3 Armed Forces (Service Complaints
and Financial Assistance) Bill
Background
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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