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

Lord Boyce Excerpts

Wednesday 9th July 2014 Lords Chamber

Moved by

[Lord Boyce]

12: Clause 2, page 8, leave out lines 5 to 24

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[Lord Boyce (CB)]

My Lords, at Second Reading the Minister gave us reassuring words about the importance he attaches to the command chain, and that was good to hear. However, I believe that new Section 340K undermines this principle and could be seen to be violating the integrity of the command chain. I have particular difficulty with the argument that this power is necessary because ombudsmen in other organisations have it. The Armed Forces are different, and the Minister does not need reminding about the emphasis given to this in the Armed Forces covenant, especially because other organisations do not have an equivalent of the Armed Forces Act and its inherent disciplinary processes.

If the ombudsman detects obstruction, the Defence Council and the command chain on his or her instruction can issue an order to any person deemed to be obstructing to comply. The failure of that person to comply would be an offence. New Section 340K may be a safety net or a last resort in case such a procedure does not deliver what the ombudsman wants. If so, it might be helpful if that were stated. I welcome the Minister’s comments on this. I beg to move.

[Lord Craig of Radley (CB)]

My Lords, I have added my name to this amendment—as the noble and gallant Lord, Lord Boyce, has explained, it is a probing amendment—because of the importance that must be vested in, and allowed to, the chain of command. I do not need to rehearse in this Committee that importance. The chain must run, and be allowed to run, seamlessly from the highest legal authority, the Defence Council, down through the ranks to the most junior serviceperson.

Since the major part of this Bill is to amend the Armed Forces Act 2006, this should ensure that service personnel involved in a complaint are to be subject to a single disciplinary statute, and are not, as in matters considered to be human rights, dealt with by separate and potentially conflicting legislation. I welcome that.

However, my concern with new Section 340K is that it allows the ombudsman to opine that a serviceperson is in contempt for some obstruction or act, to certify the obstruction or act, and to refer the person directly to a civilian court for investigation. In other words, the ombudsman is given a power of command over the individual even though he—the ombudsman—is not, as the Minister stated, within and does not form any part of the chain of command. It is argued that this contempt-dealing power is normally vested in an ombudsman, although not invariably. Be that as it may, the Armed Forces are, as the noble and gallant Lord, Lord Boyce, has said, dealt with differently in legislation. No other public servant is treated in the same statutory way as are members of the Armed Forces.

Surely a better approach, which would cover the issue of contempt and retain the position of the chain of command, would be for the ombudsman to report the individual and the perceived contempt to the Defence Council. The council would then instruct the individual to comply with the ombudsman’s requirement and, if the individual did not, it would be a blatant case of failing to obey a lawful command and could be dealt with accordingly.

Allowing the issue of contempt to be taken direct to a civilian court could lead, because of the lack of detailed knowledge of the Armed Forces by the court, to protracted, time-consuming and more expensive consideration of the issue. Surely it is important to the legislation’s aim to speed up resolution of complaints that steps are taken, where possible, to avoid delay and not slavishly to insert and rely on drawn-out procedures, as would be the case with new Section 340K. Bearing in mind the authority invested by new Section 340M in the position of the Defence Council to an ombudsman’s report about a complaint, it would seem acceptable and a more timely solution to the problem faced by an ombudsman of a potential contempt of his authority if that contempt were dealt with through the Defence Council. I urge the Minister to consider this approach and be minded to offer an alternative to the current new Section 340K on Report along the lines that I and the noble and gallant Lord, Lord Boyce, are suggesting.

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[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.

Amendment 12 withdrawn.