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

Debate between Lord Rosser and Lord Thomas of Gresford

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.

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[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.

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

Debate between Lord Rosser and Lord Thomas of Gresford

Wednesday 9th July 2014 Lords Chamber

[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.

--- Later in debate ---

[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.

Crime and Courts Bill [HL]

Debate between Lord Rosser and Lord Thomas of Gresford

Wednesday 20th June 2012 Lords Chamber

[Lord Rosser]

My Lords, the two paragraphs of Clause 5 to which these amendments relate provide for a chief officer of a UK police force or a UK law enforcement agency to perform a task if the director-general of the National Crime Agency requests, and for the director-general of the National Crime Agency to perform a task if requested to do so by a chief officer of a UK police force or a UK law enforcement agency. In respect of the references in the two paragraphs in question to,

“the chief officer of a UK police force”,

there is no reference to any requirement at all for the elected police and crime commissioner for that police force to be consulted by the person requesting that a task be performed, whether it be the director-general of the National Crime Agency or the chief officer of the commissioner’s own police force. So far there has been no explanation of or justification for this omission despite the fact that under the Police Reform and Social Responsibility Act 2011 a police and crime commissioner for a police area has a statutory duty to secure the maintenance of the police force for their area, ensure that the police force is efficient and effective and hold the chief constable to account for a wide range of duties and responsibilities, including the effectiveness and efficiency of the chief constable’s arrangements for co-operating with other persons in the exercise of the chief constable’s functions.

The police and crime commissioner will also be responsible for issuing a police and crime plan, which is a plan that is required by law to set out a number of matters, including the policing of the police area which the chief officer of police is to provide. Yet it would appear as though it is possible under the terms of the Bill for the director-general of the National Crime Agency to come to an agreement with the chief officer of a UK police force for that chief officer to perform a task on behalf of the director-general, and a task of unspecified magnitude, scope or significance in relation to resources or impact; or, alternatively, for the director-general of the National Crime Agency to perform a task on behalf of the chief officer of a UK police force—once again, of unspecified magnitude, scope or significance—without any apparent duty in either case to consult the elected police and crime commissioner despite the significant statutory responsibilities the police and crime commissioner has in relation to their police force. If the director-general of the National Crime Agency was requesting the chief officer of a UK police force to carry out a task which could well have an impact on the efficiency and effectiveness of the police force in question, or on the ability to deliver or adhere to the police and crime plan, one would have thought that it was a matter on which the director-general of the National Crime Agency should be required to consult the police and crime commissioner.

Likewise, if the chief officer of a UK police force found it necessary to request the director-general of the National Crime Agency to perform a task on behalf, or in support, of that police force, there should be a duty on the chief officer to consult the police and crime commissioner, who might want to satisfy himself or herself that this was not a task that their own police force should be competent and capable of performing and that the request to the director-general was not in reality seeking to cover up a weakness in the performance of their police force. In this context, it is worth pointing out, for example, that Part 4 of Schedule 3 to the Bill provides for the director-general of the National Crime Agency to make arrangements with the elected police and crime commissioner for the NCA to use facilities made available by that police and crime commissioner’s police force. In addition, the Secretary of State will also be required to consult PCCs in determining the NCA’s strategic priorities, and a similar requirement is placed on the director-general of the NCA in preparing its annual plan. However, there is apparently no requirement for the director-general to notify or consult PCCs on voluntary agreements with chief constables or before using their powers to direct chief constables.

I will obviously await the Minister’s response to all the points that I have made. I suspect he is not going to say that I have drawn attention to gaps in the Bill that the Government now intend to address. However, I wait to see whether the argument will be that responding to requests referred to in Clause 5 is, for some reason, nothing whatever to do with the elected police and crime commissioner, or whether the Minister is going to say either that there are other provisions in the Bill that would require the police and crime commissioner to be consulted—or his or her consent sought—or that there are provisions in the Police Reform and Social Responsibility Act 2011 that would require the commissioner to be consulted, or his or her consent sought, such as in paragraph 7 of Schedule 2 to that Act, which states:

“A chief constable may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of chief constable”,

and,

“That includes … entering into contracts and other agreements (whether legally binding or not), but only with the consent of the relevant police and crime commissioner”.

Alternatively, perhaps the Minister is going to say in response that the points I have raised will be covered in the elusive framework document that he has so far been unable to produce. I await his response. I beg to move.

[Lord Thomas of Gresford]

These amendments concern something I raised at Second Reading—the relationship between the National Crime Agency, the police commissioner and the chief constable of a police force. I still do not understand just how that is to be worked out. We tabled amendments suggesting a protocol, which we dealt with in Committee on Monday, and learnt that a protocol is something to be discussed as an operational matter once the Bill is in force. Does the police commissioner come anywhere within the architecture of the Bill, or is the commissioner in an outhouse? I just do not understand where he is.