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

Lord Palmer of Childs Hill 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.

--- Later in debate ---

[Lord Thomas of Gresford]

I shall speak to Amendment 10, which is in my name and that of my noble friends. I follow very much the thinking of the noble Lord, Lord Rosser. I think that the first paragraph of my amendment, which states that the ombudsman,

“shall investigate any matter referred to the Ombudsman by written direction of the Defence Council”,

puts clearly the Defence Council’s power to give such a written direction. I find the power given in proposed new Section 340O(6) to be slightly confusing. It is under the heading, “Annual report on system for dealing with service complaints”, but it is not at all clear that that is a wide power for the ombudsman to investigate something beyond the preparation of a report and the points on which the ombudsman makes a report in that document.

The ombudsman should have a clear power to investigate matters referred to him. Under paragraph (b) of my amendment, I argue, as has the noble Lord, Lord Rosser, that it is in the public interest that the ombudsman should on his own motion, after advising the Defence Council,

“carry out an investigation of any allegations of systemic abuse or injustice if it appears to him to be in the public interest”.

We have qualified that by saying that there should be compelling circumstances. It is not that the ombudsman could justify investigating anything. It may very well be that, in the course of the investigation of individual complaints, it will come to the attention of the ombudsman that there is a culture of abuse or bullying in a particular area. He may well feel that he would have to investigate that on his own initiative, and not await instruction, following his annual report, from the Secretary of State.

As the noble Lord, Lord Rosser, pointed out, this has the support of the committee that has looked into it, and I hope that the Minister will be open to amending the Act—if not in the precise words that I have put forward, then certainly in the spirit of my amendment.

[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.