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.
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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