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

Rory Stewart Excerpts

Monday 9th March 2015 Commons Chamber

[Rory Stewart (Penrith and The Border) (Con)]

I beg to move amendment 24, page 1, line 9, leave out “is”

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 25, page 1, leave out line 10 and insert—

“(a) has been a member of the regular or reserve forces in the last five years ending with the day on which the appointment is to take effect, or”

Amendment 26, page 1, line 11, after “(b)”, insert “is”

Amendment 27, page 1, line 13, at end add—

“(4A) (a) The period for which a person is appointed shall be not less than five years and not more than seven years.

(b) A person who has been appointed as Ombudsman may not be re-appointed to the office.”

Amendment 28, in clause 2, page 3, line 15, at end insert—

“(5A) Before making regulations under this section the Defence Council must consult the Service Complaints Ombudsman.”

Amendment 23, page 5, line 15, at end insert—

“(2A) Regulations made under section 340E(1)(b) must specify that in relation to any service complaint which includes allegations of discrimination, harassment, or of being victimised as a result of making such allegations—

(a) where a person is appointed by the Defence Council for the purposes of section 340C(1)(a) or 340D(2)(d) that person must have a proven understanding of discrimination and harassment;

(b) where a panel is appointed by the Defence Council for the purposes of section 340C(1)(a) or 340D(2)(d) at least one member of the panel must have a proven understanding of discrimination and harassment.”

This amendment would require that any regulations made by the Secretary of State must specify that the person, or at least one of the panel members, involved in dealing with Service complaints involving allegations of discrimination or harassment should have a proven understanding of discrimination and harassment.

Amendment 29, page 7, line 32, leave out subsection (2).

Amendment 30, page 7, line 34, leave out from “subject to subsection (2),”

Amendment 31, page 7, line 39, leave out subsection (5).

Amendment 32, page 9, line 25, leave out paragraph (c) and insert—

“(c) provision for the imposition on those to whom reports are sent of obligations of confidentiality in the interests of—

(i) national security; or

(ii) the safety of any person.”

Amendment 33, page 9, line 30, at end insert—

“(aa) accept the findings and recommendations of the Service Complaints Ombudsman.”

Amendment 34, page 9, line 32, leave out “(if any)”

Amendment 35, page 9, leave out lines 35 to 37.

Amendment 36, page 12, line 14, at end add—

“( ) The Ombudsman may report to the Secretary of State on any matter relating to service complaints and the procedure for the handling of service complaints as the Ombudsman considers appropriate.”

[Rory Stewart]

These very important amendments were tabled by the Defence Committee. We shall not press them to a vote, but we want to explain crisply and clearly why we believe them to be very important. They focus above all on four things: the independence, freedom, power and scope of the ombudsman. I shall briefly go through each of the amendments in turn.

The principle on which the Defence Committee has acted is the need to get the balance right with regard to the very particular needs of military law and military discipline, which we accept are completely different from those in the civilian sphere. The kinds of things that soldiers are required to do are quite different from those required by a conventional employer. It is not necessary to lay those differences out in detail, but military discipline and military law have been quite different from civilian law in a series of important respects for 400 years.

It is important that, along with preserving the independence of the military and of military discipline and military law, we ensure that the ombudsman is genuinely trusted and respected. The first ingredient of that is, of course, the ombudsman’s independence and making sure there are no conflicts of interest, which is what the first set of amendments in this group—amendments 24 to 27—seek to ensure. They would make sure that the individual had not been in the military—either in the regular or the reserves—in the previous five years. That conflict of interest is obvious, so it is not worth trying the House’s patience. Put simply, if someone had been a senior general a month before they became the ombudsman, there would be a potential conflict of interest in the relationships they might have developed, so we think that a five year gap is sensible.

The second ingredient, which is in amendment 27, is to push for the term to be non-renewable. That is also about having no conflicts of interest: as the ombudsman do their job, they should not be perpetually thinking about how to get the job again. Our focus is on ensuring that they do the job clearly and crisply, without worrying about whether they will be reappointed—that is independence.

The second set of amendments, Nos. 28 to 32, deals with the freedom of the ombudsman. The Committee is pushing to ensure that the Ministry of Defence and the Defence Council do not put regulations or procedures in the way of the defence ombudsman or the Service Complaints Commissioner for the Armed Forces that prevent them from doing their job. We are trying to ensure that although the Ministry of Defence can set the parameters within which the ombudsman operates, it is not in a position to micromanage individual procedures. We believe that the Ministry of Defence should consult the ombudsman on regulations. Finally, on the question of power, we do not believe that the Ministry of Defence should be able to use confidentiality as a reason for denying access to the ombudsman, except in two particular cases: the personal safety of the individual and national security. Except in those cases, the ombudsman should have the scope to pursue an investigation.

The third conceptual issue for the Committee is about the power of the ombudsman. In amendments 33 to 35, we argue that the ombudsman’s recommendations should be binding on the Defence Council. The final conceptual issue is about scope, and amendment 36 touches on thematic reviews. In other words, should the ombudsman find a systemic issue—say, repeated examples of bullying—it may think it necessary to conduct a thematic review of the broader issues.

The Committee will not press the amendments to a vote because the Government have so far addressed them in a constructive fashion. We very much welcome the fact that they have accepted our major amendment to allow the ombudsman to look not simply at maladministration but at the substance of cases. We note that the Government, in appointing Nicola Williams, have already taken into account in practice many of the recommendations that the Committee wanted. We note that in the contract negotiations with her the Government have already ensured that the ombudsman appointed has not been in the armed forces during the previous five years—in fact, Nicola Williams has never been in the armed forces—which deals with our amendments 24 to 26. We note that the Government have said that the appointment will be non-renewable, which is our amendment 27. In practice, the appointment deals with the conflict of interests problem, and we understand that the Government will set out measures in regulations to deal with our anxieties about freedom, power and scope.

However, the Committee will of course watch the Government’s performance on such issues very carefully. Given that the Government do not want to agree to the amendments, that they assure us we can trust them and say that we should look at the precedent set by the appointment of Nicola Williams, and that they will introduce individual regulations to achieve all the measures that the Committee want, we will watch them very carefully. The Committee reserves the right to reintroduce the amendments, particularly in the Armed Forces Bill to be introduced in the next Parliament, if we believe the Government have reneged on what at the moment appears to be a commitment made in good faith, to ensure that the ombudsman’s principles are upheld.

[Sir Bob Russell (Colchester) (LD)]

I am grateful to the Chairman of the Select Committee for the way in which he is setting out its views. Will he expand a little more on the concerns expressed in some quarters about the ombudsman not having any military knowledge and experience? How will she address that problem, if it is a problem?

[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.

--- Later in debate ---

[Anna Soubry]

Yes, I do. Both the hon. Member for North Durham and my hon. Friend the Member for Penrith and The Border have said that we have seen a progression to where we are today, and we must understand and recognise that some think this is a step too far. They think we have gone too far and perceive some threat to the chain of command. I absolutely do not believe that, but things often take time to develop in the ways we want. I am absolutely confident that we have struck the right balance.

[Rory Stewart]

The question of whether this is a fundamental threat to the chain of command is a central point. Although people are very polite and do not put this about, I know a lot of colleagues and people in the armed forces are concerned that this is going too far. Will the Minister lay out more clearly why this is not a threat to the chain of command?

[Anna Soubry]

This Bill—it has now been amended and we have accepted the amendments—changes the ombudsman’s remit but not her powers. Somebody who brings a complaint to Nicola Williams can be absolutely confident that it will be thoroughly and properly dealt with, and that she will be in a position to make her recommendations. She has access to Ministers and to others in the chain of command, and can go to them at any time. That chain of command is not under threat because of her. Indeed, I am confident that the creation of the ombudsman will give the chain of command the understanding—the hon. Member for Bridgend or the hon. Member for North Durham made this point—that it has nothing to fear from the ombudsman, nor from a better system, because if complaints are dealt with properly and expeditiously, and fairly and justly, we will have a better team and group of people. This will only strengthen the chain of command’s ability to conduct its business.

--- Later in debate ---

As I have said before during the passage of the Bill, there is no bar in this Bill to the ombudsman raising matters that concern them with whoever they wish and whenever they wish, but that does not need to be set out in legislation. The previous service complaints commissioner, Dr Susan Atkins—we pay tribute to her for her work—raised a wide range of matters with the chain of command during her tenure, and, if I can put it in this way, she took no prisoners. She also made mention of whatever matters she so chose to in her annual reports with provisions that were the same as those provided for in this Bill, so we have no reason to think that the ombudsman will not do exactly the same. For all the reasons that I have outlined, these amendments are resisted.

[Rory Stewart]

I reiterate what the Defence Committee said, which is that the amendments are extremely important conceptual points relating to the independence of the ombudsman and conflict of interest; the power of the ombudsman; the freedom of the ombudsman to operate; and the scope of the ombudsman. We will not press the amendment to a vote at this time. That is a good will gesture to the Government, who have made a concession on an important amendment.

I also wish to take this opportunity to pay tribute to the hon. Member for Bridgend (Mrs Moon), who has been the guiding spirit and soul of this process from the beginning to the end. She has kept the Defence Committee focused and she has kept it honest. I hope that she feels a real sense of achievement at having got through this extremely important amendment.

[Mr Speaker]

For the avoidance of doubt, if the hon. Gentleman could just say the words that he seeks leave to withdraw the amendment.

[Rory Stewart]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2

Reform of System for Redress of individual Grievances

[Anna Soubry]

I beg to move amendment 1, page 6, line 28, after “may”, insert “, on an application to the Ombudsman by a person within subsection (1A),”

This amendment clarifies the provision made in new section 340H(1) of the Armed Forces Act 2006 (inserted by clause 2 of the Bill) about the making of applications to the Service Complaints Ombudsman. See also amendment 5.

--- Later in debate ---

[Anna Soubry]

If somebody says that there has been undue delay, but the commissioner finds that there has not, she can certainly say so, though at that stage, of course, she would not be looking at the merits of the case. If somebody makes a complaint and goes through the system, and there is no finding in their favour, and then says, “I will now go to the ombudsman on the question of the merits of the case”, it is absolutely the ombudsman’s role to look at whether there is any merit to the case. If she thinks that there is no merit to it, she will not flinch from saying so. I hope that satisfies my hon. Friend.

It is now possible to apply to the ombudsman alleging undue delay when a complaint in the internal system has not been concluded, or indeed when a complaint has not even been made, so it is important that the Bill sets out for the avoidance of doubt what is meant by the internal process having been completed. That is effected by putting the phrase “finally determined” in proposed new section 340H(1); an explanation of the term is provided in proposed new subsection (5). Several hon. Members raised that issue with me before the debate in private—I mean nothing untoward by that. I want to make it clear for the Hansard record that the phrase “finally determined” does not in any way preclude the ombudsman’s looking into the merits or maladministration of a complaint. It is simply there to make it clear that she can do that only once consideration of the complaint by the services through the internal system has been completed, and only when the applicant has asked the ombudsman to investigate in accordance with the requirements of the Bill. The phrase brings clarity.

It remains important for the ombudsman to have a reasonably clear idea of what the applicant wants them to look into, and for investigations to remain focused and proportionate. One of the amendments would insert a new subsection (4)(b) in section 340H, requiring the applicant to specify which type or types of investigation the complainant wants the ombudsman to carry out. This is not an onerous obligation, and it will help to focus the efforts of the ombudsman on what is most important to the applicant. That is connected with the amendment that would insert new subsection (1)(b) in new section 340I, giving the ombudsman the discretion to decide whether to investigate the whole service complaint or allegation, or just part of it.

New section 340H also reflects the change to the ombudsman’s ability to report on any maladministration identified during an investigation of a complainant’s allegation of maladministration. We want the ombudsman to be free to report on any other aspect of mishandling that she may come across, and have amended the Bill accordingly to make this clear throughout the relevant provisions. Our changes provide an essential clarification to the amendments agreed in Committee; those amendments would have required the ombudsman to look for any maladministration in every investigation, whether or not it had been alleged by the complainant. The amendment that we propose to new section 340H(6) clarifies the scope of this new aspect of the ombudsman’s investigative power.

It is equally important for everyone that it is clear what the ombudsman can do on completing an investigation. Her ability to produce a report with findings and recommendations is fundamental to the view that many will rightly have about whether this new role really does have teeth. The Government amendments will also fill a gap that was left when amendments were made in Committee. We would amend new section 340L to make it clear that the ombudsman must, after carrying out an investigation, prepare a report setting out her findings and recommendations. After an investigation of a service complaint, the ombudsman will need to issue findings stating whether the complaint was well founded, and will need to make any recommendations to ensure appropriate redress. The Defence Council retains responsibility for responding to those findings and recommendations, in accordance with new section 340M. The Government amendments also clarify that the ombudsman must set out any recommendations as a result of a finding of maladministration or undue delay.

This group of amendments is a relatively large one, but it is necessary to ensure that the provisions of the Bill are clear. The amendments also ensure that the drafting is coherent and complete, while giving full effect to the amendments agreed to in Committee, which had cross-party support. In a couple of important respects, which I have outlined, they also improve the amendments which were agreed to in Committee.

We could have been, shall I say, a little bit naughty. When we saw what had been voted for, we could have left it there, knowing that it did not do the job that we knew the Committee wanted it to do. We accordingly went to our draftsmen and draftswomen and we have made sure that the spirit of the Committee is now being put into law.

[Rory Stewart]

Without being too pedantic or too pompous at this point, there is an important procedural point here when we discuss being naughty or otherwise. There is an important conceptual element in setting up an ombudsman, which is showing respect to Parliament, respect to the Committee system—respect to both the Bill Committee and the Select Committee. Rather than getting into the ins and outs of politics, I encourage the Minister to see this as a great success and a great model for the way such things can go forward in the future.

[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.