Armed Forces Bill

Lord Rosser Excerpts

Tuesday 6th September 2011 Grand Committee

[Lord Rosser]

My Lords, I wish to speak to Amendments 4, 5, 16, 18 and 19. Most of the comment on and interest in the Bill has centred on the Armed Forces covenant and the Secretary of State’s report. It is therefore not surprising that by far the largest single group of amendments should relate to this issue.

The Bill places a duty on the Secretary of State for Defence to produce an annual report to Parliament on the effects of membership or former membership of the Armed Forces on servicepeople. In preparing the report, the Secretary of State must have regard in particular to the unique obligations of and sacrifices made by the Armed Forces, the principle that it is desirable to remove disadvantages arising for servicepeople from membership or former membership of the Armed Forces, and the principle that special provision for servicepeople may be justified by the effects on such people of membership or former membership of the Armed Forces.

However, it would appear that these principles apply to issues within the Armed Forces covenant report, but which will include only those issues that the Secretary of State decides to include. These principles should be applicable to government policy, and my amendments include provision for the principles to apply to all public policy by stating that, in preparing policy, public bodies and Ministers must have regard to those matters to which the Secretary of State is to have regard in preparing an Armed Forces covenant report, and must also consider whether the making of special provision for servicepeople or particular descriptions of servicepeople would be justified. There should surely be an obligation on all public servants to take heed of the principles of the covenant if we are to be confident that the covenant is to be fully applied. Further, there is provision in my amendments for the Parliamentary and Local Government Ombudsmen to investigate complaints from service personnel that a public body or local authority has failed to meet the commitments outlined in the Armed Forces covenant and The Armed Forces Covenant: Today and Tomorrow.

The Bill provides for the Secretary of State’s report to cover healthcare, education and housing, but anything else is left to the Secretary of State to determine. As the Minister put it in his opening speech at Second Reading:

“Other issues will only emerge at the time, so the Bill leaves this flexible”.

The difficulty is that leaving out everything apart from healthcare, education and housing provides an opportunity for any Secretary of State to seek to sideline other important issues, perhaps because they are difficult or awkward. Indeed, the Secretary of State would appear to be reporting on what other departments or devolved Administrations are doing in respect of healthcare, education and housing, for which he is not directly responsible, but not reporting on the work of his own department for which he is directly responsible. My amendments propose a much longer list in order to overcome this potential problem and limit the extent of any Secretary of State to decide which issues are relevant to current or former servicepeople. After all, if in the opinion of a Secretary of State any of the headings listed in my amendment are not worthy of reporting on in the Armed Forces covenant report in any one year, that is all the Secretary of State need say in his report, and then see if Parliament and others are of the same opinion.

At Second Reading the Minister said that,

“the process of preparing reports will evolve over time. We are breaking new ground. We will learn from experience, listen to comments, and move forward in a positive way. I am clear that that is the right way to do it, rather than making the legislation excessively prescriptive.—[Official Report, 6/7/11; col. 272.]

I am not as convinced as the Minister that the Government intend to listen if they have already decided that a specific reference to anything more than healthcare, education and housing as set out in the Bill is being “excessively prescriptive”. Bearing in mind that we normally have an Armed Forces Bill only every five years, and that the Ministry of Defence adopts the approach of keeping proposals requiring primary legislation until the next Bill is due, we need to get the wording in this Bill right on the extent of the issues which must be addressed in a Secretary of State’s Armed Forces covenant report.

My amendments, unlike the Bill, mention specifically the external reference group. At Second Reading the Minister accepted that concerns had been raised about the independence of the annual report, concerns that will relate to any Secretary of State and any Government of whatever political colour. The Minister said that the Government have undertaken to publish alongside the annual report whatever observations the external members of the covenant reference group choose to make on it. Since the issue of the independence of the report is not directed at any one Secretary of State or any particular Government, a requirement to publish any observations from the external reference group—apparently now called the covenant reference group by the Government, and confirmed by the Government as a permanent body—should be on the face of the Bill, as should the results of any additional consultation with service charities and groups and other interested parties both inside and outside government.

At Second Reading, the Minister said:

“In preparing annual reports, the Ministry of Defence would consult widely with interested parties inside and outside Government”.—[Official Report, 6/7/11; col. 272.]

My amendments extend the list of issues to be addressed in the Secretary of State’s annual report to 10 headings, including accommodation, healthcare and education. Six of the additional headings cover,

“mental healthcare … pensions and benefits … employment and training … support for reservists and their employers … the running of the Armed Forces Compensation Scheme, and progress on Armed Forces rehabilitation schemes”.

I would hardly have thought that any of these headings made the legislation “excessively prescriptive”, since they are all issues of considerable importance to serving and former service personnel, of whom, with their families, there are around 10 million, or one in six of the population.

The last heading in my amendment is,

“such other fields as the External Reference Group may determine”,

instead of as in the Bill,

“such other fields as the Secretary of State may determine”

Since all of the rest of the report will be under the auspices of the Secretary of State, the independence of the report will be enhanced by the ability of the external reference group to determine what, if any other fields should be addressed apart from those specifically provided for in the Bill, and to make their own observations on the content—or lack of content—of the report, as the Government intend. We do not want a process that is simply Ministers reporting on what Ministers deem fit to report on. My amendment also sets out the broad composition and role of the external reference group and provides for it to be independently chaired.

On this point, it would also be helpful if the Minister could clarify what is meant by the wording in the Explanatory Notes to this Bill, in paragraph 18. One sentence says:

“If the Secretary of State considers that any of the fields of healthcare, education and housing is not relevant to a particular description of people covered in a report, the requirement to report on each of those fields is relaxed to that extent”.

Can the Minister confirm that that means the Secretary of State is the sole arbiter on whether there is a need to report on anything in the covenant report, including healthcare, education and housing? I hope that he will make a positive response to my amendments, which strengthen the covenant and accountability for its implementation across public life. I also look forward with interest to his response to the other amendments which have been so thoughtfully and powerfully moved.

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

My Lords, this first group of amendments to Clause 2 consists of some 12 items, and deals with many aspects of the Armed Forces covenant and the proposed annual report. I am very grateful for the Committee’s patience, especially as, in order to draw out some common themes, I will not keep to the strict numerical order of amendments.

Amendment 1, in the name of the noble and gallant Lords, Lord Craig and Lord Boyce, would change the position of the provision for the Armed Forces covenant report in the Armed Forces Act. At Second Reading, the noble and gallant Lord referred to an “unfortunate juxtaposition” if the new provision were inserted directly after Section 359, which deals with pardons for servicemen executed during the First World War. I am most grateful to the noble and gallant Lord for the helpful and constructive way in which he has approached this issue. In their amendment, the noble and gallant Lords propose that the new provision should be moved to follow Section 339. This would place it in Part 14, which covers topics such as enlistment and terms of service. We do not favour that, because we see the annual report and the Armed Forces covenant itself going far beyond enlistment and terms of service.

I had hoped that we could arrange a printing change, such that the new provision was inserted into the 2006 Act at new Section 353A, under its own italic “Armed forces covenant report” cross-heading. As the noble and gallant Lord said, I wrote to the noble and gallant Lord, Lord Craig, in these terms. I thought that we had a deal.

Regrettably, I have now been advised that the Public Bill Office has declined to make the proposed change in printing points, having originally said that it was acceptable. Nevertheless, I reassure the noble and gallant Lords that there is no significance in the current proposed location next to Section 359. The two provisions are unrelated but are both properly categorised as “miscellaneous”. No relationship is implied by their positioning. Therefore, I do not consider that there is a major issue about the correctness or appropriateness of the new section.

Three other amendments in the group deal with the annual report of the covenant. Amendment 10, tabled by my noble friend Lord Palmer, concerns housing. The noble Lords, Lord Kakkar and Lord Patel, focus in Amendment 11 on healthcare research. The noble Lords, Lord Rosser and Lord Tunnicliffe, propose a longer list of additions in Amendment 5. The amendments draw attention to very important subjects. Amendment 10, tabled by my noble friend Lord Palmer, requires the report to provide an update on progress with housing associations towards improving service accommodation. In practice, housing associations may contribute more to helping service leavers and veterans to find suitable housing than helping those in service. Our successful pilot shared-equity scheme is managed by a housing association. Housing is one of the core topics mentioned in Clause 2 and the Government regard it as one of the most important elements of the Armed Forces covenant. We have been very active in exploring the scope to do more for our people, for example through the housing summit organised by the Housing Minister in May this year. Some housing associations are already doing excellent work in this field, and we will always be interested in good ideas from the housing sector.

Similarly, in response to Amendment 11, proposed by the noble Lords, Lord Kakkar and Lord Patel, we recognise the importance of commissioning and reporting on research designed to underpin healthcare for servicepeople. Very valuable research has already been commissioned by my department, such as the work of Professor Simon Wessely and the King’s Centre for Military Health Research, comparing the health of those who deploy on operations with a control group. We will continue to support research into healthcare issues affecting servicepeople, both in-house and, where appropriate, through external funding. Other bodies inside and outside government will also commission relevant research. This is a hugely important subject and we take it very seriously.

The noble Lords, Lord Rosser and Lord Tunnicliffe, tabled a much longer list of subjects to be covered in the report, which I suspect is designed to cover everything relating to the covenant. The assumption that the amendments have in common is that the best way to ensure that the annual report covers issues that matter is to name them in legislation. We disagree. Any attempt to write a comprehensive list is unlikely to be successful. Even if it captures everything today, it will be out of date tomorrow. Topics which became less important over time would still have to be covered every year. The annual report could become a box-ticking exercise.

We feel that it would be much better to have a short list of three enduring topics, as the Bill proposes. There are certain to be issues relating to healthcare, education and housing, and to at least one section of the Armed Forces community, in every year of the report. That is why we believe that they should be included as indicative of the coverage of the report. Beyond that, we should allow the Secretary of State to exercise his discretion on what to cover and for Ministers to defend their decisions.

--- Later in debate ---

Moved by

[Lord Rosser]

7: Clause 2, page 2, line 11, after “housing” insert—
“( ) in the operation of inquests;”

[Lord Rosser]

My Lords, the purpose of the amendment is to ensure that included in the issues that should be covered in the Armed Forces covenant report is the operation of inquests. This matter was raised on Second Reading, and in his closing speech the noble Lord, Lord Wallace of Saltaire, said that the Government’s plan was to transfer several of the functions of the office of Chief Coroner either to the Lord Chief Justice or to the Lord Chancellor rather than to abolish them.

Bearing in mind that the introduction of the office of Chief Coroner was supported on all sides in your Lordships’ House during the discussions on the Coroners and Justice Bill 2009, it is not clear how the operation of inquests will be improved by the abolition of the office of Chief Coroner and the implementation of the Government’s new plan, with a government ministerial board focusing on matters of policy, standards of service and other administrative aspects of the delivery of the coroner service, and the dropping of the new appeals system.

It was widely agreed that the introduction of the office of Chief Coroner would help to address these issues by ensuring that military inquests were dealt with by coroners with appropriate experience and knowledge of the Armed Forces; reducing the sometimes excessive length of time taken to hold inquests; ensuring that coroners and the coroner service have the confidence of the public, including the bereaved, by being, and being seen to be, independent of government; providing the required oversight training, consistency and, most importantly, accountability and leadership, including leadership for reform for the coronial system; and providing for the Chief Coroner to be at the head of an appeals framework for those affected by the decisions that coroners make and whose redress at the moment appears to be to seek a potentially costly judicial review.

In view of the concerns widely held about the present system as it affects Armed Forces personnel and their families, the change of approach by the Government to a ministerial board covering key areas, the end of the cross-party supported independent office of Chief Coroner and the end of the new appeals system, it seems only appropriate that the troubled issue of the operation of inquests is one on which the Secretary of State should report in his Armed Forces covenant report, as well as the issues of healthcare, education and housing.

[Baroness Finlay of Llandaff]

My Lords, this is a very important amendment because of what has happened to the Public Bodies Bill. As has been said by the noble Lord, Lord Rosser, the new Chief Coroner would have had a role in monitoring investigations into deaths of service personnel and in ensuring that coroners were suitably trained to conduct such investigations. However, that is not the situation at the moment.

The requirement in the Bill is that the Armed Forces covenant report includes information on the effects of membership or former membership of the Armed Forces on servicepeople, or descriptions of such people. It is really important to be aware in our deliberations that, while there are quarterly reports on those who die on active service overseas, a large number of serving personnel die on active service but not overseas. I have the data from 2000 to 2009. In 2009 there were 59 deaths during hostile action and 47 other deaths: four violent, four suicides, 22 accidents and 19 that were disease-related. The important point is that these deaths are not being catalogued anywhere. I am glad that the Government are continuing to produce quarterly reports on the inquests of service personnel who died overseas. The latest report was on 19 July 2011. A total of 476 inquests had been held into the deaths of service personnel who had lost their lives in Iraq and Afghanistan, including 12 service personnel who died of their injuries in the UK.

However, the way in which those inquests were handled raises some questions. There were 75 open inquests to be concluded into the deaths of service personnel in Iraq and Afghanistan: 21 involved deaths in the previous six months. The Wiltshire and Swindon coroner had retained 28 of the remaining open inquests, but there were 54 outstanding inquests, which meant that relatives had waited for more than six months. Thirty-five inquests were being conducted by coroners closer to the next of kin. That group becomes really important because, when one looks through the list of inquests from 2002 to August 2009, some were held by coroners who did more than five inquests a year but, in 2009, half of them were conducted by coroners who did fewer than five military inquests in their whole working lifetime. Sometimes the list may include one inquest done by one coroner over the whole period of the list being available. The problem is that those coroners may have no training in military inquests. The questions they ask may not collate the important and relevant information. That is because the role of the coroner’s inquest is to determine the cause of death and potentially make recommendations, but a lot more information needs to be gained.

The other concern is the experience of the bereaved families. I will quote one bereaved relative who said that when her sister died outside the military the police advised that they should get legal representation. She said that such advice was small comfort to the family at the time. That was in 2009. When a young man in the family lost his life on active service, the family went into the inquest blind and totally unadvised about the process.

In 2009, the Royal British Legion facilitated a meeting of bereaved families. The comments from that meeting are horrific. One woman said:

“Listening to your husband’s final words or viewing images on screen of his partial burial site is a very personal, emotional and private time. One should not have to see this for the first time in a court room”.

Another bereaved person said:

“Had we known before we went to the inquest, the agenda and the proceedings would have been entirely different and we could have provided more assistance to the coroner”.

The way that these inquests are currently being handled is excellent in some cases, but I am afraid that in others it is not good at all, but lamentable. That is despite the Ministry of Defence having published in 2008 the Boards of Inquiry and Coroners’ Inquests Information for Bereaved Families booklet. That booklet is not providing any support to these bereaved families.

The proposed Chief Coroner would have provided leadership over the way in which the inquests are conducted, the information to be collated from them and central information about all other military deaths which do not occur overseas. The problem is that when a body is repatriated to the UK, if only one person has died in that incident, the coroner—it has been the coroner from Swindon and Wiltshire—can allocate the inquest to the local coroner wherever that person is to be buried or cremated and have their final resting place. It is because of that that we have this lack of expertise across the whole country.

The other reason that it is important carefully to collect information from military inquests relates to a previous amendment that we discussed in the names of my noble friends Lord Kakkar and Lord Patel. It is important to do this because battlefield tactics change rapidly and therefore a coroner with relevant experience will have conducted inquests into contemporary military fatalities and will ask more pertinent questions and collect more appropriate data. The other problem is that when a coroner gives a narrative verdict, others with a legitimate interest may never see it. A coroner’s verdict will represent a summary of the evidence and ought to be a matter of written record but is currently not collated. Unless we include a requirement to report on the operation of inquests and not merely to collate their outcome, we will do a major disservice to those who have lost their lives while on active service for this country and to troops currently serving whose lives remain at risk because we are not collating information and learning lessons from deaths that have occurred, quite apart from not doing the right and best thing by those who are bereaved and left behind.

--- Later in debate ---

[Lord Rosser]

My Lords, I thank the noble Baroness, Lady Finlay of Llandaff, for her major contribution to the debate on this amendment. I thank also the noble Lord, Lord Ramsbotham, and the Minister for his response. I note the gist of his reply, which is a feeling that the issue of the operation of inquests is not one that will be permanent or regular in the way that, for example, healthcare, education and housing are perceived to be. The only comment I would make at this stage is that the operation of inquests will certainly remain an issue until at least the next Armed Forces Bill, which is when we tend to review what the legislation states. I will withdraw my amendment, but I will reflect on the Minister’s response—as I imagine will other noble Lords—before deciding whether to pursue the issue on Report.

Amendment 7 withdrawn.

--- Later in debate ---

Moved by

[Lord Rosser]

17: After Clause 2, insert the following new Clause—
“Armed forces advocates
After section 359 of AFA 2006 insert—
“359B Armed forces advocates
(1) The existing network of armed forces advocates will be extended through the nomination of supporting advocates at regional and local level to ensure that local authorities work together to identify and resolve issues in local policy or the delivery of services that may affect service people.
(2) In this section “armed forces advocate” means a public servant nominated to monitor and resolve policy or legislative issues that arise for service people.””

[Lord Rosser]

This amendment deals with Armed Forces advocates, which were raised at Second Reading by my noble friend Lady Taylor of Bolton. The amendment provides for the existing network of Armed Forces advocates to be extended at the regional and local level to ensure that local authorities work together to identify and resolve issues in local policy or the delivery of services which may affect servicepeople.

My noble friend Lady Taylor referred to the action of the previous Government in piloting an Armed Forces welfare pathway under which some local authorities appointed Armed Forces advocates to ensure that, as part of policy development, steps were taken to ensure that services provided at the local level appropriately recognised the specific needs of Armed Forces personnel, veterans and their families. The noble Lord, Lord Wallace of Saltaire, said in response that the Government supported the idea of Armed Forces advocates at the local level if that was the approach chosen by the local authority concerned. That was a rather disappointing response as it suggested that, despite the warm words, the Government intended to do nothing to promote Armed Forces advocates. As my noble friend Lady Taylor said, there are considerable pressures on local authorities at the moment. She asked what mechanisms the Minister thought should be put in place to ensure that local communities are protected and that real progress is made, along with effective monitoring at both the local and national level. It is important that we have Armed Forces advocates at the point of service delivery, where the test will come of whether the state’s commitments, on which there is a political consensus, are being realised.

I hope that the Minister, on behalf of the Government, will accept this amendment. If he is not able to do so, I trust that he will respond to the questions asked at Second Reading by my noble friend Lady Taylor of Bolton and spell out, bearing in mind the Government's support for the idea of Armed Forces advocates, what action they intend to take to encourage more local authorities to go down this road.

[Lord Davies of Stamford]

My Lords, I support the amendment of my noble friend Lord Rosser. I will make two points. First, the system that he proposes, as he is well aware, has existed for some time in France; I take it that the Government, too, have seen that. I believe it works extremely well. It is always sensible not to reinvent the wheel. If one finds a mechanism in a compatible country which is working well, that is evidence in favour of a proposal—or if it is not working well, it is evidence against. The French are very satisfied with the way in which this works.

Secondly, the position taken up to now by the Government—who have been very good at listening open-mindedly to these debates, so I trust that it was a provisional view—is that all we need to do is to facilitate local authorities to appoint Armed Forces advocates where they wish to do so, and that we do not need to intervene where they do not. This is a most illogical approach to the problem. Local authorities with the will to create the post of Armed Forces advocate have, by that fact, already demonstrated that they are alert and sensitive to this need. The problems arise with local authorities that are not inclined to set up Armed Forces advocates. Authorities which, either through mistrust of the military or sheer ignorance, have not focused on this and are not inclined to accept the proposal, are those where problems are likely to arise and where an advocate is most necessary. The more logical solution is the one proposed by my noble friend. I hope that it will find favour with noble Lords and with the Government.

--- Later in debate ---

[Lord Astor of Hever]

The noble Lord makes a very good point. We will certainly look at this.

[Lord Rosser]

I would like to thank my noble friend Lord Davies of Stamford for his support for the amendment and also the Minister for his response. I will reflect on it, but in the mean time, I withdraw my amendment.

Amendment 17 withdrawn.

--- Later in debate ---

Moved by

[Lord Rosser]

20: After Clause 2, insert the following new Clause—
“Powers of the Service Complaints Commissioner
In section 339 of AFA 2006 after subsection (1) insert— “(1A) The report of the Service Complaints Commissioner (“the Commissioner”) made under subsection (1) may include the results of any investigation by the Commissioner into potential defects in the service complaints system, and any recommendations flowing from such investigations.””

[Lord Rosser]

Amendments 20 and 21 relate to the powers of the Service Complaints Commissioner. In her 2010 annual report, the commissioner said that while real progress had been made over the past three years in the new system for handling service complaints, delay remained the key area of weakness in the system, with delays particularly problematic in cases of bullying, harassment and discrimination. The commissioner said that many complainants simply give up and choose to drop their unresolved complaints after lengthy delays, which can and do lead to service personnel leaving prematurely. Justice delayed is justice denied.

The commissioner concluded her report by saying that her priority was to ensure that the Armed Forces had a complaints system that they deserved; namely, one that is fair, efficient and effective. However, she went on,

“For the third year running I have not been able to give Ministers and Parliament the assurance that the service complaints system is working efficiently, effectively or fairly”.

The commissioner called for a fundamental review of the service complaints system and for the powers of the Service Complaints Commissioner to be included in that review. Currently the SCC has no powers to ensure that complaints are dealt with properly and without delay, and in her report she states that the lack of a power to make recommendations in individual cases under the Service Complaints Commissioner’s oversight has led to inefficiencies and injustice in a number of cases.

The purpose of these amendments is to address key issues raised in the commissioner’s 2010 report. The first amendment makes it clear that the report of the commissioner can include the results of any investigation made by the SCC into potential defects in the service complaints system and any recommendations flowing from such investigations. The second amendment seeks to address the issue of the time taken to respond to issues raised in the Service Complaints Commissioner’s report by providing for the Defence Council to respond within six months of it being laid, and within three months if the report makes recommendations on an individual case.

The 2010 report does not paint a happy picture of the present system, albeit that it does say that real progress has been made in the last three years in the new system for handling service complaints. I hope that the Minister will be able to indicate in his response what action the Government are taking to address the concerns that have been raised as well as respond to these two amendments. I beg to move.

[Lord Wallace of Saltaire]

My Lords, noble Lords may be aware that the post of the Service Complaints Commissioner was established under the Armed Forces Act 2006 in December 2007 to provide independent oversight of the service complaints system, with one of the statutory functions of the role being to report each year to the Secretary of State on how fairly, effectively and efficiently the service complaints system is working. Three annual reports so far have detailed the work of the commissioner’s office. They have been thorough and critical in their assessment of all aspects of the complaints system.

The commissioner has commented and reported in detail on specific areas where progress has been made or where further improvement is required. Indeed, where the commissioner has investigated and identified areas for improvement, recommendations as to remedy have been made in her reports. A total of 27 recommendations were made in her first two reports, and this year she has made a further 20 recommendations, as well as four three-year goals setting out her vision of how the complaints system should be operating by 2014. This is therefore a new system, one that is still developing but, we would suggest, making good progress in changing the culture of the complaints process within the armed services.

--- Later in debate ---

The commissioner recommended in her last annual report that her role should become that of an ombudsman. That recommendation includes the suggestion that the ombudsman should be able to report on individual cases to the Defence Council, with all necessary protections for individuals. The merits of the recommendation and any benefits it might offer for the complaints process are now being fully considered as part of a review. Since this review is currently under way, I hope that the noble Lord will feel able to accept my assurance that we are still very actively considering how well this new process is working, and that he will feel able to withdraw his amendment.

[Lord Rosser]

I thank the Minister for his reply and for what he has said about the review of the complaints system. I do not think he said when he expected the review to be completed but I hope it will be dealt with fairly quickly rather than dragging on and on. I will obviously reflect on the Minister’s response, but in the mean time, I beg leave to withdraw the Amendment.

Amendment 20 withdrawn.