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

Lord Astor of Hever Excerpts

Wednesday 9th July 2014 Lords Chamber

[Lord Palmer of Childs Hill (LD)]

My Lords, I understand all that the noble Lord, Lord Rosser, has said about perception, but it is the reality that concerns me. I believe that all the points that the noble Lord has made about the danger of having someone who has just left the ranks of the Armed Forces may be there, but I would like to put the other side.

If we adopt the amendment that the noble Lord has suggested, we are limiting the choice. He may be right that it would be best to have someone who had not left the Armed Forces more recently, within the previous five years, but should we, in primary legislation, reduce the options that are available? If there were someone who had left the Armed Forces, say, two years before the appointment was made and that person was the admirable person for that position, should we, by passing this amendment, cut off the possibility of choosing the right man or woman for the position?

Although I welcome the suggestion that the Minister might give us a little more information about the terms of appointment and the like, which would be most useful, if the noble Lord’s amendment were to be passed we would be limiting choice, and that would be a poor thing.

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Rosser]

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

[Lord Astor of Hever]

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

[Lord Rosser]

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

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

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

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[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.

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[Lord Astor of Hever]

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Rosser]

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

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[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.

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[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 Astor of Hever]

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

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

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

[Lord Rosser]

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

[Lord Astor of Hever]

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

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

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[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 Rosser]

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

The heading of new Section 340O is:

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

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

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

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

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[Lord Rosser]

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

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

[Lord Astor of Hever]

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

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

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

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

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

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

[Lord Rosser]

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

[Lord Astor of Hever]

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

[Lord Rosser]

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

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[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.

[Lord Astor of Hever]

My Lords, I am grateful to the noble and gallant Lords, Lord Boyce and Lord Craig, for tabling Amendment 12 as it has provided us with the opportunity to debate this very important issue, particularly as regards the chain of command.

Amendment 12 would remove new Section 340K from the Bill. New Section 340K provides that the ombudsman will have the backing of the powers of the courts if someone unlawfully obstructs him or her in carrying out an investigation or does something which would count as a contempt of court. The effect of the amendment would therefore be that the new ombudsman would have no enforcement powers to back up their general power to require the provision of documents or other information not in their possession or control. That lack of enforcement powers would apply in respect of all persons whether they are members of the Armed Forces, civil servants or, indeed, anyone else who may have relevant information in relation to an investigation.

When investigating the actions of a public authority, any independent body, whether it be an ombudsman, tribunal or court, needs to have appropriate powers to carry out its function effectively. This includes a power to get all the information it needs to investigate and scrutinise the actions of the public authority. The power needs to be backed up with enforcement provisions when co-operation is not forthcoming from the body or individuals under investigation.

The Service Complaints Ombudsman is no different in this respect. Powers of compulsion, such as those provided in new Section 340K, are a common feature of ombudsman legislation. For example, similar provisions can be found in respect of the Pensions Ombudsman in Section 150 of the Pension Schemes Act 1993 and in respect of the Ombudsman for Wales in Sections 14 and 15 of the Public Services Ombudsman (Wales) Act 2005. The reason for that is not because it is envisaged that these powers will be used regularly but because without them there is no effective way of compelling people who are required to help with the ombudsman’s investigations to do so. They may be reluctant to assist the ombudsman for a variety of reasons. The power to require the production of evidence, backed up with powers of compulsion, is therefore necessary for an ombudsman to operate effectively, and this ombudsman is no different.

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[Earl Attlee]

My Lords, I am grateful for the Minister’s response. I am sure that the Committee can understand why the chain of command might be unwilling, without compulsion, to release information. However, if Ministers directed the chain of command, including civilians, to release information, can my noble friend envisage circumstances in which the chain of command would not release the information?

[Lord Astor of Hever]

I am sorry to disappoint my noble friend, but I cannot give him an immediate answer that I would be happy with. I will come back to him.

[Lord Boyce]

I am grateful for the Minister’s response to the amendment. I will study what he has said. I am not entirely comfortable, but I take comfort from his comment that new Section 340K would be used only in exceptional circumstances for those in a military chain of command. The noble Lord, Lord Thomas, makes a perfectly fair point that people involved in the Armed Forces but outside the chain of command may be required to disclose things. I beg leave to withdraw the amendment.

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[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.

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[Lord Rosser]

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

“to take in response to the findings”,

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

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

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

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

[Lord Astor of Hever]

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

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

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

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

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

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

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

[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.

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[Lord Astor of Hever]

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

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

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

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

[Lord Rosser]

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

[Lord Astor of Hever]

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

[Lord Rosser]

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

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

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

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[Lord Rosser]

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

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

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

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

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

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

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

[Lord Astor of Hever]

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

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

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

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

[Lord Rosser]

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