Select Committee on Defence Fourteenth 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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Prepared 8 November 2006