Written evidence from Dr Susan Atkins,
Service Complaints Commissioner for the Armed Forces
1. EXECUTIVE
SUMMARY
1.1 I have found the Service Complaints system,
as laid down in and under the Armed Forces Act 2006, to be based
on sound principles but over engineered and complex. Measures
which are designed to protect the special status of service personnel
are having the opposite because of the delay they engender. Delay
is designed into the system, it is endemic and the main cause
of unfairness.
1.2 The role of the Service Complaints Commissioner
(SCC) appears to have worked well in two respects, improving access
to vulnerable service personnel and their families and bringing
about improvements to the operation, culture and supporting infrastructure
of the system. However, the SCC has been powerless to ensure that
individual cases are dealt with properly, within a reasonable
time and fairly. The Commissioner's powers need to be strengthened
so that she can investigate potential defects and make recommendations.
Putting these powers on a statutory footing would be helpful.
1.3 A gap in the Armed Forces Act 2006 needs
to be closed to prevent complaints by former service personnel
being rejected unfairly.
1.4 Provisions in the Armed Forces Bill to enable
Service Complaints Panels to sit with all independent members
needs to be changed so that the Defence Council can delegate the
decision as to whether an individual case requires such a panel,
to an SCP with an independent member or to some other independent
person.
1.5 The areas of Service life which are mentioned
in the Bill for report as part of the Armed Forces covenant may
be the subject of a service complaint but often only after a specialist
complaints process has been exhausted. The contribution of the
SCC to the Armed Forces covenant is not currently recognised.
That contribution could be recognised by strengthening the SCC's
powers under the Armed Forces Act 2006 to make reports to Parliament
2. THE SERVICE
COMPLAINTS SYSTEM
2.1 As the first Service Complaints Commissioner,
I have found the Service Complaints system, as laid down in and
under the Armed Forces Act 2006, to be based on sound principles
but over engineered and complex. Measures which are designed to
protect the special status of service personnel are having the
opposite because of the delay they engender. Delay is designed
in the system, it is endemic and the main cause of unfairness.
Tackling delay would also improve the efficiency and effectiveness
of the system.
2.2 My third Annual Report will contain radical
proposals to simplify the system which will require a strengthened
system of independent external oversight.
3. SCC'S ROLE
AND POWERS
3.1 The role of the Service Complaints Commissioner
appears to have worked well in two respects. The SCC does appear
to be used as a route to redress for vulnerable personnel and
those with genuine grievances who would otherwise have had no
confidence to make a service complaint without her oversight.
The SCC has also brought about significant improvements in the
implementation of the Service Complaints system by use of Annual
Reports to Ministers and Parliament.
3.2 However the SCC's powers under the Act are
deficient. Although the Act imposes a duty on the chain of command
to keep the Commissioner informed where she refers an allegation
of any sort of improper behaviour, she has no power to correct
a defect in process or prevent delay. Put simply she cannot ensure
that service personnel are treated properly. The Commissioner's
powers need to be strengthened so that she can investigate potential
defects and make recommendations. Putting these powers on a statutory
footing would be helpful.
3.3 This should be achieved by giving the SCC
power to intervene where she believes a service complaint is not
being dealt with properly or where it is not being dealt with
expeditiously and by giving her power to make recommendations.
The duty on the chain of command to keep her informed where she
takes oversight should be extended. There should be a duty on
the chain of command, up to and including the Defence Council,
to respond to the SCC's recommendations on an individual case,
giving reasons if they reject the recommendations. The SCC would,
by virtue of s.339 of the Armed Forces Act 2006 then include any
exercise of these powers and any service Response in her Annual
Reports to Ministers and Parliament.
3.4 I will provide detailed evidence in my third
Annual report to Ministers and Parliament of the deficiency in
the SCC's powers and in levels of resources. I will also be making
recommendations to simplify the service complaints system. Currently,
even if the minimum time limits were met (and the Services have
set targets that are twice and four times the minimum for simple
and more complex cases respectively), the service complaints system
takes over twice as long as the counterpart workplace grievance
system that exists for MOD civil servants.
3.5 Any simplification of the service complaints
system needs to be buttressed by improved external oversight.
The SCC's Annual report will consider four models to achieve the
outcome highlighted in bold above:
- (1) Strengthening the existing oversight
model with powers to make recommendations on individual cases.
- (2) Strengthening the existing model with
powers to supervise cases.
- (3) Strengthening the existing model with
powers to undertake independent investigation.
- (4) Moving to an Armed Forces Ombudsman.
3.6 It is to be noted in relation to model three,
that s 335(7) of the 2006 Act may give the Defence Council power
to authorise the SCC (or her staff) to investigate a particular
complaint or a category of complaint on their behalf. This may
however confuse the lines of accountability.
3.7 Models one and four retain the primary responsibility
with the chain of command to investigate and decide grievances
from service personnel. In both these models, the role of the
external oversight body is to hold the Services to account. Only
the Armed Forces Ombudsman would have power to review a case once
it has been completed. The Ombudsman would also need to retain
the power to undertake a review, even if the internal mechanisms
had not been completed, because of the link between delay and
injustice; and to prevent the deliberate use of delay to usurp
individuals' rights. The Ombudsman model also provides a more
efficient and simpler way of protecting service personnel in the
exercise of their rights in relation to issues for which there
are special complaints system, such as housing, education, pay,
and medical treatment. These specialist systems have to be exhausted
before a service complaint can be made. The Ombudsman might also
cover areas, such as pensions, which are currently outside the
service complaints systems. This should save resources and increase
the value of external oversight in an efficient and effective
way.
4. VETERANS
4.1 Another gap in the current Service complaints
system under the Armed Forces Act 2006 relates to former service
personnel. A Service complaint can be made by former service personnel
but must be about a wrong that was done to them in their service
life and must usually be made within three months of the date
of the incident. In a number of cases, particularly where there
is an allegation of serious bullying or harassment, service personnel
feel inhibited to make a complaint when they are still within
the Service but seek to do so as soon as they leave. Until the
Armed Forces Act 2006, the mechanism for appealing a refusal to
accept a service complaint—whether for reasons of time or
otherwise—was to appeal up the chain of command. Under the
2006 Act, the mechanism is now for the complainant to make a new
complaint about the refusal to accept the original complaint.
The 2006 Act recognises the importance of this new complaint,
requiring there to be an independent member on any SCP that consider
the complaint against refusal, where the refusal follows an SCC
referral.
4.2 However if the refusal is made after the
service person has left the Service there can be no new complaint.
The wrong—ie the refusal to accept the complaint—has
not occurred during the individual's service life. Whilst there
may be many cases where such a refusal is reasonable, this is
not always or necessarily the case. The SCC currently has a role
as a gateway to the service complaints system. An efficient and
fair solution would be to make the SCC the final arbiter of whether
it was just and equitable to accept a complaint out of time. The
SCC would then automatically refer all such complaints made by
Service personnel out of time to the Service and only review those
where a refusal has been made. Her decision would be final.
4.3 Closing this gap and making such a change
to the SCC's powers would require legislative provision.
5. SERVICE COMPLAINTS
PANELS
5.1 Although there have not been many SCPs over
the last three years, the data provided by the Services indicates
that those with independent members, like Service Boards, make
a wider range of decisions than those without.
5.2 The Bill makes provisions which would enable
SCPs to have more than one independent member (as at present in
certain cases), for the independent members to undertake certain
functions—for example to chair the Panel—and indeed
to be constituted entirely of independent members. It would also
enable any SCP held to consider a case involving the exercise
of police powers to include at least two independent members,
one of whom would have expertise of professional standards in
policing. The Bill also enables Ministers to decide what categories
they believe it would be right, in advance of any certainty about
the exact scope of Article 6 civil rights, for there to be fully
independent panels.
5.3 Any recommendations I make in relation to
SCPs in my next Annual Report would appear to be covered by these
provisions, with two exceptions.
5.4 First, the provision of Clause 20 repeats
the provision in the 2006 Act in relation to the delegation of
the power of the Defence Council to decide if a case falls into
the category which requires an independent member. In practice,
the decision as to whether an independent member is needed is
taken within the relevant service and the civil servants make
arrangements for one to be available. However the decision to
be made—ie if the complaint is about prescribed behaviour
or other category, is of a very different nature to the decision
which will be required under the situation for which Clause 20
makes provision, at least until there are also categories for
cases requiring fully independent panels.
5.5 For a case being considered under Clause
20, decision will need to be taken as to whether this is a case
where civil rights are engaged (this may not of itself be easy);
if the matter involves the special relationship between a commander
and his or her people ie involves a military or operational judgement;
and even if it does, if the case turns on disputes of fact. These
are not questions that should be delegated to individuals within
the Service. Fairness requires that these are decisions that need
to be taken with an independent external contribution. Otherwise
the right under Art 6 ECHR to an independent and impartial tribunal
could be confounded by the Service acting as gatekeeper to such
a tribunal.
5.6 Any such external independent involvement
would require statutory provision. For an independent member to
be included in an SCP, if that were the most effective way for
such a "pre-hearing" assessment to be made, Clause 20
needs amending.
5.7 The second exception is the removal of the
requirement that at least one member of an SCP should be an officer
of at least one star rank (Brigadier and equivalent). This appears
to be necessary to enable fully independent SCPs to be held. However,
it runs the risk that SCPs with only one or no independent members
could be made up on junior personnel. The SCC's experience is
that there is a correlation between seniority and wisdom and that
the requirement for at least one senior officer where the Panel
is not fully independent should remain. Consideration should be
given as to whether Clause 20 needs to be amended accordingly.
Armed Forces Covenant
6.1 The Task Force on the Military Covenant defined
it as having three elements:
- ¾ The
duty owed by the government to service personnel;
- ¾ The
duty owed by the national service personnel; and
- ¾ The
duty owed by the chain of command to service personnel.
6.2 Clause 2 of the Bill, by the examples given
of the areas to be included in the Annual Report, focuses largely
on the first element. The work of the SCC however plays an important
part in holding the Services to account for the third and reporting
to Parliament on this aspect. The oversight of the SCC of individual
cases, plus visits and research, enables the SCC to have unique
qualitative and quantitative information on the exercise in practice,
good and bad, of the military covenant by the Chain of command.
It is for this reason that in some other jurisdictions, Service
Complaints Commissioners and Defence Ombudsmen have powers or
duties to report on the welfare of service personnel.
6.3 The contribution of the SCC to the military
covenant has not been recognised. I was not consulted on that
provision of the Bill and am not a member of the External Reference
Group. This is largely made up of representatives of other government
departments—ie external to the MOD, rather than external
independent members with special knowledge of service personnel
and their families. Yet it could be argued that the SCC has unparalleled
insight into how service personnel are treated.
6.4 Under s.339 of the 2006 Act the SCC has a
duty tor report to Ministers and Parliament annually on the exercise
of her referral functions and the working of the Service complaints
system and any other matter that the SCC believes is appropriate.
Ministers may ask the SCC to provide a special report on any aspect
of her work within these parameters, but not, it would appear
on welfare issues more widely. It is unclear as to the exact scope
of the SC's powers to provide reports, say on matters such as
housing, medical treatment or other issues that affect service
personnel. A clarification in the Bill that it is open to Ministers
to ask the SCC to report on a particular area or areas of concern,
and that any such report should be laid before Parliament, may
be helpful. If it was felt helpful for the Commissioner to prepare
any such report, of her own volition or in response say to the
House of Commons Defence Committee, the provisions of s.339 may
need to be amended. There would also of course be resource implications.
7. ACCOUNTABILITY
7.1 As a public appointment, the appointment
of the SCC is subject to Parliamentary Scrutiny. The House of
Commons Defence Select Committee asked the SCC to appear before
it after publication of her first Annual report. There was also
a debate in the House of Commons on that report. The contribution
of the SCC to the Armed Forces Covenant could be recognised by
strengthening the accountability relationship between the SCC
and Parliament.
11 February 2011
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