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

Madeleine Moon Excerpts

Monday 9th March 2015 Commons Chamber

[Rory Stewart]

My hon. Friend raised that central question during the Defence Committee’s pre-appointment hearing. We were very pleased that the Committee had an opportunity to meet Nicola Williams and to conduct a pre-appointment hearing with her. We focused very heavily on whether, without military experience, she would feel comfortable in the role. We were very impressed by Nicola Williams. Her arguments and explanations were extremely convincing, she displayed real independence in her role in the Cayman Islands, and she seemed to have the right balance of independence and respect for the institution. We were very happy, as a Committee, to approve her appointment.

To conclude, this matter is very important to the Defence Committee. We are not conventionally a Committee that looks at legislation. The nature of our work is not usually to scrutinise individual Bills, because a great deal of the work of the Ministry of Defence is not connected with legislation. However, we feel that it is very important in the setting up of the ombudsman that Parliament, and the Defence Committee in particular, is carefully involved.

We accept that it is a step in the right direction that the post of ombudsman has gone from thee days a week to a full-time job, and from having five employees to having more than 20. We accept that it is a good move that the Defence Committee has the power to hold an appointment hearing on the ombudsman. We also think it is good that the Government have accepted amendments from the Defence Committee. Aside from the inherent merits of those amendments, it is simply good procedure that in setting up an ombudsman, the Executive listen to the legislative branch and give Parliament and the Defence Committee the chance to influence the procedure. The ombudsman will have trust only if they bring not just the Ministry of Defence but Parliament, the public and institutions such as the Defence Committee with them. On those grounds, I move the amendment, but will not press it to a vote.

[Mrs Madeleine Moon (Bridgend) (Lab)]

I shall speak briefly to the amendments tabled by the Defence Committee and to amendment 23, which I tabled.

The armed forces, as I frequently tell my constituents, are a closed institution with their own language, dress code and standards. Most personnel live a closed life that is mostly unobserved by society, but which represents the highest values of our society. The armed forces also have their own internal disciplinary system and legal system—AGAI 67. Abuses of the system can remain hidden and have done, as seen in the double jeopardy cases I have discussed in the House and in the Public Bill Committee. Those cases were revealed only because of whistleblowers.

One of the most important things we must accept about the armed forces is that innate to them is a huge desire for justice. Armed forces personnel have a huge recognition of the importance of justice and the importance of people being dealt with fairly. However, papers frequently come through my office that demonstrate that the service complaints system to date has not necessarily been working fairly.

I welcome the changes that the Minister of State, Ministry of Defence, the hon. Member for Broxtowe (Anna Soubry), accepted in Committee. I also welcomed her intervention on Second Reading when she revealed that the issue of double jeopardy would be addressed. I hope we shall have regular updates on the efforts to access the 587 ex-employees, 194 of whom had their service terminated and five of whom had their rank reduced.

Armed forces personnel have limited access to employment tribunals. It is therefore critical that the internal system operates well and gives a sense of confidence to armed forces personnel. We know that the delays are growing. As the number of armed forces personnel decreases, the pressure on personnel increases. The number of people who investigate and adjudicate in the matter of service complaints is also decreasing. As I have said, the creation of the service complaints ombudsman and the changes that were introduced in Committee are the last chance for the armed forces to maintain the current closed system.

[Jim Shannon (Strangford) (DUP)]

In Committee, the delays for serving soldiers and those employed by the Ministry of Defence in getting their complaints heard concerned me greatly. There are also people who have lost their jobs or who have been suspended—one of my constituents has been suspended for four years on full pay. Will the proposed changes restore much-needed confidence in the process?

[Mrs Moon]

In many respects that is the critical issue, and I hope the Defence Committee will take an active role in monitoring and adjudicating on whether we need to come back to the Bill and decide whether further changes are necessary. Papers that I received this morning tell me that 74% of the Army’s open service complaints exceed the 24-week deadline—six months—and only 51% of new service complaints in the RAF were resolved in 24 weeks during 2014. In January 2015, the Army had 724 service complaints outstanding from 2013 and previous years. The Navy had 144, and the RAF 165. Those figures are deeply worrying—we are about to introduce a new, complex system with opportunities for the ombudsman to be much more proactive in intervening in service complaints, yet we already have a huge backlog of complaints. I would like the Minister to address whether those outstanding complaints will be subject to the new rules introduced by the Bill, and whether they will be assessed under rules of maladministration. That will be one of the critical deciders as to whether there is confidence for those who have been held in the system and experienced horrendous delays.

Parliament sets the standards that it expects our armed forces to operate to, and it must have confidence that the internal military system works. As I said, Parliament has the opportunity in 2015 to review further the operation of the service complaints system, and to remove control of the system from the chain of command unless we see the changes that we want and our armed forces deserve. Internal papers that come our way suggest that, increasingly, reserves will be used to help to deal with complaints. Will the Minister say how often reserves will be used to sit on panels and change the way that complaints are dealt with?

There are positives to using reserves, because they come with a wider perspective of life outside the armed forces and know how some of the bullying and harassment, and some of the horrendous cases that have come to public attention, would be dealt with in a wider employment setting. That could be a constructive move forward, but it is important at least to be clear about what is happening, whether reserves are being used in that way, and what skills they are bringing to the complaints system and its operation.

There are a number of complaints within the current system such as poor quality entry of complaints into the joint personnel administration system, which is where complaints are held. Indeed, in December 2014 the service complaints wing identified more than 70 service complaints that had not been notified through the unit as a service complaint, and had not been entered on to the system. We therefore do not even know whether we are still getting accurate figures for service complaints. On delay, as I have said, the numbers are growing. It is important that people feel confidence in the system, and that the system is seen as robust and working.

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[Anna Soubry]

I think the hon. Gentleman misunderstands me. We could have played politics, but I absolutely was not going to do that. My officials would not dream of such a thing, of course, but we could have done that because the amendments were not clear. I took the firm view that it was clear what the Committee wanted and that we should do everything we could to put it into effect. There was a good argument for waiting until the next armed forces Bill, but I took the view that that would not be right. It was clear what the Defence Committee wanted and what the Public Bill Committee wanted. That is why the Government have tabled the amendments. We know that that is, in effect, the will of the legislature. I am pleased to see my hon. Friend the Member for Penrith and The Border (Rory Stewart) nodding.

The amendments will give us a Bill and a process that will help our people understand when they can approach the ombudsman, on what matters and at what stage of the process, and they will give the ombudsman the teeth needed to hold the services and the MOD to account. I therefore commend amendments 1 to 21 to the House.

[Mrs Moon]

Amendment 22, which is in my name, seeks to define “undue delay”. I pay respect to the Minister, who has taken time to meet everyone involved with the Bill. We had considerable discussion on the issue of undue delay and how it could be defined, and we agreed that, although I would not press the amendment today, it was important that there was a dialogue about delay.

There are two things that one can say for certain about the current complaints system: delay is an endemic problem within the system, and everyone is aware of it. It came to the attention of the Committee many times that only 25% of cases are resolved within a 24-week target, and only 26% of complaints made in 2013 were closed during that year. The internal risk register looking at the implementation of the service ombudsman Bill within the MOD stated that there was a high risk that the system would lose further internal credibility if there was continuing media exposure of how powerless the ombudsman is. Rather than media exposure taking place, it is important that the system operates well so that there can be internal confidence.

There is a high risk that the system will continue to fail and that current delays will continue. There is a high risk that service personnel will be let down, damaging their mental health and leading to suicide attempts. None of us wants to see any of that, which is why the Defence Committee has worked as closely as possibly with the Minister to ensure that we move forward in a constructive and productive manner.

In January 2013, 325 complaints had a red flag. By December 2013 that figure had swelled by over 50% to 500. We have seen repeatedly how delay has been used to wear down complainants so that they go away. It is also used as a punishment for complaints being made in the first place.

Members have raised concerns about this being an attack on the chain of command. Let me say that, since the Bill Committee, I have taken time—I have spoken to the Minister about this—to talk to people in the chain of command and to ask them how they feel about the changes introduced by the Defence Committee. Every person I have spoken to has welcomed the changes and not felt threatened by them. They all felt that the changes were right and that they would focus people’s minds and attentions on complaints so that they are not put in a cupboard and regarded as an annoyance, but are seen as one of the parts of the job to be dealt with first, so that the unit operates efficiently and effectively. The bad pennies that exist would be dealt with quickly and a clear message would be sent that bullying and harassment, in particular, would not be tolerated anywhere in the chain of command.

Delay is caused in part by the labyrinthine system that was initially set up by the Ministry to process complaints. In his evidence to the Defence Committee, retired Lieutenant Colonel Jeremy Field railed against the masses of paperwork involved. The abuse of process by those in the chain of command either to propel a dubious complaint or to hold up a legitimate but inconvenient one is also a worrisome cause of delay. Such abuses can have a devastating impact on individual complainants and on their mental health and well-being. When such cases come into the public domain, the system and confidence in it are undermined.

I raised the case of Tom Neathway on Second Reading and in Committee. Another concerning case that I would like to mention briefly is that of Sergeant Major Michael Booley, who was Prince Harry’s flying instructor. He accused the Army of gross mistreatment after a four-year dispute that ended his distinguished career. When reading about the case, it is very worrying to see that the service complaints panel found that Major Graham, who Sergeant Major Booley claimed had been acting deliberately and maliciously against him, was an unreliable witness and that his conduct not only wronged the complainant, but acted against the interests of his employers in the Army. I think that that is the big issue. Where there is bullying and harassment, it is against the interests of the Army, the RAF or the Navy. We must always keep that central to our thinking and our focus when looking at complaints. That is why the changes set out today are so important.

I think that it is important to have some sort of definition of undue delay, but I accept that it might not necessarily need to be in the Bill, or even in regulations. It can be something that the ombudsman sets out herself when setting out the definitions that will guide her judgments. I therefore hope that the Minister will consider and discuss with the ombudsman how we can move that forward.

[Mr Kevan Jones]

I give the Minister 10 out of 10 for her brass neck, because these amendments were tabled subsequent to her losing the vote in Committee, and the Government do not want to press them to a vote tonight for fear that she might lose again. The amendments are consequential to the major change that took place in Committee, namely that to the nature of the ombudsman. What the Minister originally proposed was a dry institution that would have dealt only with maladministration, but the ombudsman’s role has now been opened up to cover a wider range of complaints. I have been arguing for that for a long time, and the Defence Committee also argued effectively for it in its report.

--- Later in debate ---

[Anna Soubry]

I must say that I thought I had been rather gracious in defeat, so it was a little churlish of the hon. Member for North Durham (Mr Jones)—[Interruption.] He shouts louder than I do from a sedentary position. I have to say that it is to the coalition’s credit that all we are doing in the Bill, with the creation of the ombudsman, has been done in just over four years, while the Labour party did not do it in 13 years.

I want to address amendment 22. I know it is an awful expression, but the hon. Member for Bridgend (Mrs Moon) and I are absolutely on the same page. We know that undue delays are the absolute devil of any system. It is not a widespread problem, as my hon. Friend the Member for Beckenham (Bob Stewart), who has moved to a different place, has quite clearly and properly said, but when it happens, it is a real problem. The attitude is, “Oh, let’s prevaricate. Let’s put up some device. They’ll just go away, or they’ll give up in the end.” We must stop such an attitude, so I completely and totally understand what the hon. Lady is seeking to do. In that respect we are absolutely at one, but not on how we achieve it. I obviously accept the good intentions behind amendment 22, but I shall it because it is not the device to achieve what we both want.

The time taken in progressing a complaint can be affected by any number of events, such as illness, deployment, which I have mentioned, and training. Sometimes the complainant shows a lack of interest, even though the complaint is valued and should be pursued. A complainant might decide not to pursue it for a period but then come back to it, or they might not be going to pursue it and then realise that they should do so for reasons that we can imagine, but often because others have given them support. Of course, the need to find relevant information can also delay things.

It is important for all concerned that no strict definition is applied. If one were, it might deter worthy cases from being raised or constrain the ombudsman’s discretion as to what is in scope. I am one who looks for discretion as opposed to fixed, determined dates or targets. It should be for the ombudsman to set out guidance on what individuals might need to consider if they believe that they have suffered undue delay in progressing their complaint.

This is not a matter for legislation. Putting the advice in the ombudsman’s guidance will ensure that there is the necessary flexibility to adapt it to reflect real experiences. With some complaints, undue delay might be six or nine months. We need that flexibility. That is why it is right to leave it to the ombudsman to set out her—or, in time, his—guidance.

[Mrs Moon]

To use the horrible expression that the hon. Lady used, we are on the same page. As of 26 January 2015, 1,033 complaints that had been open since 2013 were still unresolved. We are on the same page in that neither of us wants to see that continue. Let us hope that the ombudsman finds a way to deal with such undue delays.

[Anna Soubry]

Absolutely. I hope that the hon. Lady is comforted by the fact that we are looking at whether the complaints that are already in the system can be brought into the new system. I imagine that long delay is a matter that we will want to bring to the ombudsman’s attention. Again, it all depends on the nature of the complaint and what the circumstances are. The Second Sea Lord, Sir David Steel, made the point to me that he had seen some cases in the Navy that were huge because they were about complicated allowances and so on and so forth.

However, it struck me that the cases that the hon. Lady referred to were not particularly complicated. Those delays were absolutely unacceptable. It is often the person-to-person complaints or grievances that must be dealt with expeditiously. That is in everybody’s interests, not just the complainant’s. The person against whom the complaint is made also wants determination and justice. Not every complaint is well founded; there are cases in which false allegations are made. It is therefore in the interests of the person against whom the complaint is made that it is dealt with fairly, justly and with all due diligence and expedition.

For all the reasons that I have given, I resist amendment 22 and urge everyone to accept the other amendments.

Amendment 1 agreed to.

Amendments made: 2, page 6, line 29, after “complaint”, insert

“, where the Ombudsman is satisfied that the complaint has been finally determined”.

This amendment makes a drafting change in consequence of amendment 9. It clarifies that the Service Complaints Ombudsman may not investigate a service complaint unless satisfied that the complaint has been finally determined.

Amendment 3, page 6, line 31, leave out from “complaint” to end of line 32 and insert

“(including an allegation of undue delay), where the Ombudsman is satisfied that the complaint has been finally determined;”.

This amendment makes minor drafting changes, including a change in consequence of amendment 9. It clarifies that the Service Complaints Ombudsman may not investigate an allegation of maladministration unless satisfied that the service complaint to which the allegation relates has been finally determined.

Amendment 4, page 6, leave out lines 33 to 37 and insert—

“(c) an allegation of undue delay in the handling of a service complaint which has not been finally determined;

(d) an allegation of undue delay in the handling of a relevant service matter.”

This amendment clarifies when the Service Complaints Ombudsman may investigate an allegation of undue delay in the handling of a service complaint or a relevant service matter (as to which, see amendment 6).

Amendment 5, page 6, line 37, at end insert—

“(1A) The following persons are within this subsection—

(a) in a case relating to a service complaint, the complainant;

(b) in a case relating to a matter in respect of which a service complaint has not been made, the person who raised the matter,

and, in relation to a case mentioned in paragraph (b), references in the remainder of this Part to the complainant and to a service complaint are to be read respectively as references to the person and the matter mentioned in that paragraph.”

This amendment makes provision about who may make an application to the Service Complaints Ombudsman for an investigation under new section 340H(1) of the Armed Forces Act 2006.

Amendment 6, page 6, line 37, at end insert—

“( ) For the purposes of subsection (1)(d)—

(a) “relevant service matter” means a matter of a kind about which a service complaint—

(i) may be made, whether or not at the time of the application to the Ombudsman such a complaint has been made, or

(ii) could have been made (but for provision made by virtue of section 340B(2)(c));

(b) the reference to the handling of a matter is to its handling before the making of a service complaint (if any) about the matter.”

This amendment defines “relevant service matter” for the purposes of paragraph (d) of new section 340H(1) of the Armed Forces Act 2006 (see amendment 4) and makes provision about the reference to the handling of such a matter.

Amendment 7, page 6, line 39, after “writing,”, insert—

“() must specify the kind (or kinds) of investigation which the complainant wishes the Ombudsman to carry out (an investigation under a particular paragraph of subsection (1) being a “kind” of investigation for this purpose),”.

This amendment provides that an application to the Service Complaints Ombudsman must specify which type or types of investigation the applicant wants the Ombudsman to carry out.

Amendment 8, page 6, line 40, leave out “the” and insert “any other”.

This amendment is consequential on amendment 7.

Amendment 9, page 6, line 42, leave out from beginning to “a” in line 44 and insert—

“( ) For the purposes of this section, a service complaint has been finally determined where—

(a) ”.

This amendment converts new section 340H(3) for the Armed Forces Act 2006 into a general proposition about when a service complaint is to be treated for the purposes of new section 340H as having been finally determined.

Amendment 10, page 7, line 5, leave out “that”.

This amendment is consequential on amendment 9.

Amendment 11, page 7, leave out lines 7 to 11 and insert—

“( ) The purpose of an investigation is—

(a) in the case of an investigation under subsection (1)(a), to decide whether the complaint is well-founded and, if so, to consider what redress (if any) would be appropriate;

(b) in the case of an investigation under subsection (1)(b), (c) or (d), to decide—

(i) whether the allegation is well-founded, and

(ii) if so, whether the maladministration or undue delay to which the allegation relates has or could have resulted in injustice being sustained by the complainant.”

This amendment clarifies the purpose of an investigation under each paragraph of new section 340H(1) for the Armed Forces Act 2006.

Amendment 12, page 7, line 11, at end insert—

“(4A) The power to carry out an investigation under subsection (1)(a) or (b) includes power to investigate any maladministration in the handling of the service complaint where it becomes apparent to the Ombudsman during the course of an investigation that any such maladministration may have occurred.”

This amendment provides for the circumstances in which the Service Complaints Ombudsman has power to investigate maladministration in the handling of a service complaint (other than any maladministration that the complainant has specifically alleged).

Amendment 13, page 7, line 12, after “application”, insert

“in respect of a service complaint that has been finally determined”.

This amendment is consequential on the amendments to new section 340H(1) for the Armed Forces Act 2006 (in particular amendments 2 to 4).

Amendment 14, page 7, line 25, leave out “investigated an application relating to” and insert

“carried out an investigation under subsection (1)(a) or (b) in relation to”.

This amendment confines new section 340H(8), which prevents the Service Complaints Ombudsman from investigating subsequent applications relating to a service complaint that the Ombudsman has already investigated, to cases where the Ombudsman has carried out an investigation under new section 340H(1)(a) or (b) in relation to the complaint.

Amendment 15, page 7, line 31, at end insert “;

(b) whether to investigate a service complaint, or an allegation, as a whole or only in particular respects.”

This amendment provides that the Service Complaints Ombudsman may investigate a service complaint, or an allegation, in whole or in part.

Amendment 16, page 7, line 44, after “investigation”, insert “under section 340H(1)(b)”.

This amendment is consequential on amendments to new section 340H(1) of the Armed Forces Act 2006.

Amendment 17, page 8, line 43, at end insert

“, and

(b) any recommendations referred to in subsection (2A).”

This amendment requires the Service Complaints Ombudsman to include, in a report under new section 340L, any recommendations required by subsection (2A) (see amendment 18).

Amendment 18, page 9, leave out lines 1 to 4 and insert—

“(2A) Those recommendations are—

(a) on an investigation under section 340H(1)(a) where the Ombudsman finds that the =-service complaint to which the investigation relates is well-founded, the Ombudsman’s recommendations (if any) on what redress would be appropriate;

(b) on an investigation under section 340H(1)(b), (c) or (d) where the Ombudsman finds that the allegation to which the investigation relates is well-founded, the Ombudsman’s recommendations (if any) as a result of that finding;

(c) where, by virtue of section 340H(4A), the Ombudsman finds maladministration in the handling of a service complaint, the Ombudsman’s recommendations (if any) as a result of that finding.”

This amendment provides for the recommendations which the Service Complaints Ombudsman can make as a result of findings on an investigation under any paragraph of new section 340H(1) or by virtue of new section 340H(6).

Amendment 19, page 9, line 5, leave out “(2)” and insert “(2A)(b) or (c)”.

This amendment is consequential on amendment 18.

Amendment 20, page 9, line 8, after “maladministration”, insert

“or undue delay to which the finding relates”.

This amendment is consequential on amendment 18.

Amendment 21, page 9, line 10, after “maladministration”, insert “or undue delay”. —(Anna Soubry.)

This amendment is consequential on amendment 18.

Third Reading