The Armed Forces Bill

AFB 09

Written evidence from Dr Susan Atkins, Service Complaints Commissioner

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 – i.e. 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 – i.e. 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 i.e. 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:

· The duty owed by the government to service personnel

· The duty owed by the national service personnel and

· 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 – i.e. 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