Conclusions and recommendations
Overview of the Bill
1. Our
report proposes a number of amendments to the Bill which we believe
will improve the Service complaints system while still preserving
the integrity of the chain of command. (Paragraph 11)
Clause 1: Creation of the office of Service Complaints
Ombudsman
2. The
Service Complaints Ombudsman must be clearly independent from
the Armed Forces. This is essential for maintaining confidence
in the Service complaints system. We welcome the MoD's confirmation
that the preferred candidate will in future be subject to a pre-appointment
hearing with this Committee; the independence of the preferred
candidate will be one of the criteria that we will look to assess
during the hearing. (Paragraph 18)
3. We
recommend that the Bill be amended to state that a person should
not be eligible to be appointed as Ombudsman for a period of five
years after leaving the regular or reserve forces. Such a stipulation
would assist in underlining the independence of the Ombudsman
and reduce the possibility that someone taking up the post could
be known to parties involved in a complaint or have been involved
themselves with a complaint. We propose amendments to this effect,
set out as amendment group A in the Annex to this report. (Paragraph
19)
4. We
agree with the MoD and our witnesses that the Service Complaints
Ombudsman should be appointed for a minimum of five years. It
is essential that there is sufficient time for the Ombudsman to
familiarise themselves with the role and to become fully effective.
We welcome the Minister's statement that the Ombudsman appointment
cannot be renewed and agree with several of our witnesses that
it would be inappropriate for the Ombudsman to be eligible for
reappointment. We believe that these elements of the appointment
need to be included on the face of the Bill. Our draft amendment,
set out as amendment B in the Annex to this report, provides for
the Ombudsman to be appointed for a period of between five and
seven years and specifies that they should not be eligible for
reappointment. (Paragraph 25)
Clause 2: Reform of system of redress of individual
complaints
5. We
are convinced that there should be a degree of independent scrutiny
and input into the content of the regulations for the procedure
for making a complaint and determining the admissibility of Service
complaints. We recommend that the Bill should be amended to require
the Defence Council to consult the Service Complaints Ombudsman,
when appointed, before making regulations under this section of
the Bill. We propose an amendment to the Bill to this effect,
which is set out as amendment C in the Annex to this report. We
welcome the publication of draft regulations by the MoD. However,
we believe it would be helpful if more detailed draft regulations
were published in advance of the Bill's Second Reading in the
House of Commons and for this Committee to be consulted on them.
(Paragraph 29)
6. While
we recognise the differences between, and the uniqueness of, each
of the Services, we call on the MoD to consult the Ombudsman,
when appointed, on the establishment of a central tri-service
Service complaints unit and to inform this Committee of the outcome
of the consultations. (Paragraph 33)
7. We
call on the MoD to provide us with the findings of the Defence
Internal Audit on the accuracy of the Department's and Services'
systems for recording Service complaints. We also agree with the
Commissioner that the details of the number of complaints withdrawn,
the nature of those complaints and the reasons for withdrawal
should be provided to the Ombudsman and this should be in a form
that disaggregates withdrawn complaints from those informally
resolved. (Paragraph 34)
8. We
agree with the Commissioner that the Ombudsman should be able
to investigate and report on "any maladministration"
that might have taken place during the handling of a Service complaint,
not just that alleged in the application to the Ombudsman. We
also welcome the clarification by the MoD and the Service Complaints
Commissioner that examining maladministration in the handling
of a Service complaint would include consideration of whether
an injustice had resulted or could have resulted from the way
the complaint
was handled. (Paragraph
41)
9. However,
we believe the Ombudsman should also be able to investigate the
substance of the original complaint, once the Service's internal
process has been completed, and see no reason to believe that
this would undermine the chain of command. We have drafted amendments
to address both these points, which can be found as amendment
group D in the annex to this report. (Paragraph 42)
10. We
note the Commissioner's evidence to us that delays in dealing
with complaints are the main reason for unfairness in the system
and that such delays could give rise to a finding of maladministration
by the Ombudsman. We also note her comments that it would be unjust
and an abuse of the system if Service personnel were deliberately
not being allowed to make complaints about wrongs that had been
done to them because they were being ruled out of time without
the individual circumstances being looked at, or there was delay,
or people were not being told about their rights and that again
this could lead to a potential finding of maladministration. The
chain of command have a duty to their personnel to deal with complaints
in a timely and fair manner. We consider these matters sufficiently
important to be included on the face of the Bill as matters that
the Ombudsman can investigate. We have drafted amendments to address
these points which can also be found in amendment group D in the
annex to this report. (Paragraph 45)
11. We
call on the MoD to ensure that the processes set out in the Joint
Service Publication for the new Service complaints system are
as straightforward as possible. The new Ombudsman should be consulted
during this process and this Committee informed of the outcome.
(Paragraph 47)
12. We
are concerned that, as currently drafted, the Bill does not make
it clear that the regulations are intended to set out the parameters
for the Ombudsman's investigative process whilst the detailed
procedural rules will be a matter for the Ombudsman. This has
the potential to undermine the independence, or the perception
of independence, of the Ombudsman. We propose amendments to clarify
the position in this regard which can be found as amendment group
E in the annex to this report. (Paragraph 52)
13. In
response to our report we call on the MoD to explain whether it
believes that the existing provisions of the Data Protection Act
are inadequate for the purpose of maintaining the privacy of complainants.
We also note that the MoD told us that it did not envisage imposing
any other obligations, apart from those of confidentiality, under
new Section 340(7)(c). We have drafted an amendment to limit the
right of the Secretary of State to impose obligations of confidentiality,
in respect of the Ombudsman's reports, to matters of national
security or where the safety of any person may be jeopardised.
This is set out as amendment F in the annex to this report. (Paragraph
57)
14. We
welcome the MoD's clarification that any findings of the Ombudsman
relating to maladministration or injustice are binding on the
Department. However, we are concerned that, as currently drafted,
new section 340M does not adequately reflect this intention. We
also recommend that the Ombudsman's recommendations should be
binding on the Defence Council. We are confident that the Ombudsman
will be ready to consult to identify what is feasible when framing
his or her recommendations and we are therefore not convinced
by the MoD's objections in this respect. We propose amendments
to clarify both these points, which can be found as amendment
group G in the annex to this report. (Paragraph 63)
15. We
are disappointed that the MoD has so far rejected our recommendation
that the Service Complaints Commissioner should be able to research
thematic issues and produce reports. We believe that the Ombudsman
would on many occasions be best placed to identify patterns of
complaints that are poorly handled or types of complaints that
are not being handled properly. Rather than undermining it, the
identification and resolution of these matters would increase
confidence in the chain of command. (Paragraph 73)
16. We
accept the Ombudsman will have powers to draw attention to thematic
problems with the system in their Annual Report or in communication
with Ministers. Whilst these options would be appropriate in many
cases they may not be sufficient in all. We believe it is inappropriate
that the Secretary of State will have the power to ask the Ombudsman
to report on a thematic issue but that the Ombudsman will not
be able to do so of their own volition. We do not envisage the
establishment of a bureaucratic inspectorate for the Armed Forces,
but do believe there are benefits to be gained by giving the Ombudsman
the authority to undertake thematic reviews. These could contribute
to identifying potential areas to be improved in the MoD's and
the chain of command's responsibility of a duty of care towards
Service personnel. We propose an amendment to this effect, set
out as amendment H in the annex to this report. (Paragraph 74)
Matter not included in the Bill
17. We
note the concerns expressed by witnesses concerning the investigation
of complaints against the Service Police. We have serious concerns
that complaints regarding the Service Police are made to the chain
of command which could lead complainants to have a lack of confidence
in making such a complaint and in the independence and fairness
of its investigation. We recommend that the chain of command should
be required to notify the Ombudsman when it receives a complaint
regarding the Service Police and that it should specify the nature
of such a complaint. We agree that there is an anomaly in the
Ministry of Defence Police coming under the Independent Police
Complaints Commission's (IPCC) system while Service Police do
not. In response to our report, we call on the MoD to set out
a timescale for when it is intended that the Service Police should
come under the auspices of the IPCC system. We also call on the
MoD to ensure that where complaints are made to the Ombudsman
about the Service Police, that he or she has expert assistance
from qualified professionals to review such cases. (Paragraph
77)
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