Armed Forces (Service Complaints and Financial Assistance) Bill [HL] Debate
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Lord Rosser
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Armed Forces (Service Complaints and Financial Assistance) Bill [HL]
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Lord Rosser
Lord Rosser (Lab)
My Lords, the effect of this group of amendments is to say that a person may not be appointed as the ombudsman if that person has been a member of the Regular or Reserve Forces at any time in the five years prior to the date of appointment. The Bill lays down that,
“A person may not be appointed as the Ombudsman if the person is … a member of the regular or reserve forces”.
The present system has been described by the Service Complaints Commissioner as being not efficient, effective or fair. Indeed, in her most recent annual report the commissioner says that,
“for the sixth year running I have been unable to give … an assurance that the system is yet working efficiently, effectively or fairly”,
and that delay remains the principal reason for unfairness in the system. If we are to have a new system with a service complaints ombudsman with enhanced powers, it is surely vital that, if service personnel are to have a level of confidence in the new system which they do not have in the present arrangements, the ombudsman is seen not only to have greater powers but to be truly independent of those whose actions he or she might be investigating, and of those to whom he or she would be making recommendations.
In that context, it is surely also relevant that the ombudsman will, as I understand it, have the power to seek judicial review if the Defence Council rejects the recommendation. That situation will not be achieved if the person appointed as the ombudsman is perceived to be too close to the Armed Forces establishment and too much ingrained with the culture of the Armed Forces, or one arm of them, and their way of doing things to be perceived as being truly independent. We have had an independent Service Complaints Commissioner with insufficient powers and an unwieldy system. What we do not want to move to is a Service Complaints Ombudsman with greater powers and a more streamlined system for complaints but lacking the perception of being considered truly independent. That will be a risk not just if the person appointed is,
“a member of the regular or reserve forces”,
who would rightly be debarred under the current provisions in the Bill, but if the person appointed had recently been a member of the forces, who would not be debarred under the Bill as it stands.
One amendment in this group proposes that a person who,
“has been a member of the regular or reserve forces”,
should not be eligible to be appointed as the ombudsman for a period of five years after leaving the Regular or Reserve Forces. If the concern is that this would reduce the pool of potential applicants, I suggest that is the wrong priority. The principal concern should be to appoint someone who is not only truly independent but perceived as being so. If it is seriously to be suggested that we might not be able to find an independent ombudsman in whom we could all have confidence from outside the ranks of those who have been a member of the Regular Forces or Reserve Forces in the last five years, I suggest that we have a real problem over the future of this new position.
A detailed knowledge of the culture of the Armed Forces and how they operate and function that could come only from having recently been on the inside is not, I suggest, an essential qualification for being the ombudsman. Rather, the essential qualifications are to be of an open and independent mind, with an ability to weigh up evidence and facts, sort out the salient from the irrelevant, come to reasoned and measured conclusions and be able to question and challenge, as well as to be determined not to be deflected or obstructed by anyone, whatever their level or rank, and to desire to see that justice is done, whether that means upholding or rejecting a complaint.
I hope that the Minister will understand the purpose of the amendment and what it is seeking to achieve. As I see it, the Bill as it stands could mean that a person was appointed to this post the day after they ceased to be a member of the Regular or Reserve Forces, and I am not sure that, from the point of view of being perceived to be truly independent, that is the road we should even contemplate going down.
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.
Lord Rosser
Will the Minister clarify a point he made? I think he said that a panel will make the appointment. If I understood that correctly, did he say that the panel would recommend a candidate or candidates to those who would make the final decision?
Lord Astor of Hever
I think the answer is one candidate. If I am wrong, I will let the noble Lord know.
Lord Rosser
I thank the Minister for that and for his response. I noted that he said that the intention was for a non-renewable five-year tenure. Obviously, one would want to reflect on that. Personally, I can see some advantages in having a lengthy period of tenure that is not renewable, because then the occupant of the post may not be tempted in their decisions to do things that might lead to the contract being renewed at the end of the period. One could see the advantages of that, but I stress that that is an immediate personal response to that point.
Obviously, I am sorry that the Minister did not feel able to go any part of the way towards the objective that the amendment sought to achieve. The noble Lord, Lord Palmer of Childs Hill, said that we should not exclude people in primary legislation. Of course, a response to that is that we should not enable somebody who left the Regular and Reserve Forces the previous day, metaphorically speaking, to be appointed to this post in primary legislation. Perception is very important here. The reality is that the proposed legislation that we have in front of us enables an appointment to be made of somebody who has literally just left the Regular and Reserve Forces. I am sorry that the Minister did not feel able to make any movement at all on that. From the nature of the response, the Government obviously do not feel able to say that there should be any minimum period before anybody from the regulars or the reserves should be able to be appointed to this position.
However, I am grateful to the Minister for the comprehensive nature of his reply. I want to reflect further on it and on the points he has made and in the mean time, I beg leave to withdraw the amendment.
Lord Rosser
“( ) If the family of a person who has died during the course of his or her service thinks that his or her relative or partner was wronged in any matter relating to his or her service, the family may make a complaint about the matter.”
Lord Rosser
My Lords, I will be brief, not least because I assume that the noble Lord, Lord Thomas of Gresford, although he may not make exactly the same points, will make very similar points. On the issue of service complaints, the Bill refers to,
“a person subject to service law”,
who thinks that they have been wronged. It states:
“If a person who has ceased to be subject to service law thinks himself or herself wronged in any matter relating to his or her service which occurred while he or she was so subject, the person may make a complaint about the matter”.
However, it goes no further than that.
At Second Reading my noble friend Lady Dean of Thornton-le-Fylde raised the issue that when a service man or woman has died without making a complaint there appears to be no room for a family member to pursue a complaint on their behalf. There would seem to be powerful reasons that when an individual’s family or friends have information or evidence to suggest that a member of their family was treated unfairly in their service life, they should be able to take steps to find out the truth, and to be in a position, if needed, to make sure that a complaint that is going through the procedure at the time that the member of the services died can continue.
At Second Reading a number of noble Lords made reference to the case of Anne-Marie Ellement and the investigation conducted by the Royal Military Police which led to a decision being made that no charges should be brought. However, when it came, a long time later, to the inquest, it found that the lingering effect of an act of alleged rape, which was described as work-related despair and bullying, had contributed to that person’s death. There was a feeling that the information about the working and living conditions that the person endured would not have been available had it not been for the lengthy procedure in that case to get a second inquest.
Surely we ought to have a process that would enable issues such as that to be raised by the family on behalf of a member of the services who has died, whether the death occurs before a complaint has been made when evidence comes to light that indicates that a complaint could be pursued, or whether it occurs when a complaint is already going through the process but has not been finalised. Surely giving family members the opportunity to ask for a complaint to be investigated is both just for families and an opportunity for learning and improvement. I think I am also right in saying that the prisons ombudsman has discretion to investigate complaints made by the family members of deceased individuals. I hope that the Minister will look sympathetically on the issue covered in this amendment and in the amendment of the noble Lord, Lord Thomas of Gresford. I beg to move.
Lord Thomas of Gresford (LD)
I will speak to Amendment 5, which covers very much the same ground as that just covered by the noble Lord, Lord Rosser. However, I think that it is perhaps more succinct than his amendment. I do not think that it is necessary for the family to think that a person has been wronged. If there is a complaint, the relatives, next of kin or personal representative should be able to pursue it.
If a wrong has caused the death, the problem with the coroner’s inquest is that those proceedings are not instituted by a member of the family or next of kin but by the coroner himself. That may take time and cause delay. It seems to me that it is appropriate and would avoid a great deal of hurt for the next of kin or personal representative to be able to take the complaint to the ombudsman. That would deal with the situation where a person has died as a result of the wrong but, of course, if there is some other issue, the coroner will have no part in it at all. There again, it should be open to the next of kin to make the application, and to do it in as prompt a manner as possible. A point of principle is involved here and I look forward to hearing the Minister’s response.
Lord Thomas of Gresford
Perhaps I may speak to Amendment 5 now, because I do not propose to move it today. The second example given by the Minister makes my point, because that is a situation where a death may have been caused by the matter complained of and the complaint had been lodged—so we understand—prior to the decease of the complainant. No doubt it will be dealt with sensitively, but under the Bill the Defence Council would be entitled to say, “You can’t maintain it any further. The person has died and that’s an end of it. Under this Act, we are not going to take it any further”. The question of whether to continue with a complaint after somebody has died should not be in the discretion of the Defence Council; it should be in accordance with the Bill. It would be for the personal panel of persons appointed by the council or the council itself to determine the complaint if it were maintained, and of course it would hear the evidence.
The evidence would not be as effective from the point of view of the complainant’s personal representatives if the original complainant could not give evidence. However, that is just a matter of evidence; it is not a question of principle. As in the case to which the noble Lord referred, it might be possible to maintain a complaint on documentary evidence or, indeed, through witnesses who would have been called by the complainant in the first place in support of the complaint.
I regret to say that I do not think that the Minister’s answer deals with the point that has been raised, and I shall consider the position for Report.
Lord Rosser
I thank the Minister for his very full reply, for which I am genuinely grateful. The overall impression that I get is that the response is that, if there is to be an investigation in these circumstances, it will be done through, rather than outside, the chain of command. I appreciate that this is a sensitive issue but my immediate reaction is that I find it a little difficult to believe that there is no role at all for the Service Complaints Ombudsman to play, bearing in mind that the ombudsman also has to make a decision on whether a complaint can or should be pursued. Perhaps there should be a little more confidence in the ability of the Service Complaints Ombudsman to handle the matter in an appropriate way. I would hope that somebody appointed to that position would be able to do that.
However, I note, and am grateful for, the Minister’s full response. I wish to leave this in the context that we will clearly wish to consider the Government’s response carefully before deciding whether to pursue the matter further. I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
The purpose of the amendments in this group is to find out from the Government why they have decided that the time limits referred to in new Part 14A, introduced under Clause 2, are deemed appropriate. The amendments suggest that they should be longer. However, at this stage the purpose, as much as anything, is to find out why the Government have decided that, for example, in new Section 340B(3) under new Part 14A the reference is to a period of three months, and in new Section 340D(3) there is a reference to six weeks. New Part 14A refers to time limits relating to the day on which the matter complained of occurred. The question is: what does that mean in the context of, for example, a matter, which is the cause of a complaint, that happened over a period of time? Does the time referred to in, for example, the two parts of new Part 14A to which I have referred apply from when the first incident occurred or from the date when the last incident occurred if the complaint has occurred over a period of time? If it is from the date of the last incident, will the earlier incidents also be considered, even though they may be well outside the time limit?
It is also possible that someone might feel they have suffered a wrong but did not realise it for some time because it is only from talking to others that it emerges that, for example, they have been treated very differently and without any obvious explanation. In those circumstances, it might not be possible to raise a complaint within the time limits laid down because the individual was not aware, within those time limits, that they had a potentially justifiable complaint. There may be other circumstances that make it difficult for people who feel they have a complaint to meet the time limits laid down. They may, perhaps, be stationed abroad or in hospital.
It would be helpful if the Minister could say why the time limits provided for in Clause 2 were deemed the most appropriate. What would happen in the kind of circumstances to which I referred? I am again asking the Minister to clarify the point, because I am not quite clear of the circumstances, if any, in which the ombudsman could decide to take a complaint outside the time limit. What discretion will the ombudsman have in that regard? If the ombudsman feels that there is good reason why things were not done within the laid-down time limits, will they have complete discretion to decide that the time limit can be extended? There appear to be references in the draft regulations—frankly, I have not had a chance to fully grasp everything that is in them—to shorter periods of time than those mentioned in the Bill. However, I stress that I am not clear whether what I am looking at in the draft regulations actually relates to the time limits laid down in the Bill. Our Amendments 6A and 8A simply say—in relation to page 3, line 3, and page 4, line 18—that:
“Service complaints regulations must not foreshorten or have the effect of foreshortening the period referred to in subsection (3)”.
I fully accept that I may have misunderstood parts of the draft of the Armed Forces (Service Complaints) Regulations—I mean that quite genuinely—but Regulation 7(2) on page 3 states:
“The Ombudsman must not consider an application under paragraph (1) made more than four weeks beginning with the day the complainant is notified of the specified officer’s decision”.
There is also a further reference on page 5, in Regulation 12(2), to the ombudsman not considering,
“an application under paragraph (1) made more than four weeks beginning with the day the complainant is notified of the decision”.
I am simply concerned that if they do relate in any way to the times laid down in the Bill, that would appear to be a foreshortening; hence these two amendments which would prevent that happening. However, I accept that the Minister may well say that what I have picked up in the draft regulations does not refer to the same things as are referred to in the relevant clauses in the Bill. It would be very helpful if the Minister could give an assurance that there is nothing in these draft regulations that foreshortens in any way the timescales laid down in the Bill. It would also be extremely helpful if the Minister could say why the Government feel that the time limits in the Bill are the most appropriate and what discretion the ombudsman will have to deal with matters that are not raised within those limits. Will it be a complete discretion or not? I beg to move.
Lord Astor of Hever
My Lords, the first amendment in this group would extend from three to six months the period in which a former or serving member of the Regular or Reserve Forces can bring a service complaint. The second amendment would extend from six to 12 weeks the period in which a complainant can submit an appeal about a decision taken on their complaint.
The third and fourth amendments seek to ensure that regulations do not foreshorten periods referred to in the Bill within which a complaint can be made and an appeal can be submitted. The time taken to deal with a complaint from the point at which it is first raised by the complainant with their chain of command, through to their being given a final decision, can be crucial to perceptions that the process is fair. If a complaint is particularly complex and means that a large amount of material needs to be gathered or witnesses interviewed, the time taken may be long, but the parties will most likely consider it to be proportionate and necessary for the interests of justice to be served. In other cases, an informal approach, such as through mediation or a quick discussion to sort out a minor confusion, can be equally as effective in delivering an outcome with which those involved can declare themselves content because it has given them a satisfactory result.
The time allocated in the process for the complainant to formulate their complaint can also be an important factor in whether they consider that the process is working for or against them. If the process gives them only a short time in which to put together their complaint, to gather their thoughts or any material they might need, they may feel that they are being rushed unnecessarily into making a complaint and that they would have been better prepared and would receive a better hearing if they had been given longer. If, on the other hand, they are given too long to prepare, there is a risk that the facts become less clear or are forgotten.
As in any aspect of a complaints process, the procedures should not focus solely on the needs of the complainant, but consideration must also be given to those who may be being complained about. If the period in which a complaint can be made is too long, they may be unaware that they are going to be complained about, so do not capture information or their recollections while still fresh. Fairness must therefore extend to them, especially if there may be consequences for their reputation if they are the subject of a complaint that they have behaved improperly. The time limit in the Bill for making a complaint is the same as that under the current system, which is three months. It is a period that is neither so short that the individual could not corral the facts and put together their complaint nor so long that those details will be forgotten. To extend that period to six months would risk the very problems arising that the current time limit is designed to avoid.
The same considerations influenced the provisions in the Bill for the time limit for making an appeal. At the point that the complainant is considering whether to appeal a decision that has been made on their complaint, they will have a keen sense of what it is that they are not satisfied with, whether that is about the decision itself or the way in which it was reached. The process of setting out the reasons for their appeal should therefore be a relatively quick one, compared, for example, to setting out the original complaint. As ever, there is a balance between the need to keep the process moving on and giving individuals time to gather their thoughts. A lengthy period of uncertainty on whether or not a decision will be appealed can also have consequences for any other party to the complaint, especially someone who has been complained about. For these reasons, extending the time limit for making appeals to 12 weeks is considered to be counter to the principles of fairness. Fairness also requires, however, that there should be the ability to react to unforeseen circumstances. Timescales are therefore not hard and fast, which would give the impression that there is simply a process to be followed without the chain of command being able to take a more pragmatic and sensitive approach when individual circumstances require.
I circulated an initial draft of the regulations on 9 July. As noble Lords will see from these, there is scope for those in the chain of command who are dealing with a complaint to extend both of these time limits if it is just and equitable to do so. It may be, for example, that an individual gives notice that they would be unable to respond by the time stipulated because of a personal matter, such as a bereavement, leave, training or operational commitments, or because they are about to receive medical treatment. In such a situation, it would be just and equitable to agree a new timescale but, again, one that is aimed at moving matters on as quickly as possible, with due consideration to other parties.
There is a similar provision in the new procedures in the Bill for making applications to the ombudsman which gives the ombudsman discretion to extend the time limit set out in the Bill within which complainants must make their applications—this was a point that the noble Lord asked about. The draft regulations show that the intention is that the ombudsman would be able to apply the same test to extend the time limit application if the ombudsman considers it is just and equitable to do so. As these are procedural matters, just as in the case of making an initial complaint and in making an appeal, it is right that this is spelt out in regulations rather than in the Bill.
There are two further safeguards in the Bill that aim to protect the complainant from someone in the chain of command who takes what they consider to be an incorrect decision not to extend a time limit. These are at the point at which that decision would prevent a complaint from entering the system or from progressing to an appeal stage. Under a new right, the complainant can approach the ombudsman at both junctures if they wish to have those decisions independently reviewed. If the ombudsman finds that the chain of command was wrong not to extend the time limit on just and equitable grounds, the ombudsman’s decision is final, and the complaint or appeal will be returned to the chain of command to proceed as normal.
We gave very careful consideration to these timescales and compared them with those under other procedures which, though not directly comparable, provide a useful benchmark about what is considered reasonable. In respect of matters before employment tribunals, for example, the time limit for making a claim is three months from the first incident complained of, and in respect of discrimination claims within three months of the latest incident complained of.
The noble Lord, Lord Rosser, asked when the time limits start to apply when there is a series of related complaints. I cannot read the writing on this, but I will write to the noble Lord on that.
The third and fourth amendments are also resisted. The Bill sets out minimum periods within which a complaint can be made and an appeal submitted. As such, neither of these can be foreshortened by regulations. For the reasons I have set out, we judge that these time limits are fair and reasonable, especially taking into account the important safeguard that they can be extended where it is reasonable to do so or reviewed by the independent ombudsman.
On that basis, I ask the noble Lord to withdraw his amendment.
Lord Rosser
My Lords, I thank the Minister for his comprehensive reply. I think he has confirmed that there is nothing in the service complaints regulations that will foreshorten or have the effect of foreshortening the time limits referred to in the Bill. The Minister has also explained why the time limits that are in the Bill have been felt to be appropriate and related them either to existing time limits or time limits that exist in other situations. I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.
Lord Rosser
“( ) The Ombudsman may, after advising the Secretary of State, investigate any matter deemed to be in the public interest on—
(a) any aspect of the system mentioned in section 340O(2)(a);(b) any matter relating to the Ombudsman’s functions under this Part;and make a report to the Secretary of State.”
Lord Rosser
My Lords, proposed new Section 340O in Clause 2 provides that the Secretary of State may require the ombudsman to prepare and give to the Secretary of State a report on any aspect of the system mentioned in subsection (2)(a), relating to the complaints system, and any matter relating to any of the ombudsman’s functions in new Part 14A. These powers appear in the proposed new section about the ombudsman’s annual report on the system for dealing with service complaints. It is not clear whether proposed new Section 340O(6) relates to what the Secretary of State may require the ombudsman to include in the annual report, or whether it could also include the Secretary of State calling for an additional report at any time on a particular issue from the ombudsman outwith the annual report. Perhaps the Minister, either in his reply or subsequently, will be able to clear up that point.
Whatever the answer, the reality is that the Secretary of State for Defence has never asked the present commissioner to report on a particular area of concern that she or the Secretary of State may have, outside her normal annual reporting cycle. The Commons Defence Select Committee reported last year that the present commissioner had told it that if she were to report on particular areas of concern, she would look at cases of bullying, which include assault, and issues to do with mental health, and access to services, race and the handling of those cases. The Select Committee went on to report that during visits to units the commissioner had been informed of issues that would not come to her as complaints but on which she thought some work needed to be done. The commissioner told the Select Committee:
“That is what I would do, and that is I think what ombudsmen do. They have this broader view, whether they be the health service ombudsman, parliamentary ombudsman or the Children’s Commissioner, who today has powers to do research and inquiries. They can pull together in an informed and responsible way evidence across the piece and put it forward in a way that is very valuable to the organisation that they oversee”.
The Select Committee went on to say that it believed that there would be value in the commissioner being able to undertake research and report on thematic issues in addition to the annual reports. It said that the commissioner’s experience on these issues should be utilised.
The effect of Amendment 9 is to seek to give the Service Complaints Ombudsman the power, after advising the Secretary of State, to investigate any matter deemed to be in the public interest on any aspect of the system that is mentioned in proposed new Section 340O(2)(a), relating to the efficiency, effectiveness and fairness of the system, and any matter relating to the ombudsman’s functions under new Part 14A. That would mean that the ombudsman would be able to report to the Secretary of State on wider and thematic issues if the ombudsman felt that this was desirable and in the public interest.
The purpose of the amendment, which I hope it achieves, is to give the ombudsman rather wider powers to be able to report on thematic issues—not to appear to be dependent on the Secretary of State asking for such reports but for the ombudsman to be able to make that decision. There has clearly been support for that not only from the present Service Complaints Commissioner but from the Defence Select Committee. I should have thought that there would have been a view that it would be helpful if the ombudsman could make reports on such issues where the ombudsman felt that it was in the public interest and would make a contribution to improving an existing situation which the ombudsman did not think was entirely right or appropriate and needed addressing. I hope that the Minister will be able to give a favourable response.
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 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.
Lord Rosser
The Minister said—I think I heard him correctly—that the ability of the ombudsman to undertake the kind of reports and investigations that we are talking about is already contained in previous legislation and is replicated in this Bill. Which are the parts of the Bill that say that the ombudsman can do what we are seeking in this amendment?
Lord Astor of Hever
My Lords, I hope I will come to that point later in my response. 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 a 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, and through its investigation of individual complaints, the ombudsman will provide a valuable source of lessons that will provide resolution for the individual, and which will also support the Defence Council in its role of delivering a better complaints process.
The service chiefs are clear that the system has not been operating as efficiently as it should and accept the criticism that I referred to earlier, that too many complaints are taking too long to resolve. They are also clear that in taking forward reform of the system, it should continue to be the chain of command that investigates complaints and works with complainants to find a solution that they are satisfied with. That way confidence in the chain of command’s ability to treat them fairly will increase, encouraging more people to speak out when they are unhappy so that, ultimately, we maintain the highly effective fighting forces of which we are rightly proud.
Lord Astor of Hever
Before the noble Lord, Lord Rosser, responds, I should say that I misunderstood my brief. My noble friend Lord Palmer asked me about Canada, and the answer that I gave relates to Canada, not to the question that the noble Lord, Lord Rosser, asked. With regard to Canada, we looked at ombudsmen within the public sector in the UK but did not look at models from overseas, so we did not look at the Canadian model.
Lord Rosser
I thank the Minister for his reply. I hope that he will forgive me if I say that I am a little confused about the Government’s stance. On the one hand, part of the answer appeared to be—maybe I misunderstood it—that to give the ombudsman the powers suggested in the amendment could cause conflicts with other inquiries and investigations. Having said that, I got the impression that the Minister was saying that those powers were already there in the existing system, whether under new Section 340O, which deals with the annual report, or in new Section 340L, which deals with reports of investigations. I was rather getting the message that, on the one hand, it would be unacceptable because of possible conflicts but that, on the other hand, the powers were already in those two parts of the Bill to which the Minister referred.
The heading of new Section 340O is:
“Annual report on system for dealing with service complaints”,
so it is not dealing with reports outside the annual report or with something separate. It is interesting that the Secretary of State, who has the power to ask the ombudsman to prepare a report on any matter relating to the ombudsman’s functions, has never chosen to do so, as I understand it, hence our amendment saying that the ombudsman, having advised the Secretary of State, and it being perceived to be in the public interest, should have the ability to do so. That is, the ombudsman should not be dependent on the Secretary of State asking them to prepare such a report, because the Secretary of State has apparently never done so.
One finds it a little odd that, if the power is already there for the present commissioner to do this, one does not get the impression that the commissioner felt that the power was already there when one reads the commissioner’s evidence to the Defence Select Committee. The commissioner proceeded, in fact, to give a list of topics on which a wider report could have been written, which—this is the inference—she might have been interested in doing. That does not suggest that the commissioner felt that the existing legislation already gave her the power to produce the kind of reports that are referred to in the amendment.
In view of what I regard as potential slight confusion over the reply, in that on the one hand it seems to be saying that it is undesirable but on the other it is saying that the power is already there, I will want to read closely what the Minister has said before considering whether to pursue this issue any further. However, I am genuinely grateful to him for his comprehensive reply, and I beg leave to withdraw the amendment.
Lord Rosser
“( ) The Ombudsman must not proceed with the investigation until the Ombudsman is satisfied with the information and evidence received.”
Lord Rosser
This amendment, which is fairly straightforward, relates to the provision in the Bill that gives the ombudsman the power to require a person to provide documents for an investigation. However, the draft regulations appear to provide that if the documents are not received the ombudsman may proceed with the investigation and preparation of a report. Of course, the alternative remedy available to the ombudsman is to go to the High Court if the documents required are not forthcoming. The purpose of putting down this amendment is to seek to clarify two points. First, can the Minister confirm, either now or subsequently, whether the word “may” that has been used in the draft regulations —that is, “may proceed with the investigation” without having got the documents—means that and will not be interpreted as “must”?
Secondly, can the Minister confirm whether the position of the ombudsman in respect of the power to require documents is not weakened if it is already written into the draft regulations, and thus generally known, that an investigation can proceed without the ombudsman having got all the documents that are required? Why did the Government deem it necessary to put that into the draft regulations? Are they saying that the ombudsman could not have decided to start an investigation without all the documents sought without this specific provision being in the regulations? Unless the answer is that the ombudsman could not start an investigation, on the face of it, it does not seem particularly helpful to put in the regulations that documents that have been requested and required but have not been produced will not stop the ombudsman starting the investigation. That does not seem to be exactly encouraging those who have been asked to produce documents to do so.
Lord Astor of Hever
My Lords, I hope that I will get an answer to the noble Lord’s two questions. If not, I shall write, but I am fairly optimistic that I will be able to get an answer.
This amendment would ensure that the ombudsman’s investigations can proceed only when the ombudsman is satisfied with the information and evidence received. This may be considered desirable to ensure that the resources of the ombudsman are used efficiently. It may also be desired that the ombudsman may proceed with investigations only when they have all of the information and evidence that they need in order to do their job effectively. Otherwise, it might be argued that they could come under pressure to conclude investigations in the absence of all of the evidence that they need.
Under new Section 340I(1) in the Bill, it is for the ombudsman to determine whether to begin, continue or discontinue an investigation. Under new Section 340I(4), the ombudsman may make such inquiries as he or she thinks appropriate. Under new Section 340J, the ombudsman also has broad powers to require a person to provide documents or other information in their possession and has the powers of the High Court in respect of the attendance and examination of witnesses and the production of documents. The effect of this amendment, perhaps inadvertently, would be to limit the discretion of the ombudsman to carry out his or her investigations. It is very important that the ombudsman has all of the information required in order to carry out their role effectively, and the Bill provides for that.
Regulation 6 in the draft Service Complaints Ombudsman investigation regulations permits the ombudsman to proceed with an investigation and prepare a report under new Section 340L, whether or not they have all of the information that they have requested. That is a permissive provision, so that the ombudsman does not have to proceed with an investigation in the absence of information, but they can do so if that would be the fair thing to do, bearing in mind the need for efficiency and effectiveness.
The noble Lord asked whether the word “may” means that, and the answer is that it does. He also asked whether it weakens the position of the ombudsman’s power to get documents, and the answer is that it does not do so in any way.
I must resist this amendment. It is right that the ombudsman retains discretion on whether to proceed with an investigation in all the circumstances of the case based on the information and evidence put before them. I ask the noble Lord to withdraw the amendment.
Lord Rosser
I will withdraw the amendment, but are the Government saying that, without that provision in the draft regulations stating that the ombudsman may proceed with the investigation and the preparation of a report under Section 340L of the Act if the documents or other information is not provided within that period or not provided under paragraph (b), the ombudsman would not have the power to proceed with an investigation without having got those documents?
Lord Astor of Hever
I do not have an immediate answer, but I will write to the noble Lord on that.
Lord Rosser
I thank the Minister for his reply. I beg leave to withdraw the amendment.
Lord Rosser
I have one or two comments to make on this group of amendments. Like the noble Lord, Lord Thomas of Gresford, I am waiting to find out whether the Government’s view is that the Bill as it stands gives the Defence Council the right to reject the ombudsman’s findings on maladministration as opposed to the ombudsman’s recommendations. The Bill refers to the Defence Council deciding what action,
“to take in response to the findings”,
of the ombudsman, but it is not quite clear how the Defence Council could decide not to accept the findings without carrying out a separate investigation of its own.
The amendments also refer to rejecting or modifying the recommendations of the ombudsman. We will listen to the Minister’s response with interest, just as I have listened with interest to the arguments that the noble Lord, Lord Thomas of Gresford, put forward. On the one hand, one could say that being able to modify a recommendation might then lead to the Defence Council accepting it rather than rejecting it in totality, which I think is the point that the noble Lord, Lord Thomas of Gresford, has made. On the other hand, I suppose that one could argue that being able to modify a recommendation rather than either accepting or rejecting it, and having to explain why if the latter, could be interpreted as meaning that the Defence Council can effectively write its own recommendations on the findings of the ombudsman. That might be seen as rather weakening the objective of the ombudsman making recommendations and the Defence Council then having to decide yes or no, rather than being able to rewrite bits of them. As I say, we await with interest the Minister’s response on that.
It could mean that the Defence Council could modify only parts of a recommendation that it found, for example, inconvenient, and then announce that it would accept the rest. If the provision is for a straight rejection or acceptance, the Defence Council will know that it has to produce some pretty convincing reasons if it is to reject the recommendations in totality. It will also know that, if it is unable to modify them, it may well have to put up with parts that it simply finds inconvenient. We await with interest the Government’s response, as there are two ways of looking at the amendment and its implications.
The reality is that the Defence Council will have to show itself willing to accept the ombudsman’s recommendations if service personnel are to have confidence in the new arrangements. If the Defence Council starts rejecting recommendations because it does not particularly like some parts of them, it will raise questions about the effectiveness of the new arrangements and could lead to pressure in the future—a pressure that is already there anyway from some quarters—for the ombudsman’s recommendations to be made binding under a future defence Bill.
Lord Astor of Hever
My Lords, Amendment 14 would make the ombudsman’s recommendations binding on the Defence Council and would mean that the Defence Council had no choice but to accept the findings of the ombudsman in all cases. Amendments 15 and 16 aim to clarify the powers of the Defence Council in responding to recommendations from the ombudsman —to make clear that the Defence Council can reject or modify a recommendation.
It is our intention that the findings of the ombudsman in its investigation report will, in effect, be binding on the Defence Council. The Defence Council would be able to judicially review those findings if it considered them to be irrational or otherwise flawed on other public law grounds. However, we do not anticipate that happening, and expect the Defence Council to accept the findings before going on to consider any recommendations that the ombudsman may have made in the case.
There has been recent judicial consideration of the legal status of both findings and recommendations in relation to the local government ombudsman. While that consideration related to a different ombudsman, we anticipate that a court would apply those principles to the legal status of the Service Complaints Ombudsman’s findings. As such, we do not consider that it is necessary to make specific provision for this in the Bill. That is, again, in common with other ombudsman legislation.
While we accept the importance of the point being raised, and agree with it in substance, it is considered unnecessary to make specific provision for it in the Bill. The amendment is resisted for that reason.
Turning to Amendments 15 and 16, it may be helpful if I explain in more detail the role of the Defence Council when considering and responding to the recommendations of the ombudsman. The first, as I explained in my closing speech at Second Reading, argues that the recommendations will clearly have some legal effect. The Defence Council will not be free simply to reject the recommendations because it disagrees with them. It would need to have very good, cogent, written reasons to do so, such as where the implementation of the recommendations in full was simply unworkable or where significant resource implications may be involved. It is right that the Defence Council should be able to reach a final decision on matters covered in any recommendations made by the ombudsman.
Given that starting point, the focus of the Defence Council in most cases where the ombudsman has made recommendations will be to decide precisely how it will respond. That may be simply a matter of implementing the recommendations by, for example, making an appropriate apology to the complainant. It may be that the person or persons who made the final decision in the internal process will be asked to reconsider a particular piece of evidence to see whether that would have affected the outcome of their decision. There may be some cases in which the failings identified by the ombudsman are such that a full reconsideration at the final stage of the complaint process is required. That may involve the appointment of a new person or panel of persons to hear the complaint again or, for example, to hold an oral hearing to test some crucial evidence.
This is all provided for in new Section 340M. The Defence Council will not need to modify the recommendation open to it. It would simply decide to reconsider the complaint in a way that suitably responded to the recommendations after careful consideration. I hope these points I have made answer the questions of my noble friend. As such, the amendments are unnecessary, and I ask my noble friend to withdraw his amendment.
Lord Rosser
“( ) an assessment of the adequacy of the resources of the Ombudsman’s office to fulfil his or her functions.”
Lord Rosser
My Lords, the purpose of this amendment is to make an addition to page 11 after line 25, which sets out the matters that must be covered in the annual report by the Service Complaints Ombudsman. We are proposing that there should also be a requirement for an assessment of the adequacy of the resources of the ombudsman’s office to fulfil his or her functions. I believe it has already been indicated that there will be an increase in the number of staff that the Service Complaints Ombudsman has—this has been compared with the staff of the Service Complaints Commissioner. If memory serves, I think the figure that has been mentioned is an increase from nine to 20, but I may be wrong on that.
Clearly, a key part of the ability or otherwise of the ombudsman’s office to be able to carry out the duties and responsibilities it is given under the Bill will be the resources available to it. We have already discussed today the issue of whether the ombudsman should be able to undertake thematic reviews—or already can do so under the clauses in the Bill before us. If the ombudsman is able to go down that road of carrying out that kind of review, and if that is to be done effectively, then clearly that has implications for resources. Resources can be both financial and human.
In the context of this amendment about resources, I also raise a point with the Minister that I accept may well need a subsequent response in writing. The Bill sets out the areas that the ombudsman will cover. I am not entirely sure at the moment whether that also covers the Royal Military Police, in respect of complaints both made by the police about its own working environment or whatever other issue it might be and that might be made by service personnel about the activities of the Royal Military Police or how it carried out its role. I am not clear whether those issues are ones that the Service Complaints Ombudsman would be expected to investigate. If they are not, I am then not quite clear on who deals with, for example, issues that service personnel wish to raise about the way they believe the Royal Military Police conducted its affairs in relation to those service personnel. I would be grateful for a response but accept that I may have to wait for a reply in writing.
Put simply, at the moment, the full extent of the role that the ombudsman could have is not entirely clear. Of course, that will also depend on the amount of resources needed, whether financial or human, and on the number of complaints that come in. I do not suggest that suddenly the situation will be such that morale will plummet and everyone will put complaints in. However, if people perceive the Service Complaints Ombudsman to be somebody to whom it is worth making a complaint, that might encourage some people to do so who currently would not make a complaint because they do not think much of the present system. That might have an impact on the workload of the ombudsman.
I rather hope that the response I get back will not be that there is no need for this because it is already covered in the Bill in the previous matters referred to in new Section 340O. I appreciate that that refers to,
“the efficiency, effectiveness and fairness”,
of the system,
“the exercise by the Ombudsman … of the Ombudsman’s functions”,
and,
“such other aspects of the system mentioned in paragraph (a) … as the Ombudsman considers appropriate”.
However, there is then the question of whether the ombudsman believes that the resources are sufficient to carry out that role as effectively as the ombudsman believes it should be. There are a number of uncertainties about what workloads are likely to be. Other issues about what the ombudsman’s report must cover are written into new Section 340O, too, so there cannot be an objection to writing this in. I would have thought that writing into the Bill specifically that it should also cover whether the ombudsman believes the resources are adequate to enable his or her office to fulfil their functions is entirely appropriate. I hope the Minister will agree. I beg to move.
Earl Attlee
My Lords, I urge the Minister to exercise some caution. The noble Lord, Lord Rosser, has made some good points, especially about possibly increasing levels of demand on the ombudsman, especially in the number of complaints. However, the ombudsman will never have completely adequate resources and may well not be able to do everything that they want. Ombudsmen will have to prioritise their activities. I can think of no Defence Minister in the last 22 years of my service in the House of Lords who would deliberately underresource the ombudsman.
Lord Astor of Hever
My Lords, this amendment seeks to make specific reference in new Section 340O to the requirement for the ombudsman to make an assessment in their annual report of the adequacy of the resources available in exercising their functions. This new section in the Bill requires the ombudsman to provide the Secretary of State with an annual report which he must lay before Parliament. The report must comment on the fairness, efficiency and effectiveness with which the system has operated during the preceding calendar year. It must also cover the exercise of the ombudsman’s functions during that period. Additionally, the ombudsman may include in the report any other aspect of either of those elements, as the ombudsman considers appropriate. These are clearly fundamental to any report from the ombudsman and an important product of their oversight role.
The ombudsman’s assessment of the system and the role they play in it can ultimately have a significant impact on the extent to which our personnel and the public at large have confidence in the complaints system and, as a result, are prepared to engage with it to address the concerns they feel. As with other specific areas of the ombudsman’s role, such as their power to conduct investigations, the Bill leaves it to the ombudsman’s discretion about what other issues they feel are pertinent to how the system has operated in the preceding calendar year, and how they have been able to exercise their functions. As in all matters, these will differ from one year to the next and it is right therefore that the ombudsman should be able to judge what is relevant and worth including in their annual report.
The same provisions apply to the current Service Complaints Commissioner. She has varied the issues covered in each of her annual reports, depending on what she has experienced during the report period. Those reports have included comments on the adequacy of the resources that have been made available to her office. My noble friend Lord Thomas and the noble Lord, Lord Dannatt, commented at Second Reading that it was important that the new arrangements provided under the Bill are properly resourced. We set out in the impact assessment that accompanied publication of the Bill that we are working with the Service Complaints Commissioner on the changes that her office needs to enable it to convert to the new task of the ombudsman’s role. That will require additional resources and personnel with different skills. As we made clear in the impact assessment, we anticipate increasing the number of staff from the current nine of the commissioner’s office to 20. I hope that my noble friend will be satisfied with those numbers.
The noble Lord asked me about the Royal Military Police. Two days ago, I wrote a two-page letter to him on this subject, which he may not have received. I think this goes into some detail in answering him.
Lord Rosser
I am aware of it and grateful for the letter. I was rather hoping that the noble Lord would refer to it, so it is on the record in Hansard.
Lord Astor of Hever
The letter is very detailed. Rather than reading out the main points from the Dispatch Box, I would rather refer to the letter. The discretion available to the ombudsman in Section 340O, to include such aspects of the exercise of their function as they deem appropriate, is considered sufficient to cover any eventuality that may arise, without the need to make specific reference to resources, as this amendment proposes. For that reason, I must resist this amendment and ask the noble Lord to withdraw it.
Lord Rosser
My immediate reaction is to say that I want at some stage to have that on the record in Hansard. I appreciate the Minister’s lack of enthusiasm for standing up to read it all out now, so I am not wondering why he is not doing that, but I may have to consider whether to table an amendment on Report to achieve that. We are always extremely grateful—and I mean this—for the letters that the Minister sends and the care that he takes to respond to questions raised. I appreciate his approach and the assistance that he provides, but I think that some letters ought to be on the record in Hansard, so I may table an amendment on Report with the purpose of getting that one on the record.
As for the rest of the amendment, I hinted that under the wording of the Bill the Service Complaints Ombudsman could probably comment if they felt that the resources that they had were inadequate—or even if they were adequate, because an assessment of the adequacy could mean that the ombudsman says that everything is fine. I do not share the view of the noble Earl, Lord Attlee, that an ombudsman would never consider what they had to be adequate—that was what I inferred from what he said. After all, if an ombudsman were to announce that resources were inadequate, they would have to submit some justification in the report, which would be, or be in, a public document. The very fact that they had to write it down and could be questioned on it might make them think very hard whether they were being reasonable in their approach.
I included the provision because I think that there are uncertainties about what the workload will be. There is the issue of the wider-ranging reviews and whether they are already encompassed in the Bill; there is the issue of the number of complaints that may come forward if people have real confidence in the new arrangements. It did not seem to me to be unreasonable to include as a requirement an assessment of the adequacy of the resources. After all, if the ombudsman is entirely happy, it is a one-sentence response: “I consider that my resources are adequate”.
Earl Attlee
My concern is that if the ombudsman feels that there are adequate resources, the ombudsman needs to say nothing, but if the ombudsman cannot meet all the demand and has to report on that, he or she is bound to say, “I cannot meet all the demand”, but he or she may still be an effective ombudsman, although not meeting all the demand.
Lord Rosser
I do not particularly disagree with what the noble Earl says—that you could still be effective without meeting all the demand. I am not sure that that knocks my view that it should be a requirement that the ombudsman makes a comment on the issue of resources within the annual report.
However, I do not seek to turn this into a major issue, as it is clearly not. It has been an interesting discussion and I am grateful to the Minister for his response. I beg leave to withdraw the amendment.
Lord Rosser
“( ) The Secretary of State must publish an annual report on the extent to which the criteria listed in subsection (5) have been met.”
Lord Rosser
We move now to Clause 4, which deals with the issue of financial assistance for benefit of the Armed Forces community. It sets out that the Secretary of State can give financial assistance. Subsection (5) states that financial assistance can be given subject to conditions, which are then set out in paragraphs (a) to (e). We are talking about future funds. Some of what has been given so far has come from the LIBOR fund, which, one assumes, as time goes on, will dry up completely, as it is coming from activities which financial institutions should not be undertaking. One would hope that, in future, that source will dry up for the right reasons.
However, there will still be provision for funds. The documentation that we have had refers to the Ministry of Defence developing proposals to manage the enduring £10 million per year funding for future Armed Forces covenant commitments. It also discusses the process for assessing how money under this particular clause will be distributed and how the decisions will be made. From comments that we have heard, our feeling is that there are those who think that it has not been entirely clear how LIBOR funding has been allocated and spent and therefore how any future funding would be allocated. We have picked up comments that it has not been clear whether those in receipt of LIBOR funds have had to demonstrate their performance, that the criteria for how such funding has been allocated has not been very clear, and that it has also not been clear whether the money allocated has led to some of the intended improvements. That may or may not be the case. The purpose of this amendment is simply to provide that the Secretary of State will publish an annual report on the extent to which the criteria listed in subsection (5) have been met—that is really about what financial assistance has been given and whether the conditions laid down in Clause 4(5) have been met. Those are quite important conditions. They include,
“the purposes for which the assistance may be used”—
and—
“the keeping, and making available for inspection, of accounts and other records”.
That is another important issue and important check on how the money is being used and whether there is proper control and accountability. Bearing in mind that this is going to be in the Bill and that Clause 4(5) sets out some specific conditions, it does not seem unreasonable to say that the Secretary of State should publish an annual report on the extent to which those criteria have been met. We are talking about not inconsiderable sums of money. I hope the Minister will feel able to go down that road.
Baroness Garden of Frognal (LD)
My Lords, Amendment 19, which is in this group, is a probing amendment. It has largely been answered by the helpful background note circulated last week. My amendment is an additional aspect to those raised by the noble Lord, Lord Rosser.
This additional funding is a most welcome contribution to the benefit of the Armed Forces community. To the initial government grant of £30 million has been added, as the noble Lord mentioned, £35 million from LIBOR fines for Armed Forces covenant projects, and a further £40 million from LIBOR fines for a veterans’ accommodation fund. From 2015, there will be the enduring Armed Forces covenant fund of £10 million per annum. Applications are considered regionally, with the funding administered centrally by the MoD. These are very significant amounts and, as with any such funding, it is important that as little resource as possible is spent on administration and as much as possible goes direct to the people or projects to be funded. It is also important to avoid unnecessary duplication.
Baroness Garden of Frognal
I thank my noble friend for such a comprehensive definition of a person.
Lord Rosser
I, too, thank the Minister for her reply. As I understand it, the response to my amendment is basically that the issues I raised in it are likely to be covered in the annual report on the Armed Forces covenant.
Lord Rosser
Lord Rosser
I think the Minister may have already given part of the reply to this amendment when we were discussing Amendment 7, but if he was—I thought he was—I have to say that he caught me unawares, so I did not really follow, and I will probably be asking for an element of repetition.
As the Minister knows, this amendment was prompted by the report of the Delegated Powers and Regulatory Reform Committee in respect of the Bill. The effect of our amendment, if it has been tabled correctly, is to make sure that the regulations referred to in new Section 340B(5)(c) would require an affirmative resolution. In fact, that does not appear to go as far as the Delegated Powers and Regulatory Reform Committee suggested, if we have read correctly the conclusion it reached, because it refers to the provision in new Section 340B(5), which states:
“For the purposes of subsection (4), a service complaint is not admissible if … (c) the complaint is not admissible on any other ground specified in service complaints regulations”.
The argument of the Delegated Powers and Regulatory Reform Committee is that this is an extremely wide-ranging power under which it would be open to a Secretary of State, now or in future, simply through regulations to decide that things that one might have thought acceptable to be the basis of a complaint would no longer be in that category and would be regarded as inadmissible. In its report the committee says:
“In our view the powers are potentially very significant in that they allow additional restrictions to be imposed on a person’s right to have a complaint dealt with under the new redress procedures. At the same time the powers conferred by section 340B(5)(c) are very wide: they contain no limits on the kinds of matters which might be specified in the regulations as grounds for a service complaint to be inadmissible. Given the importance of the power and its potential to limit the right to bring a service complaint, and the lack of any restrictions on the matters which may be specified under the regulations, we consider the delegation of powers conferred by section 340B(5)(c) to be inappropriate”.
I read into that that the committee would probably not feel that our amendment was sufficient; indeed, it might suggest that what should be proposed should be the complete deletion of new Section 340(5)(c). However, we have tabled the amendment in this form, saying that it should go through the affirmative procedure. Clearly, the committee’s concern was that even if nobody could have any exception to the regulations, when they come out—I hope that I correctly anticipate that nobody will have any great exception to them—nevertheless, the power is there for some Secretary of State to do something in the future which could lead to matters which one might feel should be the subject of complaint being no longer admissible, simply through regulations. That really is a very wide power indeed.
I will wait with interest to hear the Minister’s response in the light of the Delegated Powers and Regulatory Reform Committee’s views on the very wide-ranging powers within the clause. I beg to move.
Lord Astor of Hever
My Lords, some of my answers on Amendment 7 are obviously relevant to this amendment but I shall not repeat what I said earlier. Amendment 20 is aimed at providing a higher level of parliamentary scrutiny of any Defence Council regulations made in respect of inadmissibility grounds. At first glance, it may seem inconsistent to make the Secretary of State’s regulations specifying matters which are excluded from the service complaints system subject to the affirmative procedure, but not the Defence Council’s regulations on grounds of admissibility. There is a distinction to be made between excluded matters and grounds of admissibility, although they are closely linked. Excluded matters, as can be seen from the initial draft of the service complaints miscellaneous provisions regulations, will include, as now, matters which are subject to alternative dispute mechanisms or involve decisions of independent persons, such as judge advocates or the service police.
The two additional grounds of inadmissibility which we are proposing to include in the draft service complaints regulations have emerged during the operation of the current service complaints system over the past six years. They are grounds related firmly to the fair operation of the service complaints system itself, and are, in our view, relatively uncontroversial. There is no current intention to expand on these grounds, but the Government wish to retain some flexibility here to be able to add to the list if other grounds of a similar type emerge which are impacting on the overall effectiveness of the system, without impacting on the rights of complainants to make service complaints.
Given the distinction between excluded matters and grounds of inadmissibility, we are of the view that it is appropriate for them to be dealt with in different sets of regulations and for those regulations to be subject to different parliamentary procedures. The former go to more fundamental matters, carving out small classes of complaints from the system, so it is appropriate for them to be dealt with in regulations made by the Secretary of State, and subject to the affirmative procedure. That is the same as now in respect of the equivalent regulations. As the additional grounds of admissibility relate broadly to procedural grounds for exclusion they should properly be covered in the Defence Council regulations dealing with the internal complaints system, and there is no reason for this aspect alone to be made subject to the affirmative procedure. As was noted by the Delegated Powers and Regulatory Reform Committee, it should be remembered that the current Defence Council regulations are not subject to any parliamentary scrutiny at all. As I have already indicated, we will reflect on this provision before Report.
The noble Lord, Lord Rosser, observed that the power in new Section 340B(5)(c) is very wide ranging. As I mentioned in responding to Amendment 7, I have asked officials to consider what more might be done to limit the scope of the power. In the light of that, I ask the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for his reply. In the light of the fact that he indicated further consideration is being given to this issue, I am very happy to withdraw the amendment.