether to seek to amend it.

[Lord Roper (LD)]

My Lords, in view of the remarks made by my noble friend the Minister in his intervention in the speech of the noble and gallant Lord, Lord Craig, saying that he intends to accept the principle of Amendment 9, I can be a good deal briefer than I would otherwise have been. Broadly, I felt after the discussion in Committee and subsequent consideration—particularly after the discussions with Mr Dunne—that it would be very important to get in the Bill the assurances about the material that the Government would produce before a decision was made on the affirmative order. That, of course, was a government amendment that was introduced in Committee after representation from a number of us that a decision should be made by affirmative order and that one could not just use Part 1 of the Bill without any further parliamentary consideration.

I believe that the situation here is the right way for us to proceed. The super-affirmative procedure to which the noble Lord, Lord Rosser, has just referred was discussed in some detail in Committee, and I initially saw some advantage in having a mechanism whereby one could look at this more carefully. On further examination, I took to heart the Minister’s view that this was rather a heavy way of tackling the problem, and that it would be possible for Parliament to be properly informed so that the debate on the affirmative order could be effective and efficient with the sort of procedures that are in Amendment 9. I therefore believe that Amendments 10 and 11 are too elaborate and that the lighter proposal in Amendment 9 is the one that the House, in principle, ought to accept, although of course we will be doing that at Third Reading rather than today.