Select Committee on Armed Forces Written Evidence


Further Memorandum from the Ministry of Defence

REDRESS OF INDIVIDUAL GRIEVANCES: SERVICE COMPLAINTS

  1.  This memorandum supplements an earlier memorandum of January 2006 on the proposals in the Armed Forces Bill to change the redress of complaints system. It covers matters relating to:

    —  The types of case that would be delegated to a Service Complaint Panel.

    —  The types of case where a Service Complaint Panel would include an independent member.

    —  The appointment of the independent member.

    —  The external reviewer.

  and summarises current MOD views on these issues.

THE SERVICE COMPLAINT PANEL

  2.  The Bill makes provision at Clause 331 for the Defence Council to delegate to a Service Complaint Panel a particular service complaint or any service complaint of a description determined by the Defence Council. It is important to maintain a consistent approach to those cases that are delegated to a panel to ensure that similar complaints are handled in the same manner and so avoid perceived or actual unfairness in the system. Because of the wide range of matters that could be the subject of a complaint, it is difficult to group complaints into particular categories for delegation purposes. The most effective method of achieving consistency is therefore to decide which types of case should continue to be dealt with by the Service Boards of the Defence Council and all others should therefore be delegated to a Service Complaint Panel for a decision.

  3.  The previous memorandum on redress outlined the types of case where the Defence Council would wish to continue as the decision-making body: complaints against decisions made by a Service Board or complaints against a decision made by a very senior officer. It is intended that the Service Complaint Panel will be established at 2 level so the decisions made by a very senior officer will be those of officers of 3 rank or above. The type of matter that these complaints may include are cases where it had been decided that an officer's service was to be terminated as a result of administrative action (for example, following a civil court conviction) or where a person had disputed an appraisal report completed by a 3 officer.

  4.  A further category of case that would be retained by the Defence Council is where the complaint is to do with the withdrawal or withholding of security clearances. This is a specialised type of case and one where complainants have an ultimate right of appeal to the independent Security Vetting Appeals Panel if they are not satisfied with the outcome of their complaint within the redress system. Although this Panel cannot overturn a decision made by the Defence Council, it can make recommendations that might be contrary to an earlier decision.

  5.  All cases other than those above should be dealt with by a Service Complaint Panel as the decision-making body. The Panel would have the same powers that the Defence Council could have exercised in such cases, for example to award damages or to offer reinstatement to a Serviceman who had been discharged.

CASES REQUIRING AN INDEPENDENT MEMBER

  6.  It is essential that commanding officers and higher levels in the chain of command should (within the scope of their authority) have the ability to correct situations that have gone wrong if service ethos and the effective operation of the command function are to be maintained. Their part in the complaint system is therefore vital. Above this level, a Service Complaint Panel will carry out the delegated functions of the Defence Council. There will be a number of factors to be taken into account when determining the composition of the Service Complaint Panel, such as independence from the chain of command, understanding the context in which an incident occurred and whether specialist knowledge is required. Similarly, the involvement of independent members on a Service Complaint Panel that is making a decision on behalf of the Service Board should also be targeted at those areas where their contribution would be appropriate and of real value. There would be little value, for example, in using an independent member in the types of case related to eligibility criteria for allowances.

  7.  The inclusion of an external, independent member on a Service Complaint Panel will be appropriate in cases where it is important to ensure that an issue is considered by a person who is external to the Services and MOD. In such cases, an independent member should increase confidence in the system.

  8.  The Armed Forces need to ensure that, in all situations, their values and standards—such as trust, loyalty and teamwork—are at the core of military service. This is essential if the Services are to be effective fighting forces. To sustain this, service personnel need to know that if they have a complaint that involves the kind of behaviour that can undermine these principles, their complaint will be dealt with fairly. In view of this, the types of case that lend themselves to a Service Complaint Panel with an independent member are those involving a complaint about inappropriate behaviour.

  9.  Examples of such behaviour include:

    a.  Unlawful discrimination[6] or harassment[7] on racial grounds or on the grounds of sex, religion or belief, or sexual orientation.[8]

    b.  Bullying. This can amount to harassment in some instances and often includes an abuse of power or rank. It may be overt behaviour including physical or verbal abuse, threats or unreasonable demands, or covert behaviour such as excluding someone from group activities or exerting subtle pressure to work long hours.

    c.  Dishonesty and other improper, unprofessional or biased behaviour. This might include taking steps to prevent unauthorised activity coming to light; a decision that is purportedly made for a particular reason when the actual reason would be unsustainable in the circumstances; behaviour that is based on a predisposition or prejudice against or in favour of a particular person; treating a person less favourably than others on improper grounds other than those prohibited by anti-discrimination legislation, for example simply not liking the person.

  10.  The categories of case where an independent member must be appointed to a Service Complaint Panel will be the subject of secondary legislation made under clause 332 and subject to Parliamentary agreement.

APPOINTMENT OF THE INDEPENDENT MEMBER

  11.  Work is progressing on the most appropriate method of appointing an independent member who would be called on an ad hoc basis to sit on a Service Complaint Panel. Once it is decided which types of complaint will require an independent member to be appointed, work on the required qualifications and experience of members, and the number of persons who would be available to be appointed can be finalised.

  12.  In addition to the Service Complaint Panel having categories of case delegated to them for the purpose of making decisions, there is flexibility under clause 331 of the Bill for the Defence Council to require a Service Complaint Panel to assist them by investigating a complaint on their behalf. This does not mean that a Service Complaint Panel could make a decision on such a case, but the Defence Council may see merit in involving the Panel and perhaps seeking recommendations. It would also be possible for the Defence Council to seek the appointment of an independent member to a panel on any of these cases.

THE EXTERNAL REVIEWER

  13.  The previous memorandum on the redress of complaints system mentioned our intention to appoint an external, independent reviewer. The aim will be to assess the complaint procedure—at all levels of the complaints system—focussing on the effectiveness, timeliness and fairness of the system by examining a number of cases. The reviewer would be able to comment on individual cases but would not have the power to re-open them. The reviewer would report on his findings directly to the Secretary of State. Although no statutory powers are required to appointment an external reviewer, the process of making the appointment may take a little time. As an interim measure until an external reviewer can be appointed, we therefore intend to utilise the Department's Defence Internal Audit (DIA) organisation to conduct this review. Terms of reference for the DIA are currently being developed.

INDEPENDENCE IN THE REDRESS SYSTEM

  14.  The appointment of an independent member to a Service Complaint Panel and the appointment of an independent reviewer are new elements of the redress of complaint system, working within and external to the system. In addition, we are strengthening the assistance provided to complainants (or Service personnel who have not yet submitted a formal complaint under the system) by introducing further external, professional welfare support and introducing a professional mediation service. Taking these independent elements together, and in combination with other improvements to the system, we consider that this will provide a complaints system that has the correct balance between two competing and important considerations. On the one hand is the responsibility and ethos of the Services of remedying problems within the system and resolving the legitimate concerns of members of the Armed Forces. In relation to this consideration, the intention is to enable the chain of command to deal quickly and effectively with suitable cases. On the other hand there is the consideration of ensuring confidence through the involvement of independent elements at different levels in the system.

March 2006








6   This includes direct and indirect discrimination, and victimisation, as defined in anti-discrimination legislation. Back

7   As defined in anti-discrimination legislation. Back

8   Anti-discrimination legislation also makes it unlawful to discriminate against disabled people, and from October 2006 on grounds on age, but discrimination on this basis will not be unlawful in employment within the Armed Forces. Back


 
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