Report
1. The Armed Forces Bill was introduced in the House
of Commons on 30 November 2005, and has now been considered by
both Houses of Parliament. The House of Commons will be asked
to consider Lords Amendments later today, Tuesday 7 November 2006.
2. Before Second Reading in the House of Commons,
we published a report highlighting two concerns: the degree of
independence in the complaints process proposed by the Government;
and the Government's proposal to remove the requirement for annual
renewal of the legislation.[1]
3. In respect of the annual renewal of Service
law, our concern has been met. The Bill as introduced restated
the requirement for quinquennial renewal of the Acts by primary
legislation, but did not continue the current practice of annual
renewal in the intervening years by Order in Council approved
in draft by both Houses of Parliament.[2]
In response to concerns expressed at Second Reading, in the Select
Committee on the Bill, and by this Committee, the Government introduced
an amendment during the Select Committee stage reinstating annual
renewal.[3] We commend
the Government for responding promptly to parliamentary pressure
to reinstate the requirement for annual renewal of Service law.
4. In respect of the degree of independence in
the complaints procedure, our concerns have only been partially
met. The Bill as introduced provided for a service complaint
panel, to which the Secretary of State for Defence might in certain
cases appoint an independent member.[4]
We argued that the Government's proposals did not provide a mechanism
to deal with complaints which was sufficiently independent of
the chain of command.[5]
And we urged the Government to table amendments to strengthen
the degree of independence in the complaints mechanism, as recommended
by our predecessor Committee's 2005 report on the Duty of Care.[6]
5. The report of the Deepcut Review, conducted by
Sir Nicholas Blake QC, in March 2006 recommended that that there
should be an independent "Commissioner of Military Complaints"
or Armed Forces Ombudsman, with the ability to receive unresolved
complaints from Service personnel or their families; supervise
the investigation of such complaints, and supervise the response
to a complaint including providing advice on any disciplinary
or administrative action to be taken. The Review—also known
as the Blake Report—recommended that the Commissioner make
publicly available an annual report on issues relating to the
welfare of soldiers.[7]
6. The Report from the Select Committee on the Armed
Forces Bill, published on 9 May 2006, welcomed the establishment
of the Service Complaint Panel and the addition of an independent
voice in appropriate circumstances. It suggested that the MoD
and the Armed Forces needed to address whether the discrepancy
between the level of bullying and harassment suggested by the
Services' continuous attitude survey and the few cases of bullying
and harassment that reach Service Board level were due to the
satisfactory resolution of those complaints at lower levels in
the complaints process; and if not, it recommended that the MoD
look again at the problem of ensuring that Service personnel feel
able to make a complaint and that it will be dealt with fairly.
It also expressed concern about the level of resources provided
to improve the accessibility of the complaints procedure.[8]
7. The Armed Forces Bill Committee was not convinced
by the argument for a Service Ombudsman or a Commissioner to investigate
complaints, but acknowledged that there was scope to deal with
grievances more effectively, particularly those relating to allegations
of bullying. It welcomed the proposal to establish an independent
reviewer for the Armed Forces redress of complaints procedures.[9]
8. In its response to the Deepcut Review in June
2006, the Government argued that some of the functions for the
Commissioner recommended by the Review—the ability to intervene
in the handling of a complaint and to supervise investigations,
and to institute legal proceedings against decisions not to prosecute—were
inappropriate to an independent commissioner and risked undermining
the chain of command and the independence of the prosecuting authorities.
But the Government agreed to extend the role of the external reviewer
proposed under the Bill, to change his or her title to "Service
Complaints Commissioner", and to give him or her direct access
to Ministers.[10]
9. At Committee stage in the Lords, the Government
tabled three new clauses providing for a Service Complaints Commissioner
with the power to review the fairness and effectiveness of the
military complaints system and to provide the Secretary of State
with an annual report to be laid before Parliament.[11]
The Lords amendments also give the Commissioner a limited role
in regard to the investigation of complaints. The Commissioner
is given power to refer allegations of certain types of wrongdoing—whether
made by the alleged victim or by someone else—to an officer
(normally the commanding officer of the alleged victim). The officer
will have a duty to inform the alleged victim about the allegation
and to find out whether he or she wants to make a complaint about
it. The officer will have a duty to ensure that the alleged victim
knows about how to make a service complaint and about any time
limits on this.[12] We
welcome the proposal to create a Service Complaints Commissioner.
Creating an independent office to which people can make complaints
should meet the key concern that Servicemen and women and their
families are not always willing to raise issues with the chain
of command. But the House should be aware that the role proposed
for the Commissioner falls a long way short of the investigatory
body proposed by our predecessor Committee.
10. The types of allegation which the Commissioner
will be able to pass on will be defined in secondary legislation.
The MoD has said they will include allegations of discrimination,
bullying, harassment and other forms of improper behaviour, and
that these are the same circumstances in which an independent
member will be appointed to a service complaints panel. The MoD
has concluded that panels investigating complaints about careers
and eligibility for allowances should not include an independent
element.
11. Secondary legislation will also provide for
the Commissioner to be informed about the progress and outcome
of referred complaints.[13]
12. In September 2006, we wrote to the Secretary
of State for Defence asking to be kept informed of developments
in the proposals for the new complaints process and of progress
with secondary legislation under the Bill more generally. The
Secretary of State responded very positively, undertaking to provide
us with drafts of key statutory instruments and explanatory memoranda
in sufficient time for us to scrutinise them before they are laid
before Parliament. He also proposed to provide an annual report
on progress towards implementation of the Bill, before the Continuation
Order debate each Summer. The correspondence is appended to this
Report.[14] We welcome
the MoD's openness in facilitating parliamentary scrutiny of developments
in Service law.
13. We recommend that the House agree with the
Lords Amendments establishing a Service Complaints Commissioner,
but it should do so in the knowledge that there is concern that
these amendments do not go far enough to ensure independence in
the complaints process and that much of the detail remains to
be established by secondary legislation. The House can be assured
that this Committee will be monitoring the secondary legislation
closely and will, if necessary, report any further concerns to
the House.
1 Defence Committee, First Report of Session 2005-06,
Armed Forces Bill, HC 747 Back
2
Bill 94 (2005-06), clause 371 Back
3
See HL Bill 113-I (2005-06), clause 374. See also report of the
Select Committee on the Armed Forces Bill, HC 828-I, paras 150-154 Back
4
Bill 94 (2005-06), clauses 331 and 332 Back
5
HC 747 (2005-06), paras 10-11 Back
6
Defence Committee, Third Report of Session 2004-05, Duty of
Care, HC 63-I, paras 411-427 Back
7
The Deepcut Review: A review of the circumstances surrounding
the deaths of four soldiers at Princess Royal Barracks, Deepcut
between 1995 and 2002, 29 March 2006, HC 795 Back
8
HC 828-I (2005-06), paras 116-121 Back
9
HC 828-I (2005-06), paras 122-129 Back
10
The Government's Response to the Deepcut Review, June 2006, Cm
6851, Session 2005-06, pp 14-15. See also HC Deb 13 June 2006,
cols 638-653 Back
11
See Lords Amendments 48, 49, and 55 (and related Amendment 47
and 63), in conjunction with HL Bill 113-I (2005-06). (Alternatively,
see HL Bill 163-I (2005-06), clauses 338, 339 and 366) Back
12
See p 9: letter from the Secretary of State for Defence Back
13
See p 9: letter from the Secretary of State for Defence Back
14
See pp 9-10 Back
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