Draft Armed Forces (Service Complaints Miscellaneous Provisions) Regulations

Lord Lancaster of Kimbolton Excerpts

Monday 14th December 2015 General Committees

[The Parliamentary Under-Secretary of State for Defence (Mark Lancaster)]

I beg to move,

That the Committee has considered the draft Armed Forces (Service Complaints Miscellaneous Provisions) Regulations 2015.

It is a pleasure to serve under your chairmanship, Mrs Moon. The draft regulations are required as part of a package of measures to implement a new service complaints process and a service complaints ombudsman for the armed forces. The new legislation is designed to provide a streamlined and more effective internal redress system for our armed forces and new, strengthened external oversight through an ombudsman. The regulations will come into force on 1 January 2016. The new system is provided for in new section 365B and part 14A of the Armed Forces Act 2006, as inserted by sections 1 to 3 of, and the schedule to, the Armed Forces (Service Complaints and Financial Assistance) Act 2015.

The instrument is intended to promote fairness in the new system by preventing conflicts of interest and ensuring that complaints are dealt with by those who have the right experience and knowledge properly to assist the complainant. The instrument also covers procedural matters that provide essential safeguards and aspects of independence for our armed forces personnel.

The regulations include four important things, which I shall deal with in turn. First, we have, as for the existing system, made rules on who cannot be appointed to deal with a service complaint—for example, someone who is implicated in the matters complained about.

The second important aspect of the regulations is that we have set out those matters that cannot be raised as a service complaint. That is not a new aspect of the complaints process; such matters are provided for in the regulations covering the current system and have been updated in this instrument to take account of the new process and of experience. For example, challenges to decisions made in the internal redress system are excluded, as under the new legislation the ombudsman will be able to review or investigate them.

Similarly, the regulations exclude complaints about decisions made by the ombudsman. The ombudsman provides external oversight of the complaints system, so it would be contradictory for the complaints system to be able to overturn decisions of the ombudsman. Challenges to the decisions of external ombudsmen are best made in the courts.

One particular matter that I want to mention is the exclusion of complaints alleging clinical negligence or personal injury against the Ministry of Defence. The redress system is not appropriate for deciding the complex, specialised medical and legal issues that can arise in clinical negligence and personal injury cases. It remains possible, however, to make a service complaint if a person believes we have not provided medical care when it was our responsibility to do so. As under the existing system, the regulations also exclude matters for which there are more appropriate alternative remedies. For example, challenges to decisions made in the court martial are best decided through the appeals system.

The third important effect of the regulations is to set out when at least one independent person must be appointed for deciding a service complaint. The main circumstance in which that will apply is where a complaint alleges bullying or similar misconduct. That is the same as under the current system and provides an extra safeguard for fairness in such sensitive cases, as well as giving a measure of external oversight as part of the internal system.

The fourth main effect of the regulations is to set out the matters that must be reported to the service complaints ombudsman when an allegation of a wrong suffered by a serviceperson has been referred by the ombudsman to the chain of command. Like the Service Complaints Commissioner for the Armed Forces now, the ombudsman will be able to receive allegations of wrongs done to service personnel. For example, a family member of a serviceperson will be able to approach the ombudsman with their concerns. The ombudsman will then be able to refer those cases to the chain of command and to track what happens. The regulations will ensure that the ombudsman is kept updated on progress and can respond to queries without comprising her investigative role.

Finally, the Joint Committee on Statutory Instruments has scrutinised the draft instrument and, in doing so, has brought to our attention three minor drafting points that we will seek to correct at the earliest available opportunity. However, we do not expect those points to affect the practical workings of the regulations. On the first point that has been raised, we accept that the definition of the expression “in writing” has been included unnecessarily in regulation 2(1).

On the second point that the Committee has brought to our attention, we will seek to provide further clarity on regulation 6(1). This regulation provides for when the period of three weeks begins from which the ombudsman is to be notified of certain events in connection with the progress of the matter that has been referred by the ombudsman as a potential service complaint. It also provides that the ombudsman is to be notified of each event that is listed in the regulation. We will seek to clarify the exact moment of the day from which the time period of three weeks applies, and that the period applies separately to each event that appears in the list.

The third of the JCSI’s points relates to a provision in the schedule to these regulations that excludes the right to make a complaint where there is a right of review for certain service police or prosecution matters. The Committee has said that the regulations refer incorrectly to those rights of review being “under” the code in which they appear, rather than being mentioned “in” that code. Again, we will look to make the correction at the earliest available opportunity. I hope that hon. Members will support these regulations today.

--- Later in debate ---

[Mark Lancaster]

I thank the hon. Lady for her support in this important matter. I appreciate that she came to the House only at the general election and so was unable to be part of our discussions on the 2015 Act earlier this year, but it was a constructive process, which I am pleased had support from across the House. She highlighted some of the history behind where we are today, and the creation of the ombudsman, whom I have met on several occasions, is a positive step. The change will streamline the process to try to ensure that it is sped up, which is vital. Equally, we are determined to advertise the process as widely as possible, because I accept that we must encourage people to feel able to make a complaint and that there should be as few barriers to that as possible.

The hon. Lady touched on the training of independent members who may be appointed. We put them through an induction programme to familiarise them with the armed forces and we also try to select individuals with considerable experience in similar areas, so I hope she will be reassured by that.

[Rachael Maskell]

Issues appertaining to bullying, harassment and discrimination are particularly sensitive, so I ask that specific training be provided to investigating officers.

[Mark Lancaster]

Okay. I hear that request. If I may, I will go away and look carefully at the current training package. I will then write to the hon. Lady outlining exactly what training is provided. If she still feels uneasy after that, we can discuss the matter further.

The hon. Lady also mentioned the case backlog, which, as I have already mentioned, is one reason why we have sought to streamline the process. I accept that some complaints have taken too long to resolve, potentially reducing confidence in the system. It must be remembered, however, that some complaints, including those that deal with improper behaviour, can be more complex and thus necessarily take longer to investigate. It is right that a reasonable amount of time is taken so that cases are handled fairly. We want to ensure that the system is fairer, more effective and more efficient than at present, while valuing quality outcomes as much as timeliness.

On the overall direction of travel, it is important to note that the regulations require the ombudsman to produce an annual report, which must be laid before Parliament. It must cover the system for dealing with complaints and the exercise by her of her functions. The same requirement has applied to the Service Complaints Commissioner. The ombudsman can include in the report any matters related to redress and her work as she decides. The Secretary of State can also ask her to address any matters. It is likely that the report, just like those of the Service Complaints Commissioner, will address trends and themes. I would expect the Government to address those trends and themes as we move forward.

The hon. Lady also spoke of how long complainants have to make a complaint. I recognise that it can take time for themes to develop and that it may take time for someone to build up the courage to make a complaint about an incident. Ultimately, however, it is worth remembering that the ombudsman’s new powers already include the ability to overturn cases that are deemed to be out of time. Equally, given that we have the annual report, if we begin to see a theme of people who are deemed out of time to make a timely complaint, I am sure that we will endeavour to address it.

I hope I have touched on all the points that the hon. Lady raised. If, when I read Hansard, I see that I have not, I will write to her.

[Rachael Maskell]

I thank the Minister for his response. I also appreciate his commitment to follow up on the issues raised. I want to return to the timeline, because it is important that communications are made to ensure that people have confidence in raising a complaint. Knowing that time limits are in place will act as a barrier to people raising complaints outside that three-month timeline. I ask that the flexibility that the ombudsman can exercise in such matters will be communicated and that that issue will be reviewed and considered closely in the reporting that the ombudsman makes.

[Mark Lancaster]

I accept that the hon. Lady is anticipating a problem. Given that we have the annual report, I will ensure that the ombudsman, Nicola Williams, sees this debate, so that she is alerted to the concern that the timeline may well become a problem. I will ask her to look specifically at that issue, so that we can address it in one of her annual reports, if need be.

Question put and agreed to.