Session 2010-11
Publications on the internet

UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC779-ii

HOUSE OF COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE THE

SELECT COMMITTEE ON THE ARMED FORCES BILL

ARMED FORCES BILL

THURSDAY 3 FEBRUARY 2011

DR SUSAN ATKINS and MR DARREN BECK

Evidence heard in Public

Questions 132 - 176

USE OF THE TRANSCRIPT

1.    

This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2.

Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.

3.

Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.

4.

Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

Oral Evidence

Taken before the Select Committee on the Armed Forces Bill

on Thursday 3 February 2011

Members present:

Mr James Arbuthnot (Chair)

Alex Cunningham

Thomas Docherty

Gemma Doyle

Mr Tobias Ellwood

Mr Mark Francois

Mr Kevan Jones

Jack Lopresti

Christopher Pincher

Mr Andrew Robathan

Bob Russell

Examination of Witnesses

Witnesses: Dr Susan Atkins, Service Complaints Commissioner for the Armed Forces, and Mr Darren Beck, Head of Office, Office of the Service Complaints Commissioner for the Armed Forces, gave evidence.

Q132 Chair: Welcome to the Committee. I am afraid we are starting early, in the extraordinary hope that, therefore, we might finish early.

Turning to our witnesses, you are well known to the Select Committee on Defence-certainly to the previous one-but would you like to introduce yourselves to the Armed Forces Bill Committee?

Dr Atkins: Thank you very much. I am Susan Atkins, the Service Complaints Commissioner, and I have with me Darren Beck, who since the summer has been my head of office.

I thought that, because some Committee Members might not be quite as familiar as others with my work, it might be helpful to set the scene about my role.

Q133 Chair: That would be very helpful. Please do.

Dr Atkins: The post of Service Complaints Commissioner was set up in the wake of the Deepcut report and the House of Commons Defence Select Committee report on the Duty of Care. My role was to oversee and to make an annual report to Ministers and Parliament on the Service complaints system. My remit is limited to Service complaints.

The definition of a service complaint is a complaint by a serving or, in some circumstances, former serving man or woman who feels wronged in their Service life. In essence, it is a workplace grievance system, but the grievances differ from those brought by employees in other walks of life in three respects. First, there is limited right of access to the courts and employment tribunals to protect employment rights. Secondly, Service life, as you are aware, is different from a nine-to-five working life. Working in a service affects where you live, where your children go to school, what medical care you get and, sometimes, the welfare services you have access to. If you are mistreated at work, you cannot simply go home and fail to turn up. You may ask for premature voluntary retirement, but normally you have to give 12 months’ notice, and if you just decide to pack your bag and leave, you will be declared AWOL.

That leads to a third difference. What in civilian employment might simply be disciplinary is, in military parlance, administrative action, which means that you are liable to criminal action. You might have committed a criminal offence. For those reasons, civilian oversight is very important.

As SCC, I cannot independently investigate complaints. I can receive them, and I have power to refer them to the chain of command. If I do so when the complaint is about any sort of improper behaviour, the chain of command has to keep me informed regularly. If the complaints are about other matters, I can ask them to do so. My office has received more than 900 complaints over the past three years, and I have referred more than 500.

The Service Complaints Commissioner’s role and the new Service complaints system came into effect on 1 January 2008. I have made two annual reports, which have been laid before Parliament, and I am preparing my third annual report, which I hope to present to the Secretary of State for Defence in March.

I will try to answer your questions as fully as I can. I understand that you are particularly interested in clause 2, on the Armed Forces Covenant. I want to stress that I am independent of the Ministry of Defence and have not been consulted on that aspect of the Bill, or on any other clause. I am not part of the external reference group. My work, however, forms an integral part of the Military Covenant and I am very happy to explain why that is so.

I am happy to answer questions on the clause on that basis, and beg your understanding. If the answer to any question is, "It’s still work in progress," I hope you will understand. If I do not have an immediate answer at my fingertips, I will be happy to provide information in writing as soon as possible.

Q134 Chair: Thank you very much. Although this question is not directly relevant to the Bill, it forms the background of the questions we will ask. How well do you think that the Act that set you up worked? What was its success rate? Could it have done more? Should it have done less? How do you feel it went?

Dr Atkins: If I may, I will talk about the Service Complaints Commissioner role, then the system in general, because I think that the working of the system and how the Act is doing are integral to the SCC role.

I have three functions. The first is to be a point of access for vulnerable Servicemen and women. I’m to provide annual assurance on the system: I have to give a report to Ministers as to the efficiency, effectiveness and fairness of the system, and I can make recommendations for improvement. I also oversee individual cases.

The SCC role and the system have worked well. I mentioned that we have been contacted by more than 900 people-that is, Service personnel, former Service personnel and their families. In particular for senior officers, private soldiers and soldiers in training, it tends to be the families who contact us, which works very well. We have all-the Services and I-seen a significant increase in complaints in the third year, and my referrals accounted for around half of those Service complaints in 2010. So, in terms of us playing a role to give people confidence to make Service complaints where they would not have had confidence before, I think you can say that we are working well.

I took a look, as an outsider and someone with expertise in the area, at the system when I came in. I have made recommendations, nearly all of which have been accepted. They have been acted on or are in the course of being implemented. The Services have changed, making significant changes and improvements to how they do business. They have set up central units, which now provide expertise to the chain of command. They require the chain of command to contact the centre, so they have seen a significant increase in complaints this past year.

I think that one of the main reasons that people come to me is that they fear the chain of command will sweep a complaint under the carpet. If the increase that the Services are seeing in complaints at level 1-unit level-is because they are being required to contact the centre, the system has actually acted on that fear that complaints were being swept under the carpet and would be ignored.

I asked how many complaints a year, and the Services did not know. I asked how quickly they were being dealt with, and the Services obviously could not tell me, because they did not know how many there were.

We have worked together to do two things. First, a new recording module has been introduced, which went live on 1 January this year, so that there will be reliable and accurate statistics available to the Services and to me to do the analysis so we can spot where things are going wrong. Secondly, at my recommendation, they have also set time targets. Although the targets are, initially, a lot longer than I would like them to be, the Services are now monitoring how well-and how timely-they are dealing with complaints.

However, as the Ministers and former Ministers know, delay is the issue. Cases are taking far too long. That has a number of effects. First, the cases get more complex-positions harden, and distrust and lack of confidence grow. Cases stay in the system for a lot longer than they could have done. Some are very difficult to resolve. Delay is the key aspect that needs to be tackled. Other things appear to be working well-maybe you would like to hear a little more about this in the session-such as the Service Complaints Panels with independent members. The range of decisions made by Service Complaints Panels with independent members is much greater than the range of decisions made by Service Complaints Panels on their own, and is much more akin to the range at Service board level. We need to find out why. In summary, it is a good start. The system is working quite well, but it is over-engineered, takes too long and needs to be simplified. We need to take another look.

Q135 Chair: We will come on to Service Complaints Panels. The issue of delay-is that something that should have been dealt with in the Act?

Dr Atkins: The Act, if you recall, simplified the previous system. People who have been involved in this longer than I have will correct me if I am wrong, but I think there are at least five levels. There were different rules and practices in each of the three Services. Moving to three levels was seen as a significant improvement. In my first year and my first report, I said that the system complied with the principles of best practice. Last year, I recommended that the Services review the benefits of three levels. This year, I am likely to recommend that they move to two levels, because the time has come to do that. That will require a redesign of where the protections go. I discussed why it was not only a workplace grievance system. If you are designing out some of the levels that are designed to give protections, you have to put your protections in somewhere else.

Q136 Mr Jones: When your post was introduced, I know that there was a feeling in the chain of command that this would be the end of the world. I know that it was opposed at the time by at least the Conservative part of the Opposition, if not the Liberal Democrats. What is the attitude now in the chain of command? Are you getting the co-operation that you need? Are some of the delays that you have referred to down to the fact that some are not taking the process seriously, or are trying to frustrate the system?

Dr Atkins: I was very pleased to have a conversation with the new Chief of the Defence Staff the other day. He mentioned to me that he thought that I was an integral part of modern defence. He has given me permission to say that publicly. I do think that that is the way that the top levels of the Service treat me. I am talking with the heads of the Services and those I work with, even down to the intermediate levels, where I am felt to have made a valuable contribution. I now present to every Commanding Officer-designate course, to the senior command course and to the Army’s intermediate course.

On the issue of powers, there has been some insistence that decisions are still to be made by the chain of command. I can ask questions or raise concerns on an individual case, but I cannot make any binding recommendations or directions, or require a matter to be put right and correct at the lowest level. I have had cases where I have spotted something going very badly wrong at the beginning, and have not been able to do anything about it, and my concerns have been upheld at the end of the process. That could be two or three years later.

Q137 Christopher Pincher: Dr Atkins, you mentioned some of the issues that you face with your work, particularly delays of complaints. What are the implications of the Bill for your work?

Dr Atkins: I am not sure that much in the Bill will affect my work. It will certainly not affect delay. I welcome the proposals for enabling there to be more independent members on Service Complaints Panels, but, quite clearly, adding an extra degree of independence, where appropriate, at the end of a process, and given the design of the system, even if everything went through in the minimum time limits, it would be 50 weeks. That is a year from start to conclusion. At the appeal level, which is where a Service Complaints Panel comes in, nothing in there will tackle delay.

Q138 Christopher Pincher: Do you think that the Covenant report being produced and laid before Parliament-elements of it concerning education, health and housing-might generate more complaints than you have seen previously?

Dr Atkins: It may do. I work very closely with the families federations and the other welfare charities and agencies. Sometimes they pass individuals to me and vice versa. The difficulty is that I exist for Service personnel, and although families can contact me, they cannot make a service complaint. On medical treatment, for instance, we have had a number of complaints where we have been approached by a wife in relation to IVF treatment. They have been getting IVF treatment when they have been serving with the Services abroad, but it is a different PCT by the time they get back. We have been able to sort that out. Some family issues are of concern to the serving member, but a lot of family issues we cannot deal with.

Even when a welfare issue is raised by the serving member, there are separate complaints systems for housing, education and medical treatment. Some matters such as pensions are excluded from the Service complaints system entirely, but issues of pay, education, housing and medical treatment can come into the Service complaints system, but only after they have been through the specialist system. It is very tortuous, and I think that the relationship with the Armed Forces Covenant is the other way round.

I understand that this morning you heard from Service Officers about how they viewed the duty on the chain of command to give care as being an integral part of the Armed Forces covenant, and that, of course, was in the Task Force on the Military Covenant. I think that I have a very rich oversight of and insight into some of those welfare issues, and I can provide information that informs the Minister’s report on the Covenant, not the other way round. There is, of course, in the Act the ability for the Secretary of State to ask me to make a special report on any matter that is to do with the exercise of my functions. That might be something that could be explored. Indeed, my counterparts in other jurisdictions very often have a responsibility for welfare issues as well as complaints.

Q139 Thomas Docherty: Just to take you back to the point that you made about IVF, I have certainly had some information that there is an inconsistency across the country. Some PCTs apparently have a two-year requirement for residency. Just out of interest, have you had many representations on that issue as a complaint from Service personnel?

Dr Atkins: We’ve had a few. We’ve always been able to get them sorted out, because I have been involved. I should say I am working very closely with Defence Medical Services, and I have been to its board. If there is a complaint about medical treatment, and if it is urgent, I ring up a contact there and we get it sorted out.

Q140 Gemma Doyle: We’ve already covered quite a bit about the way the panels work, but would you like to see a measure to guarantee at least one independent member on every complaints panel?

Dr Atkins: I’m not sure that I would go that far, but I’ll think about it. At present, as you know, there are certain categories that need an independent member. As I understand it, the clauses in this Bill give some discretion outside categories. I think that would be a potential improvement, because there could be issues that are quite complicated. Having an independent member, even though it is not in that category-or, indeed, two independent members-would be a step forward. For instance, there is a requirement for there to be an independent member when a complaint is about the exercise of Service police powers. It seems there may be a really good case to be made that there should be two independents there, and somebody should have expertise in policing and police professional standards.

Q141 Gemma Doyle: You mentioned that the system is still quite slow. Is that simply because of the way the system is designed or is there a resourcing issue?

Dr Atkins: It’s both, but it’s certainly design. As part of the work I’ve been doing for this year’s annual report, I have compared the Service workplace grievance system-the Service complaints system-with the MoD civilian workplace system. I mentioned that even if everything went through the three levels in the minimum times-the current targets are twice and four times that-it takes 50 weeks. It takes between 14 and 20 weeks at a minimum for the MoD’s system, which it has for its civilian employees. There are other complaints systems in the military to do with families-for instance, in Germany, where the minimum is 20 to 22 weeks, so there’s a design issue here.

I understand why the protections have been put in, but if I look at the sorts of case that come about, not all those cases need those protections. My view now, after three years, is that the very protections that were put in place are actually causing detriment. They are not working and they’re causing detriment to all cases.

Q142 Mr Jones: Clause 20(7) says that the Secretary of State will have powers to bring forward regulations requiring the Defence Council to delegate its functions to an SCP, which will obviously require an independent element. Do you think it is right that the Defence Council should retain its function of being able to determine when an independent element is in a Service Complaints Panel?

Dr Atkins: There are two aspects, as I understand the clause. They probably need to be separated. Just bear with me, because they go to answering your question. The first is that, case by case, the Defence Council can make a decision about whether there is a need for a fully independent panel. The questions that need to be asked are not easy, and they are complex. First, you have to find out whether it falls within Article 6 of the European Convention on Human Rights. That is not clear yet. Then you have to ask whether the issue is one of military judgment. Even if it is, you have to ask whether the case depends on facts. It seems to me that it may be right for the Defence Council to make that decision, but I have concerns that that decision on individual cases can be delegated to a civil servant or an officer. That verdict follows the current Act, but there are categories in the current Act, so it is just an administrative matter: "Is this bullying? Yes, we need an SCP within an independent member."

These are real questions of detail, and I do not think that the Service-certainly not at officer level-should be the gatekeeper to that. If it needs an amendment, it should be that a SCP sits with an independent member, or that some independent element looks at that, in the same way that a court may have a pre-trial hearing.

Q143 Mr Jones: The reason I ask is that this morning we were told that the three Services implement this in their different ways in terms of numbers. Is there a bias perhaps towards certain Services not having independent panels? Have you come across that?

Dr Atkins: The Navy and the RAF have used SCPs with independent members more than the Army. That is not necessarily bias; I think it is an issue of backlog. The Army still has 29 cases that are pre-2008 at level 3. I think there are 66 cases at level 3 under the new system. It is a matter of capacity, and it goes to Ms Doyle’s question on whether this is design or resources.

Q144 Mr Jones: But is there a resistance within the Army to having independent members?

Dr Atkins: I have not picked up a resistance, no. Can I go back to the second question? As I understand it, as and when the case law is clear that there can be categories-I have been briefed on this aspect by the MoD-it seems to me that it will be a much easier question. You could leave that to the Defence Council. I would anticipate that I would oversee those. Alternatively, you could make it a requirement, which probably does not need legislation, just a gentleman’s understanding as it were, with the Services and the MoD, that I am informed of those cases.

Q145 Christopher Pincher: Just following on from your responses to Kevan Jones’s questions. The Bill provides for the removal of the requirement for one of the SCP members to be a senior officer, so not a commodore, an air commodore or a brigadier. Do you think that that has any implications for the seniority of the SCP and the way people view its decisions?

Dr Atkins: Yes, that is the second area of concern that I have. I understand that process is there, because it needs to be there to enable there to be totally independent members. The risk, of course, as you rightly point out, is that it opens up any Service Complaint Panel to be at a level lower than a one star. My experience of the past three years is that there is a correlation between seniority and wisdom. Once you get to the senior levels, you do find panels, boards and individuals who can see the wood for the trees and who are very willing to hold up their hands and say, "We’ve made a mistake." I have seen cases under my oversight where it has been obvious to me that what is being decided is unreasonable-it has been resisted, and there is a sort of service blindness throughout its travel up, and then it goes to a Service board or to a Service Complaints Panel of senior officers, and they say, "This is ridiculous; there is injustice being done here," and they change it immediately.

I have written to the MoD and flagged this up, but I would want it really understood that this is not an opening up for Service Complaints Panels to be staffed by people of lower rank. Membership of a Service Complaints Panel ought to be based on the quality of the person making a decision and not the rank of the person bringing the complaint.

Q146 Christopher Pincher: Then can I ask whether, in your letter to the Secretary of State, you made a recommendation, or did you simply raise a concern?

Dr Atkins: At present, I have raised a concern with officials. If the Committee would find it helpful, I can write to the Minister and put it in the annual report.

Q147 Chair: It would be helpful if we could at least see a copy. Have you written to officials?

Dr Atkins: I had a conversation. I raised the concern when I was being briefed on this aspect, and I dropped a line to the official who briefed me. But I can certainly-

Q148 Chair: If you could let us have a copy of that, it would be helpful.

Dr Atkins: Yes.

Q149 Jack Lopresti: Having now been in your post for three years, do you believe that your powers and resources as Commissioner are sufficient?

Dr Atkins: The short answer is no, but it is a work in progress. I am considering some options and some different models, and I have been talking with the Services about them. I think it would be only courteous to give my thoughts, because it is a detailed argument, on that to the Minister first.

Thomas Docherty: He’s here.

Dr Atkins: But not the Secretary of State. I am appointed by the Secretary of State, and I report to the Secretary of State.

Q150 Jack Lopresti: I appreciate that but, without being specific, would the Bill provide the appropriate vehicle for making those changes?

Dr Atkins: It depends what sort of changes. I am very happy to talk about them. It seems to me that there are broadly four different models. There is increasing my current oversight powers to enable me, if I do spot something at the beginning, to be able to write and to have that acted on. That might be useful to have in legislation, but it can probably be done by an agreement with the Services. I am pleased to see that the Minister is nodding at that.

Q151 Mr Jones: Can I just ask you about the resources? You are still doing a lot of legacy cases. What percentage of the cases you are dealing with would be considered legacy cases-ones from before-because they do take a long time to get through? In terms of resource allocation, one of the key things will be once they are done. Have you any indication what the average tempo is going to be once you have the legacy cases out of the way?

Dr Atkins: For my cases?

Mr Jones: Yes.

Dr Atkins: No. We had 434 new cases last year, and 200 cases in the system. I have had three casework staff since last July, so currently the ratio is 1:200. The average in oversight bodies is about 1:60 or 1:70.

Q152 Mr Jones: But how many legacy cases are you dealing with?

Dr Atkins: I don’t know how many legacy cases are in the system. We have some legacy cases. For me, legacy means 2008 and 2009-the 200 that we have.

Q153 Jack Lopresti: Do you believe that the provisions regarding the Annual Report on the Armed Forces Covenant will be a positive step towards improving the welfare of Service personnel generally?

Dr Atkins: Yes, that must be the case. The work on the Command Paper started when I was first appointed. Just getting people to talk about that, and raising those things, is good. The issue will be what actually gets done. One of my concerns, and not just on welfare issues, is that there are occasions when I have the same problem coming in over and over again. One of the key messages that I gave to the Services was that the complaints are a valuable resource. They are about continuous improvement, operational effectiveness and welfare, and the military covenant is actually designed for operational effectiveness, as well as for fairness and justice.

Q154 Bob Russell: Mr Jones and I are the sole survivors from the 2006 Act. I concur with his observation that the job that you now hold was not exactly universally welcomed, and I am pleased that you said that there does not appear to be any opposition now that you are in post. How is the private soldier, or indeed the wife of a private soldier, made aware of your existence and the process of drawing matters to your attention?

Dr Atkins: In the Army, every trainee gets a briefing about the Service Complaints Commissioner as an integral part of the information, and cards are handed out. I distribute posters and leaflets across all three Services, and I also have a website. I have mentioned that I work closely with the charities and the welfare agencies. Some of those are informal, such as Daniel’s Trust. So people hear about us through word of mouth and through the chain of command. Overseas, at the beginning of 2009, I did a public broadcast advert for BFBS. Interestingly, we have seen an increased number of complaints from soldiers in Germany.

Q155 Bob Russell: The follow-up question is that every Member of Parliament here would confirm that we are contacted by constituents when, in reality, they would be better off going to their local council, or whatever. Are people bypassing everything and going straight to you?

Dr Atkins: Well, people can come straight to me-that is the whole point-and sometimes about matters that are not within our remit, but we pass them on. If it is about families, we signpost and send them to the appropriate agency.

Q156 Bob Russell: Would you be happy to receive people from the Colchester Garrison that come my way? I’ve just passed on my casework here.

Dr Atkins: We do get people from Colchester, actually. And please do send them.

Bob Russell: Thank you.

Dr Atkins: But don’t flood me.

Q157 Alex Cunningham: As the Government move towards a more prescribed understanding of the military covenant, do you think it is likely that complaints will arise about the MoD failing to meet its obligations toward particular individuals? Assuming that you say yes, will the existing complaints system be able to handle complaints of that nature?

Dr Atkins: I am not sure that the Bill’s provisions in relation to the Military Covenant will make a big difference in that regard. First, there is a very big barrier to making a complaint. The word "complaint" probably needs looking at, because it is still perceived to be trouble. In my first annual report-I still use this as part of my talks-there is a quote saying that the military don’t like failure. If you make a complaint, you are a troublemaker; if a complaint is made on your watch, you are a failure as an officer. Basically, it was trouble all round.

People in the military are loyal and are expected to put up with a hell of a lot, and they do. So making a complaint is a very big issue, and it is an issue for the families, because they know what they are letting themselves in for. Many of the people who write to me feel that it used to be a deal, and now it’s a one-way street.

I flagged up with the Services and the MoD last July that, whatever came out of the strategic defence and security review, there were going to be changes and that they needed to put in place proposals and provisions to deal with them. That is why I believe that, although it may not be the sexy end of Service expenditure, the resources for dealing with complaints must be protected.

Q158 Alex Cunningham: So you personally are not expecting a requirement for additional resources to deal with complaints in this area?

Dr Atkins: What I am saying is that the resources that the Services have got should not be cut. There is an increase, and it is likely to go up a lot. I agree with you, but I don’t think it is necessarily because of the focus on the military covenant.

Q159 Alex Cunningham: We were talking this morning about what should be reported to the Minister. It was suggested that perhaps minimum standards should be laid down. Does the absence of minimum standards mean that there isn’t anything to complain about in the military covenant?

Dr Atkins: Well, people can still complain if they have a new baby at home and their boiler hasn’t been mended for six weeks in the coldest winter.

Q160 Alex Cunningham: But they do that without the Military Covenant.

Dr Atkins: Yes, and they will have minimum standards. It is not something I have given thought to. I think there are pros and cons. I will say-and we find this in my area-that because the guidance talks about certain time frames, and it is 30 working days for a complaint to be dealt with rather than 60 or 120 at the current time, you raise expectations. There may be very good reasons why you can’t meet such minimum standards and people will complain, when it is not actually reasonable to do so. I haven’t given much thought to it, but I will.

Alex Cunningham: Thank you.

Q161 Gemma Doyle: My question is somewhat similar to Alex’s, so apologies if you feel you have already answered it. We heard an opinion from the Bill team earlier today that the Bill enshrines the military covenant in law, but it does not define it-I have to say, there has been debate over whether it does actually enshrine the covenant in law. How would you deal with a complaint about something that is enshrined in law, but not defined anywhere at the moment?

Dr Atkins: My working definition is a service complaint, to bring it within my remit. That means that somebody has been wronged in their service life. So, if they have been wronged in any aspect-and I have talked about service life not being 9 to 5 and it encompassing all those issues that are included in the Military Covenant-it can fall into my remit.

There is a gap relating to veterans, and the Military Covenant is supposed to cover veterans. The gap is this: although, as a veteran-a former Service person-you can use the Service complaints system, you can only do so if it concerns a wrong in your service life and you bring the complaint within three months of the wrong happening, unless there were just and explicable reasons not to do so. So, it’s very difficult for veterans to use the Service complaints system to deal with any wrong. If it is not accepted, the mechanism for asking for that to be appealed is through another Service complaint. Veterans cannot do that because the refusal to accept takes place after they have stopped serving. So, there is a gap, and my concern is not in relation to serving persons and their families; the issue is in relation to veterans.

Q162 Gemma Doyle: And, as the Bill stands, it does not address that issue.

Dr Atkins: No, because the gap is in the Armed Forces Act, and it is not addressed.

Q163 Thomas Docherty: Clauses 13 and 20, relating to the reduction in ranks for disciplinary offences, give greatest flexibility to commanding officers to make decisions. Do you have any concerns about the COs having greater discretion at a local level?

Dr Atkins: Interestingly, we have had cases, including one fairly recently, on precisely this issue, with a warrant officer-a senior NCO. He had been informed that-it went before the captain’s table, and the CO dealt with it-he would get a period of detention, and he would be reduced in rank for that period of detention. In fact, it is an automatic reduction in rank, permanently. He can’t make a Service complaint about the finding, the decision and the sentence, because that is excluded from the Service complaints system. What he made a complaint about was the process, but there was nothing that could be done because it is in law.

In those terms, the Bill corrects a potential wrong and it is to be welcomed. Giving commanding officers discretion always runs the risk of inconsistency, of malice-and of bias. Interestingly, that is not only in our case, but in the armed forces’ continuous assessment. Bias-just being picked on, or being treated differently just because of who you are-is the largest category of discrimination. It is not unlawful discrimination. Currently, unless you are able to show that the commanding officer acted in an improper way by reducing you in rank, you cannot bring a Service complaint.

I think that the Bill is a good thing. Does it run the risk? Yes, but it runs no greater risk than commanding officers giving sentences in normal disciplinary matters anyway.

Q164 Mr Jones: The old Bill introduced what I think the Army calls AGAI 67, which I do not think the other two Services had. It is very sensible in my opinion, and it allows instant justice for minor offences. Has that worked in practice? Have you ever seen people complain that it is being used by, as you say, certain officers at a low level as a way of punishing people? Have you had any complaints along that front, or has it been a good thing? I thought that it was.

Dr Atkins: One of the reasons for doing it was to stop the beasting, or reefing, in the Marines-whereby NCOs and warrant officers were alleged to have taken matters into their own hands-and to put it through a formal process. We still get complaints that individuals have been given a series of AGAI 67s for a variety of things because the warrant officer or sergeant does not like them and is picking on them. We refer them and oversee them. Sometimes there is a case, and sometimes the person does not want to be the in the Army and is getting into all sorts of trouble. Does it work? I cannot tell you. I can only explain what we see and the variety of things that we see.

Q165 Mr Jones: Has it worked in the other two Services? The RAF and Navy did not have it, did they?

Dr Atkins: We don’t tend to get cases from them. I can’t think of very many. We get cases like that from the Marines, but they are very few and I flagged up last year that Marines do not appear to know about the Service complaints system, and certainly not about the SCC. That is something that they may have been working on to try to increase that awareness. Those sorts of complaints happen in the Marines and in the Army.

Q166 Thomas Docherty: I am also a member of the Defence Committee. You wrote to us a couple of months ago seeking input-I will paraphrase, if I may-to help validate or assess your operations. Do you think there is any scope or mechanism that could be included in the Bill that would provide a mechanism for greater validation of your work that you would find helpful?

Dr Atkins: I certainly think that it is useful that my role is a statutory office and now has to be subject to the approval of the Committee. I would very much welcome accounting to the Defence Committee on my work, because-

Q167 Thomas Docherty: Sorry, so you see it as being about the Defence Committee rather than any other mechanism?

Dr Atkins: I think that accounting to Parliament through the Defence Committee is helpful. After my first annual report, there was a debate in the House of Commons, and I think that that was very helpful, not least because it spreads knowledge and understanding. As an independent member, and as an independent member with responsibilities to servicemen and women, I think that anything that increases the accountability of the role is to be welcomed.

Q168 Thomas Docherty: At the risk of putting words in your mouth, you would like some sort of formal requirement?

Dr Atkins: I don’t know whether that needs to be in the Bill. I think that that is for you and your fellow Members and the House of Commons to consider. But I think that the accountability mechanism is a good one.

Q169 Thomas Docherty: Finally, do you feel, having had a chance to reflect upon and digest the Bill, that there are any other measures or provisions that will affect either your office and your work or, indeed, the wider welfare provision, that would be helpful for this Committee or the House in general to consider including?

Dr Atkins: No. I will watch the impact of the provisions on the service police with interest. That was an area that I flagged up last year in the Annual Report, because I think that the effectiveness of the service police and confidence in the service police has an impact that is much broader than one might immediately consider. A lot of cases about bullying and harassment start as Service complaints, many of them through me. If there is an issue that it could be a criminal offence, it goes to the service police. What happens very often is that because it is service police asking questions, everybody suddenly forgets, was not there, cannot remember, and nothing happens.

Those who were Members of the Defence Committee when my role was set up will remember that Sir Nicholas Blake’s original recommendations for the Commissioner role was that the Commissioner would have the right, if a Commanding Officer failed to take action or to put a case to court martial, to ask for a prosecution. That role went to the Director of Service Prosecutions under the Act. When I asked the question of someone briefing me on the Bill, I was assured that the provisions of the Bill are sufficiently wide for HMIC to look at that as part of its inspections. That would be the area: just so that we could make absolutely sure what is happening there. It is outside my remit; I cannot ask the Service for those things. If something starts as a Service complaint and it goes into the criminal justice system, it moves out of my ken. That is an area that needs to be looked at. I did ask the question yesterday, and was told that would be within the inspectorate.

Q170 Bob Russell: Does your remit include taking up issues on behalf of war widows or other bereaved family members, who have concerns about what is ongoing? Do you think that is something that the military covenant ought to be addressing as well?

Dr Atkins: The short answer is no, it does not. I have had a few individuals in those circumstances write to me. I then get in touch with the top of the Service and pass them through. You may recall in my annual report, I drew attention to the fact of families of soldiers, sailors and airmen and women who came from Scotland and the coroners, and the gap there, which legislation closed. I also invited views on whether my remit should be extended. Families who feel, after their loved one has died, that issues were going wrong to which they wanted an answer, do find it very difficult. I am sure Members of Parliament hear about a lot of these. One reason Sir Nicholas Blake wanted the commissioner there was so that they cannot be fobbed off. There may be a role for that. Where people come to us, we try to help.

Bob Russell: I really appreciate that. Thank you.

Q171 Mr Jones: But on that point, is there not a danger if you do not define it? There is a case for bereaved families-certainly in the cases I have dealt with, as a Minister and on the Defence Committee-where children die in service. There is a remit there. Is there not a danger if you do not define it, that you push your remit way over to veterans going a long way back? That would dilute the purpose and key role that you were created to do, which was to deal with complaints in service.

Dr Atkins: There is. I can give two examples of that. I was approached by a few families who felt that the person who died-and it was not an operational death-had been treated badly and was in the process of, and wanted to make, a Service complaint. They died of illness before being able to get an answer to that. I pushed those through and overcame the resistance of, "We are not going to answer to that, because they cannot make a Service complaint." A very bureaucratic answer. That is a circumstance so akin to my role that that is not extending the remit too much.

The numbers of complaints that I do not refer are reducing; in the early years, they were about 40%. A fair proportion of the complaints that I do not put into the system-not a lot-are from people who want to raise something that happened to them in the Services a very long time ago. Just in the last few weeks, I received one that was about something that went wrong in 1979. Interestingly, someone from the Service referred that person to me, so that he could be assured that it was not pushed under the carpet.

I have not put those cases into the system for precisely the reason that you suggest: the focus is the here and now. I understand that if something has gone badly wrong and, towards the end of your life, it is preying on your mind, you want to get it settled. But there are lots of reasons why the Service complaints system cannot deal with that.

Q172 Mr Jones: The difficulty is not just your remit. We are familiar with the Deepcut deaths, for example. Some of the difficulties there relate to the time it would take to investigate complaints. With evidence being so way off, it would be time-consuming-you would not get answers even if you threw a lot of resources at it.

Dr Atkins: Yes. This is an issue that other oversight bodies find. When I was at the Independent Police Complaints Commission as Chief Executive, the Secretary of State asked the IPCC to look at a particular case that was causing concern, which was outside its remit. There are occasions when it might be appropriate. It is a workplace grievance system.

Q173 Thomas Docherty: Dr Atkins, it sounds as if we have a situation where there is potentially a problem; but, for want of a better phrase, because of your good sense, that hasn’t occurred on your watch. Would it be fair to say, however, that there is the potential for one of your successors in the future to take a broader interpretation of their powers? I wonder whether having something that is written down and more clearly defined might be helpful.

Dr Atkins: Well, what would you mean by a broader interpretation?

Thomas Docherty: To cite the examples that you’ve used, you use your judgment. Technically-or, perhaps, potentially-a different holder of your post might have decided to reopen those cases. I am suggesting that that was your judgment, rather than it being clearly defined that you couldn’t reopen those cases.

Dr Atkins: What I could change is making a decision. When people come to me, do I think this is likely to be accepted as out of time? The test is not mine; the test is the chain of command. Is it just inequitable? I should say that I have referred cases that were 12 or 15 years old. Just because they happened a long time ago doesn’t mean that I haven’t referred them. I have referred them in cases where the allegations were of a Deepcut nature. It seemed to me these were so serious-I think we referred one just the other day that went back to the 1980s. So I will do that, but I have to give an assurance that the system is working efficiently, effectively and fairly. It does not seem consistent for me to put in what could be hundreds or thousands of complaints to the Service, who would simply say, "This is too long ago. It was important to you, but in the scheme of things, it was minor. We haven’t got access to the material, so there is nothing we can do." That could really impact on the fairness of the system to sort out the problems of today.

Q174 Mr Jones: In terms of Reservists-seeing as Mark Lancaster is not here-and the number of complaints you get, are there any special challenges that Reservists face, which regular members of the Armed Forces don’t face?

Dr Atkins: Yes. We haven’t had many, if any, complaints from Reservists in relation to operations. The complaints we get are threefold. On complaints about policy, the terms and conditions are different. In the Army particularly, there were different terms of engagement and different categories, so that was very complicated. At least one of the cases that we put through was helpful to bringing about the review in a speedy way. There are cases at the other end, particularly in the TA, that concern the combination of civilian life and Reserve Service. They are rubbing points, where the chain of command doesn’t appear to be understanding, and they can get sorted out quickly. Then there are the ones in between, which are put through and the commanding officer needs to sort out. We get quite a lot, and a lot of them have been on the policy end and relate to the terms and conditions of service.

Q175 Chair: Does it worry you at all that you haven’t had many, if any, complaints from reservists on operations? Does that suggest they might be less aware of your availability to them than regular forces?

Dr Atkins: It could be.

Q176 Chair: Is that something you should consider?

Dr Atkins: I think it is something we should consider.

Chair: Right. Thank you very much. Are there any further questions about this? Thank you both very much indeed. Mr Beck, Dr Atkins has done such a fantastic job that you didn’t even need to open your mouth.

Dr Atkins: He can buy me a drink later.

Chair: Thank you both very much indeed for coming to give evidence.