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

Lord Astor of Hever Excerpts

Monday 20th October 2014 Lords Chamber

[Lord Palmer of Childs Hill (LD)]

My Lords, it is to the credit of your Lordships’ House that we have a Bill with only one amendment. It is a compliment to all sides of the House that we have managed to get a Bill that has got to this stage. I am a fairly new addition to this place but one amendment to a Bill seems a massive achievement. However, it is even greater than the noble Lord, Lord Rosser, just said. I believe that we have achieved an awful lot in the Bill and the amendment is almost clutching at straws or trying to find problems. I find that the commissioner—the ombudsman—will be able to take matters to the Defence Council and the problems described seem more in the realms of fantasy than reality.

As I see it in the Bill, in reality we have the ability to conduct investigations—I do not read it as saying that there can be no investigation of any sort. I do not think that the proposal by the noble Lords, Lord Rosser and Lord Tunnicliffe, gives the ombudsman that much more power than is there already. The ombudsman may investigate if a matter is,

“deemed to be in the public interest”.

In fact, most problems occur when particular members of the Armed Forces suffer some sort of bullying or have some complaint. That is where the complaints arise, rather than the big systemic complaints to which the noble Lord, Lord Rosser, referred. I do not see that the amendment is needed. There have been a lot of reassurances; they may not all be in the legislation but can be found in Hansard. But it has been proved that assurances given in Hansard can be taken and used in the appropriate manner.

If there is a vote, I shall certainly vote against the amendment, but I take this opportunity of asking my noble friend the Minister whether he would comment on a specific case. Perhaps he could say how, bearing in mind the comments of the noble Lord, Lord Rosser, the approach to that specific case would be helped and enhanced by the new legislation that we seek to pass. I refer to the case, reported over the last few days, of former Corporal Neathway, a paratrooper who was disabled. It took three years for his complaint to surface and for it to be seen that his commanding officers, at lower staff level and brigadier level, had not done what was necessary. What would happen under the new legislation, after the efforts of your Lordships’ House, with all the faults that the noble Lord, Lord Rosser, has sought to expose, if the case of this former corporal in a parachute regiment happened now rather than three years ago?

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

My Lords, the issues covered in this amendment have already been the subject of useful and detailed debates in Committee and on Report. I said on Report on 29 July that I would consider the issue further so that we could return to it this afternoon.

The Bill provides that the ombudsman’s primary function will be to investigate and report on allegations by complainants that there has been maladministration in handling their complaint. The reports from the ombudsman will contain binding decisions on whether there has been maladministration and whether, as a consequence, injustice has or could have been caused. The ombudsman can also make recommendations for remedial action including the reinvestigation of the complaint, suggested improvements to the way in which investigations into such allegations are carried out, or specific actions that would make the complaints system more effective. In addition to this, there is nothing to stop the ombudsman commenting on any underlying concern or pattern of behaviour that has given rise to the complaint.

As I said on Report, we envisage that, when the ombudsman considers it appropriate, he or she will publish information on any matters of general concern arising from the operation of the service complaints system, however such matters come to the ombudsman’s attention. We do not think that a statutory power needs to be provided for the ombudsman to be able to do this. We want the ombudsman to raise such issues as quickly as possible. When systemic failings are identified, it is important that they are brought to our attention so that they can be put right when possible.

My noble friend Lord Palmer of Childs Hill raised the really important issue of the Neathway case and asked how that case would be covered by the Bill. The Bill will mean that the complaints process in future is quicker; anyone who is unhappy with how their complaint has been handled will be able to approach the ombudsman—for example, if they believe that their case has taken too long to resolve. The ombudsman’s independent oversight will give the Armed Forces lessons in how to further improve the process.

A service complaint panel has reached a determination about the service complaint made by ex-Corporal Tom Neathway, the panel on behalf of the Defence Council has formally apologised to ex-Corporal Neathway and has made recommendations for the Army to consider. The Army has appointed a commanding officer unconnected with the events to consider all matters arising from the service complaint panel’s determination.

The Bill also provides that the ombudsman must produce an annual report. This will be able to look widely at the complaints system, the sort of cases it handles and what sort of failings and misconduct the system has identified. As I have said before, this is a wide and appropriate role for the ombudsman to have, using his or her knowledge and experience of the complaints system and any information that has come to light through that process, whether from the complainant, families, service welfare organisations, MPs or the services themselves. The ombudsman therefore has the ability to report on any underlying themes. The current commissioner has used her annual reports to comment on issues such as the effectiveness of the Army’s zero-tolerance policy on bullying.

The ombudsman can therefore report on a wide range of issues relating to the effectiveness, efficiency and fairness of the service complaints system, including on any systemic issues that have come to his or her attention. This can be done immediately through individual investigation reports, or by publishing information of general concern, or through the annual report.

The aim of this amendment, however, is to allow the ombudsman to carry out investigations into wider issues, such as a culture of bullying at a particular location, and to produce reports on those issues. Consequently, its purpose is to introduce a new role for the ombudsman that goes beyond that set out in the Bill.

There are three important reasons why we do not want the ombudsman to have such a power. First, carrying out such investigations would divert the ombudsman from their primary role of making the complaints system work better and, in particular, hold the chain of command to account in its handling of service complaints. Secondly, the ombudsman might not be the best person to carry out such an investigation. Such investigations might require the full-time dedication of a number of people with specific skills and expertise, such as investigators and lawyers. Finally, it is the chain of command that is responsible for the welfare of its people and for the environment in which they work. We would expect the ombudsman to bring any systemic failings to the attention of the individual service concerned, and to the Ministry of Defence, so that they can put things right. However, it is not for the ombudsman, in the manner of an inspectorate, then to go on to examine these issues.

I hope that I have made the Government’s position clear. We do not want the ombudsman to highlight any thematic issues they come across and to make these concerns quickly and publicly available. However, we do not want the ombudsman and supporting staff then to go off and investigate these matters. Giving him or her the power to do so would significantly change their role and distract them from the main task of making the service complaints system better.

As we have now reached the final stage of our consideration of this Bill, I thank all noble Lords for their work on it. I agree with my noble friend Lord Palmer and I also thank him for his support on this amendment. We have had some excellent debates on a number of issues, some of which we have looked at in considerable depth. I hope that all noble Lords feel that there has been adequate time for scrutiny. I am particularly grateful to the noble Lord, Lord Rosser, for the constructive way that he has put the Opposition’s case, and to my noble friends Lord Thomas and Lord Palmer and others for their expert contributions. I also thank my noble friend Lady Jolly for her assistance, and officials both in this House and in the Ministry of Defence for ensuring the smooth running of the Bill.

With that, I ask noble Lords to reject this amendment.

[Lord Rosser]

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

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

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

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

[Lord Astor of Hever]

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

[Lord Rosser]

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

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

--- Later in debate ---

Moved by

[Lord Astor of Hever]

That the Bill do now pass.

[Lord Astor of Hever]

My Lords, I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, on Report, I moved an amendment about having a credit union for the Armed Forces. The noble Baroness, Lady Jolly, responding for the Government, was unable to accept my amendment but agreed that I could meet with the Minister responsible, Anna Soubry. That meeting took place at the MoD last week, and was very positive. Following the debate in the Chamber, a meeting also took place with forces charities which are supportive of a credit union for the Armed Forces. I understand that a discussion has taken place with the company which provides the payroll service for the MoD and it is hoped that either the costs will be considerably reduced or there will be no cost at all to the MoD.

What I understand to be happening next is that the MoD will identify a number of credit unions that are the right size to be able to deliver financial services to the Armed Forces community. We should be in a situation by the end of this year or early next year to offer the Armed Forces community credit union facilities that will provide loans, savings and other financial products that will be available through payroll deduction.

I thank the noble Baroness, Lady Jolly, for her kind assistance, Anna Soubry for working very hard on this, and the noble Lord, Lord Astor. I have been a supporter of the credit union movement my whole adult life and, as a Labour Co-op Member of your Lordships’ House, I am delighted that the campaign has proved successful and that members of the Armed Forces community will soon be able to benefit from this development, as will the Armed Forces charitable services. Could the Minister maybe say a few words to the House? I thank him very much for that.