Service Police (Complaints etc.) Regulations 2023

Baroness Smith of Newnham Excerpts

Wednesday 19th April 2023 Grand Committee

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, this statutory instrument contains the regulations required to establish the service police complaints system, which will be overseen by the newly appointed Service Police Complaints Commissioner. It also contains the regulations required to establish the super-complaints regime for the service police. These regulations, along with the establishment of the independent commissioner, will implement in full recommendation 44 of the service justice system review, carried out by His Honour Judge Shaun Lyons and supported by the former chief constable, Sir Jon Murphy.

The regulations are quite technical, complex and surprisingly bulky; they run to some 80-plus pages. As they largely mirror the legislation already in place for the Independent Office for Police Conduct—the IOPC—and the civilian police, I do not intend to go through each of the regulations in turn, which I am sure is a matter of huge relief to your Lordships. Instead, I will briefly set out what His Honour Judge Lyons said in relation to establishing independent oversight and how this helped to inform the approach taken by the MoD.

The Lyons review found that in the service police a degree of independent oversight was missing in comparison with civilian police forces, which have statutory complaints systems. His Honour Judge Lyons recommended that a new niche defence body be created to deliver this. The review suggested a small niche unit led by an appointed individual, possibly from a judicial background, operating to the same remit as the IOPC and its director-general.

Section 365BA of the Armed Forces Act 2006, as amended by the 2021 Act, established a new officeholder, the Service Police Complaints Commissioner. Last year, the MoD ran a recruitment campaign, in accordance with the 2016 public appointments governance code, for the post of commissioner. Ms Margaret Obi, a deputy High Court judge assigned to the King’s Bench Division, was appointed as the new commissioner by His Majesty the King on the recommendation of the Secretary of State. This was announced on 20 February 2023, and she began her work in February.

In line with Recommendation 44, the commissioner will have functions similar to those conferred on the director-general of the IOPC. The five main responsibilities of the commissioner will be: to secure the confidence of persons subject to service law and service discipline, as well as the wider public, in the service police complaints system; to secure, maintain and review arrangements in respect of the procedures that deal with complaints, conduct matters and death and serious injury matters; to make recommendations and provide advice in relation to those arrangements—for example, training or procedures —where the commissioner believes this may improve policing practice; to act as the review body for certain cases, specified in the regulations; and, finally, to report annually to Parliament via the Secretary of State for Defence on the delivery of the commissioner’s functions.

I would like to set out in a little more detail the responsibilities of the commissioner for deciding how the more serious complaints and other matters are to be investigated, if it is determined that an investigation is required. There are certain matters that must be referred to the commissioner, which are set out in the regulations. Where a referral has been made, the commissioner will first need to determine if there needs to be an investigation. If no investigation is required, the complaint can be referred back to the appropriate authority—in the majority of cases this would be an individual in the service police force—to be handled in a reasonable and proportionate way. If it is determined that an investigation is needed, the commissioner will have to decide on the type of investigation based on the seriousness of the case and what is in the public interest.

The different options for investigation are identical to the civilian system. They are: a local investigation where the service police force does the investigation itself; a directed investigation, where a member of a service police force is appointed as the investigator but the investigation is under the direction of the commissioner; and an independent investigation, where the commissioner carries out an investigation personally or can designate an investigator to carry it out.

In the case of the independent investigations—that is, investigations that are independent of the service police and the MoD—there will be a pool of experienced investigators, with appropriate skills, who can be called on as necessary, and they will have the relevant niche skills for particular cases. Investigators will be able to exercise service police powers in a similar way to investigators appointed by the director-general of the IOPC, who can also exercise police powers.

The Lyons review, interestingly, recognised that there would probably be very few independent investigations required. Our own analysis, based on service police data between 2018 and 2022, indicates that there could be an average of 62 formal complaints annually, with 18 cases meeting the mandatory criteria for referrals. However, it is important to note that not all referrals would lead to an independent investigation. By way of comparison, over 36,000 formal complaints were recorded in the year 2020-21 by civilian police forces across England and Wales.

As well as complaints, the new system will also cover conduct matters and death or serious injury matters, referred to as DSI matters. In lay man’s terms, these are cases where no complaint has been made but misconduct is suspected, or a death or serious injury has occurred after contact with the service police. Service police forces will be required to ensure that they have processes in place to identify and refer conduct matters and DSI matters without delay. Again, we expect only a small number of conduct matters to be referred to the commissioner that will require investigation, and DSI matters are even more rare. Between 2018 and 2022, there were no DSI-type matters recorded. Although we expect relatively few independent investigations, an effective independent service police complaints system is still vital. Your Lordships will appreciate that the way in which complaints, conduct matters and DSI matters are dealt with has a huge impact on confidence in the service police and in the complaints system.

Finally, I say just a few words on the super-complaints system, which has been included as part of this statutory instrument. The civilian police super-complaints system, on which the service police super-complaints system is based, was established to address concerns about whether the police complaints system was able to identify systemic failures in policing. It is important to note that super-complaints are not an alternative way to raise an individual complaint; rather, super-complaints are intended to raise issues or concerns on behalf of the public about harmful patterns or trends in policing by the service police which are, or appear to be, significantly harming the interests of the public.

Only a body designated by the Secretary of State can make a super-complaint. To do that, the organisation must become a designated body. That organisation must demonstrate that it meets all the criteria set out in regulations. For example, it must be able to demonstrate that it is competent in, and has considerable experience of, representing the interests of the public. Prior to the regulations coming into force, the MoD will run a six-week application window for organisations wishing to become designated bodies under the service police super-complaints system.

The statutory instrument before us today is a key element of the wider MoD programme of work to deliver improvements to the service justice system. An independent service police complaints system will help to secure and maintain confidence in the service police, it will help to drive up standards in policing and it will certainly help to ensure accountability at both an individual and force level. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I am grateful to the Minister for introducing the statutory instrument. As she pointed out, it is surprisingly weighty. I had expected the standard one-and-a-half page statutory instrument of the sort where we come to praise His Majesty’s Armed Forces and all nod in agreement, but then I picked up this document and thought, even more than ever, “Why is my noble friend Lord Thomas of Gresford not taking this?”, because I am used, on matters of service justice, to handing over to him, and he knows far more about the work of His Honour Judge Lyons than I do, so I will have to take on trust what the Minister said about this very much replicating what happens in police justice. However, I have a few specific questions, one of which was touched on in the Minister’s overview of super-complaints. I have a couple of points, in part to demonstrate that I have read the document—or at least as much of it as I could make sense of.

Regulation 10 concerns the issue of former members of the service police force. Do any time limits apply to cases being brought against former members of the force? The reason I ask that is because, over the years, when we have debated the overseas operations Bill or, indeed, the Northern Ireland legacy Bill, there have been questions about whether there should be time limits on cases being brought. I am also double-checking that resignation will not be a way out of getting out of any investigation.

Regulation 12 refers to “exceptional circumstances”. Is there a definition of what might constitute an exceptional circumstance?

Regulation 19 is on withdrawal of complaints. This may not apply in cases that might be brought against service police, but is there a danger of frivolous or vexatious cases being brought and the withdrawal of a complaint being potentially vexatious? If so, what might be done about that?