Defence CommitteeWritten Evidence from Major R A McLeod R SIGNALS LLB MA JP (SCC 004)

1

Set complaints policy, including timelines

While consultation with the MoD would be vital, the SCC should have the final say in setting MoD Service Complaints policy. This would primarily be in two areas: Joint Service Publications 831 and 763, which articulate MoD complaints handling policy, and—crucially—MoD timelines for Service Complaints handling.

The MoD has an atrocious record for Service Complaints handling, with some complaints taking years to be investigated, let alone decisions being made. That justice delayed is justice denied is a cliché, but entirely accurate. As a consequence, many wrongs are incapable of being rectified, many complainants surrender in exhaustion and give up, and many service personnel do not even bother to submit a complaint as they realise that so doing is nugatory.

Timelines for handling complaints from service personnel should be the same as those for civil servants: that the former have no one to defend their interests while the latter have unions is the realpolitik but reprehensible reason for the current incongruity between the MoD’s treatment of the two. Operational reasons delaying service personnel’s complaints should be justified on a case-by-case basis, not by treating service personnel as “second-class employees”.

2

Impose financial penalties for delayed complaint handling

Having unified the civil service and service personnel timelines (with the SCC having final say on the latter), there needs to be an “incentives and enforcement” system to ensure that the MoD honour those timelines, both in terms of adequately staffing the service complaints system, and in ensuring that those staff progress cases diligently. The MoD currently has no such incentives.

The SCC should be able to impose a penalty each time that an individual complaint is unjustifiably delayed by one month (noting that there may be valid operational or other reasons). This penalty must be linked with inflation so it is not rendered nugatory: Level 3 on the standard scale of fines for summary offences is suggested, currently £1,000, per section 37 of the Criminal Justice Act 1982, as this would allow it to evolve, as parliament amends that Act.

3

Investigate complaints

The SCC should have powers broadly equivalent to those of the Independent Police Complaints Commission (IPCC), which is able to investigate complaints independently, and make decisions entirely independently of the police, government and complainants. Like the police do with the IPCC, the Armed Forces should have first-instance jurisdiction over complaints, and the SCC should only be an office of last resort:

The IPCC oversees the police complaints system and sets the standards by which the police should handle complaints. It is independent, making its decisions entirely independently of the police, government and complainants. The IPCC considers appeals from people who are not satisfied with the way the police force has dealt with their complaint. Each police force has a Professional Standards Department (PSD) which is responsible for considering complaints and conduct matters involving police officers and police staff within their force. The majority of complaints received by the IPCC are passed to the PSD for them to resolve. In addition, police forces must refer the most serious cases to the IPCC and, where the public interest requires it, the IPCC may decide to investigate, manage or supervise a police investigation.

Source: IPCC, http://www.ipcc.gov.uk/en/Pages/complaints.aspx

Service personnel should continue, as at present, to be able to submit a complaint directly to the SCC, as this provides a valuable source of advice to vulnerable and frightened junior personnel, and also serves to provide an objective and dispassionate perspective in cases where a complaint is not justified and a service person would benefit from the advice of an informed and empowered third-party who may be able to dissuade them from the rash submission of a meritless complaint.

4

Initiate investigations

The SCC must be able to both direct that the Army initiate complaints investigations, and initiate investigations herself, of her own authority. This is important in cases where an incident is suspected to have occurred, and has been reported by a third-party, but the service personnel involved are too afraid to speak out, or are coerced not to do so. Such a power is likely to be used rarely, but its benefits should be self-evident. It is also useful where the Army are exercising their powers unlawfully across a wide community, for example placing soldiers under “de facto house arrest” by the imposition of curfews or simply bans on all junior soldiers leaving camp, as some garrison commanders have used in recent years, or the contrivance of “mandatory parades” at 0900 on Sunday mornings at church, as a device to overcome the fact that we can not order soldiers to go to church any more. These are the sorts of low-level but unlawful actions which illegitimately interfere with soldiers’ private lives, and which commanders can order without consequences, and which soldiers correctly fear that they would suffer consequences from reporting as a complainant. Were they able to inform the SCC and allow her to initiate investigations where she felt it justified, however, fears of victimisation would be mitigated, as there would not need to be a named complainant.

5

Take over improperly-delayed investigations

Once complaints are filed with the MoD, it is vital that the department’s current powers to stall cases, sometimes for years, and in so doing cover up serious misconduct, are removed. If 28 days after submission a case has not been progressed in accordance with the time frames set out by the SCC (See Set complaints policy, including timelines, above) and a service person believes the delays to be without good reason, they should have the right to request that the SCC intervenes directly to seek information, issue binding direction, or take over the investigation. This is in line with best practice from the Irish Defence Force Ombudsman:

If you are a member or a former member of the Defence Forces of Ireland and you believe that you have been treated unfairly or would like information about how to process a complaint, the Office for the Office of the Defence Force is here to help you. The Office of the Ombudsman serves as an Office of last resort for serving Members of the Defence Forces who must first exhaust existing internal grievance procedures before the Ombudsman can review or examine the case. However, there is a provision within the Legislation establishing the Office of the Ombudsman for Defence Forces which says that if within 28 days your case has not been progressed in accordance with the time frames set out and you believe the delays to be without good reason, you have a right to make contact with the Ombudsman directly.

Source: Ombudsman for the Defence Forces, http://www.odf.ie/aboutus/

One problem with this would be the risk that a significant number of cases being mishandled by the MoD could result in a backlog being created with the SCC, thus defeating the purpose of allowing the SCC to take over complaints. Accordingly, it is strongly suggested that if the SCC needs to exercise her powers to take over a case, the capitation costs of all SCC personnel working on that case should be payable by the MoD. This would ensure that there was no disadvantage to the SCC in taking cases over, and would remove the perverse incentive for the MoD to abdicate responsibility both for an investigation, and the cost of it. (This is, in effect, a version of the “polluter pays” principle.)

6

Intervene immediately, by exception, in time-critical cases, to forestall a wrong or prevent irreparable damage

“There may be cases where a pre-emptive service complaint is necessary to forestall a wrong that could be redressed by a later service complaint. For example, where irreparable damage of a wrongful or malicious action to career has been done.” This text is from a letter from the SCC to the … who dismissed the SCC’s warning, and as predicted “irreparable damage” was done, and—a year later—the Army has not substantively advanced the service complaint. Notwithstanding the above caveats about responsibility for service complaints lying, by default, with the military, the SCC must have the power to exercise discretion and intervene immediately in cases where this is justified. (As in all cases where the MoD disagrees with the SCC’s actions, it should be able to challenge them by judicial review.)

7

Be notified of all service complaints

In the case of the IPCC, police forces must refer the most serious cases to the IPCC and, where the public interest requires it, the IPCC may decide to investigate, manage or supervise a police investigation. A related provision for the Armed Forces should ensure that full copies of all service complaints are forwarded to the SCC within 7 days of receipt, so as to provide independent oversight. This could be accomplished relatively inexpensively by ensuring that scanned copies of complaints are uploaded on to a shared information management system to which MoD, the RN, Army and RAF, and the SCC have access: providing the SCC’s office with Defence Information Infrastructure (DII) terminals would achieve this with negligible effort. At present, the only information available to the SCC regarding many complaints is the basic statistical information recorded on the Joint Personnel Administration system (JPA), the quality of the information on which is highly variable.

8

Dismiss meritless complaints

It is important that trivial or vexatious complaints be filtered out at the earliest possible stage, so as to avoid wasting the SCC’s, MoD’s, and other service personnel’s time and resources. At present this is a significant weakness in the current system: meritless complaints waste time and money, as there is no mechanism to prevent complainants escalating such complaints after they have been rejected, in so doing “clogging the system”. As a consequence, other service personnel with legitimate grievances find their complaints delayed, and this contributes to the many cases in which other service personnel, looking on, recognise that the service complaints system is too slow and ineffective to be permitted any credibility.

Granting the MoD power to unilaterally dismiss complaints before they have exhausted the current internal “escalatory chain” to a Service Complaint Panel is fraught with risks, and would confer on the MoD [further] powers to cover up misconduct. Permitting them to do so while providing complainants a right of appeal to the SCC would, however, allow the MoD to reject meritless complaints, while allowing the service person an appellate avenue to an independent and impartial authority outside of the MoD. The SCC could then:

a.

Approve the MoD’s decision to dismiss a complaint.

b.

Reject the MoD’s decision to dismiss a complaint, and direct the MoD to reconsider their decision (with binding recommendations).

c.

Reject the MoD’s decision to dismiss a complaint, and take over responsibility for investigating the case.

9

Compel evidence

The SCC must have specific powers to both compel witnesses to provide documentary material to investigations, and to attend to give oral evidence. It is strongly suggested that the SCC’s powers should, at a minimum, replicate those in the statute creating the Irish Defence Force Ombudsman, the Ombudsman (Defence Forces) Act 2004 (http://www.oireachtas.ie/documents/bills28/acts/2004/a3604.pdf).

The nearest equivalent in English law to that act appears to be Section 21 of the Inquires Act 2005, which provides Inquiries with statutory powers to compel evidence. The powers would be exercisable on behalf of the SCC by the senior investigator in specific investigations. It is envisaged that most requests for information from the SCC would not need to be made under such powers, merely because such powers would exist. At present, Army HQ, for example, is both able and willing to bluntly and arrogantly dismiss expressions of concern sent by the SCC to the MoD: this is due to the complete lack of powers vested in the SCC at present.

10

Wide investigatory powers

The statute creating the Irish Defence Force Ombudsman, the Ombudsman (Defence Forces) Act 2004, provides for the appointment of investigation officers, and confers on them the necessary powers to investigate complaints including, inter alia, the power to search military premises:

An investigation officer may, for the purpose of obtaining any information which may be required in relation to the matter under investigation and in order to enable the Ombudsman to perform his or her functions under this Act, do any one or more of the following—(a) at all reasonable times enter any premises, including…a military installation, in which there are reasonable grounds to believe that any activity in connection with a complaint is or has been carried on or that books, records or other documents in relation to a complaint are kept and search and inspect the premises and any books, records or other documents on the premises.

Source: Ombudsman (Defence Forces) Act 2004, http://www.oireachtas.ie/documents/bills28/acts/2004/a3604.pdf

This example is listed to highlight the disparity between the protections afforded to victims of misconduct by the Armed Forces in other countries, compared to the UK. For example, military ombudsman in the following countries have subpoena powers to compel evidence from the Armed Forces: Austria, Estonia, Germany, Ireland, the Netherlands, Norway, Poland, Romania, Serbia, Slovenia, and Sweden.

11

Direct implementation of decisions

The SCC must have the power to enforce her decisions, as ombudsman in other spheres of democratic society do. She should be able to impose a penalty each time that implementation by the MoD of an individual decision is unjustifiably delayed by one month (noting that there may be valid operational or other reasons). This penalty must be linked with inflation so it is not rendered nugatory: Level 5 on the standard scale of fines for summary offences is suggested, currently £5,000, per section 37 of the Criminal Justice Act 1982, as this would allow it to evolve, as parliament amends that Act.

Decisions should be enforceable, if necessary, by the High Court on application of the SCC, using all the usual means. The MoD should be able to challenge the SCC’s decisions via Judicial Review.

12

Recommend policy changes to the MoD, and require a timely ministerial response

Recognising that the SCC will have a unique insight in to service personnel’s problems, and will often be the only representative to whom service personnel can turn, she should have the power to make policy recommendations to which ministers should be obliged to respond within a maximum period of, for example, two months. This would enable systemic and institutional issues within the MoD to be identified, escalated, and an authoritative departmental response issued—and examined by parliament—in a way that is currently impossible. While the SCC currently writes an annual report, there is no obligation for the MoD to respond to discrete issues, much less do so substantively and in a timely manner.

Associated points relating to the Service Complaints process overall, beyond SCC powers

13

Assisting Officers need training, careful selection, and protection

The only source of advice provided to subordinates in both Service Complaints and disciplinary action is an Assisting Officer. This poses three problems:

1. The Assisting Officer almost invariably works for the same chain of command as the subordinate, and if the subordinate is alleging misconduct by that chain of command, the Assisting Officer’s loyalties realistically will be towards the latter.

2. There is nothing to stop the superior officer, being the subject of the complaint, attempting to influence who should be appointed to assist the subordinate (there is at least one documented instance of just such a practice).

3. Many Assisting Officers are junior officers with little experience, who are ill qualified to advise or protect the interests of complainants. They are filling roles in which they have no training, little interest, and no incentive to speak truth to power. Assisting Officers should be:

a.

Trained fully in their duties and responsibilities.

b.

Where appropriate, or requested, appointed from outside the chain of command, for example if the chain of command themselves are implicated in a complaint.

c.

Assisting Officers should be given binding and enforceable (via SCC oversight) guarantees that they will not be penalised for acting in accordance with their consciences, even if so doing inconveniences the chain of command, and that their actions and decisions when acting as Assisting Officers will not be used in appraisal reports and promotion recommendations. This is broadly similar to the so-called “Morris direction” given to board (“jury”) members in courts martial, which assures them that their verdict must be entirely independent, and protects them from external influence.

14

The service complaints system should be able to grant compensation

Sometimes the damage done by the military, to service personnel’s welfare or careers, is so great that it cannot be mitigated by remedial action. In such cases, the inability of the service complaints system to grant financial compensation is invidious: it breaches the fundamental principle that there should be no right without a remedy. … Forcing such personnel to pursue legal action is not what service personnel deserve for the risks to which they subject themselves on the country’s behalf. More ominously, the lack of financial remedies means that many service personnel, however badly wronged they have been, will not submit complaints because they recognise that there is no effective remedy available.

Assertions that this would create a “where there’s blame there’s a claim culture” are both patronising to service personnel who have committed themselves to military careers, and fails to take in to account the powers recommended above to be able to dismiss meritless complaints.

The Canadian Forces Ombudsman, in their report The Canadian Forces Grievance Process: Making It Right for Those Who Serve, dated May 2010, recommended these very powers for their service complaints system:

“Why the Chief of the Defence Staff Should Be Able to Grant Compensation”

…We believe that, within an appropriate regulatory and policy framework, it is possible for the Chief of the Defence Staff to be given the power to grant monetary compensation in the context of a grievance. More than that, we believe that it is essential that the Chief of the Defence Staff has this authority in order to make the grievance process more responsive and fairer to members of the Canadian Forces… Requiring grievors to submit a claim against the Crown after what is often a very long grievance process is unfair because it adds complexity and legality to what is supposed to be an informal, equitable process. Instead of the Chief of the Defence Staff’s decision being final, many grievors find out that they have to begin a new process… ...The Chief of the Defence Staff does not have the authority to deal with all aspects of a grievance. The system was confusing to the Federal Court, where Canadian Forces grievances and federal Public Service grievances are often challenged. How can we expect a Canadian Forces member fighting a battle against the chain of command, and usually without any legal assistance, to know what to do?

...The court alludes to a very important principle underlying the Canadian legal system: namely, that there is no right without a remedy. Simply put, a proper review process must be able to not only determine whether someone was treated fairly or according to applicable standards, but must also be able to correct any unfair or improper treatment. Courts that are able to find someone guilty of a crime have the power to impose appropriate sanctions, and tribunals that determine if an individual’s rights were infringed are supposed to have the power to grant remedies for any infringement.

We believe that this legal principle meshes with an important military concept: Leaders must be given the tools and authority needed to accomplish the goals for which they are responsible. In the case of the Canadian Forces grievance process, the Chief of the Defence Staff has not been given the authority to act as the final authority with certain monetary aspects of grievances.

In this sense, the grievance process is deficient. We have seen complaints where there was a clear decision that the grievor was treated unfairly but the Chief of the Defence Staff had to inform the grievor that he was unable to grant the compensation sought, as he did not have the authority to do so. It is not fair to members of the Canadian Forces that the Chief of the Defence Staff can find that they have been treated unfairly but, in many instances, does not have the ability to grant the compensation that will, at least to some extent, make up for the unfair treatment. The chain of command, which is entrusted to ensure the well-being of our troops, must have the tools and authority it needs to take care of them. In turn, military members need to be confident that the chain of command has the ability to take care of them.”

The Canadian Forces Grievance Process: Making It Right for Those Who Serve (http://www.ombudsman.forces.gc.ca/rep-rap/sr-rs/gp-prg/doc/gp-prg-eng.pdf)

15

The Army’s AGAI 67 internal sanctions regime should be replaced with a fair system

The Army’s Internal Sanctions regime, AGAI 67 Major Administrative Action should be replaced with an Article 6-compliant (ie independent and impartial “fair trial”) process designed by ACAS and the SCC, and reported on publicly for the MoD and the Defence Committee to review. The Army should contribute to, but not have power of veto over, the design of this replacement.

16

The summary hearing system should be replaced

The summary hearing system should be replaced by a “summary sentencing” system, offering soldiers the choice of pleading guilty at regimental level, with a fixed sentence and its implications articulated before they make that plea, with a court martial as the alternative. Entitlement to publicly funded legal advice must commence in this “summary sentencing system” at the outset, so that soldier’s decisions are informed and as free of coercion as possible. This would protect the Army’s interest in allowing soldiers who have committed minor offences to “get it out of the way” summarily, while removing from the Army the ability to:

a.

Coerce vulnerable junior personnel to relinquish their right to a proper court martial (a “fair trial”), rendering such rights nugatory.

b.

Cover-up misconduct by favoured personnel by going through the motions of prosecution, with acquittal as a fait accompli.

This new system must include oversight by the SCC. Presently—and contrary to Sir Nicholas Blake QC’s Deepcut Review—the SCC is excluded from any involvement with the summary hearings system.

17

An empowered SCC 24/7 helpline should be introduced

There should be a 24/7 urgent service complaints hotline allowing service personnel to report time-critical issues. Without this, soldiers caught up in events … cannot seek informed, independent and empowered intervention, and there will be the risk of more such incidents.

18

Annual Training Tests in “Human Rights” should be mandated

All-ranks military training and education in legal issues is, broadly speaking, limited to the law of armed conflict. This has two disadvantages:

1.

It further inculcates an already deep-seated attitude that the law is something that only poses a threat to the Army, rather than a valuable framework describing both rights and obligations, and

2.

It leaves service personnel ignorant about areas of impermissible behaviour regarding treatment of subordinates, beyond the most egregious misconduct attracting criminal sanction.

A Mandatory Annual Training Test should be introduced explaining the post-Holocaust origins, and contemporary relevance, of human rights in wider society, within the military itself, and on operations. The current defensive attitude to the law needs to be replaced by one in which it is seen as a key guide in shaping the sort of society in which we wish to live, and military we want representing us:

“Training has an important role to play in ensuring that Armed Forces uphold and respect human rights, both in relation to civilians and within the military itself. At a basic level, human rights training may identify practices that should be avoided, but it may also do more by enhancing the civic education of members of the Armed Forces. Training is valuable both for new recruits and for those at later stages of their military career. Indeed, officers have a particular responsibility for creating an ethos in which human rights are upheld. Apart from formal inclusion of human rights in the curriculum for recruits and officers, this chapter also discusses other means of communicating the importance of human rights, such as through professional codes of conduct, as well as the role of military colleges in this important task ...”.²

Handbook on human rights and fundamental freedoms of armed forces personnel, OSCE (2008), Human Rights Education, p 204.

19

Independent analysis should evaluate options for Royal Military Police and Army Legal Services independence

Independent analysis, outwith the MoD, should evaluate options for ensuring that the Army’s policing and legal services provision are adequately independent, not just to protect from outright corruption, which is perceived as unlikely, but the insidious effects of personnel unconsciously acquiescing to the needs of the overarching Army to which they belong, over their professional policing and legal duties.

For example, the Advisory branch of Army Legal Services is usually the sole source of legal advice to the Army’s chain of command, when dealing with service personnel issues such as bullying, victimisation, harassment, sexual harassment and assault. In-house legal practice presents special challenges with regard to professionalism. Every lawyer owes his clients the sometimes-conflicting duties of loyalty and professional independence, but that conflict is exacerbated in the in-house context, where exercising independent judgment and maintaining objectivity are more difficult, and even greater loyalty is demanded by the employer. The lawyer’s economic well-being depends on continued good relations with a single employer. In the military, in-house lawyers may be torn by the potential for conflicts between the interests of the military chain of command and the interests of service personnel. In other words, maintaining high professional standards can conflict with career objectives. A number of attributes of the job potentially foster neglect, or even disregard, of professional obligations. This is particularly true in the Armed Forces where, for example, Army Legal Services have in the past told their officers that they are “Army Officers first; lawyers second”. This is particularly the case when performance reviews and appraisal reports are written by non-lawyers, who may not recognize, understand or share the lawyer’s ethical obligations—Army Legal Services officers’ appraisal reports are routinely written by their superiors in the mainstream Army. These appraisal reports are the means by which officers’ careers, assignments, promotions, and “contract extensions” are determined. For example, as Channel 4 News reported in Oct 11:

“Top army lawyer slams MoD over human rights abuses. The army’s top lawyer during the Iraq war tells Channel 4 News his superiors blocked him when he tried to make British forces treat prisoners in a lawful way… Lt Col Mercer was Commander Legal of the British land forces that invaded Iraq at the start of the war in 2003. He was, in other words, the army’s top lawyer in Iraq. A successful and well-regarded career officer, it was his job to make sure British troops stayed within the law. But Lt Col Mercer’s efforts to do that job were to cost him dear. …He describes how he was blocked, harassed and mocked by his superiors in the MoD as he tried to make sure British forces treated prisoners in a lawful and humane way. … had the procedures he proposed been implemented, it is likely that innocent Iraqi hotel worker Baha Mousa—who died after 36 hours of abuse and beating at the hands of British soldiers—would still be alive. Had he been listened to, Britain would have saved tens of millions of pounds paid out in compensation and legal fees. And—many argue—had his professional advice been taken, Britain’s reputation would not have been tarnished by the allegations of torture and mistreatment which continue to surround operations in Iraq and have tarnished the UK’s reputation around the world. So why did this happen? Mercer argues that the root cause is what he calls an attitude of “moral ambivalence” about Britain’s human rights obligations which goes right to the top of the MoD.”

Source: http://www.channel4.com/news/top-army-lawyer-slams-mod-over-human-rights-abuses

Finally, the level of oversight exercised by the Solicitor’s Regulatory Authority and Bar Standards Board is extremely low for lawyers working for the military as opposed to their privately-employed counterparts who are more closely scrutinised, and thus with it, there is far lower risk of sanction, disciplinary action or malpractice liability.