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

Lord Thomas of Gresford Excerpts

Monday 23rd June 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I declare an interest as chairman of the Association of Military Court Advocates, which had the opportunity of discussing the Bill a week ago at a seminar at the Honourable Artillery Company premises in the City.

Dr Susan Atkins was right to draw attention to the scandals involving personnel in the BBC, the NHS and the police service in her 2013 report. They do not need repeating, but the lesson to be drawn is the reputational damage to a national organisation that fails to confront the problems in its midst and fails to deal with them fairly and promptly. She might have added Parliament itself and the political parties to her list.

It is very disturbing that the commissioner could not give an assurance that the service complaints system was working efficiently, effectively or fairly. A major concern of hers was the apparent increase in bullying and harassment of personnel in the Army, and she called for a system that would make the zero-tolerance policy in the services a reality. She also pointed to delay, as the noble Lord, Lord Dannatt, did a moment ago, as the principal reason for unfairness in the system, particularly in the Army and the Royal Air Force, and said that problems remain in the monitoring, handling and recording of service complaints. Importantly, she drew attention to the way in which slow, ineffective and unfair systems can exacerbate the wrong complained about, including damage to mental health.

Sadly, these problems were only too vividly illustrated by the tragic suicide of Anne-Marie Ellement, who suffered bullying and workplace abuse. At the inquest in March this year, the coroner referred to the fact that her reports to the chain of command of being bullied were not investigated. The announcement of the creation of an ombudsman came only weeks after that verdict was delivered, but I assume that there was work in progress since in its report on the work of the Service Complaints Commissioner, published in February 2013, the House of Commons Defence Committee gave wholehearted endorsement to Dr Atkins’s call for those powers to be that of an ombudsman. She had made detailed proposals for such a role in April 2013.

I therefore give a very cautious welcome to this Bill because I am not convinced that the proposals meet the criticisms of the previous system, and I shall be anxious to explore in Committee the weaknesses which I believe it contains. I am grateful to the Minister for his meeting with Peers last week and for his assurance that a meeting will be arranged with Dr Atkins and with the Vice Chief of the Defence Staff to thrash out any difficulties.

I very much welcome the strong powers, equivalent to those of a High Court judge, which the Bill gives to the ombudsman to call for documents and witnesses. The major stumbling block to reform is always the reluctances of the services to admit any outside interference in the running of military affairs. There was resistance to the reforms proposed to the military justice system in 2006, which are now largely accepted. It is not long since we were debating the concept of “lawfare”. I understand the high importance of the integrity of the chain of command, but, as I pointed out in our meeting with the Minister, everybody is subject to the rule of law, including the services.

The Armed Forces covenant is not a legal document, but its key principles were enshrined in law in the Armed Forces Act 2011. Under the covenant, the Armed Forces have a responsibility to maintain an organisation which treats every individual fairly, with dignity and respect, in an environment which is free from bullying, harassment and discrimination. Section C15 states that individuals must,

“have means of recourse open to them, if they believe that they are not being treated in a fair and appropriate way”.

In his report into Deepcut in 2006, Mr Justice Blake made that point. He said:

“It will be difficult for the Armed Forces to satisfy the public that they have nothing to hide in the running of their discipline and complaints system if there is a perception of unwillingness to accept meaningful independent oversight, which is increasingly seen as a necessary counterweight to the powers and prerogatives of military life”.

It must be remembered that the services compete for, and are concerned to keep, skilful and intelligent recruits in a competitive market. It is essential that those who are subject to military law and discipline should have confidence that their grievances will be properly addressed in accordance with the military covenant. As the Minister pointed out a moment ago, commanding officers control the lives of those under their command in a way that does not happen in civilian life and may subject them to punishment, and even imprisonment, for service offences. Employment tribunals have been kept at bay, save in discrimination cases, but the Armed Forces are not merely an employer; they are landlord, healthcare provider, social worker and much more.

To my mind, the most significant limitation of the Bill is that it confines the role of the ombudsman to an investigation of an allegation of maladministration in connection with the handling of a service complaint. This is covered in new Section 340H. This means that the ombudsman cannot investigate the substance of the initial incident that generates the complaint or any injustice arising out of it. His role is limited to discovering whether there are any procedural defects in the way in which the complaint was handled within the chain of command.

If the procedure was correctly followed, the ombudsman has no power to put right a decision on the merits of the complaint, no matter how perverse it appears to him to be. On the other hand, if the procedure was incorrect, the remedy is merely to return the complaint for a fresh decision within the chain of command, causing further delay and frustration to the complainant. Is it not as vital to ensure that the right decision was taken on a complaint as that it was simply procedurally correct?

Ombudsmen were introduced in the 1960s to investigate only complaints of maladministration—that is their 1960s history. However, their powers have developed. As Liberty points out in its very helpful briefing on the Bill:

“The Scottish Public Service Ombudsman, the Local Government Ombudsman for England and the Prisons Ombudsman are all empowered by statute to investigate ‘service failure’ in addition to maladministration. In its 2011 report on public service ombudsmen, the Law Commission observed that it could see no reason why the Parliamentary Ombudsman … should not have its powers increased to investigate service failure too”.

I therefore echo the thoughts of my noble friend Lord Palmer of Childs Hill, who asked whether it was possible that the Bill goes further than the individual complaint. The Minister said in opening today that the ombudsman can look at complaints that have systematic implications. Can he explain what he means by that? Can the ombudsman go beyond the individual complaint?

In its 2011 report the Law Commission also drew attention to the distinction between the findings of the ombudsman on an investigation into the facts surrounding an incident, and his recommendations. Over time, the practice has developed whereby an ombudsman makes findings of fact and of the existence of maladministration that is causing injustice to individuals, and then recommends action that the public body should take to remedy the injustice. The Law Commission concluded that recommendations should be seen in a different light. They are part of the political process, since compliance with recommendations may require the reallocation of a significant amount of public funds. However, the findings of fact are properly the province of the ombudsman.

New Section 340L deals with the ombudsman’s reports. First, it requires that the report sets out his findings, and, secondly, it requires him to set out his recommendations as a separate matter. Subsection (3) provides that the recommendations may include appropriate remedies for dealing with maladministration and with any injustice which may have been sustained. Can the Minister say whether it should be made explicit that the ombudsman may recommend compensation for the victims of maladministration or injustice? Is that to be implied in the wording of the Bill, or will it be necessary to improve and strengthen the Bill by giving the ombudsman the power to recommend compensation in an appropriate case?

In new Section 340M the Bill is silent on the issue of the ombudsman’s findings. It should be made explicit that the Defence Council is bound by those findings—it cannot open up the facts again and find differently to the ombudsman who was put in charge of an investigation. As for the recommendations, it should be made clear that the Defence Council will follow the ombudsman’s recommendations unless there are cogent reasons not to do so. At the moment, the clause is drafted in such a way that the Defence Council may quite arbitrarily reject the recommendations. Can the Minister confirm that the reasons in writing that the Defence Council may give for rejecting them may be challenged by judicial review?

The noble Lord, Lord Astor, said that the majority of complaints relate to pay and conditions. That may be so, but the public interest and concern is about allegations of bullying and harassment that fall short of criminal offences. It is important that the system deals with such allegations properly and is properly resourced with men and money to make sure that the ombudsman can do his work.