Legislative Scrutiny: (1) Serious Crime Bill, (2) Criminal Justice and Courts Bill (second Report) and (3) Armed Forces (Service Complaints and Financial Assistance) Bill - Human Rights Joint Committee Contents

3  Armed Forces (Service Complaints and Financial Assistance) Bill


3.1 The Armed Forces (Service Complaints and Financial Assistance) Bill was introduced in the House of Lords on 5 June 2014.[120] It received its Second Reading on 23 June,[121] had its Committee stage on 9 July and its Report stage on 29 July. Its Third Reading in the Lords is scheduled for 20 October.

3.2 Lord Astor of Hever, Parliamentary Under-Secretary of State at the Ministry of Defence, has certified that in his view the Bill is compatible with the Convention rights.

3.3 The Bill introduces significant reforms of the service complaints system. It replaces the existing Service Complaints Commissioner with a Service Complaints Ombudsman with greater powers and more independence. It also sets out the framework for the redress of service complaints, including a reformed and streamlined appeals process.

3.4 We welcome the Bill as a significant human rights enhancing measure. The Service Complaints Commissioner has consistently reported to Parliament that the current system of service complaints is neither fair nor effective and that the armed forces are therefore failing in their duty of care towards its members. The concerns have included significant delays in the resolution of complaints and the reluctance of serving officers to come forward with complaints of bullying, harassment or sexual misconduct which might implicate those above the complainant in the chain of command.

3.5 These deficiencies in the current service complaints system have human rights implications. Where a service complaint concerns a right which is recognised as a "civil right" for the purposes of the right to a fair hearing in Article 6 ECHR, the guarantees of that provision apply, including the right to an independent and impartial tribunal and a determination within a reasonable time. The European Court of Human Rights has found violations of Article 6 by the UK in cases such as Crompton in which Article 6 was held to apply and the complaint was not determined within a reasonable time.

3.6 The availability of an adequate and effective procedure whereby members of the armed forces can make complaints about matters as serious as bullying, harassment and sexual misconduct also engages the State's positive obligation to provide a legal framework which provides adequate protection against such harms, as the ongoing controversy about the suicide of Anne-Marie Ellement and the deaths of trainees at Deepcut Barracks demonstrate.

3.7 The Bill largely gives effect to the recommendations made by the outgoing Service Complaints Commissioner, that her office should be changed into a fully-fledged Ombudsman role, which was endorsed by the House of Commons Defence Committee in 2013. The current Commissioner welcomed the changes when they were announced in March 2014.[122] The Commons Defence Committee is conducting an inquiry into the Bill.[123] We therefore decided to focus on some very specific questions focusing on the independence of the proposed Ombudsman and the extent to which the Government continues to run the risk of breaching Article 6 in individual cases. We wrote to the Minister on 2 July and received a response dated 17 July.

Information provided by the department

3.8 A separate ECHR Memorandum, which is detailed and helpful, was published alongside the Bill in accordance with the best practice we recommend.[124] Our Legal Adviser met the Bill team on 19 June. The Minister responded promptly and fully to our questions in its letter. We commend the Ministry of Defence for the exemplary way in which it has assisted us in our human rights scrutiny of this Bill.

The independence of the Service Complaints Ombudsman (clause 1)

3.9 The Government stresses the importance of the independence of the proposed Ombudsman from the Government and the armed forces, but some provisions in and omissions from the Bill invite questions in this respect. We therefore asked the Minister a number of questions about the terms of the Ombudsman's appointment (e.g. their term of office and grounds/process for removal) and the Secretary of State's powers to direct the Ombudsman in certain respects.

3.10 The Government says that it entirely agrees that it is "of great importance" for the Ombudsman to be, and be seen to be, independent of both the Secretary of State and the Armed Forces. It states that the provisions in the Bill "closely resemble" those for the appointment of the Service Complaints Commissioner in the Armed Forces Act 2006, with the additional safeguard of appointment by the Queen, and notes that the current Commissioner has undoubtedly demonstrated her independence from the Government. The recruitment process will involve independent consultants and a Public Appointments Commission Assessor and there will be a pre-appointment hearing by the House of Commons Defence Committee. Additional safeguards for the new Ombudsman's independence, the Government says, will be a matter for agreement between the new Ombudsman and the Secretary of State. The Government has decided that the first Ombudsman will be appointed for a non-renewable five year term. The grounds and process for removal, however, have not been decided and "may well be the subject of discussion with the proposed candidate."

3.11 The Government does not consider it to be incompatible with the independence of the new Ombudsman for the Secretary of State to have the power to "direct" the Ombudsman to report on certain matters in their annual report, and to "require" them to report on certain matters. The Secretary of State's power is said to be a "supplementing" power not a "limiting" one: it does not affect the Ombudsman's broad discretion as to the matters to be included in a report. The Minister points out that the current Service Complaints Commissioner has not been inhibited in any way by the existence of similar provisions in the legal framework.

3.12 The Government's response to our questions focuses more on whether there is likely to be actual interference with the Ombudsman's independence in practice, rather than the appearance of independence. Our work in relation to national human rights institutions, including most recently the reform of the Office of the Children's Commissioner, demonstrates the importance of the appearance of independence and of clear, legally enshrined institutional guarantees of independence to provide the necessary public confidence in the independence of the particular office holder. Safeguards for independence which are left to be "agreed" between the office holder and the Secretary of State and/or the Armed Forces, are not, by their very nature, "guarantees" of independence. Given that one of the purposes of the Bill is to increase the independence of the Ombudsman, in part in response to concerns about public confidence, we recommend that the Bill be amended to increase the appearance of independence of the Ombudsman. The following amendments would give effect to this recommendation:

    Page 1, line 13, insert new sub-clause:

    ( ) An appointment as the Ombudsman shall be for a non-renewable term of five years.

    Page 11, line 24, leave out 'or the Secretary of State may direct'

    Page 11, line 36, leave out 'require' and insert 'request'

Redress of service complaints (clause 2)

3.13 The other main human rights question—concerning the compatibility in practice of the new framework for the redress of service complaints with the right of service personnel to a fair determination of their civil rights—is whether the Government is doing enough to reduce the risk of there being a breach of Article 6 ECHR in individual cases which may arise.

3.14 In response to the Crompton judgment, the Government introduced regulations which provide that an independent member (a person who is neither a member of the armed forces nor a civil servant) is required for all service complaint panels dealing with certain complaints, including any alleging bullying, discrimination, other improper behaviour or bias.[125] The Bill empowers the Secretary of State also to make regulations requiring all members of a service complaint panel to be independent.[126] According to paragraph 26 of the Government's ECHR Memorandum, however, the Secretary of State does not intend to use this enabling power to make such regulations to prescribe the types of matter where there should always be an independent panel because "the case law is insufficiently developed." Such regulations will only be made should the case law develop in this area and in the Government's view "the absence of regulations at this stage does not render the redress framework Article 6 incompatible." We wrote to the Minister asking why, if the Government accepts that Article 6 will apply in some service complaints, such provision should not be made in advance in regulations requiring wholly independent panels to be appointed in such cases.

3.15 In its response, the Government reiterates that it accepts that there are cases, such as Crompton, where the risk of a finding of incompatibility with the right to a fair hearing in Article 6 ECHR would be much reduced by ensuring that an independent, quasi-judicial body makes the findings of fact, and that those factual findings should be binding. However, the Government says that there is still insufficient guidance about what those cases might be to enable the legal requirements to be set out in regulations made by the Secretary of State. It says that the only case-law about service complaints in the last few years has served to confirm which matters do not engage Article 6, rather than those which do. In the absence of such legal guidance, the Government says, regulations requiring all members of a service complaint panel to be independent cannot be made. The Defence Council will continue to decide, on a case-by-case basis, when an independent element is required on an appeal panel.

3.16 We accept that the Government is, strictly speaking, correct that the absence of regulations enabling the appointment of a wholly independent service complaint panel does not render the redress framework incompatible with Article 6 ECHR. However, in our view, the continued absence of such regulations does carry the risk of breaches of Article 6 arising in individual cases, because of the likely delay that would be involved in establishing an independent panel to determine the complaint in a case (such as Crompton) where Article 6 clearly applied. Since there currently appears to be no power to empanel a wholly independent panel (as opposed to a panel with an independent element), it would be necessary for the Secretary of State to make such regulations first before such a panel could be convened, which will inevitably delay the determination of the complaint. We recommend that, in order to minimise the risk of breaches of the right to a fair hearing in future cases where the resolution of a service complaint determines a civil right within the meaning of Article 6 ECHR, the Minister undertake to make, within a specified time, the necessary regulations enabling the appointment of a wholly independent panel.

120   HL Bill 3. Back

121   HL Deb 23 June 2014 cols 1029-1057. Back

122   http://armedforcescomplaints.independent.gov.uk/linkedfiles/afcindependent/newsandpublications/sccrespondsto.pdf  Back

123   http://www.parliament.uk/business/committees/committees-a-z/commons-select/defence-committee/news/new-inquiry-armed-forces-service-complaints-and-financial-assistance-bill/  Back

124   https://www.gov.uk/government/publications/memorandum-to-the-jchr-on-the-armed-forces-service-complaints-and-financial-bill  Back

125   Armed Forces (Redress of Individual Grievances) Regulations 2007. Back

126   New s. 340E(2)(a) Armed Forces Act 2006. Back

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Prepared 17 October 2014