Armed Forces (Service Complaints & Financial Assistance) Bill [HL]

Written evidence submitted by Liberty (AF 02)

Introduction

Liberty welcomes the opportunity to brief Parliamentarians on the Armed Forces (Service Complaints and Financial Assistance) Bill. The Bill was announced in the Queen’s Speech of June 2014 and was introduced in the House of Lords on 5 June 2014. It had its first reading in the House of Commons on 21 November 2014

and Second Reading took place on 2 February 2015. The Bill makes provision for

the reform of the internal complaints systems of the armed forces and would

establish a Service Complaints Ombudsman, as announced by the Ministry of

Defence in March 2014. It also makes provision for financial assistance for the

benefit of the armed forces community.

Liberty launched its Military Justice campaign in July 2013 to protect and uphold the human rights of those serving in our armed forces. We believe that the rights of service men and women are just as deserving of protection as those of civilians and we have been campaigning for changes to the military justice system – including service complaints – to make it fair for all service personnel. Our work in this area has included considerable litigation on behalf of service men and women and their families. We represent the sisters of Anne-Marie Ellement, the families of three of the four soldiers who died at Princess Royal Barracks in Deepcut, Surrey and are regularly approached for advice from many other serving or former members of the services. We have met with senior members of the armed forces, politicians with an interest in defence and the current Service Complaints Ombudsman. As part of this campaign, Liberty has called for the creation of an armed forces ombudsman.

We very much welcome the decision of the Government to replace the Service Complaints Commissioner with the office of Service Complaints Ombudsman (the ombudsman) and support many of the powers accorded to the ombudsman in the Bill. However in a number of respects the Bill is vague and leaves

detail to regulations. We are concerned that without greater clarity in the Bill, these

regulations could be used to tie the hands of the ombudsman. In addition, the Bill

contains some significant limitations on the matters the ombudsman can investigate

and limits the effects of her recommendations, which may undermine the powers that

the Bill proposes to give to the ombudsman. We are concerned that this will reduce

confidence in the proposed system, which will in turn render it less effective than it

needs to be in order to deliver fairness to those who serve.

This briefing outlines the development of independent oversight of service complaints and indicates support for those amendments that Liberty considers are the most essential for the improvement of the Bill.

Background

Part 14 of the Armed Forces Act 2006 sets out that any person who is subject to service law and who thinks him or herself ‘wronged’ in relation to any aspect of their service life can make a complaint about it. Each of the three services – the British Army, the British Royal Navy and the British Royal Air Force – has its own internal complaints system, with the Armed Forces Act and regulations setting out the framework for these systems.

The Armed Forces Covenant sets out that the armed forces have a responsibility to maintain an organisation which treats every individual fairly, with dignity and respect, in an environment which is free from bullying, harassment and discrimination. [1] The Covenant also sets out that individuals must have a means of recourse open to them if they believe that they are not being treated in a fair and appropriate way. [2] A trusted and effective complaints system is essential to meet these commitments.

In civilian workplaces, when an individual thinks they have been treated unfairly – be it holiday allowance, pay, dismissal – it is open to them to make a claim to an employment tribunal. The employer-employee relationship in the military is different in a number of ways. Commanding Officers have a huge amount of control over the lives of those under their command, much more than that of civilian employers. They are responsible for maintaining discipline and have significant powers to sanction individuals, even having jurisdiction to take a view on criminal allegations made against an individual. But unlike their civilian counterparts, service men and women are not entitled to make a claim to an employment tribunal, with the exception of cases involving discrimination. In addition, a member of the armed forces has significantly less autonomy over their life than a civilian, with their day-to-day timetable often not within their own control. They may also be stationed abroad. This means that in practical terms, individuals will find it more difficult to access a solicitor or to seek advice about a problem they have. It is also worth adding that members of the armed forces are much more limited in the way in which they can leave the employment of the relevant service than civilians, so when problems arise their options are very limited.

The armed forces don’t just constitute employer. They are also landlord, healthcare provider, social worker and more. However members of the armed forces often will not have the same contractual or public law rights as civilians to deal with accommodation problems or to challenge poor healthcare. The right to make a service complaint is therefore essential, filling the void where civilian redress mechanisms are unavailable or inaccessible to service men and women. If members of the armed forces were unable to raise these types of grievance through a complaints process, they would have nowhere to turn to get things put right. Not only would this be unfair for the individual concerned, but the effects of unresolved grievances can also have a negative impact on the morale of whole units. Service complaints offer the armed forces an opportunity to identify systemic problems and to learn from mistakes that have been made, giving them vital information about how to improve the way they deal with those under their command.

Unfortunately, the history of service complaints is not a positive one. For decades there have been concerns that the internal complaints systems of the armed forces were not trusted by service men and women to resolve problems. In 2006, the report into the circumstances surrounding the death of four trainee soldiers at Princess Royal Barracks in Deepcut, Surrey, recommended introduction of an independent element into the service complaints system. Mr Justice Blake remarked:

"It will be difficult for the Armed Forces to satisfy the public that they have nothing to hide in the running of their discipline and complaints system if there is a perception of unwillingness to accept meaningful independent oversight, which is increasingly seen as a necessary counterweight to the powers and prerogatives of military life." [3]

At the time, the Government rejected the call of Mr Justice Blake and the Defence Select Committee to establish an armed forces ombudsman, but did create the office of the Service Complaints Commissioner to oversee and report independently on the operation of the service complaints systems. However evidence continues to suggest that the armed forces are struggling to protect service personnel from workplace problems such as bullying and harassment.

In her most recent report, the SCC stated:

"For the sixth year I am unable to give you and Parliament an assurance that the Service complaints system is working efficiently, effectively or fairly. I am

concerned that the goals I set for the end of 2013 have not been achieved, despite additional resources being deployed by the Services. As I have reported previously, the current system is not efficient or sustainable. Nor do I believe that it is working effectively." [4]

The 2013 Armed Forces Attitudinal Survey reported that 10% of service personnel felt that they had been the subject of discrimination, harassment or bullying in the service environment in the previous twelve months. Yet only 8% of the total of those subject to this behaviour made a formal written complaint. In its 2013 report on the work of the Service Complaints Commissioner for the Armed Forces, the Defence Select Committee expressed concern that service personnel do not always have confidence to pursue a complaint through the chain of command. [5] The Committee also noted reports that individuals are deterred from raising complaints due to a fear of redundancy and concerns that complaining will have a detrimental impact on their career. [6]

The announcement of the creation of the ombudsman came only weeks after the verdict was delivered in the inquest into the death of Corporal Anne Marie Ellement, who killed herself 18 months after she alleged she was raped by a military colleague. The inquest found that Anne Marie had suffered workplace bullying, including rape-related bullying and the Coroner termed the situation a "hothouse", concluding it was inevitable that incidents would occur. When Anne Marie reported that she was being bullied it was not investigated.

It is imperative that service men and women have the confidence to pursue a complaint, safe in the knowledge that it will be dealt with fairly and impartially, and that they can feel confident at the outset that making a complaint will not cause more problems or difficulties for their service life than it resolves. While a number of the proposals in the Bill are strong and begin to send the message that making a complaint will be worthwhile, a number of small policy details undermine this message. More fundamentally, two significant limits of the powers of the ombudsman – limiting the scope of what can be investigated and leaving the final decision as to the course of action to follow up to the internal Defence Council or its delegates – could seriously hamper the adequacy of the new model and risk creating the impression that complaints will not be effectively investigated and properly resolved. This risks discouraging complaints, with all the problems for individuals and the armed forces that a poor complaints system engenders and exacerbates.

Independence of Ombudsman – term of appointment

Amendment

Liberty urges Committee members to support amendment 4 in the names of Rory Stewart MP, Madeleine Moon MP, Derek Twigg MP, James Gray MP, Dai Havard MP and Julian Lewis MP.

Effect

This amendment would set out a statutory term of appointment for the ombudsman at between five and seven years. The ombudsman would not be subject to reappointment.

Briefing

Clause 1 of the Bill would abolish the current role of Service Complaints Commissioner (SCC) and would replace it with the office of Service Complaints Ombudsman. The clause sets out that the ombudsman would be appointed by the Secretary of State and would not be a member of the armed forces. It adds that the ombudsman would hold and vacate office in accordance with his or her terms of appointment.

As part of our Military Justice campaign, Liberty has called for the creation of an independent armed forces ombudsman. As noted above, the service complaints system is not trusted by many service men and women and is not effective and timely in dealing with their complaints. An independent investigative tier to improve confidence in and the efficacy of the system is sorely needed. The office of the SCC is purely an oversight mechanism, with no powers of investigation, no powers to make recommendations and no powers to mandate outcomes. The current SCC has herself long complained that her powers were inadequate and successive Defence Select Committees commented that the Service Complaints Commissioner’s role "falls far short of that envisaged" by them. [7] Until recently, Service Chiefs and the Ministry of Defence strongly refuted these claims and resisted attempts to change the SCC into an ombudsman. In evidence to the Defence Select Committee in 2012, the SCC observed: "Some of the Service Chiefs said they didn’t quite understand what an ombudsman did, but they were sure they didn’t want one." [8]

We therefore very much welcome the belated establishment of the ombudsman and the introduction into the service complaints system of an empowered external element. As with any justice system, it is imperative that the military justice system is independent. This is the only way in which to guarantee impartial decisions and is necessary in order to engender confidence in the system, from both the service men and women it is meant to serve and among the wider public.

While we welcome the stipulation that the ombudsman must not be a member of the armed forces, we note with a degree of concern that the Bill does not set out how long the ombudsman’s term of office will last, leaving this information instead to the ombudsman’s terms of appointment. The Ombudsman Association’s criteria for the recognition of ombudsmen sets out under the heading on ‘independence’ that:

"The term of office should be of sufficient duration not to undermine

independence. The appointment should be for a minimum of five years. It may be subject to renewal but the renewal process should not undermine or compromise the office holder’s independence."

In the absence of a statutory term of appointment, the Secretary of State at the time will decide on the duration of the ombudsman’s term and it would be possible for senior members of the military to make suggestions as to the appropriate term or to indicate whether they would prefer for a particular ombudsman to have their term renewed or not. The problematic nature of reappointment provisions has very recently been demonstrated in the case of the Chief Inspector of Prisons. The current Chief Inspector, Nick Hardwick, has almost come to the end of his first five year term. He has been described as a "fearless reporter of facts" [9] . The Ministry of Justice announced that he was entitled to apply for the role again, although he would not be automatically reappointed, as has happened with predecessors. In response, Mr Hardwick announced that he would not apply for reappointment on the basis that "you can’t be independent of people you are asking for a job."

During the passage of the Bill through the House of Lords, the Government indicated that the term of appointment would be for a minimum of five years and would be non-renewable. We are concerned that the absence of statutory provisions to this effect will create a significant risk that the independence or perceived independence of the ombudsman role will be compromised.

Complaints by family members of deceased service personnel

Amendment

Liberty urges Committee members to support amendment 23 in the names of Gemma Doyle MP, Kevan Jones MP, Vernon Coaker MP and Madeleine Moon MP.

Effect

The amendment would allow the partner or family of a deceased member or former member of the armed forces to continue or initiate a service complaint.

Briefing

Clause 2 of the Bill inserts new Part 14A into the Armed Forces Act 2006, which updates the framework governing the internal complaints systems of each of the armed forces and also sets out provisions relating to the office of the new ombudsman. New section 340A of the Armed Forces Act sets out who can make a service complaint. As under the current system, entitlement to complain is limited to a person subject to service law or a person who was formerly subject to service law.

This means that there is a small but important accessibility gap in both the internal complaints and ombudsman systems. When a service man or woman has died without making a complaint, there is no room for a family member to pursue a complaint on their behalf. The fact that an individual is deceased and can no longer benefit directly from the investigation of a complaint does not mean that other benefits cannot be obtained. Families of service men and women are often required to make sacrifices in support of their loved one’s decision to join the services. Partners and children may live on barracks; parents may face long periods of uncertainty concerning the safety of their children. For many, they feel that they have entrusted the wellbeing of their loved one to the armed forces. When an individual’s family or friends have information or evidence to suggest that their loved one was treated unfairly in their service life, it is important that they are able to find out the truth. Complaints are also acknowledged as useful to the service concerned. They can help to identify wider problems, the resolution of which is good for morale and the effective and fair operation of the service in question. In a situation where an individual has died, there is perhaps even more rather than less need to investigate.

During the Second Reading of the Bill, the Minister accepted that in some cases it will be very important that a complaint continues after the death or a service man or woman. But she expressed concern that allowing family members to bring complaints would jeopardise the right of the subject of the complaint to a fair hearing:

"In the terrible circumstances in which someone dies when a complaint hasstarted, there are many instances in which we would want that complaint to continue, most notably if it were about something that might affect somebody’s pension or allowances and would therefore be to the financial benefit the family, or if there were a point of principle. The trouble is that when somebody makes a complaint about bullying, they make that complaint against somebody else and if that second person denies that they have bullied the first person, they are entitled to a fair hearing. In the terrible event that the first person has died, the second person cannot challenge the complaint and so the danger is that the person against whom the complaint is made is effectively denied a fair hearing because he or she cannot, in effect, query or challenge the complaint. I hope that that makes sense. It is a terribly important part of natural justice that if somebody makes a complaint against somebody else, the person being complained about should have the right to give their side of events so that whoever is determining the case can hear all the evidence on both sides and reach the right conclusion." [10]

While we understand the concerns, we do not agree that in these circumstances it is impossible for a person implicated in a complaint to respond to any allegations and to have a fair opportunity to make their case – the questions simply have to be put to them.

The Minister also suggested that there are more appropriate ways for family members to raise concerns. But if the armed forces take these other avenues of complaint seriously, then surely they will still require individuals involved to give their version of events and the service concerned will come to a conclusion as to the course of action to be taken? The consequences of this process will surely be as serious for those concerned as a service complaint.

On the basis of our experience of acting for clients in this area, we also challenge the suggestion that it is easy for families of deceased members of the armed forces to raise concerns through other routes. During debates in the Lords, the case of Anne-Marie Ellement was raised. In 2009, Royal Military Police officer Anne-Marie alleged that she had been raped by two colleagues, also Royal Military Police officers. An investigation was conducted by the Royal Military Police themselves, following which a decision was made that no charges should be brought. She committed suicide in October 2011. A very brief inquest was held which did not examine any of the matters in any depth. Liberty acted for Anne-Marie’s sisters and following a judicial review we brought on their behalf, a fresh inquest was ordered and took place in February 2014. The inquest found that the lingering effects of an act of alleged rape, work related despair and bullying (including rape-related bullying) contributed to Anne Marie’s death. This information about the difficult working and living conditions Anne Marie endured would not have been made available to either Anne Marie’s family nor the Army had it not been for the hard fought for second inquest. It took considerable work to get to this point for the family of Anne-Marie. The second inquest took place only with significant legal work and a judicial review. We suggest that the majority of grieving family members of a deceased member of the armed forces will not be in a position to instruct solicitors in order to establish the truth about circumstances surrounding the death of their loved one.

Denying family members the opportunity to ask for a complaint to be investigated is both unjust for families and a wasted opportunity for learning and improvement. By way of example, the Prisons Ombudsman has discretion to investigate complaints made by family members of deceased individuals.

Ombudsman’s powers to investigate/scope of investigations

Amendment

Liberty urges Committee members to support Amendment 6 and consequential amendments 7, 8, 9, 10, 11, 12, 13, 28 and 13 in the names of Rory Stewart MP, Madeleine Moon MP, Derek Twigg MP, James Gray MP, Dai Havard MP and Julian Lewis MP.

Effect

This amendment would give the Service Complaints Ombudsman the power not just to investigate the handling of a complaint but to investigate whether a complaint was resolved correctly.

Briefing

New section 340H makes provision relating to the new ombudsman’s investigations. New subsection 340H(I) sets out that the ombudsman may investigate a complaint of maladministration in connection with the handling of a service complaint. New subsection 340H(4) sets out that the purpose of an investigation is to decide whether the alleged maladministration took place and if so, whether it could have resulted in an injustice being sustained by the complainant. This means that the ombudsman may investigate whether a complaint was handled in a procedurally incorrect way, for example whether there was bias or whether relevant information or evidence was not taken into account. The ombudsman can also explore whether the mishandling of the complaint led to injustice, for example a fair outcome was not reached because of the maladministration. However, the ombudsman is not able to investigate the substance of the initial incident or incidents that generated the complaint or any injustice that arose from it, only the procedure for dealing with the complaint.

This is a fundamental omission from the proposed system. It is entirely conceivable that a complaint may be conducted in a procedurally sound way but that the conclusion of the investigation was perverse. It serves to make the scheme look somewhat bureaucratic rather than a genuine attempt by the armed forces to ensure that complaints can be dealt with in a fair and independent manner. It is unclear why the Government has accepted the need to introduce an external element to the complaints process, but does not wish them to have powers to investigate the substance of initial complaints. Surely it is just as important to establish that a complaint was resolved correctly as it is to establish that it was conducted in a fair manner? If the thrust of this Bill is to make the service complaints system more effective, individuals must have confidence in it. Anything that signals that the government is not committed to resolving complaints fairly will not support this aim. The Defence Select Committee concluded that the ombudsman should be able to in investigate the substance of a complaint, noting that it saw "no reasons to believe that this would undermine the chain of command". [11]

Arguments of efficiency also weigh in favour of allowing the ombudsman to consider the underlying complaint as well as any claims of maladministration. If the ombudsman can take a view on the initial complaint and also makes a finding of maladministration, the service concerned will not need to go back to reinvestigate the initial complaint. This will result in a faster outcome for an individual who will already have been through two internal complaint tiers and the ombudsman process.

When the ombudsman model was first adopted in the United Kingdom in the 1960s, ombudsmen did only investigate complaints of maladministration. However, as the model has become more popular and established, the powers of ombudsman have developed. The Scottish Public Service Ombudsman, the Local Government Ombudsman for England and the Prisons Ombudsman are all empowered by statute to investigate ‘service failure’ in addition to maladministration. In its 2011 report on public service ombudsman, the Law Commission observed that it could see no reason why the Parliamentary Ombudsman – the first ombudsman in the UK – should not have its powers increased to investigate service failure too. Therefore it would be appropriate and consistent for the government to add to the Bill the power for ombudsmen to investigate the substance of initial complaints to establish whether they were resolved correctly.

It is important to note that a power for the ombudsman to undertake "thematic" investigations – while welcome – would not be a substitute for a direct entitlement for individuals to ask the ombudsman to look at the substance of a complaint. It is important that individuals can have complaints resolved in as timely a manner as possible. Making a complaint the subject of a much wider investigations would inevitable slow down the process. It is equally important that each complaint is valued and considered on its own merits. It would be unfair to make investigation of a complaint reliant on the ombudsman considering that there is a broader issue at play. In addition, it is unclear that a wider investigation would provide the opportunity for the ombudsman to recommend a remedy in individual cases, instead focussing on generic recommendations for systemic improvement.

Regulations by the Home Secretary

Amendment

Liberty urges Committee members to support amendment 14, 15 and 16 in the names of Rory Stewart MP, Madeleine Moon MP, Derek Twigg MP, James Gray MP, Dai Havard MP and Julian Lewis MP.

Effect

These amendments would delete the power of the Secretary of State to make regulations about the procedure to be followed in an investigation.

Briefing

Under new subsection 340I(1), it is for the ombudsman to determine whether to begin, continue or discontinue an investigation. It is entirely appropriate and that an independent office has discretion as to the opening and closing of complaints. However new subsections 340I(2) and (3) then send conflicting messages about the independence of the ombudsman. 340I(2) sets out that the Secretary of State may make regulations about the procedure to be followed in an investigation but under 340I(3) the procedure for carrying out an investigation is to be such as the ombudsman considers appropriate in the circumstances, subject to limits sets in 340I(2).

While the publication of draft regulations during the passage of this Bill is welcome, Liberty’s concern at this stage is not the text of the draft regulations – these will be subject to change in the final version and then of course can be changed by future Secretaries of State – but with the text of the primary legislation.

If the intention of this provision is to allow the Secretary of State to set out an enabling framework to empower the ombudsman, then it would be helpful to specify this and to perhaps list the matters that the regulations may cover, for example the holding of hearings by the ombudsman. If this is not made clear, then it is possible that future Secretaries of State will use this broad provision to set limits on the way in which the ombudsman can operate to such an extent as to impede or even negate the effective operation of the system.

It would be preferable for provision for the Secretary of State to make regulations to be as limited and prescribed as possible, to ensure that the independence of the ombudsman is not challenged by future governments, or this provision should be deleted.

Recommendations of the Ombudsman

Amendment

Liberty urges Committee members to support amendment 18 and consequential amendments 19 and 20 in the names of Rory Stewart MP, Madeleine Moon MP, Derek Twigg MP, James Gray MP, Dai Havard MP and Julian Lewis MP.

Effect

This amendment would make the recommendations of the Service Complaints Ombudsman binding on the Defence Council and would require the Defence Council to implement them.

Briefing

It is a huge disappointment that new section 340M does not make recommendations made by the ombudsman binding. The section instead requires the Defence Council [12] to consider a report, to notify the ombudsman and the complainant of any action it decides to take and where it rejects a recommendation to give both the ombudsman and complainant its reasons for doing so. In the announcement made by the Ministry of Defence in March 2014 it was stated that the Defence Council would remain responsible for decisions taken in response to the ombudsman’s recommendations in order to maintain the authority of the chain of command. [13]

Liberty very much welcomes the progress that the Ministry of Defence has made in accepting the need for an external oversight body in relation to service complaints. As set out above, independence is a core feature of any justice system and is essential to ensure that users of the system and the wider public can have confidence that decisions are made free from bias and other influence. The Ministry of Defence appears to accept this with the creation of the ombudsman. So it is unclear why it has decided to leave the final say to an internal rather than external mechanism.

No evidence has been presented to suggest that introducing independent elements into the military justice system will undermine the chain of command. In the civilian world, independent systems are seen as essential in order to generate confidence. For example, the independence of the police is necessary so that individuals trust them to prevent and investigate crime. Individuals must be confident that the police are neutral and unbiased to allow for policing by consent. But the independence of the police does not just lead to confidence in the police, it leads to a wider confidence in the state and democracy too. It is unclear why this should be different in the military. Surely a willingness to place faith in an open and obviously unbiased system should reinforce confidence in the chain of command and the military, signalling that the armed forces take the wellbeing of troops seriously. Instead, resistance to independence in the military justice systems sends the wrong message, both to those in the services and to the public at large. It suggests that the military is scared of transparency and accountability. It suggests that the military will close ranks to put its own reputation ahead of the interests of those who are willing to give their lives to serve in it.

Liberty does not believe that the chain of command is undermined by admitting external elements to review processes. On the one hand, if the armed forces are going to take the ombudsman seriously and accept her recommendations, will it really make a difference to perception of the authority of the chain of command whether they are nominally required to make the decision to reopen a case or whether it is automatic? Surely once the armed forces admit the need for external investigation of complaint-handling, the details of the process don’t really impact on this perception? On the other hand, if the armed forces wish to assert their authority and choose to reject recommendations, what’s the point in a pretence of independent review? Either way, from the perspective of reassuring service men and women that they can be confident in making a complaint, the argument of independence is fatally undermined if the ultimate decision rests back with the forces about which they are complaining.

It is also useful to consider the cumulative impact of the proposals. As discussed above, the Bill does not provide for the ombudsman to investigate the substance of a complaint. Any recommendations made by the ombudsman must relate only to the process of complaint handling. Given this significant limitation on the powers of the ombudsman, it seems particularly excessive to then give the armed forces the opportunity to refuse to implement recommendations.

It may be the case that the Government has more practical concerns about requiring the armed forces to accept recommendations, such as that the ombudsman may recommend something that the armed forces do not have the powers to do. However these concerns can be easily assuaged. It is considered good practice in many ombudsman schemes for the ombudsman to share a draft report of an investigation with the body being investigated prior to finalising it. It this approach were adopted, not only would it have the benefit of ensuring that the facts are all correct, but it would give the relevant service the opportunity to point out if a recommendation was impracticable.

Alternatively, the Government may be basing this decision on the fact that in the majority of public services ombudsman schemes, recommendations are not binding. Instead, it is hoped that the persuasive value of the ombudsman will suffice to encourage public bodies to comply with recommendations. If the public body does not do so, it is argued that this will best be resolved through political accountability, with individuals able to express frustrations at the refusal of public services to comply via the ballot box. However, the ombudsman is not a ‘public sector’ ombudsman in the usual sense, where the ombudsman is handling complaints about decisions or actions of Government departments in the provision of public services such as benefits and taxes. In this context, the Ministry of Defence or the relevant service is a public body, but it is acting as an employer. Therefore the better comparator is an employment tribunal, whose decisions are binding and enforceable.

Under the heading of "Implementation of Decisions", the Ombudsman Association criteria states that:

"Either (i) Those investigated should be bound by the decisions or recommendations of the Ombudsman; or (ii) There should be a reasonable expectation that the Ombudsman’s decisions or recommendations will be complied with…."

Unfortunately it is far from clear that there can be any reasonable expectation that even the ombudsman’s limited recommendations will be complied with. For at least the past decade, the Ministry of Defence has resisted the calls of Parliament, independent public inquiries into the deaths of young soldiers and the SCC to create an ombudsman, claiming that to do so would undermine the chain of command and promising there were better ways to improve the handling of complaints. The Ministry of Defence has been consistently proven wrong on these matters and has been forced to make piecemeal changes to the system in the face of continued complaints, fresh tragedies and reports that confidence in the chain of command is decreasing rather than being reinforced. The most recent concession, the creation of this ombudsman, came only weeks after the damning verdict of the Coroner in the inquest into the suicide of Corporal Anne-Marie Ellement in March 2014. Given the persistent reluctance to admit an effective independent element into the complaints process and with concessions made only at the point of crisis, what evidence is there to suggest that, once installed, the armed forces will be at all willing to accept the recommendations of the ombudsman?

February 2015


[1] The Armed Forces Covenant, Section C(6), Responsibility of Care.

[2] The Armed Forces Covenant, Section C(15), Recourse.

[3] Nicholas Blake QC, The Deepcut Review, A review of the circumstances surrounding the deaths of four soldiers at the Princess Royal Barracks, Deepcut between 1995 and 2002, paragraph 12.99.

[4] Armed Forces Service Complaints Commissioner, Annual Report 2013, page 4.

[5] House of Commons Defence Committee, The work of the Service Complaints. Commissioner for the Armed Forces, Eight Report of Session 2012-13, paragraph 8.

[6] Ibid paragraph 2.

[7] House of Commons Defence Committee, The work of the Service Complaints Commissioner for the Armed Forces, Eight Report of Session 2012-13, paragraph 16.

[8] House of Commons Defence Committee, The work of the Service Complaints Commissioner for the Armed Forces, Eight Report of Session 2012-13, paragraph 60.

[9] By Lord Ramsbotham former Chief Inspector of Prisons, see: http://www.theguardian.com/society/2014/oct/08/chief-inspector-prisons-nick-hardwick-denied-second-term.

[10] Armed Forces (Service Complaints and Financial Assistance) Bill, Second Reading Debate in the House of Commons, 2 February 2015, per Hansard at column 49.

[11] Defence Select Committee, Report on the Armed Forces (Service Complaints and Financial Assistance Bill), Fifth report of session 2014-15, para 42.

[11]

[12] The Defence Council is the senior departmental committee. It is chaired by the Secretary of State, and comprises the other ministers, the Permanent Under Secretary, the Chief of Defence Staff and senior service officers and senior officials who head the armed services and the department’s major corporate functions. It provides the formal legal basis for the conduct of defence in the UK through a range of powers vested in it by statute.

[12]

[13] Philip Hammond MP, Secretary of State for Defence, Statement on Reform of the Service Complaints System, Thursday 13 March 2014.

Prepared 10th February 2015