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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