Armed Forces (Service Complaints and Financial Assistance) Bill: Government Response to the Committee's Fifth Report of Session 2014-15 - Defence Committee Contents

Tenth Special Report

The Defence Committee published its Fifth Report of Session 2014-15 on the Armed Forces (Service Complaints and Financial Assistance) Bill (HC 508) on 23 October 2014. The Government's response was received on 16 December 2014 and is appended to this report.

Appendix: Government response

The Government is grateful for the Committee's detailed consideration of the Bill and for its report. The reforms to the armed forces service complaints process and the creation of the Service Complaints Ombudsman that will follow from the Armed Forces (Service Complaints and Financial Assistance) Bill ("the Bill") mark a step change in how the complaints system will operate. There are important issues about independence of the role and oversight of the process that are made in the report, and we are largely in accord with the Committee's aims behind the recommendations it has put forward. The Committee's desire to preserve the chain of command's integrity is also particularly welcomed. We also acknowledge and are grateful for its comments on wider policy and practice matters included in the report.

Before turning to the specific conclusions and recommendations made in the report it might be useful to set out the Government's position on two general issues that are raised in it—the independence of the Ombudsman and the scope of their powers. The Government is fully committed to creating a new Ombudsman who is not only independent but is perceived to be so, whether through the process by which they are recruited or in the extent to which they have discretion as to how to exercise their duties and powers. We are confident that the Bill achieves this. We maintain that what we have in place should give internal and external interested parties confidence that the post holder has no ties to or is constrained by the Government.

To inform the debate at Second Reading, it would be helpful if this response could be made public as soon as possible by the Committee.

Our response to the specific conclusions and recommendations made is as follows:

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. (Paragraph 19)

It is important that the Ombudsman is both independent and seen to be independent of the armed forces. We do not agree, however, that an amendment is required to the Bill to achieve this. We acknowledge the Committee's concerns about former members of the Services being appointed to the role but these are unwarranted. There are no reasonable grounds for suggesting there will be actual or apparent bias simply because they once served, regardless of how long ago that might have been. The amendment would also limit our pool of candidates.

Careful consideration is already given to any recent armed forces experience as part of the independent recruitment process, precisely for the reasons that the Committee is concerned about. As additional safeguards, the candidate for Ombudsman will be subject to a pre-appointment hearing by the HCDC.

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. (Paragraph 25)

Security of tenure for the Ombudsman is an important part of independence and certainty both for the post holder and for those involved with the complaints process. The first Ombudsman will serve a five year non-renewable term. This strikes the right balance in length of term—it ensures that the person appointed will have the time to get to grips with and perform the role effectively, yet not remain in post so long as to become complacent. There is also no risk of the post holder being affected by a desire to be reappointed. We have not put this on the face of the Bill as it would remove all possibility for flexibility. These terms will however be set out in the appointment letter, which we judge is the most appropriate approach.

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 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)

We agree that a degree of independent scrutiny and input is helpful, but we do not think it is necessary to make specific legislative provision for the Ombudsman to be consulted on the Defence Council regulations which set out procedural matters regarding the internal redress system. First, we have already consulted the Commissioner informally on all the regulations and we will continue to do so with the new Commissioner. Second, should the Ombudsman in future have concerns with the internal process, they will be able to make comment in their annual reports. Finally, it is important to highlight that along with informal consultation, the Defence Council regulations will now be subject to the agreement of Parliament as the regulations will be made by statutory instrument. This is a new and important change from the old system: the previous Defence Council regulations were not subject to any parliamentary process.

A further draft of the regulations is attached.

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)

The Government recognises the importance of consistent handling of service complaints, particularly with the independent scrutiny the Ombudsman will bring, and we will be working with the Services to achieve that as far as possible. Internal processes are continually under review by the Services and MoD. This enables best practice to be shared and improvements made, as part of which a consistent approach can be introduced where it is possible to do so given the different environments and command structures within which the Services operate as part of their day to day functions. There are no plans for a tri-Service complaints handling unit: each Service should remain accountable for the welfare of its personnel and handling complaints is an important aspect. It will of course be open to the Commissioner, and then to the Ombudsman, to suggest in their annual report ways that the efficiency of the system might be improved.

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. (Paragraph 34)

The Commissioner requested a further audit of how the internal recording system is being used, which will follow on from the last audit conducted in 2012. We will share the findings with the Committee when the current audit has been finalised, which is scheduled to be in the first quarter of 2015.

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)

We are investigating what it may be possible to capture on the Joint Personnel Administration system, which is the HR administration system for the armed forces and is also used for recording service complaints. We are also working with the Commissioner on this in the context of her next annual report and if it can be provided now we will do so.

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. (Paragraph 41)

The Government is clear, and the Commissioner agrees, that the Ombudsman's investigations should not be a general case review. Our legal advice is that the amendments proposed here would require the Ombudsman to look for any maladministration in every case. The complainant is at the heart of the system and they must identify what they say went wrong in the handling of their complaint, with appropriate support if necessary. The existing system has been beset by delay: we do not want this to happen, or worsen, in the reformed system, especially during the Ombudsman's investigation stage.

Whilst the complainant must make the allegation of maladministration, we accept that there may be circumstances in which it is right for the Ombudsman to permit an amendment to the initial application if a new ground of maladministration emerges during the course of the Ombudsman's investigation. That will be made clear in the revised draft regulations, and no amendment to the Bill is necessary.

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. (Paragraph 42)

We have given very careful thought to this and are satisfied that what we have provided for in the reformed system is appropriate for the Ombudsman. It strikes the right balance between the responsibility of the chain of command to get to the bottom of allegations and concerns, and the need for a strong external check to hold us to account for doing so fairly and effectively. We believe firmly that the welfare of members of the armed forces is the responsibility of the chain of command. It is therefore for the chain of command to put things right where there are wrongs that affect their personnel, and as a result affect unit cohesion and ultimately operational effectiveness, regardless of the subject matter of those allegations or concerns. We also note that the current Commissioner, Dr Atkins, has commented that she does not see a need for an amendment of this kind at present.

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. (Paragraph 45)

We agree with the point being made here but amendment to the Bill, as recommended, is not necessary. The legislation already provides that if an application is made to the Ombudsman about a decision to rule a complaint as inadmissible because it is out of time or to refuse an appeal on the same grounds, the Ombudsman will be able to overturn that decision. If a complaint or an appeal is made out of time, this can still be permitted if in all the circumstances it is just and equitable to do so. We agree entirely that the complainant should not be penalised for the actions of others.

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)

We agree that any policy or guidance about the new process should be concise and easy to understand for those accessing the system and for those administering it, so that they know what is expected of them and how to carry out their function properly. As is usual when we amend policy on service complaints, the Commissioner will be consulted throughout.

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. (Paragraph 52)

The amendment proposed under this recommendation would remove the power for the Secretary of State to make regulations about the procedure to be followed by the Ombudsman in their investigations. We do not accept, however, that setting out the basic framework in the regulations undermines the Ombudsman's independence and therefore do not accept this amendment. The legislation is designed to ensure an effective and speedy system for the redress of service complaints with independent oversight. Delivering this system is the Secretary of State's responsibility and he will be answerable to Parliament for its effective operation.

Some of the Ombudsman's powers would not have legal effect without being set out in subordinate legislation, for example time limits. Everyone needs to understand how the Ombudsman's investigations will operate. The Bill provides the Ombudsman with a very broad power to determine their procedures, subject to the limited matters set out by the Secretary of State.

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. (Paragraph 57)

In common with the work of other Ombudsmen, personal or other sensitive information relating to complainants and others needs to be protected from wrongful disclosure by third parties. Appropriate safeguards will be included in the regulations, a draft of which is attached. These safeguards will be designed to protect personal information and matters of national security. We do not, therefore, accept further provision is required on the face of the Bill.

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. (Paragraph 63)

The Ombudsman's findings following an investigation into alleged maladministration will be binding if the Ombudsman finds there has been the alleged maladministration and if so, whether injustice has, or may have, been caused. The current Service Complaints Commissioner has acknowledged this, and the courts shared this view when they recently considered the legal effect of findings made by the Local Government Ombudsman. It is not necessary to make specific provision on the face of the Bill and no specific provision is made in other ombudsman legislation.

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. (Paragraph 63)

Recommendations are not binding but they will have some legal effect. The courts have recognised that, for example when looking at the recommendations of the Local Government Ombudsman, there may be a number of ways of responding legitimately to a failing. The recommendations may raise wider questions of policy, resources or costs or it may be that responsibility lies with another government department to implement the recommendations. The Defence Council will not, however, be able to reject recommendations because they do not agree with them or they do not like the original finding. To be defendable in any subsequent judicial review claim, the Defence Council will have to give good written reasons for rejecting a recommendation.

Additionally, if the Ombudsman is not happy with a refusal to accept a recommendation they will be able to make this public in their annual report and will be able to challenge the Defence Council in the courts.

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)

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. (Paragraph 74)

The Bill does not preclude the Ombudsman from writing a report or commenting on any underlying concern or pattern of behaviour (a thematic issue) that has given rise to a complaint. We would encourage the Ombudsman to highlight any thematic issues they come across, and to make these concerns known quickly and publicly if they consider it appropriate, so that these matters can be addressed and put right. A statutory power is not needed to enable the Ombudsman to do this.

But we do not want the Ombudsman to investigate these matters, for two important reasons:

·  This would significantly change the Ombudsman's role, taking them away from making the Service complaints system better, and in particular, holding the chain of command to account;

·  The Ombudsman would take on a more specialist investigative role, covering much wider matters and requiring particular expertise and powers which other bodies are better placed to carry out.

The Bill also provides that the Ombudsman must produce an annual report. The report can look widely at the complaints system, the sort of cases it handles and the kind of failings in the system the Ombudsman has identified.

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. (Paragraph 77)

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)

We recognise the sensitivity around complaints that involve the Service police, and the need that many see for special measures for how they are handled and overseen so as to give confidence. In the new system there will need to be an independent member involved in any case reaching appeal that involves a complaint against a service policeman, as now.

The change proposed in the report would add a further level of oversight by the Ombudsman which is not considered necessary given the oversight they will already have under the new system. Service policemen are no different from other members of the armed forces in relation to service complaints—members of the service police will be able to make service complaints themselves and can be the subject of such complaints. There is one narrow exception to this in that service complaints will not be able to be made, as now, about decisions made by a service policeman following an investigation with regard to whether to refer the case for a charging decision. There is good reason why such matters are excluded: the chain of command should not be able in the service complaints system to interfere with prosecutorial decisions and there are other mechanisms for challenging such decisions through the courts, either during service proceedings or by way of judicial review. If there are concerns about how other complaints against Service policemen have been handled, the complainant will have access to the Ombudsman just as in all other cases dealt with under the service complaints process. This is a powerful new right which delivers oversight and should give confidence.

It will be for the Ombudsman to determine whether they need expert assistance in connection with any particular investigation they conduct and from where they should get it.

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. (Paragraph 77)

The creation of the Ombudsman will bring a number of significant improvements to the complaints process under which complaints against Service Police may also be made. The nature and extent of external oversight for complaints about Service Police is currently under consideration, and it is too early at this stage to give a timescale for the completion of that work.

December 2014

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Prepared 19 December 2014