Armed Forces Bill
Lord Thomas of Gresford Excerpts(10 years, 6 months ago)
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Lord Thomas of Gresford (LD)
My Lords, I thank the Minister for his introduction to the Bill. I do not propose to follow the contribution of the noble Lord, Lord West of Spithead, very interesting though it was. I am sure we will have an opportunity to debate those issues at a later stage.
I wish to argue that the court-martial system, which is integral to service discipline, does not enjoy public confidence. There have been many reforms and in my view, speaking as a practitioner and as chairman of the Association of Military Court Advocates, this lack of confidence is unmerited and unjustified. But it exists and there are cases coming down the track which will test the system in the extreme.
Back in 1994, I was engaged in the defence of a lance-corporal, serving in Germany, on a murder charge. He was acquitted and returned to his regiment. George Galloway, then a Labour Member of Parliament for Glasgow, Hillhead, used parliamentary privilege to assert that a murderer had walked free and was still at large, serving in Her Majesty’s Forces. He said:
“The military police, who were soldiers with armbands, and the military prosecutor, who was a soldier in a wig, bungled the case”.—[Official Report, Commons, 28/3/95; col. 812]
When I appeared in a later court martial in Germany for a 17 year-old civilian son of a soldier, in another murder case, the staff sergeant who was the father of the victim in the previous case picketed the hearing with placards against the court-martial system. I have never heard of a Member of Parliament, nor even the press or public, attack a verdict of acquittal by a jury in a Crown Court in such terms. This did not even happen, for example, in the case I prosecuted in Cardiff during the miners’ strike, when two miners were convicted of the murder of a taxi driver using a concrete block.
The conviction of the 17 year-old went to the House of Lords Judicial Committee, where it was upheld. The noble and learned Lord, Lord Hope, held that the procedure whereby a boy of 17 whose father had left the Army and who was brought from England to stand trial in Germany by court martial could not be considered an abuse of process because that was the process that Parliament had ordered. In 2007, some 10 years after that trial, the European Court of Human Rights had severe doubts on that score, but in any event, following the case of Findlay v United Kingdom, held that the 17 year-old’s conviction had been in violation of Article 6—the right to a fair trial—by reason of the way that the court martial was constituted.
Parliament had already responded to the preliminary decision in Findlay in the Armed Forces Act 1996. The role of the convening officer was abolished and decisions to prosecute were removed from the chain of command and given to the independent service prosecuting authorities. This was in recognition of the need to remove the impression, however mistaken, that the chain of command could have undue influence over court-martial proceedings. The Armed Forces Discipline Act 2000, passed after the Human Rights Act had come into force, made further changes, taking away the CO’s power to determine pre-trial custody and granting appeals against summary convictions.
My own contribution to reform at this stage—and this will appeal to the noble Lord, Lord West—was to table a Parliamentary Question as to why a defendant in a naval court martial was still being marched in at the point of a cutlass. The practice was abolished between my laying of the Question and the delivery of the Answer by the noble Lord, Lord Bach. In the time I have been involved in courts martial, the swords have gone, the stripping of the defendant of his belt and cap has gone, and the marching and the saluting have all disappeared. Importantly, the panel sits separately from the judge advocate. But public disquiet continued.
Noble Lords of an earlier generation will recall how Lord Campbell of Alloway campaigned on behalf of Trooper Williams, where the CO had dismissed charges of murder. But the Army Prosecuting Authority disagreed and passed the papers to the Attorney-General, who referred it to the CPS. The proceedings that followed at the Old Bailey were ultimately discontinued.
In 2005, charges of murder against seven members of the Paras were dismissed by the Judge Advocate-General, Judge Blackett, at a court martial at Colchester. There was disquiet that they had been charged at all. My own personal recollection was that I made a very unusual application in that case for an adjournment in order to get married in the Crypt of Parliament—something that Judge Blackett always brings up with me.
However, major reforms happened in 2006. Courts martial ceased to be convened ad hoc and became a permanent standing court, with court centres at Colchester, Bulford and Catterick. Other reforms included the merger of the separate service prosecution authorities and the creation of the office of the Director of Service Prosecutions. The service was fortunate in both its first director, Bruce Houlder QC, an Old Bailey civilian practitioner, and its second and current director, Andrew Cayley CMG QC, who used to be a prosecutor at the International Criminal Court.
In 2006, Judge Blackett gave evidence to the Select Committee in the Commons, advising it that the court-martial system should be brought into line with the Crown Court. Consequently, during the passage of that Armed Forces Bill, I moved amendments in this House to make provision in the court-martial rules that the court-martial panel should be drawn from all ranks and every branch of the armed services. They were to be selected by ballot from a pool constituted of people who were eligible to sit. The qualification was simply to be that the individual chosen was a serving member of the Armed Forces, subject to service law. It was not an outrageous suggestion, because that was the system adopted in the United States in 1952.
I also moved amendments that a person should not be charged with an offence against this section committed in the United Kingdom if the corresponding offence under the law of England and Wales was treason, murder, manslaughter or rape. Further, I proposed that the verdict of guilty should not be entered by a simple majority but by a majority of five out of seven, if seven were sitting, or four out of five, if five were sitting. None of these amendments was accepted and the consequence was that the opportunity was lost to approximate trials by court martial to the Crown Court system.
The Act did not come into effect until 2009 and, meanwhile, in September 2006, the court martial took place of seven members of the Queen’s Lancashire Regiment at Bulford before a High Court judge, Mr Justice McKinnon. The charges against them failed. Four of the other ranks and the colonel were discharged by the judge because,
“there is no evidence against them as a result of a more or less obvious closing of ranks”.
He said that there was a conspiracy of silence. Two other officers, one of whom I represented, were acquitted of negligently performing a duty by the panel after a full trial. However, this verdict was not accepted and your Lordships will recall that the Baha Mousa trial, or inquiry, was set up, which lasted three years and cost £13 million.
More recently, we have the concerns expressed over Deepcut. There was some evidence yesterday on the second inquest—which your Lordships will recall and which is published in today’s papers—that the Deepcut barracks were,
“heavily sexualised, misogynistic and toxic”.
Then there is the Anne-Marie Ellement case—two people have been charged so I will say no more about that. However, in the case of Sergeant Blackman, there has been great outside criticism and comment. The sentence was described as “ludicrous”, by a prince of the blood royal, no doubt defeating a convention that has lasted since the days of Charles I. In this House, my noble friend Lord Burnett, who will no doubt speak more about it, described it on 15 September as,
“a terrible miscarriage of justice”.—[Official Report, 15/9/15; col. GC 228]
Have your Lordships, if you think about it, ever heard of the verdict of a British jury in the ordinary Crown Court being described in such terms in this House? There is trouble brewing.
In January 2014 and September 2015, Public Interest Lawyers, headed by Phil Shiner, lodged complaints with the International Criminal Court. The extent of them, as described by the International Criminal Court, was that,
“UK Services personnel systematically abused hundreds of detainees in different UK-controlled facilities across the territory of Iraq over the whole period of their deployment from 2003 through 2008”.
It includes 200 cases of unlawful killing. The prosecutor of the ICC set up a preliminary examination and reported last November that,
“The Office is currently engaged in processing and analysing the vast amount of material provided”.
Your Lordships should appreciate that it would be a terrible insult and slight upon our system if the International Criminal Court were to declare that this country is incapable of dealing with war crimes within our own system.
However, the Iraq Historic Allegations Team, set up by the Ministry of Defence but independent of it, has itself investigated nearly 1,400 complaints of ill-treatment, including torture and murder. I am reliably informed that more than 30 of those allegations have already gone to the Director of Service Prosecutions and that a large number of cases will, at the moment, be tried by court martial. If they are dealt with by court martial, we can expect—and await—unrestrained comment and criticism of the system in the press and the media, leading to public alarm and further undermining of the system.
I am concerned about the welfare of those who serve this country in the Armed Forces and whom we put in the line of fire, and about the reputation of the British Armed Forces. Consequently, I propose to return during consideration of the Bill to the amendments that I put forward in 2006 and, if they are not acceptable, to propose that serious offences of murder, manslaughter and rape, and serious sexual offences, should be tried in our ordinary Crown Courts and no longer by court martial—the system that is under attack. I repeat that, as a practitioner, I have confidence in that system and in the judges and advocates who appear in it, but I fear that unless something drastic is done, its reputation will be destroyed.
Earl Howe
These are matters currently under scrutiny. The firms that the noble Lord mentioned are, I understand, being quizzed by the regulatory authority for the solicitors’ profession. I am not aware of the outcome of those proceedings, but the noble Lord is right to pinpoint the issue of the way in which those firms received their instructions in the first place. That is a matter that we are as keen to get to the bottom of as he is.
Lord Thomas of Gresford
Can the Minister update us on the International Criminal Court preliminary examination? Where are we with that?
Earl Howe
I fear that I cannot. I will need to write to the noble Lord about that and I will be happy to do so.
I extend thanks, briefly, to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his contribution. I will not attempt to answer all the points he made, but I reassure the House again that these issues are under active consideration with the MoD and very recently, as I am sure the noble Lord, Lord Bilimoria, will be pleased to know, by the National Security Council.
My noble friend Lord Freeman was concerned that service personnel overseas might be subject to the criminal law of the host nation. We take steps to ensure that, before members of the Armed Forces are deployed overseas, arrangements are made with the host nations to ensure that the conduct of those forces in the course of their duties will not be subject to criminal proceedings under the criminal justice system of the host nation. Allegations of criminal misconduct will be dealt with under UK law, under the system established by the Armed Forces Act 2006.
The noble Baroness, Lady Taylor of Bolton, spoke of the need to do more about publicising data on sexual offences. While we are not yet convinced that it is necessary or appropriate to set out requirements in legislation for the publication of this data, the department is determined to make the data that we publish robust, consistent and accessible. To that end, we are actively considering how best to publish the data as an official statistic. The Service Police Crime Bureau records, for all three services, allegations of rape and sexual assault made to the service police. This information is released regularly in response to Parliamentary Questions and FOI requests. In the case of the latter, the information is uploaded to the MoD’s online publication scheme, where it can be freely accessed.
The Service Prosecuting Authority records, for each year, the number of cases referred to it, the number of cases in which charges are preferred and the number of cases where a conviction is secured. The Military Court Service regularly publishes, on the internet, details of every case heard at the court martial, including offences, outcomes and punishments. There is, therefore, a clear picture of the extent of this type of offending within the services, giving a strong indication of the proportion of case referred from the service police to the Service Prosecuting Authority which were prosecuted, and the conviction rate in such cases.
The noble Lord, Lord Touhig, also touched on the subject of sexual offences. It hardly requires me to emphasise—but I will—that sexual assault is unacceptable, in wider society or within the Armed Forces. At present, a whole range of allegations covering most sexual offences must be reported to the service police by the commanding officer. They can also be reported by the victim direct to the service police and, of course, the service police can investigate on their own initiative, but there are some, such as sexual assault, which are referred back, at least initially, to the CO. The Bill changes that. Where the service police have investigated any sexual offence and there is sufficient evidence to charge, the service police will be required to refer the case direct to the Service Prosecuting Authority. That is provided for in Clause 3. I will be happy to write to the noble Lord with further details around some of the questions he asked on this.
The noble Lord, Lord Thomas, took us to the whole system of courts martial and the service justice system. I should explain, in answer to the broad thrust of his question, that there is already a prosecutors protocol in place between the Director of Public Prosecutions, the Director of Service Prosecutions and the Defence Secretary which sets out the principles to be applied in determining where a case is best dealt with if the conduct occurred in circumstance such that both the civilian criminal justice system and the service justice system have jurisdiction to deal with the case. The protocol recognises that any offence can be dealt with by the service authorities.
The main principle in deciding whether it is the service authorities or the civilian authorities which acts is whether the offence has any civilian context, especially a civilian victim. If it does have a civilian context, it will almost certainly be the civilian police, prosecuting authority and courts which deal with the case. Under the protocol, many cases involving service personnel are dealt with by the civilian police. The service police are able to investigate, but if the circumstances are such that it is considered more appropriate for the civilian police to do so, then they will take the lead. We expect the prosecutors protocol to continue to apply even after the draw-down of forces from Germany, so that cases will continue to be dealt with in the appropriate jurisdiction from the outset.
Of course, we must not lose sight of the fact that the UK civilian police do not have jurisdiction overseas, and as long as the Armed Forces have an overseas role we will need to have a justice system which is capable of functioning extraterritorially and which supports the operational effectiveness of the services. The noble Lord also asked—
Lord Thomas of Gresford
The noble Earl will know that murder is under universal jurisdiction. Do I take it that murder cases arising out of the IHAT investigations, for example, will be referred to the civil court or to courts martial in this country?
Earl Howe
My Lords, as I said, there is a protocol which lays down pretty clear guidelines as to how individual cases are handled. I do not think I can give a blanket answer to the noble Lord; it will depend on the circumstances of the case.
He raised other points, including the composition of courts martial and majority verdicts—a theme also pursued by the noble Lord, Lord Burnett. The proposal to change the current rules under which findings of guilt or innocence may be by simple majority would involve profound changes to the court martial system. The court martial may sit in the United Kingdom or anywhere in the world in times of peace or in conflict. Court martial trials may be decided, as in a magistrates’ court, by a small panel, usually of three officers and warrant officers, but a panel of five is required in more serious cases. A service defendant will ordinarily be tried by lay members wholly of his own service. The composition of the panel is determined by the court administration officer who is appointed by the defence counsel. The CAO will draw names at random from a pool of potential members and, having checked that they are eligible for membership of the particular board, will specify who the lay members should be. I would like to write further to both noble Lords to flesh out this whole issue but the great advantage of reaching a decision by majority is that it avoids a hung jury and there is no need for a retrial in the event of a lack of unanimity or qualified majority. As the noble Lords will know, this is a long-established process.
The noble Lords, Lord West and Lord Empey, the noble Baronesses, Lady Taylor, and Lady Jolly, and others raised the issue of mesothelioma. The background to this was the announcement by my honourable friend the Minister for Defence Personnel and Veterans in December that veterans diagnosed with mesothelioma from that date would have the option to receive a £140,000 lump sum, to be paid from 11 April this year. I simply say that the Government understand the concerns that have been voiced in this debate and I can tell the House that work is actively continuing on the matter of those diagnosed before 16 December last year. While I cannot discuss that issue any further today, we hope to be in a position to say something soon.
The right reverend Prelate the Bishop of Portsmouth, my noble friend—
Syria: Brimstone Missiles
Lord Thomas of Gresford Excerpts(10 years, 6 months ago)
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Lord Thomas of Gresford
To ask Her Majesty’s Government what is their assessment of the effectiveness to date of the RAF’s Brimstone missiles in bombing Syria, and in particular in protecting the civilian population.
The Minister of State, Ministry of Defence (Earl Howe)
My Lords, the Brimstone missile offers the coalition a capability to strike moving targets accurately, with minimal risk of collateral damage. Between 2 December 2015 and 31 January 2016, RAF Brimstone missiles were used successfully on nine occasions in Syria to strike enemy vehicles. There have been no associated reports of civilian casualties and it is assessed that all targets were successfully destroyed or damaged.
Lord Thomas of Gresford (LD)
Yes, I think that the kill so far has been two trucks and five mobile cranes. Does it really matter what type of bomb or which of the coalition partners drop it? It has been reported that some 40 civilians or more were killed in January and in the first two days of this week. Surely we are involved in a joint enterprise and, by long-standing principles of English law, we are all of us legally and morally responsible for the lives of those who are killed—innocent civilians, innocent men, women and children—by these bombs. What comment would the Minister have?
Earl Howe
So far as we are concerned, as a member of the coalition, we take the possibility and risk of civilian casualties extremely seriously. As I said in my initial Answer, to date there is no evidence that UK strikes have resulted in civilian casualties. Three factors underpin that: our use of precision guided weapons; our adherence to very strict targeting and planning protocols; and, above all, the skill of our pilots and air crew. I think that it does make a difference whether it is the RAF or another air force taking part.
Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015
Lord Thomas of Gresford Excerpts(10 years, 9 months ago)
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Lord Mackay of Clashfern
I am sorry, the right reverend Prelate. That was a bit of a promotion because we are in the presence of the two Primates. The Motions mark a refusal to accept a decision of the elected House on a matter of financial privilege as the final authority for it. That is what they amount to. It has to be noted, as I have said, that this is the privilege of the elected Chamber, not of the Government.
The amendment proposed by the right reverend Prelate—I shall try to get it right this time—is entirely in accordance with the arrangements of this House and with the financial privileges of the House of Commons. Therefore from the point of view of the powers of this House, it is by far the safest of the Motions that have been put forward. In light of what the Leader of the House said in opening, I believe that the Chancellor of the Exchequer is very open to considering the detail—
Lord Thomas of Gresford (LD)
My Lords, does the noble and learned Lord not agree that the conventions to which he has referred, going back to the 17th century, were so uncertain that in 1908 the Conservative Party defeated Lloyd George’s People’s Budget in which he sought to give money to the poor people of this country? Does he also not agree that the 1911 Act set out a mechanism whereby the Speaker would certify that a money Bill was a money Bill, and that would remove from us our powers of consideration? Is he not going back to an argument that failed more than 100 years ago?
Lord Mackay of Clashfern
Not at all. I am stating the present practice, according to Erskine May, in relation to matters of financial privilege. As I said, it is not a matter of the conventions of this House, but of the rights of the other place in this matter. My clear submission to your Lordships is that these amendments challenge the final authority of the elected House on a matter of financial privilege. It is true that the Liberal Democrats—I suppose they were the Liberal Party then, but the succession is probably allowable—found it necessary to take further action to ensure that the practice that had been built up in the 17th century applied in the 20th century and beyond. They put mechanisms in place to prevent financial privileges being in any way transgressed again.
Lord Butler of Brockwell (CB)
My Lords, I shall try to put my points briefly. I do not want anything that I say to be taken as implying a lack of sympathy with the concerns of those who have spoken about the effects of the Government’s policy. Like other Peers, I have had moving emails from many such people who expect to lose benefits through the statutory instrument. However, I want to confine myself to the constitutional issue. I usually agree with the noble Baroness, Lady Thomas, about statutory instruments. As has been pointed out, it is a very rare event that the Government are defeated on a statutory instrument; it has happened only five times since the war, but that does not mean that the House could not do it. But there is a combination here, because this is a statutory instrument about a budgetary matter central to the Government’s fiscal policy; it is that combination that is unprecedented, which is why it would be beyond the House’s constitutional powers to defeat the Government today.
Lord Thomas of Gresford (LD)
Would the noble Lord wish to amend the Companion to the Standing Orders and guide to the Proceedings of the House of Lords? It states:
“The House has resolved ‘That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration’”.
Is this not subordinate legislation submitted for our consideration?
Lord Butler of Brockwell
What I am saying is that the combination of the convention about statutory instruments and the fiscal significance of this one is what makes it special.
Lord Butler of Brockwell
Any—but not since 1911 have a Government been challenged on a matter of this sort, which establishes what the constitutional conventions of the House of Lords are. In that respect—
Armed Forces (Service Complaints and Financial Assistance) Bill [HL]
Lord Thomas of Gresford Excerpts(11 years, 4 months ago)
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Baroness Manzoor (LD)
I congratulate my noble friend on the amendments that have been proposed. As a former Legal Services Ombudsman in England and Wales, I think it is right that one looks at the substance and merits of the complaint. Without that, you deal only with issues of delay. To take the point that the noble Lord made, any decent, transparent, effective and efficient ombudsman can take into consideration different complaints and the time that they will take. If you allow a draft report to the defence side or to the service side, will the complainant also get the option to comment on the draft report? After all, the role of an ombudsman is to be independent, transparent and fair in every way.
Lord Thomas of Gresford (LD)
My Lords, I speak as chairman of the Association of Military Court Advocates—I declare an interest; I am not expressing the view of that association.
I very much welcome the extension of the role of the ombudsman to considering the merits of a particular issue. I approach it from the point of view of the complainant and the complainant’s family, and the importance of the confidence of the public in the system of justice in the Armed Forces. From the point of view of recruitment and retention of service personnel, it is very necessary that those who undertake the burdens of service life should feel that they have a fair and just system of complaint. As I expressed when the Bill went through this House, the weakness of simply looking at process was that a decision on process would not be satisfactory to the complainant and their family. They would want an ombudsman to act like an ombudsman and to look at the merits of a particular case. I am grateful that the Government have moved in that direction.
Lord Craig of Radley (CB)
My Lords, following the Government’s defeats on this Bill in the other place, their initial reaction was to consider how best to reverse them when the Commons amendments were considered in your Lordships’ House. I shared that reaction. Not to reverse the defeats would be a further withdrawal from the position adopted by the Government and reaffirmed in correspondence that I had with the Minister of State, Anna Soubry, following the Bill’s consideration in this House. She wrote to me:
“The bill as it currently stands”—
that was before the defeats in the Commons—
“gets the balance right between having a strong and independent Ombudsman and preserving the PRIMACY of the chain of command. It is that balance that I wish to maintain”.
We now have this run of government amendments reflecting their new position. No doubt this change of heart within government has been brought about in part by the imminence of Dissolution, in part by the weakness of their position in this House on this matter, and in part by the acceptance by the Chiefs of Staff, albeit on the basis of shotgun pressure upon them, that the Bill as amended is the least bad of the possibilities likely to be available. However, is not that latter acceptance itself due in part to the character of Nicola Williams, the nominee for the new post of ombudsman, and the position that she has adopted of recognising the ethos and value of the chain of command? Whether she accepts, as Anna Soubry stated, the primacy of preserving the chain of command remains to be judged.
However, in due time, will her replacement be as savvy? We are legislating about principles, not personalities. I am also concerned to learn that the ombudsman’s office may be 20-plus strong, not all of them lawyers, as will be the ombudsman, and so probably less qualified to undertake systemic examinations of complaints handlings, let alone of actual complaint topics.
Moreover, there seems to be no presumption of improvement in the working of the chain of command over time in dealing with complaints—in fact, the opposite. The default presumption is that complaints will continue to be subject to systemic and irreversible maladministration, as bad as or even worse than it is today. Once again, it is the unspoken but damaging inference that civil authority does not believe that the military chain of command is ever really competent or trustworthy, or is ever really worthy of being upheld or supported. Such an attitude would concern me very greatly.
The Human Rights Act 1998 flew in the face of and upturned long-standing Armed Forces legislation. It removed the majority of the Armed Forces’ legal processes from the chain of command and was damaging to the sense of trust. For example, the convening and review of courts martial are no longer exercised by the chain of command.
The Human Rights Act and other, more recent, statutes affecting the position of the chain of command have served to chip away at and undermine the essential and irreplaceable value of trust and support up and down the chain of command. Although each individual change may seem not to be too damaging or serious, it is the cumulative impact of a number of statutes on the values of the chain of command that worries me and that must be considered. Such values are vital to the use of armed forces in peace or war and to success in operations.
Will the Minister give an undertaking that, as and when there are significant improvements in dealing with complaints by the chain of command, the size and scope of the ombudsman’s team will be reviewed? Otherwise, and given those improvements, there will surely be a temptation to avoid idle hands and deploy the efforts of the 20-plus in systemic work which might, on balance, prove to be inimical to and derogatory of the standing and desired primacy of the chain of command. I look to the Minister for that assurance.
Al-Sweady Inquiry Report
Lord Thomas of Gresford Excerpts(11 years, 7 months ago)
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Lord Astor of Hever
My Lords, we, too, welcome the report and the spirit of the recommendations. It is a full account of what happened and we are most grateful to the chairman for his careful analysis of the evidence. I agree with the noble Lord that our Armed Forces are the best in the world. They were in great danger and we owe them only a debt of gratitude. A couple of months ago, I was honoured to meet many of the soldiers who served on TELIC 4 at their service in Southwark Cathedral commemorating the 10th anniversary of TELIC 4. It was a very difficult tour and the post-operation report by the 1st Battalion The Princess of Wales’s Royal Regiment reported more than 850 contacts, 250 rocket or mortar attacks and close to 40 casualties during the period April to June 2004.
This report will come as some form of relief to the soldiers involved in this deadly insurgent ambush. The report identifies that they acted with exemplary courage, resolution and professionalism. The noble Lord said—and we agree entirely with him—that we must be accountable to UK and international law, and we must be open and frank when high standards are not met. While the vast majority of the accusations against the military were entirely without merit and the Army’s use of force was appropriate, there were some instances of ill treatment. We are satisfied that those incidents would not occur today thanks to changes made since 2004, including, as the noble Lord said, as a result of the Baha Mousa inquiry.
The noble Lord asked me about the recommendations. We accept the intent of all the recommendations but want time to study them fully and to consider their practicalities. In particular, we need to ensure that they will not prevent the Armed Forces carrying out vital tasks. We will announce the results to Parliament as quickly as possible.
Of course the Army and its soldiers must be held to account when they fail to uphold our high standards. I entirely agree with the noble Lord on that. However, this case raises—the noble Lord alluded to this—serious questions about how far the tentacles of litigation of this kind should extend into the battlefield, where our people are forced into making split-second decisions under the most intense and deadly pressures.
I wish to make one point on the recommendations. There was criticism of the storing of documents. We have implemented a better system for collecting, repatriating and archiving information created during military operations, and there has been no occurrence of failures since then.
The noble Lord asked whether we have improved detention. All this happened 10 years ago. The procedures have changed and lessons have been learnt in the decade since the early stages of the Iraq campaign. Our detention practices have now been brought fully into line with UK and international law. The Army Inspector, who is independent of the chain of command, confirmed in two inspections in 2010 and 2012 that these changes have taken effect.
The noble Lord asked about the service men and women who were involved and who might still be serving. I understand that one is still serving and the others have all left. No disciplinary action has been taken against any of the soldiers whose treatment of the detainees the report finds amounted to ill treatment, nor is it clear that disciplinary action could be taken now against any soldier still serving since the report accepts that they acted in accordance with their training.
Lord Thomas of Gresford
From these Benches I declare our complete support for the conclusions and recommendations of Sir Thayne Forbes and congratulate him on the thoroughness with which that report has been prepared. I also declare a personal interest as chair of the Association of Military Court Advocates, having appeared in the paratroopers case in 2005 and the Baha Mousa case in a defence role on both occasions.
I am taken back by the report on the paratroopers case, in which a witness was brought to this country by the prosecution: a lady who alleged that the paratroopers had ripped open the front of her dress and exposed her. She took the Koran at the court martial and then said to the court, “I have now sworn on the Koran and I cannot tell a lie. The allegations I made are completely false”. Back in 2005 the strength of these allegations was very much in question. Mr Shiner was represented either by himself or by a member of his firm throughout the Baha Mousa court martial, since which time an industry has grown up of collecting allegations which have been put forward in the words described by the Minister and which have proved to be completely false and had to be withdrawn. The noble Lord told us that an investigation is taking place into the conduct of that firm; therefore I suppose that I cannot say much about it. Perhaps I may just express the traditional position of the legal profession that ambulance chasing, as it used to be called in another context, was always unprofessional. Advertising used to be unprofessional. But this conduct of going round collecting allegations against British troops must surely enjoy the condemnation of everybody in this House.
Armed Forces (Service Complaints and Financial Assistance) Bill [HL]
Lord Thomas of Gresford Excerpts(12 years ago)
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“( ) If the person referred to in subsections (1) and (2) is deceased, the complaint may be made or maintained by his or her next of kin, or personal representative.”
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 Thomas of Gresford
Before the Minister concludes his remarks, let us assume that a complaint has been made and the defence counsel has appointed a panel to consider it. Is he saying that although the complainant has died, if it is a matter that can be resolved then the panel will continue, as opposed to it being remitted after his death to the defence counsel to deal with it as a matter of discretion?
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 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.
Lord Thomas of Gresford
My Lords, I do not propose to seek the opinion of the House on this but I would welcome further discussion to clarify what I think is not clear at the moment. It seems that if a person dies having made a complaint, it is just a matter for the defence counsel. I do not doubt their good will, their desire to appease the family and so on, but with a formal complaints system it should be more than that: the family should have a right to have the matter properly determined. I am still very uneasy about what has been said. When it comes to the death arising out of the matter of complaint, one thinks of the Ellement case where the complaint was of bullying but the death was caused by suicide. What is the situation there? Is it to be said that an inquiry is going to be set up in such circumstances, or what? I am still uneasy about this and I hope to have further discussions with the Minister but, for the moment, I beg leave to withdraw the amendment.
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.
Lord Palmer of Childs Hill
My Lords, I draw attention to a couple of words in Amendment 5— “compelling circumstances”. I did not invent those words; they came from the Canadian legislation on this subject. I have always been a great believer that you should not reinvent the wheel when another Administration, and a member of the Commonwealth, have in their ombudsman regulations the provision for the ombudsman to carry out an investigation “in compelling circumstances”—so it is not just as a normal, run-of-the-mill decision. I hope that the Minister at some stage, even at Third Reading, can somehow give the ombudsman that additional power if the compelling circumstances should arise.
Armed Forces (Service Complaints and Financial Assistance) Bill [HL]
Lord Thomas of Gresford Excerpts(12 years, 1 month ago)
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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.
Lord Astor of Hever
My Lords, both the amendments in this group deal with an issue that was raised at Second Reading by a number of noble Lords, including the noble Lord, Lord Rosser, and the noble Baroness, Lady Dean. That issue is whether the family of a deceased person should be able to bring a complaint on their behalf or to continue a complaint where it was made before the person died. It is clear that there is support across the House for allowing complaints to be made or continued in such circumstances.
The first amendment in this group would allow the family of a person who has died during the course of their service to make a complaint if they think that the deceased person suffered some wrong in relation to their service. The second amendment, in the names of my noble friends, covers slightly different ground in that it also deals with the situation where a complaint has been made and the complainant then dies. In such cases, it proposes that the next of kin or personal representative can continue the complaint.
The Bill provides for a complaints process that enables serving or former members of the Regular or Reserve Armed Forces to complain about any matter that has arisen as part of their service. That right is subject to certain conditions, such as bringing the complaint within a given period. Certain matters are excluded from the complaints process because there are other, more appropriate, avenues available to deal with the issue raised—for example, a service complaint cannot be made about a matter that can be the subject of an appeal under the Courts-Martial (Appeals) Act or is a decision of the Security Vetting Appeals Panel. The service complaints process allows military personnel to raise matters that relate directly to them and where they will have a clear understanding of what they would wish to see happen to redress the wrong that they believe they have experienced.
As I mentioned at Second Reading, complaints can be brought on a wide range of issues. The type and number of complaints varies from year to year and between the single services, with the majority tending to be about the broad range of terms of conditions issues. Bullying and harassment complaints accounted for 10% of all complaints in 2013 for the Royal Navy, and 43% for the Army. As might be expected, complaints that have the potential to have an adverse effect on career prospects and on pay tend to be the greatest in number. In 2013, such complaints accounted for 89% of all Navy complaints, 50% in the Army and 54% in the Royal Air Force.
For the complaints system to be fair, it has 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. For example, a complaint about whether someone was entitled to a particular allowance may include allegations that someone sought to falsify facts so that their eligibility was in doubt or that someone deliberately misled them about their eligibility. A complaint about harassment might hinge on the intentions behind comments made or on the actions of either the complainant or the person who is alleged to have harassed them. There may be issues of what was considered acceptable behaviour by both parties. There may be witnesses to the alleged behaviour who need to be involved. For any process to be fair, and for there to be confidence in it, all the parties involved must be able to put forward their own version of events and be able to challenge the version presented by others. That is the natural basis of justice. It is particularly important where reputations or future careers may be affected.
In dealing with any complaint, it is important not to lose sight of the implications for the individuals involved. We must not allow a rigid and inflexible process to override the rights of those involved. Any system must be sensitive and adaptable. A person does not make a complaint lightly. Raising a complaint means that something is causing the individual great concern, whether it is their annual appraisal and its implications for their pay and career, the condition of their property, or bullying and harassment. Complaints may also raise issues with wider implications for the services. Tackling complaints quickly and sensitively therefore has benefits regardless of the nature of the complaint. This need for sensitivity, however, is crucial where a person has died, whether or not his or her death has any connection to an existing or potential complaint.
It may also be helpful to give an example of how a service has responded when an issue has arisen in the course of other proceedings, and the potential complainant is deceased. The noble Lord, Lord Rosser, mentioned the tragic case of Corporal Anne-Marie Ellement. Her family, with the support of Liberty, secured a new inquest into her death earlier this year. The coroner presiding over the inquest concluded that Corporal Ellement had been the subject of workplace bullying. The Army had already decided before the inquest that consideration needed to be given to any action it might take, depending on the coroner’s findings. To that end, the Army was able to act quickly to put in place an internal investigation after the judgment was known. That investigation is looking at what happened in this case and whether any action should or can be taken against individuals. The investigation is made difficult by the fact that the person against whom these dreadful acts were perpetrated is sadly no longer able to give her own account of events, while those against whom any allegations have since been levelled cannot challenge fully the record of those events. It is, however, a strong reflection of the seriousness with which the Army takes its responsibilities in situations of this kind that, in this particular instance, it recognised the need to act early, and that it is doing so now.
It may be helpful if I give an example of a case in which the complainant died before their complaint had concluded. Noble Lords will understand that, in doing so, I must be very careful not to identify inadvertently the individual who was involved, so I will not give any specific details. Such situations are mercifully very rare, but when they arise we must respond sensitively and in the interests of justice for all parties.
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.
“( ) The belief of the officer to whom a service complaint is made that the complaint is not well founded does not render the complaint inadmissible.”
Lord Thomas of Gresford
My Lords, this amendment was drafted before I had the chance of seeing the draft regulations. It was, in any event, a statement of the bleeding obvious, as one might say, that the officer to whom the complaint was made could not make up his own mind as to whether it was factually correct, well founded or anything of that sort. I would have hoped for a favourable response from the Minister in any event. However, I now see that the draft regulations flesh out the grounds given in proposed new Section 340B(5)(c). Why that is done in regulations and not in the Bill I do not know but those three grounds are well confined and I am quite satisfied that the fear that I had was ill founded. Nevertheless, I beg to move.
Lord Tunnicliffe (Lab)
My Lords, for the avoidance of doubt, we degrouped Amendment 20 and will move it in its place.
Lord Astor of Hever
My Lords, Amendment 7 would make it clear that a service complaint could not be rendered inadmissible by the officer receiving it simply because he believed it was without merit. It may be helpful if I explain the role of the specified officer on receipt of a service complaint. His or her role will be to decide whether the complaint is admissible in accordance with new Section 340B. The officer will not consider the merits of the complaint at all at this stage. That is not possible under the Bill as the appointment of a person or panel of persons to decide whether the complaint is well founded can take place only after the admissibility decision under new Section 340C. The officer’s function at the admissibility stage is to see whether, first, the complaint is about a matter excluded from the service complaints system in regulations made by the Secretary of State, secondly, whether the complaint is out of time and, thirdly, whether the complaint is inadmissible on other grounds specified by the Defence Council in regulations.
Noble Lords will have seen the initial draft regulations prepared by the department which cover, among other things, the other grounds of inadmissibility. It is proposed that those grounds are that the complainant does not allege any wrong, or that the complaint is a repeat of one already brought by the complainant and being considered in the service complaints process, or one that has already been determined.
The Delegated Powers and Regulatory Reform Committee helpfully reported on the Bill in advance of Committee, for which we are grateful. It drew attention to the powers conferred by new Section 340B(5)(c) on the Defence Council to specify additional grounds of inadmissibility and concluded that those powers were too widely drawn. My department responded to the committee, explaining what these regulations are intended to cover and made reference to the initial draft regulations that are now available to Members of the House.
Now that noble Lords have seen what is intended here, I hope that some of their concerns about the scope of this provision will have been allayed. There is no intention to use this power to rule out broad categories of complaint. That would run counter to the clear policy behind the Bill to consider all wrongs in relation to a person’s service, subject to very limited exceptions. In any event, I have asked officials to explore whether anything further might be done in relation to the scope of this power. That will be done before Report stage.
The role of the receiving officer at the admissibility stage is quite limited and is strictly focused on the matters set out in the Bill, as will be amplified in the regulations in due course. There is no power for a complaint to be declared inadmissible on its merits at this stage. If a receiving officer declared a complaint inadmissible on merit grounds, the complainant would be able to apply for a review of that decision by the ombudsman. In the circumstances, we would expect the ombudsman to overturn the inadmissibility decision and the complaint would proceed. The ombudsman’s decision on any such review will be binding on both the parties. That is provided for in Regulation 7 of the initial draft service complaints regulations. In the circumstances, I must resist Amendment 7 and ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
My Lords, I am most grateful to the Minister for his clear exposition and statement that this subsection will not be used to extend the grounds of inadmissibility. No officer who receives a service complaint should be under any misapprehension that he is entitled to decide the merits himself before putting it to the panel or Defence Council, who are the proper people for deciding whether it is well founded. I am quite sure that, with that clear statement of policy, there will be no problem. I beg leave to withdraw the amendment.
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 Palmer of Childs Hill
My Lords, perhaps I may add just a few words to those of the noble Lord and my noble friend. I spoke about this at Second Reading and gave examples of the Canadian authorities. The words “compelling circumstances” were taken exactly from what the Canadians do—to give the ombudsman the power so that he or she can, in compelling circumstances, do what my noble friend Lord Thomas has described. I hope that the Government will consider examples from overseas which we can incorporate into our legislation.
Lord Thomas of Gresford
I am grateful to the Minister for his reply on Amendment 10. I understand him to be saying that it would be possible for the recommendations on an individual case to include a wider overview of the problems that the ombudsman saw. For example, suppose that in a particular unit there were some five or six individual complaints about an initiation ceremony that went far too far. Presumably, according to what the Minister has said—I am sure that he will correct me if I am wrong—the recommendations from the ombudsman in each individual case could get stronger and stronger that these matters must stop and must be investigated and dealt with properly. I hope that I have understood the Minister correctly. If I have, then I shall not be moving my amendment.
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 Thomas of Gresford
As someone else who is not in the Armed Forces, I point out that there is no point in giving to the Service Complaints Ombudsman the powers set out in new Section 340J of requiring a person to provide documents and other information unless there is some sanction. All that new Section 340K does is to put into the Bill the normal sanction that arises in these cases. I draw to the attention of those who have tabled the amendment that the measure does not refer to service personnel but to “a person”. That person could be a civil servant in the Ministry of Defence or a person who has nothing to do with the Armed Forces at all but just happens to have witnessed a particular event, and whose information as a civilian witness would be very helpful to the ombudsman in determining precisely what has gone on. If you are going to give the ombudsman the powers to call for papers and witnesses, as one rightly should, there has to be a sanction attached.
Earl Attlee (Con)
My Lords, I remind the Committee of my interest as I am still a serving TA officer, albeit not very active these days. This is the only area of concern that I have with the Bill and I urge my noble friend the Minister to pay very careful attention to it.
I certainly do not regard this as a probing amendment. I do not understand why the ombudsman would not be able to ask the Secretary of State to get on to the chain of command to get the documents, or whatever information is required, released. The Service Complaints Commissioner made it quite clear to us in a recent meeting, for which we were grateful, that she was perfectly happy as regards her access to Ministers. As the noble and gallant Lord said, Ministers can direct the chain of command to release the information. However, a problem could arise with these arrangements if compliance with the ombudsman’s request interfered with current operations to some extent, especially if staff effort had to be diverted from current operations to meet the ombudsman’s request. I hope that my noble friend can meet the concerns of noble and gallant Lords in this regard. I agree with the argument made by my noble friend Lord Deben. It is fine to make legislation consistent provided that no adverse implications can arise from that. I believe that could be the case if this provision is included in the Bill.
“( ) The recommendations of the Ombudsman may include a recommendation for the payment of compensation to the complainant or, in the event of his or her death, to family or personal representative.”
Lord Thomas of Gresford
I think that I am pushing at an open door here, because in his response on Second Reading the Minister said that the recommendations of the ombudsman may very well include the payment of compensation. I could not resist having a confirmation of that position in Committee, because I think that compensation, where appropriate, is a very reasonable remedy for complaints that may be advanced by a complainant. I beg to move.
Lord Astor of Hever
My Lords, this amendment would add to new Section 340L a specific reference setting out that the ombudsman could recommend the payment of compensation if, having investigated a matter raised by a complainant, it were to find that there was maladministration in the way that the complaint was dealt with by the chain of command that has, or may have, led to injustice that should be rectified.
The Bill provides that the ombudsman may make any recommendations that it considers appropriate. The ombudsman has wide discretion in all aspects of the new powers that are provided for it in the Bill. This discretion is an important element in assuring Armed Forces personnel that the ombudsman is independent, without which they will see no benefit in approaching it and no value in its investigations. The reforms that the Bill provides for in the complaints process itself are aimed at making it possible to reach a final decision on a complaint more quickly while still being within a system that is fair in the widest sense. Together, the creation of a strengthened oversight role in the form of the ombudsman and the shortened process are designed to increase the confidence of service personnel in the chain of command and in the process. If they lack that confidence, complaints will not be raised and matters of concern cannot be addressed, which can ultimately have a detrimental effect on unit cohesion and effectiveness.
The draft regulations, which were circulated to noble Lords, would to a limited extent apply procedures to the way in which the ombudsman would deal with applications made to it by complainants, how it would conduct its investigations if it accepted applications, and how it should respond when producing reports on those investigations. It is right that the Bill provides a framework for how the ombudsman will exercise its functions, and that the regulations provide some further detail to the options that should then be available to it. However, it does not follow that there should be a specific reference to a particular form that a recommendation may take, either in the Bill or in the regulations.
In that respect, it must be remembered that a serving or former member of the Armed Forces can make a service complaint about a very wide range of matters. They may also make an application to the ombudsman about any number of possible variations of a complaint of maladministration—a term that itself is deliberately not defined, in common with all other ombudsman legislation. Maladministration covers traditional grounds of judicial review, such as procedural impropriety and irrationality, but also wider concepts such as excessive delay, failure to give adequate advice, or rudeness.
While the complainant will be asked to set out what form they think the maladministration has taken in their case, it will be open to the ombudsman, having gone on to investigate the case, to find that another form of maladministration has in fact occurred. From a more practical point of view, it is therefore not possible to provide in the Bill for every permutation of likely recommendation that the ombudsman might make. That is why the provision in the Bill leaves it open to the ombudsman to make such recommendations as it considers appropriate, and it is why this amendment is resisted.
Any recommendation should, however, be reasonable and proportionate based on what the ombudsman has found and the degree of injustice that has or may have been suffered. If the ombudsman therefore considers that compensation of a certain value is appropriate, the Bill also provides that the ombudsman gives reasons for the findings in its report and for the recommendation made.
The amendment also refers to the ombudsman’s ability to recommend the payment of compensation to family or a personal representative in the event that the complainant dies before the complaint has been concluded. All recommendations made by the ombudsman are to be considered by the Defence Council, which must decide how to respond. The Bill provides that a recommendation can be rejected, in which event reasons must be given in writing to the ombudsman and to the complainant. Alternatively, the Defence Council must write to them both setting out the action, if any, that it has taken in response to the ombudsman’s findings and to any recommendations that the ombudsman has made. It is open to the Defence Council to decide that a complaint should be reconsidered to whatever extent it considers appropriate, based on those findings and recommendations. A payment of compensation may be the outcome of any of these courses of action and, where that is appropriate, any payment will be made to the complainant’s estate if the complainant has died.
If in taking forward any action in response to the ombudsman’s recommendations it is necessary to have the personal testimony of the now deceased complainant, the chain of command will need to consider carefully what, if any, further action can reasonably be pursued. That will be particularly important if the complainant’s personal testimony is key to the matter proceeding fairly.
There is a need to preserve the independence of the ombudsman, to give our personnel confidence in the ombudsman’s office, and to give the ombudsman the flexibility that it needs to be able to make recommendations that address the varied nature of complaints that can be brought his way. In the light of that, I ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
I am most grateful to the Minister for his very full explanation and for his confirmation that recommendations can involve the payment of compensation to the estate in appropriate circumstances if the complainant has died. In the light of that, I have pleasure in seeking to withdraw the amendment.
“( ) accept the findings of the Service Complaints Ombudsman,”
Lord Thomas of Gresford
Amendments 14, 15 and 16 are concerned with the action following receipt of a report by the Defence Council. At Second Reading, I was very concerned to draw a distinction between the findings of the ombudsman and the ombudsman’s recommendations.
New Section 340M(1) deals with the way in which the Defence Council must consider a report and give its response. If it decides to reject a recommendation, it must give reasons in writing for that rejection. What it does not state is that the Defence Council cannot second-guess the findings of fact on the merits of the ombudsman. The purpose of my amendments is to obtain from the Minister an assurance that the Defence Council cannot interfere with the findings of the Service Complaints Ombudsman, although of course it may consider the recommendations. It has full discretion as to what to do, having regard to the finances involved and the justice of the case.
New Section 340M(1)(c) simply says,
“where the Council decide to reject a recommendation, notify the Ombudsman and the complainant, giving reasons in writing for the rejection”.
My view, which I urge on the Minister, is that it should be quite explicit that the Defence Council can modify instead of reject the recommendations. It can decide to accept the recommendations in part, and simply reject a part with which it disagrees. All that can be dealt with by an assurance from the Minister from the Dispatch Box that that is the intention of the legislation. I beg to move.
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.
Lord Thomas of Gresford
My Lords, again I am very grateful to the Minister for making clear that which I believe to be the case, and I am happy to withdraw my amendment and not to move the other two.
Armed Forces
Lord Thomas of Gresford Excerpts(12 years, 1 month ago)
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Lord Thomas of Gresford (LD)
My Lords, I hope that your Lordships will forgive me if I do not follow on the issue of cuts and resources. I do not feel that I am qualified to add anything on this to those who have already spoken.
As chairman of the Association of Military Court Advocates, I want to refer to the implications of the withdrawal of British forces to the UK, which will happen perhaps by the end of this decade. At that point we will not have forces serving abroad, at least for any length of time. The rationale of courts martial is that they bring a British standard of justice to our serving servicemen, wherever they happen to be serving in the world, and do not open them to trial and punishment in some foreign jurisdiction. If all the forces come back to this country for any length of time, the question will be raised of whether courts martial are acceptable for dealing with civil offences under what is currently Section 42 of the Armed Forces Act 2006. Will there be room for a parallel system of justice?
In historic times, courts martial were regarded as administering rather rough and ready justice, both in their findings and in their punishments. I am rather proud that it was a Liberal Member of Parliament from my part of the world, East Denbighshire, under Mr Gladstone, who abolished flogging in the Army in about 1860. Reference has been made to the First World War, in which more than 3,000 men were sentenced to death at courts martial for a variety of offences. I am pleased to say that most of them had their sentences commuted, but around 350 were executed before the drawn-up ranks of their fellow soldiers and by a firing squad composed of the condemned’s troop. It is now accepted that most of the men at the time were suffering from some stress disorder or mental problems as a result of the terrible strains that they were put under; indeed, they have been posthumously pardoned.
Things have moved on, though: following the decision of the European Court of Human Rights in Findlay some years ago, many reforms were introduced that have markedly changed the system for the better and have introduced much more confidence in the quality of justice that is administered in these courts. Certain weaknesses remain, however, and it is to those matters that I draw your Lordships’ attention. The first is the simple majority verdict. In a court martial composed of a judge advocate and a panel of officers and warrant officers, the decision as to guilt or innocence can be taken by a simple majority, so that if in the less important court martial three sit, it is two to one; if five sit, it is three to two; if seven sit, as very exceptionally happens—for example, in the Baha Mousa case—a verdict of four to three would be enough. That is very different from the majority verdicts in the civil courts of this country.
The matter gives rise to concern, to such a degree that the Judge Advocate-General, Judge Blackett, posed questions to the Court Martial Appeal Court a few years back in the case of Twaite. It involved an officer who had been convicted of fraud—–he was claiming a housing allowance to which he was not entitled—and there were certain matters that caused disquiet to the judge advocate presiding, so the matter was brought to the Court Martial Appeal Court. The issue raised was that of majority verdicts: why should dealing with a case of fraud be different in a court martial?
The Court of Appeal, presided over by the noble and learned Lord, Lord Judge, said that it was a matter for Parliament, and that if Parliament had chosen to have majority verdicts—a simple majority—that was it. That was the answer given by the Judicial Committee of this House in a case in which I appeared called Martin, where a 17 year-old boy was convicted of murder in a court martial in Germany. There were no service matters involved but he was the son of a serving soldier. He was remanded in custody awaiting trial in Colchester—not in the quarters to which the noble Lord, Lord Lyell, was referring—and returned to Germany to stand trial by court martial at 17 years of age, where he was convicted by a panel of officers. That was upheld with disquiet by the Judicial Committee of this House on the grounds that Parliament had so decreed. The matter went to the European Court, which held that the decision was undermined and should not stand—at least, it recommended that the principles were wrongly applied in that case.
It is said about simple majority verdicts that of course that is what happens in magistrates’ courts, which deal with cases by a simple majority. However, magistrates are not officers; they are chosen to reflect the whole of the community that they come from. They are trained, and are constantly engaged with a chairman of great experience. If in magistrates’ courts decisions of fact and sentencing are arrived at by a simple majority, that is very different from the case of a court martial where, no matter how hard they try, the officers concerned are lay people with no training or experience and are commanded to turn up for the court martial and to sit on the panel—no doubt many times wishing that they were somewhere else—where they can decide guilt or innocence in a case of murder, rape, fraud or serious theft by a simple majority. A matter for the Government to consider is whether this is fair and just and, in particular, whether, if all the British forces are brought back to this country, the system can remain.
The second weakness I identify is sentencing. These days, sentencing is a very technical matter. A judge who sentences has to remind himself of all sorts of criteria that have to be applied in a particular case. He receives directions, he receives very considerable training from the Judicial Studies Board, he does it every day and he has the benefit of the experience of others to turn to for advice in a particular case—that is what the Old Bailey lunches are all about. That is very different from a court martial where the panel of officers—lay people—determines sentence. The judge advocate can sit in on the panel but does not have a vote. Officers decide what the appropriate punishment should be. That is fair enough in disciplinary matters. No doubt there should be an input in disciplinary matters, but when you are dealing, for example, with the minimum sentence that a person sentenced to life for murder should serve, it is a very different matter.
That brings me to the third weakness I see at the moment, which is the sub judice rule. The judge advocate cannot deal with contempt of court. There is a feeling in the media, and more widely in the public, the press and among politicians, that you can say what you like about a court martial while it is still going. For example, in January 2005, when the Breadbasket case was being heard in Osnabruck, the Prime Minister, Mr Blair, described photographic evidence that had been released while the trial was going on as shocking and appalling and he informed the other place that the court martial would prove that,
“we do not tolerate that … activity”.—[Official Report, Commons, 19/1/2005; col. 805.]
That caused the trial judge, Judge Advocate Michael Hunter, to advise the panel to ignore completely what the Prime Minister had said the day before in relation to a pending case. General Sir Michael Jackson, who was shown the same photographs, said that he could not possibly comment while the trial was going on. There you have the difference between the general who appreciated and valued the court martial and the politician who saw a chance of an easy headline.
As recently as November 2013, in the trial of Marine A, which your Lordships will recall, a major general said on television that a five-year term as a minimum sentence would be much more suitable than full life imprisonment. Marine A had been found guilty but had not been sentenced, and that remark sparked off wild speculation in the press about what the minimum term should be. I recall being asked in the precincts of this building what I thought would be a suitable term. That is fair enough in private, but for public statements to be made by a major general, who was far senior to the panel who were sitting on the case, was clearly a breach of the sub judice rule which for some reason or other is not regarded as being very important.
Then there was the case of SAS Sergeant Nightingale, who pleaded guilty to possession of a weapon and was sentenced to 18 months’ imprisonment. The Defence Secretary Mr Hammond asked the Attorney-General Dominic Grieve to push for a review of that case. Dominic Grieve very properly refused. The Prime Minister was reviled by his own MPs because he was said to be refusing to back Sergeant Nightingale. The Daily Telegraph started a campaign claiming that Nightingale was a war hero and at the appeal hearing it was argued that he had pleaded guilty under pressure. This was while the process was going on. Why does the sub judice rule not apply as far as the press and politicians are concerned in court martial cases?
Those are some thoughts about the current weaknesses in the system. I strongly support the court martial system. I just want to see it improved to the point where it can stand as a parallel system of justice, even if all the forces are brought back to this country, and can hold its head up high as a jurisdiction that is worthy of the name.
Armed Forces (Service Complaints and Financial Assistance) Bill [HL]
Lord Thomas of Gresford Excerpts(12 years, 1 month ago)
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Lord Thomas of Gresford (LD)
My Lords, I declare an interest as chairman of the Association of Military Court Advocates, which had the opportunity of discussing the Bill a week ago at a seminar at the Honourable Artillery Company premises in the City.
Dr Susan Atkins was right to draw attention to the scandals involving personnel in the BBC, the NHS and the police service in her 2013 report. They do not need repeating, but the lesson to be drawn is the reputational damage to a national organisation that fails to confront the problems in its midst and fails to deal with them fairly and promptly. She might have added Parliament itself and the political parties to her list.
It is very disturbing that the commissioner could not give an assurance that the service complaints system was working efficiently, effectively or fairly. A major concern of hers was the apparent increase in bullying and harassment of personnel in the Army, and she called for a system that would make the zero-tolerance policy in the services a reality. She also pointed to delay, as the noble Lord, Lord Dannatt, did a moment ago, as the principal reason for unfairness in the system, particularly in the Army and the Royal Air Force, and said that problems remain in the monitoring, handling and recording of service complaints. Importantly, she drew attention to the way in which slow, ineffective and unfair systems can exacerbate the wrong complained about, including damage to mental health.
Sadly, these problems were only too vividly illustrated by the tragic suicide of Anne-Marie Ellement, who suffered bullying and workplace abuse. At the inquest in March this year, the coroner referred to the fact that her reports to the chain of command of being bullied were not investigated. The announcement of the creation of an ombudsman came only weeks after that verdict was delivered, but I assume that there was work in progress since in its report on the work of the Service Complaints Commissioner, published in February 2013, the House of Commons Defence Committee gave wholehearted endorsement to Dr Atkins’s call for those powers to be that of an ombudsman. She had made detailed proposals for such a role in April 2013.
I therefore give a very cautious welcome to this Bill because I am not convinced that the proposals meet the criticisms of the previous system, and I shall be anxious to explore in Committee the weaknesses which I believe it contains. I am grateful to the Minister for his meeting with Peers last week and for his assurance that a meeting will be arranged with Dr Atkins and with the Vice Chief of the Defence Staff to thrash out any difficulties.
I very much welcome the strong powers, equivalent to those of a High Court judge, which the Bill gives to the ombudsman to call for documents and witnesses. The major stumbling block to reform is always the reluctances of the services to admit any outside interference in the running of military affairs. There was resistance to the reforms proposed to the military justice system in 2006, which are now largely accepted. It is not long since we were debating the concept of “lawfare”. I understand the high importance of the integrity of the chain of command, but, as I pointed out in our meeting with the Minister, everybody is subject to the rule of law, including the services.
The Armed Forces covenant is not a legal document, but its key principles were enshrined in law in the Armed Forces Act 2011. Under the covenant, the Armed Forces have a responsibility to maintain an organisation which treats every individual fairly, with dignity and respect, in an environment which is free from bullying, harassment and discrimination. Section C15 states that individuals must,
“have means of recourse open to them, if they believe that they are not being treated in a fair and appropriate way”.
In his report into Deepcut in 2006, Mr Justice Blake made that point. He said:
“It will be difficult for the Armed Forces to satisfy the public that they have nothing to hide in the running of their discipline and complaints system if there is a perception of unwillingness to accept meaningful independent oversight, which is increasingly seen as a necessary counterweight to the powers and prerogatives of military life”.
It must be remembered that the services compete for, and are concerned to keep, skilful and intelligent recruits in a competitive market. It is essential that those who are subject to military law and discipline should have confidence that their grievances will be properly addressed in accordance with the military covenant. As the Minister pointed out a moment ago, commanding officers control the lives of those under their command in a way that does not happen in civilian life and may subject them to punishment, and even imprisonment, for service offences. Employment tribunals have been kept at bay, save in discrimination cases, but the Armed Forces are not merely an employer; they are landlord, healthcare provider, social worker and much more.
To my mind, the most significant limitation of the Bill is that it confines the role of the ombudsman to an investigation of an allegation of maladministration in connection with the handling of a service complaint. This is covered in new Section 340H. This means that the ombudsman cannot investigate the substance of the initial incident that generates the complaint or any injustice arising out of it. His role is limited to discovering whether there are any procedural defects in the way in which the complaint was handled within the chain of command.
If the procedure was correctly followed, the ombudsman has no power to put right a decision on the merits of the complaint, no matter how perverse it appears to him to be. On the other hand, if the procedure was incorrect, the remedy is merely to return the complaint for a fresh decision within the chain of command, causing further delay and frustration to the complainant. Is it not as vital to ensure that the right decision was taken on a complaint as that it was simply procedurally correct?
Ombudsmen were introduced in the 1960s to investigate only complaints of maladministration—that is their 1960s history. However, their powers have developed. As Liberty points out in its very helpful briefing on the Bill:
“The Scottish Public Service Ombudsman, the Local Government Ombudsman for England and the Prisons Ombudsman are all empowered by statute to investigate ‘service failure’ in addition to maladministration. In its 2011 report on public service ombudsmen, the Law Commission observed that it could see no reason why the Parliamentary Ombudsman … should not have its powers increased to investigate service failure too”.
I therefore echo the thoughts of my noble friend Lord Palmer of Childs Hill, who asked whether it was possible that the Bill goes further than the individual complaint. The Minister said in opening today that the ombudsman can look at complaints that have systematic implications. Can he explain what he means by that? Can the ombudsman go beyond the individual complaint?
In its 2011 report the Law Commission also drew attention to the distinction between the findings of the ombudsman on an investigation into the facts surrounding an incident, and his recommendations. Over time, the practice has developed whereby an ombudsman makes findings of fact and of the existence of maladministration that is causing injustice to individuals, and then recommends action that the public body should take to remedy the injustice. The Law Commission concluded that recommendations should be seen in a different light. They are part of the political process, since compliance with recommendations may require the reallocation of a significant amount of public funds. However, the findings of fact are properly the province of the ombudsman.
New Section 340L deals with the ombudsman’s reports. First, it requires that the report sets out his findings, and, secondly, it requires him to set out his recommendations as a separate matter. Subsection (3) provides that the recommendations may include appropriate remedies for dealing with maladministration and with any injustice which may have been sustained. Can the Minister say whether it should be made explicit that the ombudsman may recommend compensation for the victims of maladministration or injustice? Is that to be implied in the wording of the Bill, or will it be necessary to improve and strengthen the Bill by giving the ombudsman the power to recommend compensation in an appropriate case?
In new Section 340M the Bill is silent on the issue of the ombudsman’s findings. It should be made explicit that the Defence Council is bound by those findings—it cannot open up the facts again and find differently to the ombudsman who was put in charge of an investigation. As for the recommendations, it should be made clear that the Defence Council will follow the ombudsman’s recommendations unless there are cogent reasons not to do so. At the moment, the clause is drafted in such a way that the Defence Council may quite arbitrarily reject the recommendations. Can the Minister confirm that the reasons in writing that the Defence Council may give for rejecting them may be challenged by judicial review?
The noble Lord, Lord Astor, said that the majority of complaints relate to pay and conditions. That may be so, but the public interest and concern is about allegations of bullying and harassment that fall short of criminal offences. It is important that the system deals with such allegations properly and is properly resourced with men and money to make sure that the ombudsman can do his work.
Armed Forces: Legal Challenge
Lord Thomas of Gresford Excerpts(12 years, 9 months ago)
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Lord Thomas of Gresford (LD)
My Lords, I thank the noble Lord, Lord Faulks, for bringing forward this important debate. I declare an interest as the chair of the Association of Military Court Advocates.
The mood of this House in the debate on the prospect of military involvement in Syria demonstrated a response to public opinion which has become less enamoured of military campaigns. The public are hugely supportive of the lower levels of the Armed Forces but less confident of the political and senior military leadership. There remains from the historic concept of Crown immunity a statutory power under Section 2 of the Crown Proceedings (Armed Forces) Act 1987 to prevent any proceedings in tort by servicemen and their families against the Crown altogether. It has never been invoked or brought into effect, no doubt because it would be political death for any Minister or his party to deny relief to the injured and bereaved arising out of the unpopular wars of choice in Iraq and Afghanistan. That power remains, however, as a backstop if this country ever again becomes involved in a general conflict with a large number of casualties.
Since there is currently no general immunity from suit, the Ministry of Defence must deal with actions, based on Article 2 of the European Convention, or on negligence at common law, brought by relatives of those killed, by injured servicemen, and by those who have been detained by British forces.
The Ministry of Defence has fiercely resisted the application of the European Convention on Human Rights in theatres of war. From my participation in the Baha Mousa case, I recall a brave officer in the Army Legal Service being reprimanded by a top civil servant in the MoD for daring to suggest that the treatment he observed in Basra of Iraqi prisoners—being hooded, hands bound, kneeling in the dirt—could amount to inhuman and degrading treatment in breach of Article 3. He was told, dismissively, by the MoD that, if he were right that the European Convention applied in Iraq, the Government should make him Attorney-General in place of the then Attorney-General who had advised otherwise.
It was the unanimous view of the Supreme Court in the Smith case that not only captured prisoners, but service men and women who have relinquished almost total control over their lives to the state, can claim the protection of the convention, even when serving outside the United Kingdom or Europe. The debate was about the scope of Article 2— that everyone’s right to life should be protected by law. In what area is it fair, just and reasonable to extend the protection of that article to service men and women? It used to be common ground that matters of high policy and the exercise of political judgment in the use of resources were not justiciable, but nor were decisions taken by commanders in the heat of battle.
In claims based on negligence, the fallback defence of the MoD has been the ill defined concept of “combat immunity”—an exemption from tortious liability in the context of actual or imminent armed conflict. Its boundaries have not been settled, and it was held that this can only be determined on the facts as found at trial. The majority in Smith were prepared to countenance actions based on inadequacies of procurement, of training, and of material which have led to death and injury.
The purpose of the paper, The Fog of Law, published by Policy Exchange, is to criticise the very limited area of potential liability outlined by the majority in Smith. It seeks, in my view, to undermine the role of the judiciary by complaining of “judicial creep”. The authors argue that the commander in the field will be looking over his shoulder; they say that his ability to act with flexibility and determination will be threatened. I consider that to be nonsense, in the light of the views expressed across the Supreme Court in the case of Smith.
The authors of The Fog of Law reflect the views of the Ministry of Defence as demonstrated in its very interesting study entitled, Risk: The Implications of Current Attitudes to Risk for the Joint Operational Concept, published in the Guardian on 26 September 2013. That MoD paper refers to the benefits which can accrue from a “who dares wins” approach to military action, an approach which will encourage individuals to accept risk. It requires positive action by the MoD to mitigate the effect of risk aversion, to preserve the utility of the Armed Forces,
“by influencing those who might mistakenly place crippling restrictions on our actions”.
The study goes further, suggesting a series of changes in MoD thinking and practices, which include reducing the profile of the repatriation ceremonies. The Royal Borough of Wootton Bassett is clearly not its favourite town. It wishes to,
“reduce public sensitivity to the penalties inherent in military operations”.
“Penalties” is Civil Service speak for death and injury. Its future work, it states, is to collect evidence,
“to demonstrate the latitude offered by existing legal frameworks”.
Wittingly or not, the authors of The Fog of Law paper seek to provide that evidence. I consider The Fog of Law paper to be a wholly unjustified and over-the-top attack on the standards of justice which should protect those who volunteer for the armed services.
Recently, in September, before a judicially led defence department inquiry in Washington DC, I was proud to outline the leadership role the United Kingdom had taken, both in the courts and in the Armed Forces Acts passed by this Parliament, in applying the rule of law to the military sphere, not least in the revolution of its courts martial processes. A series of cases from Findlay onwards in the European Court of Human Rights led to changes that are welcomed not merely in the services but in the services judiciary. It would be sad to see the Ministry of Defence take a backward step.
It is certainly not the role of the judges to run the Army, but the decision in Smith is miles away from that. The days when our Armed Forces were effectively isolated and self-contained, standing slightly apart from public attitudes, as the MoD paper succinctly puts it, are well and truly over. In a competitive market, the services require recruits of sufficient number and quality to operate increasingly sophisticated equipment and to endure the harshest of conditions. They should have all such measures of protection against death or injury and all such guaranteed human rights as is fair, just and reasonable having regard to the inevitable risks they have volunteered to run. A democratic society demands no less.