Appendix: Government Response
Letter from Don Touhig MP, Parliamentary Under-Secretary
of State for Defence, to the Chairman of the Committee
I am writing in response to the Defence Committee's
first report of session 2005-06 of 8 December 2005, on the subject
of the Armed Forces Bill. I am very sorry for the delay in doing
so.
The Defence Committee's report covered two issues:
the introduction of an independent element into the system for
dealing with complaints by members of the armed forces; and the
annual renewal of the service discipline legislation by order
in council subject to the affirmative resolution procedure.
Both of these were covered during the second reading
debate, following which the Bill was assigned to an ad hoc select
committee for detailed consideration. I shall set out in the following
paragraphs where we stand at present on the two issues and what
we hope to achieve in the Bill, but both are now with the select
committee for consideration as part of the process of detailed
scrutiny. I expect it will be some time before they are finally
resolved. I am pleased that you will be able to keep in touch
with progress on these and other issues in the Bill by virtue
of the overlap of membership between the two committees.
Complaints by armed forces personnel
Under the present arrangements, a member or former
member of the armed forces who believes he has been wronged in
any matter relating to his service may exercise his right to make
a complaint. Detailed procedures are laid down in Queen's Regulations.
Under those regulations the complainant must submit a complaint
within three months of the day on which the matter complained
of occurred, generally to his commanding officer, who will investigate
and grant any redress that seems to him necessary and which is
within his power. If the commanding officer refuses or is unauthorised
to grant the complainant the full redress sought, he must give
the complainant a full explanation and, if the complainant requests,
refer the matter to a higher authority: ultimately, a matter may
be referred to the Defence Council. If he remains dissatisfied,
a complainant who is an officer may also require the Defence Council,
through the Secretary of State, to make a report to the Queen
in order to receive her directions. Certain grievances, including
those concerning alleged discrimination, may also be submitted
to employment tribunals once the complainant has begun the service
redress process.
This system is easily understood and is widely drawn,
enabling a Serviceman to raise a grievance on any matter relating
to his service and, if it is not resolved to his satisfaction,
for the grievance to be put before successively higher levels
in the chain of command until it ultimately reaches one of the
Service Boards, or the Queen in the case of officers. But the
process can be slow, especially if the matter has to go to one
of the Service Boards, which have a small number of members all
of whom have other and heavy responsibilities. The successive
layers of the chain of command do not always add greatly to the
value of the process, especially if there is no power to grant
redress at these levels.
We believe that the complaints system should be easy
to understand and readily accessible; it should be operated by
people who are familiar with Service life; it should be swift
and fair to all, capable of delivering effective remedies, and
capable of allowing the chain of command to deal initially with
the complaint if it is able to do so satisfactorily but able thereafter
to provide a recourse that is sufficiently independent of the
chain of command to be objective and to command the confidence
of those concerned.
In accordance with these principles, we are seeking
to provide that a complainant could raise a grievance as now,
generally with his commanding officer, and that that grievance
could subsequently be dealt with by higher authority if the latter
was in a position to grant the redress sought. If full redress
was not granted, the complainant could ask that the matter be
referred to the Defence Council. Some complaints would be dealt
with by the Defence Council, as they are now, and for example
might include complaints against decisions made by a Service Board
or against a decision made by a very senior officer. Most complaints,
however, would be considered by service complaint panels appointed
by and exercising powers delegated from the Defence Council. These
panels would consist of two or more members, at least one of whom
must be a senior officer.
Officers would retain the right to have a matter
referred to Her Majesty, if a decision on the complaint is taken
by the Defence Council.
Although the service complaint panels would be independent
of the complainant's chain of command, we believe that for certain
types of complaint it will be important to provide a power to
require the appointment of a person who is independent of the
armed forces and the civil service. Such appointments would be
made by the Secretary of State. We have proposed that an independent
member should be included on the service complaint panel in cases
that involve improper behaviour such as: unlawful discrimination
or harassment on the grounds of gender, religion or belief, or
sexual orientation; bullying; or dishonesty and other improper,
unprofessional or biased behaviour.
We also intend to provide for the new complaints
system to be subject to annual assessment by an independent reviewer,
who would report directly to the Secretary of State. No statutory
powers are required to provide for this appointment. Ministers
have agreed proposals to appoint an external, independent reviewer
to examine the effectiveness, timeliness and fairness of the complaints
system by examining a number of cases. It might take a little
time to appoint the reviewer and so, as an interim measure, the
Defence Internal Audit organisation has agreed to carry out a
review of the redress process. This will be a very positive move
towards our intention to appoint the external reviewer.
Alongside improvements to the complaints process,
we recognise the importance of providing support to all service
personnel, particularly those who might wish to raise a grievance.
An ongoing welfare review will therefore bring tangible improvements
to a range of welfare processes through clearer definition of
policy, better sharing of best practice, quality assurance, and
enhancements to current services.
In summary, we intend to retain key elements of the
system for handling service complaints: its availability to all
service personnel; the ability to raise any grievance related
to service; and the opportunity for the commanding officer to
resolve grievances. But we also plan to modernise and improve
the system by: reducing the number of stages before the matter
is considered at Defence Council level; providing for complaint
panels that in most cases will exercise the functions of the Defence
Council, and which should result in swifter decisions; and by
providing for a wholly independent member to be included on complaints
panels in certain cases.
Renewal of service legislation
The Government has made it clear during oral evidence
on 2 February 2005 related to scrutiny of the proposals for the
Bill and during the second reading debate on 12 December 2005
that we would listen to views on the question of renewal of service
law. The current arrangement for annual renewal by Order in Council
and five-yearly renewal by primary legislation has not been examined
for some thirty years and there are different opinions about the
extent to which nowadays the frequency and type of renewal needs
to be prescribed.
The Bill does not seek to remove the constitutional
requirement that Parliamentary consent is required to the existence
of a standing army, although it does seek Parliament's agreement
to the exercise of this control as regards armed forces legislation
on a five-yearly, rather than annual, basis. Nor does the Bill
disturb the relationship between the Armed Forces and the Sovereign.
Indeed, the relationship remains vitally important to both. But
there are also good practical and presentational arguments for
retaining five-yearly renewal of the Armed Forces Bill once enacted,
rather than making it a permanent statute. The Select Committee
on the Armed Forces Bill has heard evidence to this effect, most
recently from the Chief of Defence Staff on 16 February.
The position on annual renewal through the Continuation
Orders is rather different. It was last considered in 1976 when
the then Government proposed their abolition. The Select Committee
examining that Bill acknowledged that the annual Continuation
Orders had been agreed by the Commons without debate in a number
of years preceding 1976, but added that "the possibility
of debating once a year the Discipline Acts does provide a safeguard,
and does ensure that in any year where there is concern about
their application there may be a debate on that specific matter".
Since 1976 the importance of the debates in the Commons
has further decreased: they have been held in Standing Committee
since 1994, rather than in the Chamber. Although the debates have
provided an opportunity for Ministers to provide updates on developments
in Service discipline such as reactions to European Court of Human
Rights judgements and progress on the Armed Forces Bill, these
could have been done equally effectively through other means such
as a Ministerial written statement. And of course the Orders do
not provide an opportunity to amend service law as is sometimes
supposed.
When last considered in 1976, annual one-day debates
on each of the three services and the two-day debate on the Defence
Estimates came out of Opposition time. Today there are a number
of Parliamentary opportunities to raise Service discipline issues.
Since 1982 annual debates on the Armed Forces have come out of
Government time and since 1997 the debates have been themed to
focus on specific areas including one on Service personnel. Discipline
issues could be raised in any of these debates, although none
has been in the last two years. There are also opportunities for
debates in Westminster Hall or an adjournment debate on a Service
discipline issue to be initiated by Members at any time.
The power and organisation of Select Committees has
also changed since 1976. The new Select Committee structure introduced
in 1979 gives the Defence Select Committee significantly greater
powers than its predecessor to examine discipline matters amongst
others.
In summary, the scope for the further consideration
of Service discipline issues has greatly increased since the requirement
for Continuation Orders was last considered and the provisions
for renewal in the Bill reflect this position
The select committee on the Bill has considered oral
and written evidence on this subject. We are due to discuss the
relevant Clause next week and I have reiterated to colleagues
on the committee that we will listen carefully to what they have
to say on this issue.
25 March 2006
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