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House of Lords

Wednesday, 9 July 2014.

3 pm

Prayers—read by the Lord Bishop of Truro.

Tax: Aggressive Tax Avoidance

Question

3.08 pm

Tabled by Lord Barnett

To ask Her Majesty’s Government what is their definition of aggressive tax avoidance; and what specific examples they can instance.

Lord Peston (Lab): My Lords, on behalf of my noble friend Lord Barnett, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.

Lord Newby (LD): My Lords, the Government have taken a wide range of actions to tackle all forms of tax avoidance. The general anti-abuse rule, which this Government introduced, specifically seeks to tackle abusive tax-avoidance schemes. HMRC has provided examples of the arrangements that will be captured under this rule in its very detailed published guidance. A further example of aggressive tax avoidance is detailed on the front page of today’s Times.

Lord Peston: My Lords, the reason that your Lordships are stuck with me and not my noble friend is that he is very ill indeed, and I know that all noble Lords will wish to send wishes that he recovers quickly.

Noble Lords: Hear, hear.

Lord Peston: In particular so that he can occupy his usual place and ask some really difficult questions.

In so far as I understand this subject at all, is it not the case that aggressive tax avoidance leaves companies making enormous sums of money and millionaires paying lower rates of tax than those with average or around average incomes? Does this not bring the whole tax system in our country into disrepute? How urgently are the Government trying to deal with aggressive tax avoidance, with a view to punishing those who do it?

Lord Newby: My Lords, first of all I ask the noble Lord to pass on my good wishes and, I am sure, those of the whole House to his noble friend.

The Government take this issue extremely seriously. We have invested additionally in this area more than £1 billion over the spending review period, and taken on another 2,500 staff to work on it. The compliance yield that flowed from this work in the past year was £23.9 billion—the highest ever—and we have increased the number of people being prosecuted for tax crime to 2,600 in this Parliament, which has resulted in 2,700 years of jail sentences.

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Lord Razzall (LD): My Lords, at the G8 meeting last year—it is now the G7—the Prime Minister led on the question of tax avoidance by the multinational companies that we all know, such as Starbucks, Amazon and Google. They seem to do significant business in the UK but pay very little tax. What progress has been made in that area?

Lord Newby: My Lords, the work in that area has been carried forward by the OECD, which produced a comprehensive 15-point action plan. Work on all those points is now under way. The first deliverables, on transport pricing, are due in September this year. At the EU level, noble Lords will have seen that the EU is currently investigating the tax position in Luxembourg, Ireland and the Netherlands, specifically with Amazon, Apple and Starbucks in mind.

Lord Rooker (Lab): I do not wish to be misunderstood, but is it not the case, generally speaking—there is evidence to support this—that when tax rates are lowered, more revenue flows into the Treasury?

Lord Newby: My Lords, there is very extensive academic literature about the so-called Laffer curve, and I suspect there are very different views on it in your Lordships’ House. It is undoubtedly the case at the extreme ends of the curve that if you tax very highly the rate falls of because people find ways of avoiding it, and if the tax rate is very low the rate falls off simply because the rate per taxable unit is so much less.

Lord Mackay of Clashfern (Con): My Lords, is it not correct that the principal weapon of aggressive tax avoidance is misuse of allowances that are permitted for various reasons? The complexity of that system is so great that it is extremely difficult to analyse transactions to see whether or not they comply with these particular conditions properly.

Lord Newby: The noble and learned Lord points to a very important problem. There are over 1,000 tax allowances, all of which have been introduced individually for very good economic development reasons. The problem is that they are now very complicated. Some tax advisers have been extremely creative at finding ways to use these allowances, which were developed for perfectly good reasons, to enable people to avoid their tax.

Lord McFall of Alcluith (Lab): My Lords, is the term “aggressive tax avoidance” not just semantics? Tax avoidance is tax avoidance, whether aggressive or not. By doing this we are encouraging complexity, which is to the benefit of sharp-witted accountants and lawyers. Tolley’s Tax Guide is now 20,000 pages long. I suggest that the Minister should have two ambitions: first, to have the tax book the same length as War and Peace at 1,200 pages. Secondly, he should take up the suggestion of the noble Lord who said that we need to ensure these tax-avoidance schemes are referred to the Treasury first of all to determine whether they are tax avoidance. That would eliminate the complexity.

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Lord Newby: My Lords, at the start of this Parliament, we established the Office of Tax Simplification. It has done useful work in reducing the body of tax law, although clearly it has a long way to go. On the work that has been going on to tackle tax avoidance schemes, I think that the tax avoidance industry has got the message; the number of potential avoidance schemes notified to HMRC fell by 75% in the two years from 2010.

Lord Lawson of Blaby (Con): My Lords, my noble and learned friend Lord Mackay is absolutely right, as is the noble Lord, Lord Rooker—the two things go together. When I was Chancellor some years back, I reduced tax rates substantially, eliminated a whole range of allowances and indeed abolished some stupid taxes altogether, and the result was a great increase in revenue. However, is there not another point? If, after you have done that—which I commend to the Government—there is still a real problem with avoidance of a particular tax. Is there not a case for abolishing that tax and replacing it with another one that is less easy to avoid?

Lord Newby: My Lords, I think that that is easier said than done.

Lord Phillips of Sudbury (LD): My Lords, will my noble friend tell the House whether the Government refuse to grant contracts to the companies and individuals that are engaged in this ludicrous and anti-social avoidance?

Lord Newby: My Lords, I think that there have been a number of cases in recent times where companies have lost contracts because they have been behaving in an unreasonable way, and that is a very good principle.

Finance: Fiscal Devolution

Question

3.16 pm

Asked by Lord Harris of Haringey

To ask Her Majesty’s Government what progress has been made in considering the proposals for fiscal devolution set out in the London Finance Commission’s report Raising the Capital.

Lord Newby (LD): My Lords, the Government have recently devolved a range of responsibilities and funding through the Localism Act 2011 and they have decentralised local government finance through the Local Government Finance Act 2012. Any further fiscal devolution to sub-national authorities in England would represent a significant change to the existing tax landscape, with potentially significant legal, economic and constitutional implications.

Lord Harris of Haringey (Lab): My Lords, the Minister will no doubt have read the report issued this morning by the House of Commons Communities and Local Government Committee, which says that it supports the principle of fiscal devolution and found no evidence

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opposed to it. He will also be aware that the major cities of this country apart from London—Manchester, Leeds, Newcastle and all the other core cities—all agree that they need to see bolder fiscal devolution if they are to invest for their longer-term growth. Is it not time for the Treasury to undertake an economic analysis of how the full suite of property taxes could be devolved to England’s great cities in line with the recommendations of the CLG report and the London Finance Commission report and the devolution being delivered in Scotland and Wales?

Lord Newby: My Lords, the first point that the noble Lord makes is summed up very well in the introduction to the report to which his Question refers, in which Tony Travers, who chaired it, says:

“Devolution and localism face little opposition apart from national politicians’ cautious approach to constitutional change in Britain”.

That sums up the position very well, and I think that there has been considerable movement under this Government. I will take back the noble Lord’s second point to my colleagues in the Treasury.

Lord Razzall (LD): Does the Minister agree that every political party during his adult lifetime has fought elections on the basis that it wants greater devolution of power to the regions or the cities and then, when it gets into power, it finds a reason not to do so?

Lord Newby: I am afraid that there has been a very chequered history of attempts to devolve power—within England, at least. This Government, by devolving half the income generated by business rates, have begun a process. The growth deals announced at the beginning of this week—under which, over a period, £12 billion will be devolved to local enterprise partnerships, whereas it would otherwise have been administered by central government departments—is a big move towards greater devolution. I suspect that in the next Parliament there will be much more pressure to do more.

Lord Anderson of Swansea (Lab): My Lords, if London benefits with its high property values and other advantages, does that not inevitably mean that other parts of the UK will not benefit? How does one prevent that sort of fiscal competition, which surely cannot be to the benefit of less favoured areas?

Lord Newby: My Lords, the principle that operates if one is devolving tax revenue to a lower tier of government is that the amount of tax devolved is subtracted from the amount of grant which that tier of government would otherwise be getting. Therefore, at the start of the process at least, there is no net shift of revenue from one area to another.

Lord Flight (Con): My Lords, will the Government consider allowing our cities to raise their own municipal bond funding, as is the case in the US and as was the case in this country in the greater days of our cities? It has only had to be done through gilts since after the Second World War.

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Lord Newby: My Lords, there are obviously strong arguments which would enable cities to raise more funding. Those have been resisted by the Treasury under successive Governments. As they are moving towards drawing up their manifestos, I am sure that all the parties are considering whether they want to change those long-standing practices.

Lord Foulkes of Cumnock (Lab): My Lords, rather than more piecemeal devolution, is the time not now right for a more comprehensive and coherent look at devolution throughout the whole of the United Kingdom, so that we have a sensible system, and that some kind of commission—a constitutional commission or royal commission, under a wise and experienced chairman—should be set up as soon as possible?

Lord Newby: My Lords, I was waiting for the last part of that sentence. I am sure that all noble Lords will bear the noble Lord’s expertise in mind, should a commission be established. I think that, once we have the outcome of the Scottish referendum, all parties and all people who are interested in constitutional change in the UK will want to revisit the issue. The exact way we do it is also something that I think all the parties are thinking about as they draw up their manifestos.

Lord Davies of Oldham (Lab): My Lords, the Government seem to be extraordinarily complacent about the response to increasing demand from our great cities for increased powers. The Minister said that it was all too complex, and then his noble friend from the Liberal Benches produced the usual note of cynicism that people never fulfil their promises when in government. I assure the Minister that we intend to have a thorough examination of the powers to allocate greater resources to our cities and regions, very much in line with the noble Lord, Lord Heseltine. Does the Minister agree?

Lord Newby: My Lords, I am always pleased when the Labour Party rethinks its policies. However, the premise of the point that the noble Lord raised was misguided. This Government, through the city deals, has devolved significant funding to the major cities for the first time. As I said earlier, with the growth deals which we announced at the beginning of this week, £12 billion is being devolved to the LEPs from what were central government allocations. This is a very big shift of economic and social decision-making going down to the cities and regions.

Health and Social Care Act 2012: Risk Register

Question

3.23 pm

Asked by Lord Brooke of Alverthorpe

To ask Her Majesty’s Government whether they will publish the Risk Register drawn up for the Health and Social Care Act 2012.

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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): The Government’s position has not changed since the noble Lord asked the same Question last December. We are not proposing to publish the risk register. This decision is based on the principle that Governments and their civil servants need to be able to consider the risks associated with policy formation in private. It remains our view that a full and candid assessment of risks and their mitigating actions should be carried out within a safe space.

Lord Brooke of Alverthorpe (Lab): My Lords, the logic of that is that no risk register should be released to the public and I do not believe that is the Government’s policy. Given the Secretary of State for Health’s recent encouragement and support for NHS whistleblowers, and as the original risk register was released into the public domain by a whistleblower, what would the Government do if the continuing cover-up was then blown by a whistleblower before the next general election?

Earl Howe: My Lords, I am sure the noble Lord would expect me to say that hypothetical situations are not in my domain, and that is true in this case. The Government’s position is that there is a balance to be struck between transparency of activity in government and the safe space required for effective policy-making. That is why, in November 2011, I laid out for this House a comprehensive list of the areas covered by the transition risk register, but also why, at the same time, the Government decided to withhold publication of the register itself.

Lord Marks of Henley-on-Thames (LD):My Lords, my noble friend will well remember the concerns of my party on this issue in 2012. I wonder whether he considers now, two years after the Act, that even if the private advice of civil servants should retain protection, the factual information in the register could now be published. That would enable everyone to monitor how the Act is working against what was predicted in 2012.

Earl Howe: My Lords, it is possible to monitor how the Act is working without publishing the risk register. It is quite true that the transition to the new commissioning system is over. However, the risk register related expressly to the implementation of the reforms and the system is still bedding down. Therefore, we are still of the view that it is inappropriate to publish the register.

Lord Kakkar (CB): My Lords, I declare my interest as professor of surgery at University College London and chairman of UCL Partners. At the time of its Second Reading, the Minister was kind enough to indicate that the Health and Social Care Act would enjoy post-legislative scrutiny after three rather than five years. Does that remain the intention?

Earl Howe: My Lords, I undertook to publish an assessment of the implementation of the 2012 Act within three years, so the noble Lord is right. News on that front will be forthcoming very shortly.

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Lord Hunt of Kings Heath (Lab): Referring to the noble Lord, Lord Marks, methinks the Lib Dems are trying to rewrite history. They underpin this dreadful change that the 2012 Act brought to the NHS and they bear responsibility for the shambles that it has caused. I am very confused by the approach of the Department of Health. It has berated the National Health Service for not being open and transparent; in fact, it published a league table of those who are good and those who are not good. The NHS bodies are required to publish risk registers, so why should it be different for the Minister’s own department?

Earl Howe: The Government of which the noble Lord was such a distinguished member took the same approach to risk registers. Of course, transparency is an important principle in health and care. It is important to drive up performance and expose institutional failure, and I believe there is a revolution taking place in the level of transparency and access to health and care information. I am sure we are agreed on that. The point that I sought to make earlier is that when it comes to policy-making within government, Ministers and civil servants are entitled to some safe space, so the principle of transparency has to be moderated to a certain extent. That is the balance that we have struck.

Baroness Knight of Collingtree (Con): My Lords, is it not the case that a recent independent Commonwealth Fund report said that Britain had the best and safest healthcare system of all the 11 wealthiest nations? Since we know that the NHS is the biggest organisation and business of its kind in Europe, with all the opportunities for it to go wrong, is this not an extremely telling assessment of the real situation?

Earl Howe: I agree completely with my noble friend. The Commonwealth Fund report covers the period from 2011 to 2013—exactly when we were in the middle of reforming the NHS. The findings of the report were a credit to all those working on the front line of the healthcare system throughout that period of change.

Baroness Farrington of Ribbleton (Lab): My Lords, the Minister is right to refer to that report, which I believe was based on 2011 figures. Does he accept that it is not politicians who are entitled to see the risk register but the public, particularly when the coalition Government promised separately and together that there would be no top-down reform of the health service? Are the public not entitled to know what regard this coalition Government have to the public’s need to know? The public want to know if the risk register identified risks post-2011.

Earl Howe: The noble Baroness is absolutely right. The public are entitled to know the areas of risk identified by the Government at the time that the transition risk register was drawn up. That is exactly why I laid out for the House a comprehensive list of the areas covered by the risk register on 28 November 2011. That was a full list, which nevertheless did not disclose the actual content of the risk register. That is the balance that I believe any Government are entitled to strike. The public are therefore in a position to judge how well the system has done.

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Lord Grocott (Lab): Can the Minister confirm that one of the unarguable costs of the reorganisation has been the number of people previously employed by the health service as administrators who received their redundancy settlements and pay-offs but were subsequently re-employed by the health service? Will he tell the House how much this has cost—the initial redundancy settlements, the subsequent salaries that are being paid and the number of people involved? If he does not have that figure to hand, and as he will not publish the risk register, will he at least make available in the House the precise figures of the cost to the taxpayer of this aspect of the reorganisation?

Earl Howe: I am certainly happy to write to the noble Lord with whatever figures I have on that front but, of course, those who were made redundant as a result of the reorganisation received payments of no more and no less than they were entitled to under their contracts of employment. There are more than 19,300 fewer administrative staff in the NHS than there were when we came to office, but more than 16,300 more clinical staff, including 7,400 more doctors and 3,300 more nurses.

Health: Cancer

Question

3.31 pm

Asked by Baroness Gardner of Parkes

To ask Her Majesty’s Government why the number of National Health Service patients treated for cancer by stereotactic ablative radiotherapy has fallen since April last year.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, before NHS England began commissioning specialised services in April 2013, many local arrangements that were in place were outside recommendations issued by the National Radiotherapy Implementation Group, the NRIG. Since April 2013 a consistent national policy has been in place, backed by robust clinical evidence. In line with this evidence, the number of SABR indications commissioned has reduced. It is important to ensure that treatments commissioned are supported by robust evidence of their benefit to patients.

Baroness Gardner of Parkes (Con): I thank the Minister but, as recently as February this year, I asked him a question on another form of very specifically targeted radiotherapy. He replied that access would be guaranteed to innovative radiotherapy. My Question today relates to another innovative form, one that targets the particular cancer without damaging the surrounding tissues. Can the Minister explain why the figures have fallen and whether these machines, which are very valuable, are being left unused? If they are, is it because of the lack of people being trained to use them? Do we have enough skilled staff to allow patients to benefit from what is greatly improved radiotherapy?

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Earl Howe: My Lords, there is no shortage of investment in radiotherapy and no barrier, indeed, to clinically appropriate access to radiotherapy. A lack of trained staff to operate the machines is not the reason that the use of SABR has fallen. The reason is that the clinical and commissioning decisions have been taken to reflect the evidence of what is clinically effective for certain cancers. That is why clinicians are no longer commissioning this form of radiotherapy for cancers which do not respond adequately to that form of treatment.

Baroness Finlay of Llandaff (CB): Do the Government recognise, though, that there are times when commissioning has to invest to save and has to support evaluation while a treatment is ongoing, and that the new forms of stereotactic radiotherapy have very good local control rates? For example, in lung cancer the rates have improved from 20% to 30%, with 15 to 20 treatments, to about 70%-plus with only three to five treatments. For patients to be treated nearer home, the costs saved to other parts of the care system need to be considered in the commissioning decisions, where you have better local control and lower knock-on healthcare effects.

Earl Howe: Yes, my Lords. Radiotherapy, particularly of this kind, is highly cost effective when it is clinically indicated. In fact, SABR is available in eight radiotherapy centres in England. The number of centres providing this treatment is increasing, with over a quarter having equipment capable of delivering the treatment. Current evidence supports treating only a small number of patients with this treatment: that is, in early-stage lung cancers for patients who are unsuitable for surgery. That is about only 1,000 patients a year.

Lord Hunt of Kings Heath (Lab): My Lords, the noble Earl will be aware of a pledge made by the Prime Minister last October that this kind of treatment would be available to cancer patients who needed it. He will also be aware of a statement by Mr Lawrence Dallaglio, who was asked by the Government to help in this. He described it as a “national disgrace” that NHS England reneged on a deal to fund these cancer treatments. Is the noble Earl absolutely certain that the reason the number of treatments has fallen is due entirely to clinical reasons?

Earl Howe: Yes, my Lords: that is the advice I received. It goes hand in hand with other advice around other forms of radiotherapy treatment that are increasing very dramatically. For example, intensity-modulated radiotherapy is a similar form of radiotherapy for different types of cancer—head and neck cancers, principally. The use of that radiotherapy has grown very considerably, partly as a result of considerable investment by the current Government.

Baroness Barker (LD): My Lords, this treatment works for patients caught very early in the stages of their disease. Is NHS England working with GPs to increase the number of people who they suspect have cases that will respond to this treatment getting into these centres in the first place?

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Earl Howe: Yes, my Lords. One of the measures we took some months ago was to enable GPs to refer patients directly to diagnostic centres when cancer was suspected, thereby accelerating the pathway towards effective treatment if cancer is diagnosed. The signs and symptoms campaign is specifically directed at not only patients but also clinicians, including GPs.

Baroness Hooper (Con): My Lords, is my noble friend aware of the important research carried out over the past 30 years at Southampton University’s centre for immunology to create a treatment based on stimulating the immune system? I appreciate that that is not on all fours with the Question, but it has the same parallel advantage of not causing the debilitating side-effects that traditional chemotherapy and radiotherapy treatments can.

Earl Howe: My noble friend draws attention to yet another area of research which may well prove very beneficial to cancer patients. I am not aware of the particular study she mentioned but I shall gladly look into that.

Supply and Appropriation (Main Estimates) Bill

First Reading

3.38 pm

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

Financial Services and Markets Act 2000 (Regulated Activities) (Green Deal) (Amendment) Order 2014

Motion to Approve

3.38 pm

Moved by Baroness Verma

That the draft order laid before the House on 4 June be approved.

Relevant document: 2nd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on Monday 30 June.

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1: injunctions to prevent gang-related violence) Order 2014

Motion to Approve

3.39 pm

Moved by Lord Faulks

That the draft order laid before the House on 9 June be approved.

Relevant document: 2nd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 7 July.

Motion agreed.

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Adoption and Children Act Register (Search and Inspection) (Pilot) Regulations 2014

Motion to Approve

3.39 pm

Moved by Lord Nash

That the draft regulations laid before the House on 11 June be approved.

Relevant document: 3rd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 7 July.

Motion agreed.

Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2014

Motion to Approve

3.39 pm

Moved by Lord Taylor of Holbeach

That the draft order laid before the House on 12 June be approved.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 7 July.

Motion agreed.

Universal Credit

Statement

3.40 pm

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con): My Lords, I should like to repeat as a Statement the Answer given by the Secretary of State to an Urgent Question in the House of Commons earlier today.

“Universal credit is a major reform that will transform the welfare state in Britain for the better, making 3 million people better off and bringing £35 billion of economic benefits to society. Rightly for a programme of this scale, the Government’s priority has been, and continues to be, its safe and secure delivery. This has been demonstrated throughout our approach to date, which started with the successful launch of the pathfinder in April 2013 and has continued with the controlled expansion of universal credit. On 5 December last year I announced that universal credit would be rolled out to the north-west and be expanded to couples from the summer of 2014, and would then expand to families later that year. That is exactly what is happening.

A fortnight ago we began our north-west expansion—universal credit is now in 24 jobcentres and will reach 90 across the country by the end of the year. A week ago we started taking claims from couples. This careful rollout is allowing us to test and learn as we go along, continuously improving the process. My department has always worked, and will continue to work, closely with the Treasury on these rollout plans. As we have made clear in a number of recent debates and answers to

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Parliamentary Questions, the Treasury has approved funding for the universal credit programme in 2013-14 and 2014-15, in line with the plan that I announced in December of last year.

These approvals are given by the Chief Secretary to the Treasury—such matters are delegated to him by the Chancellor—and these approvals are subject to rigorous controls, in line with recommendations made by the National Audit Office. It has always been our plan to secure agreement for universal credit in carefully controlled stages. First for singles, where we have agreed funding with the Treasury and are already rolling out in line with that agreement; then for couples, where we have agreed funding with the Treasury, and are already rolling out in line with that agreement; then for families, where we have recently secured agreement from the Treasury and will begin rollout later this year.

All of this was confirmed by the Financial Secretary to the Treasury in the answer to a Parliamentary Question yesterday, and that set of agreements confirms the approval of the strategic outline business case plans for this Parliament. The final stage in this process has always been sign-off of the full business case, which covers the full lifetime of this programme, and will eventually bring £35 billion of economic benefits to society. My right honourable friend and I expect to agree that shortly”.

3.43 pm

Baroness Sherlock (Lab): My Lords, I thank the Minister for repeating that Answer. It was an interesting history lesson, but it did not shed as much light as I would have liked on the Question that was asked. We have been very supportive of the principle of universal credit, but the enormous problems that his department has been having in implementing it are sorely testing our support. If the Minister is to maintain cross-party backing for universal credit, a project to which I know he is personally committed, then we need rather more transparency than the Government have been able to offer during the process hitherto.

On 30 June, the Employment Minister, Esther McVey, said that the Chief Secretary had approved the strategic outline business case for universal credit. On Monday, the head of the Civil Service, Sir Bob Kerslake, said to the Public Accounts Committee:

“We shouldn’t beat about the bush. It hasn’t been signed off”.

I ask the Minister two simple questions. First, Esther McVey and Sir Bob Kerslake cannot both be right: which of them is? Secondly, can he assure the House that universal credit is, and always has been, on time and on budget?

3.45 pm

Lord Freud: I acknowledge that in this House there is a supportive atmosphere towards universal credit. The contrast between the dialogues that we have in this House and another place is marked, and always has been marked, and I appreciate that.

On transparency, this programme is subject to an enormous amount of public challenge—whether from the NAO, the PAC or the Work and Pensions Select Committee. A lot of information is available. A couple

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of weeks ago, I committed to ensure that Peers got more precise information. I am getting a programme going for that, so I hear that and understand it.

On the apparent difference between my colleague, Esther McVey, and Bob Kerslake, they are both right, because they are answering slightly different questions. The first was about the strategic outline business case plans for 2013-14 and 2014-15. I went through in my Statement how they have been approved. Bob Kerslake was answering a question about the entire lifetime. As I said, that has not yet been approved, but we expect to have that cleared up and approved shortly.

3.46 pm

Baroness Jenkin of Kennington (Con): My Lords, as my noble friend is aware, several noble Lords were able to visit the jobcentre in Hammersmith this morning to see for themselves how the programme is being rolled out. Perhaps I may take this opportunity to thank officials from DWP and those at the jobcentre who were able to brief us so fully and to say how impressed we all were by how it is working—in particular, we were impressed by the coaches, who were able to give so much care and attention to individuals. Can my noble friend confirm that other noble Lords across the Chamber will be able to visit the jobcentres where universal credit is being rolled out to see it for themselves in a similar way?

Lord Freud: One thing I want to ensure is that I can get as much information to noble Lords as I possibly can. I am pleased to say that I have extended an invitation, which has been accepted, to arrange for a group of opposition Peers—as many as the noble Baroness would like to bring; well, not quite as many as that; we could not fit them all into Hammersmith; but enough to fill the room with a little standing room—to go through what is happening on the ground and the process.

One thing that I am keen to show the noble Baroness, which we saw this morning with a small group, is access to the work coaches to see how they work with clients in an entirely different way—in particular, to try to help the most vulnerable, whether it is looking at how they budget or various other things that they will need to do under universal credit.

Baroness Hollis of Heigham (Lab): My Lords, Mr Duncan Smith insists that UC is on time, on track and on budget. I fear that it is not. None of the monitoring bodies—the Treasury, the Major Projects Authority, the NAO, the DWP Select Committee, the Public Accounts Committee, Sir Bob Kerslake—believes that. To paraphrase Sir Jeremy Heywood, the project remains well off-track. We want this to work. Will the Minister, whose integrity we entirely respect, give us the facts and the future plans rather than recycle the empty bluster of the Secretary of State?

Lord Freud: My Lords, this is a very large programme and the way we are doing it is quite responsive. What we have is a test and learn process. That is not just an empty phrase. It is a very large process, based on a live run-out of many tens of thousands of people, which

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feeds into how we build a fully digital interactive service that we are building at the same time. We will make changes to the process. That is what it is about. It would be silly to do all that work without being responsive. We learn lots of things. One of my jobs is to try to understand what we are finding out and then make those changes. There will be changes. Having said that, we announced a rollout process in December and we are, to my pleasure, managing to get it out to time with those plans. The next stages, which are towards the end of the year, are really important—moving on to families, bringing in childcare and going to that digital place. By the end of the year we will have a working test bed of how a fully interactive process will work. I am not saying it will not change after that, but I am saying that we are doing what we were planning to do.

Lord Kirkwood of Kirkhope (LD): My Lords, I encourage my noble friend to redouble his efforts, as he has undertaken to do, to maintain cross-party support for this transformational programme which is so important to the future of our country. I am as impatient for implementation as anyone, but I exhort him to do this carefully—as he is doing—even if it means that the programme slips a little. It is better that it works properly than it is rushed and done wrongly. Does my noble friend agree that there is an advantage to keeping some flexibility in the funding of the scheme? Passported benefits, childcare costs and the local support services framework are all massively beneficial, and the Treasury should be persuaded to invest more money so that the programme is even more effective in future.

Lord Freud: My Lords, we are indeed trying to get that flexibility. One can look at our very intensive dialogue with the Treasury—going through point by point and milestone by milestone—in two ways. One can look at it as pretty onerous, and it is. On the other hand, it gives one a chance to look at what we should be doing next and changing it. One example is on the support system delivered locally—in the jargon, the LSSF. We were able to go to the Treasury and get more money put into that process quite recently because it could see how valuable and important that was.

Not locking everything down early and having that dialogue works. Frankly, you do not know what you are going to find out or what you are going to need to do when you have a major programme. Having that understanding from the Treasury of what we are doing and keeping it well-informed so that we can make those changes as we go along does work.

Lord Hylton (CB): My Lords, most people are not yet eligible for universal credit. Can the noble Lord give the figures for how many people at the moment are subject to benefit sanctions and what is the current delay between agreeing that someone is eligible for a benefit and their actually receiving payment? Are these two factors not responsible for a good deal of destitution?

Lord Freud: In the universal credit build-out, we are fully aware that there is a gap between claim and payment. There is also a gap in the present legacy systems.

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We have set up a system of advances so that people can get the cash flow to match the differences. Alongside that, where there is, to use the word of the noble Lord, “destitution”, or immediate crisis, we are setting up the local support framework working with local authorities. They can get some of that support to people and are far more efficient at doing that than a bureaucratic central system would be.

Armed Forces (Service Complaints and Financial Assistance) Bill [HL]

Committee

3.55 pm

Relevant document: 2nd Report from the Delegated Powers Committee

Clause 1: Creation of office of Service Complaints Ombudsman

Amendment 1

Moved by Lord Rosser

1: Clause 1, page 1, line 9, leave out “is”

Lord Rosser (Lab): My Lords, the effect of this group of amendments is to say that a person may not be appointed as the ombudsman if that person has been a member of the Regular or Reserve Forces at any time in the five years prior to the date of appointment. The Bill lays down that,

“A person may not be appointed as the Ombudsman if the person is … a member of the regular or reserve forces”.

The present system has been described by the Service Complaints Commissioner as being not efficient, effective or fair. Indeed, in her most recent annual report the commissioner says that,

“for the sixth year running I have been unable to give … an assurance that the system is yet working efficiently, effectively or fairly”,

and that delay remains the principal reason for unfairness in the system. If we are to have a new system with a service complaints ombudsman with enhanced powers, it is surely vital that, if service personnel are to have a level of confidence in the new system which they do not have in the present arrangements, the ombudsman is seen not only to have greater powers but to be truly independent of those whose actions he or she might be investigating, and of those to whom he or she would be making recommendations.

In that context, it is surely also relevant that the ombudsman will, as I understand it, have the power to seek judicial review if the Defence Council rejects the recommendation. That situation will not be achieved if the person appointed as the ombudsman is perceived to be too close to the Armed Forces establishment and too much ingrained with the culture of the Armed Forces, or one arm of them, and their way of doing things to be perceived as being truly independent. We have had an independent Service Complaints Commissioner with insufficient powers and an unwieldy system. What we do not want to move to is a Service Complaints Ombudsman with greater powers and a

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more streamlined system for complaints but lacking the perception of being considered truly independent. That will be a risk not just if the person appointed is,

“a member of the regular or reserve forces”,

who would rightly be debarred under the current provisions in the Bill, but if the person appointed had recently been a member of the forces, who would not be debarred under the Bill as it stands.

One amendment in this group proposes that a person who,

“has been a member of the regular or reserve forces”,

should not be eligible to be appointed as the ombudsman for a period of five years after leaving the Regular or Reserve Forces. If the concern is that this would reduce the pool of potential applicants, I suggest that is the wrong priority. The principal concern should be to appoint someone who is not only truly independent but perceived as being so. If it is seriously to be suggested that we might not be able to find an independent ombudsman in whom we could all have confidence from outside the ranks of those who have been a member of the Regular Forces or Reserve Forces in the last five years, I suggest that we have a real problem over the future of this new position.

A detailed knowledge of the culture of the Armed Forces and how they operate and function that could come only from having recently been on the inside is not, I suggest, an essential qualification for being the ombudsman. Rather, the essential qualifications are to be of an open and independent mind, with an ability to weigh up evidence and facts, sort out the salient from the irrelevant, come to reasoned and measured conclusions and be able to question and challenge, as well as to be determined not to be deflected or obstructed by anyone, whatever their level or rank, and to desire to see that justice is done, whether that means upholding or rejecting a complaint.

I hope that the Minister will understand the purpose of the amendment and what it is seeking to achieve. As I see it, the Bill as it stands could mean that a person was appointed to this post the day after they ceased to be a member of the Regular or Reserve Forces, and I am not sure that, from the point of view of being perceived to be truly independent, that is the road we should even contemplate going down.

4 pm

The new section in Clause 1 also says:

“The Ombudsman holds and vacates office in accordance with the terms of his or her appointment”.

Perhaps the Minister might feel able to take the opportunity to say a bit more about what may or may not be envisaged regarding the ombudsman’s terms of appointment, as referred to in that new section in Clause 1. Is it envisaged that it will be a fixed term for a period of years? How long is being envisaged? Is it being envisaged that it should be a renewable term or a single term of some length?

I will move my amendment. I hope that the Minister will be able to respond favourably and perhaps to say a bit more about what is intended under Clause 1 and about the phrase,

“The Ombudsman holds and vacates office in accordance with the terms of his or her appointment”.

I beg to move.

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Lord Palmer of Childs Hill (LD): My Lords, I understand all that the noble Lord, Lord Rosser, has said about perception, but it is the reality that concerns me. I believe that all the points that the noble Lord has made about the danger of having someone who has just left the ranks of the Armed Forces may be there, but I would like to put the other side.

If we adopt the amendment that the noble Lord has suggested, we are limiting the choice. He may be right that it would be best to have someone who had not left the Armed Forces more recently, within the previous five years, but should we, in primary legislation, reduce the options that are available? If there were someone who had left the Armed Forces, say, two years before the appointment was made and that person was the admirable person for that position, should we, by passing this amendment, cut off the possibility of choosing the right man or woman for the position?

Although I welcome the suggestion that the Minister might give us a little more information about the terms of appointment and the like, which would be most useful, if the noble Lord’s amendment were to be passed we would be limiting choice, and that would be a poor thing.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con): My Lords, the amendments in this group would require there to be a gap of five years between a person ending their service in the Regular or Reserve Forces and becoming eligible to be appointed to the post of Service Complaints Ombudsman. The provision in the Bill requires simply that, to be appointed to the post, an individual is not currently a member of the Regular or Reserve Forces nor of the Civil Service. The service complaints process is in place to deal with a wide range of matters that can give concern to our personnel. For those concerns to be addressed and resolved, it is essential that everyone who might wish to use the process has confidence that it will deal with complaints in an impartial and professional way.

The need for the system to be fair, effective and efficient is already well established, and is the basis in the Bill for the ombudsman’s annual assessment in the ombudsman’s report as to how the process operated during the preceding year. In creating the new role of ombudsman, those principles of impartiality and professionalism are also the characteristics that everyone will expect to see the postholder display. Crucially, postholders must also be demonstrably independent of those whom they seek to hold to account for the way in which complaints have been handled.

That is why the ombudsman is outside the chain of command and has access to Ministers when the ombudsman considers it is necessary. The ombudsman will also be able to approach the chain of command at any level and on any issue, should there be a need to do so. The ombudsman will continue to be accommodated outside the defence estate to reinforce the independence of the role and the ombudsman will recruit its own staff in line with prevailing Civil Service recruitment guidelines. The Bill includes a new provision as a further mark of the role’s independence and security of the postholder’s tenure, in that the postholder’s appointment will be subject to appointment by Her Majesty.

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The ombudsman will be a post that is of public interest. As such, the recruitment activity will include a pre-appointment hearing by the House of Commons Defence Select Committee, once a candidate selected by the interview panel has been approved by the Secretary of State. This was introduced for the Service Complaints Commissioner post for the same reasons.

In reviewing the terms that will apply to the ombudsman post, we have considered the length of engagement of other similar posts and, to answer the noble Lord’s question, we have determined that when the next recruitment campaign is run the tenure will be extended to five years. To answer his other question, the term will not be renewable. This will give any future ombudsman sufficient time to familiarise themselves in the role and then become fully effective, which would not necessarily be the case if the term was shorter. Having looked at how other ombudsman institutions in the public sector are set up, we are aware that the Parliamentary and Health Service Ombudsman has a seven-year non-renewable term. By keeping this aspect of the ombudsman appointment in the terms of appointment rather than in the Bill, we retain the flexibility to increase it in the future if experience shows that that might be beneficial.

The skills and experience that are needed for this post are those expected for any high-profile oversight role, with the additional challenges in the short term of transforming the current role of the Service Complaints Commissioner to that of an ombudsman. Proven analytical skills and the ability to make sound judgments and recommendations on the basis of evidence, along with a proven record in change management, will be key. Individuals can acquire these skills in any number of ways and it is for applicants to show how they have demonstrated them in practical terms that will be of benefit in this role.

We are clear that, on taking up the appointment, the ombudsman should not be a serving member of the Regular or Reserve Forces, nor of the Civil Service, so that the independence of the post and postholder is not in question. We do not, however, limit ourselves, as the amendment would, to those who may have left service during any particular period. Our aim is to get the best candidate for the job and to be in a position to encourage applications from as wide a field as possible. To put in an arbitrary bar would disqualify otherwise excellent candidates with potentially relevant and recent experience, a point that was well made by my noble friend.

As part of the recruitment process for posts of this nature, the recruitment consultants who are running the campaign will scrutinise closely the information provided by applicants, and will compare it to the required skills and experience that have been set out in the advertisement for the post. The consultants will also work closely in the run-up to and during the campaign with those who will be interviewing the applicants and recommending the candidate to Ministers for their approval. As has been the case in the past for the Service Complaints Commissioner, the ombudsman interviewing panel will include a mix of military and Civil Service personnel who know the complaints process well and have a clear understanding of the environment in which the ombudsman will be operating. This helps

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the consultants to understand in more detail the role that they are recruiting to and the benefits and disadvantages that certain areas of previous experience might attract.

The period since a potential candidate left the service might not necessarily be an issue. What may be of relevance is the role and function they carried out and the length of time they were in the service. For example, an individual who served for only a short period but who prior to joining up had experience of particular value to the ombudsman role may be an especially strong candidate who should be given serious consideration. Each candidate is therefore considered on their merits and always with the need for the chosen candidate for the post to be, beyond question, independent of those whom they will be holding to account.

As part of their checks, the consultants will clarify any potential issues that arise that they feel might raise any real or perceived doubts as to an applicant’s independence from the Armed Forces if an applicant were to go on to become the commissioner or, in future, the ombudsman. They will also look for any possible signs that an applicant might not otherwise be acceptable or might bring the integrity of the post into question, which might include, for example, whether they have been or are currently the subject of a complaint. The selection panel chaired by a public appointments assessor must also satisfy itself that all candidates can meet the Standards in Public Life principles and that they have no conflict of interest that would call into question their ability to perform the role.

There is undoubtedly a fine balance to be struck between having some relevant knowledge of the way that the services operate and being completely new to their ethos. The Armed Forces operate in a unique employment environment. Their need for strong discipline is among the factors that make them such an effective fighting force on operations. It can be difficult for someone who is unaccustomed to the way in which that discipline is instilled and maintained readily to understand how this environment differs from the civilian workplace and, indeed, how that might transfer to the way in which complaints are viewed and how the services handle them. By the same token, we need and want a fresh pair of eyes to look at our complaints process and determine what is fair, effective and efficient in the way that we deal with any complaints that might arise within that unique environment.

If an applicant for the ombudsman post had only recently left the Regular or Reserve Forces, we would still want to consider such an application. The checks and balances that we have in place as part of the rigorous recruitment process—and our need to ensure that the postholder is seen as independent—give us the flexibility to consider as wide a range of applicants as possible for this important role and to secure the best possible candidate. These amendments would lead to good candidates being excluded arbitrarily, and for that reason I must resist them. I ask the noble Lord to withdraw his amendment.

Lord Rosser: Will the Minister clarify a point he made? I think he said that a panel will make the appointment. If I understood that correctly, did he

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say that the panel would recommend a candidate or candidates to those who would make the final decision?

Lord Astor of Hever: I think the answer is one candidate. If I am wrong, I will let the noble Lord know.

Lord Rosser: I thank the Minister for that and for his response. I noted that he said that the intention was for a non-renewable five-year tenure. Obviously, one would want to reflect on that. Personally, I can see some advantages in having a lengthy period of tenure that is not renewable, because then the occupant of the post may not be tempted in their decisions to do things that might lead to the contract being renewed at the end of the period. One could see the advantages of that, but I stress that that is an immediate personal response to that point.

Obviously, I am sorry that the Minister did not feel able to go any part of the way towards the objective that the amendment sought to achieve. The noble Lord, Lord Palmer of Childs Hill, said that we should not exclude people in primary legislation. Of course, a response to that is that we should not enable somebody who left the Regular and Reserve Forces the previous day, metaphorically speaking, to be appointed to this post in primary legislation. Perception is very important here. The reality is that the proposed legislation that we have in front of us enables an appointment to be made of somebody who has literally just left the Regular and Reserve Forces. I am sorry that the Minister did not feel able to make any movement at all on that. From the nature of the response, the Government obviously do not feel able to say that there should be any minimum period before anybody from the regulars or the reserves should be able to be appointed to this position.

However, I am grateful to the Minister for the comprehensive nature of his reply. I want to reflect further on it and on the points he has made and in the mean time, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendments 2 and 3 not moved.

Clause 1 agreed.


4.15 pm

Clause 2: Reform of system for redress of individual grievances

Amendment 4

Moved by Lord Rosser

4: Clause 2, page 2, line 15, at end insert—

“( ) If the family of a person who has died during the course of his or her service thinks that his or her relative or partner was wronged in any matter relating to his or her service, the family may make a complaint about the matter.”

Lord Rosser: My Lords, I will be brief, not least because I assume that the noble Lord, Lord Thomas of Gresford, although he may not make exactly the

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same points, will make very similar points. On the issue of service complaints, the Bill refers to,

“a person subject to service law”,

who thinks that they have been wronged. It states:

“If a person who has ceased to be subject to service law thinks himself or herself wronged in any matter relating to his or her service which occurred while he or she was so subject, the person may make a complaint about the matter”.

However, it goes no further than that.

At Second Reading my noble friend Lady Dean of Thornton-le-Fylde raised the issue that when a service man or woman has died without making a complaint there appears to be no room for a family member to pursue a complaint on their behalf. There would seem to be powerful reasons that when an individual’s family or friends have information or evidence to suggest that a member of their family was treated unfairly in their service life, they should be able to take steps to find out the truth, and to be in a position, if needed, to make sure that a complaint that is going through the procedure at the time that the member of the services died can continue.

At Second Reading a number of noble Lords made reference to the case of Anne-Marie Ellement and the investigation conducted by the Royal Military Police which led to a decision being made that no charges should be brought. However, when it came, a long time later, to the inquest, it found that the lingering effect of an act of alleged rape, which was described as work-related despair and bullying, had contributed to that person’s death. There was a feeling that the information about the working and living conditions that the person endured would not have been available had it not been for the lengthy procedure in that case to get a second inquest.

Surely we ought to have a process that would enable issues such as that to be raised by the family on behalf of a member of the services who has died, whether the death occurs before a complaint has been made when evidence comes to light that indicates that a complaint could be pursued, or whether it occurs when a complaint is already going through the process but has not been finalised. Surely giving family members the opportunity to ask for a complaint to be investigated is both just for families and an opportunity for learning and improvement. I think I am also right in saying that the prisons ombudsman has discretion to investigate complaints made by the family members of deceased individuals. I hope that the Minister will look sympathetically on the issue covered in this amendment and in the amendment of the noble Lord, Lord Thomas of Gresford. I beg to move.

Lord Thomas of Gresford (LD): I will speak to Amendment 5, which covers very much the same ground as that just covered by the noble Lord, Lord Rosser. However, I think that it is perhaps more succinct than his amendment. I do not think that it is necessary for the family to think that a person has been wronged. If there is a complaint, the relatives, next of kin or personal representative should be able to pursue it.

If a wrong has caused the death, the problem with the coroner’s inquest is that those proceedings are not instituted by a member of the family or next of kin but by the coroner himself. That may take time and cause delay.

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It seems to me that it is appropriate and would avoid a great deal of hurt for the next of kin or personal representative to be able to take the complaint to the ombudsman. That would deal with the situation where a person has died as a result of the wrong but, of course, if there is some other issue, the coroner will have no part in it at all. There again, it should be open to the next of kin to make the application, and to do it in as prompt a manner as possible. A point of principle is involved here and I look forward to hearing the Minister’s response.

Lord Astor of Hever: My Lords, both the amendments in this group deal with an issue that was raised at Second Reading by a number of noble Lords, including the noble Lord, Lord Rosser, and the noble Baroness, Lady Dean. That issue is whether the family of a deceased person should be able to bring a complaint on their behalf or to continue a complaint where it was made before the person died. It is clear that there is support across the House for allowing complaints to be made or continued in such circumstances.

The first amendment in this group would allow the family of a person who has died during the course of their service to make a complaint if they think that the deceased person suffered some wrong in relation to their service. The second amendment, in the names of my noble friends, covers slightly different ground in that it also deals with the situation where a complaint has been made and the complainant then dies. In such cases, it proposes that the next of kin or personal representative can continue the complaint.

The Bill provides for a complaints process that enables serving or former members of the Regular or Reserve Armed Forces to complain about any matter that has arisen as part of their service. That right is subject to certain conditions, such as bringing the complaint within a given period. Certain matters are excluded from the complaints process because there are other, more appropriate, avenues available to deal with the issue raised—for example, a service complaint cannot be made about a matter that can be the subject of an appeal under the Courts-Martial (Appeals) Act or is a decision of the Security Vetting Appeals Panel. The service complaints process allows military personnel to raise matters that relate directly to them and where they will have a clear understanding of what they would wish to see happen to redress the wrong that they believe they have experienced.

As I mentioned at Second Reading, complaints can be brought on a wide range of issues. The type and number of complaints varies from year to year and between the single services, with the majority tending to be about the broad range of terms of conditions issues. Bullying and harassment complaints accounted for 10% of all complaints in 2013 for the Royal Navy, and 43% for the Army. As might be expected, complaints that have the potential to have an adverse effect on career prospects and on pay tend to be the greatest in number. In 2013, such complaints accounted for 89% of all Navy complaints, 50% in the Army and 54% in the Royal Air Force.

For the complaints system to be fair, it has to give equal consideration to all parties who may be involved. That means that the person making the complaint and

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anyone else who might be implicated in it, or otherwise affected by it, should have the opportunity to put their case. For example, a complaint about whether someone was entitled to a particular allowance may include allegations that someone sought to falsify facts so that their eligibility was in doubt or that someone deliberately misled them about their eligibility. A complaint about harassment might hinge on the intentions behind comments made or on the actions of either the complainant or the person who is alleged to have harassed them. There may be issues of what was considered acceptable behaviour by both parties. There may be witnesses to the alleged behaviour who need to be involved. For any process to be fair, and for there to be confidence in it, all the parties involved must be able to put forward their own version of events and be able to challenge the version presented by others. That is the natural basis of justice. It is particularly important where reputations or future careers may be affected.

In dealing with any complaint, it is important not to lose sight of the implications for the individuals involved. We must not allow a rigid and inflexible process to override the rights of those involved. Any system must be sensitive and adaptable. A person does not make a complaint lightly. Raising a complaint means that something is causing the individual great concern, whether it is their annual appraisal and its implications for their pay and career, the condition of their property, or bullying and harassment. Complaints may also raise issues with wider implications for the services. Tackling complaints quickly and sensitively therefore has benefits regardless of the nature of the complaint. This need for sensitivity, however, is crucial where a person has died, whether or not his or her death has any connection to an existing or potential complaint.

It may also be helpful to give an example of how a service has responded when an issue has arisen in the course of other proceedings, and the potential complainant is deceased. The noble Lord, Lord Rosser, mentioned the tragic case of Corporal Anne-Marie Ellement. Her family, with the support of Liberty, secured a new inquest into her death earlier this year. The coroner presiding over the inquest concluded that Corporal Ellement had been the subject of workplace bullying. The Army had already decided before the inquest that consideration needed to be given to any action it might take, depending on the coroner’s findings. To that end, the Army was able to act quickly to put in place an internal investigation after the judgment was known. That investigation is looking at what happened in this case and whether any action should or can be taken against individuals. The investigation is made difficult by the fact that the person against whom these dreadful acts were perpetrated is sadly no longer able to give her own account of events, while those against whom any allegations have since been levelled cannot challenge fully the record of those events. It is, however, a strong reflection of the seriousness with which the Army takes its responsibilities in situations of this kind that, in this particular instance, it recognised the need to act early, and that it is doing so now.

It may be helpful if I give an example of a case in which the complainant died before their complaint had concluded. Noble Lords will understand that, in

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doing so, I must be very careful not to identify inadvertently the individual who was involved, so I will not give any specific details. Such situations are mercifully very rare, but when they arise we must respond sensitively and in the interests of justice for all parties.

4.30 pm

At the time that the complainant died, his complaint was still in train. He was seeking compensation as redress, and, in considering whether the complaint could properly progress to a conclusion, the chain of command gave very careful thought as to whether details of the matter complained about could be determined without the personal involvement of the complainant. The circumstances of the complaint were also an issue: the matter complained about was closely linked to the eventual cause of death. This was therefore likely to be an emotive issue for the bereaved family. The decision was taken to proceed, as the facts could be determined by documentary material. These are difficult situations for all concerned, and I hope this example gives an indication of the thoughtful and sensitive way that the chain of command can and does approach them when, unfortunately, they arise.

It is in everyone’s interests to try to rectify a problem that can affect an individual’s morale or sense of injustice, whatever the cause of that sense of dissatisfaction may be and however it may come to someone’s attention. Where families are bereaved, these feelings can be heightened and their need and the services’ desire to reach a satisfactory outcome can become all the more pressing. Therefore, the value in seeing what can be done to take those concerns seriously, to learn lessons for the future and to bring some form of resolution to the family cannot be underestimated. Moreover, learning from any experience that can give existing and future personnel confidence that the chain of command takes their welfare seriously in the widest sense can, of course, only be to the good.

I hope that these examples demonstrate how the sorts of cases covered by these amendments would be dealt with in real life. In such cases, we would expect a pragmatic and sensitive approach to prevail. Although it is clear that cases involving a deceased service man or woman must be treated seriously and with respect, and that the family of the deceased have a right to know that the issues they raise will be seriously considered, the place to do this is not through the formal service complaints system. For the service complaints system to be fair, and for all of those involved to feel that it has treated them as such, it must involve all parties: the person making the complaint and those who are accused of perpetrating the wrong.

It is for that reason that I must resist these amendments. I ask the noble Lord to withdraw his amendment.

Lord Thomas of Gresford: Perhaps I may speak to Amendment 5 now, because I do not propose to move it today. The second example given by the Minister makes my point, because that is a situation where a death may have been caused by the matter complained of and the complaint had been lodged—so we understand—prior to the decease of the complainant. No doubt it will be dealt with sensitively, but under the

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Bill the Defence Council would be entitled to say, “You can’t maintain it any further. The person has died and that’s an end of it. Under this Act, we are not going to take it any further”. The question of whether to continue with a complaint after somebody has died should not be in the discretion of the Defence Council; it should be in accordance with the Bill. It would be for the personal panel of persons appointed by the council or the council itself to determine the complaint if it were maintained, and of course it would hear the evidence.

The evidence would not be as effective from the point of view of the complainant’s personal representatives if the original complainant could not give evidence. However, that is just a matter of evidence; it is not a question of principle. As in the case to which the noble Lord referred, it might be possible to maintain a complaint on documentary evidence or, indeed, through witnesses who would have been called by the complainant in the first place in support of the complaint.

I regret to say that I do not think that the Minister’s answer deals with the point that has been raised, and I shall consider the position for Report.

Lord Rosser: I thank the Minister for his very full reply, for which I am genuinely grateful. The overall impression that I get is that the response is that, if there is to be an investigation in these circumstances, it will be done through, rather than outside, the chain of command. I appreciate that this is a sensitive issue but my immediate reaction is that I find it a little difficult to believe that there is no role at all for the Service Complaints Ombudsman to play, bearing in mind that the ombudsman also has to make a decision on whether a complaint can or should be pursued. Perhaps there should be a little more confidence in the ability of the Service Complaints Ombudsman to handle the matter in an appropriate way. I would hope that somebody appointed to that position would be able to do that.

However, I note, and am grateful for, the Minister’s full response. I wish to leave this in the context that we will clearly wish to consider the Government’s response carefully before deciding whether to pursue the matter further. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5 not moved.

Amendment 6

Moved by Lord Rosser

6: Clause 2, page 2, line 33, leave out “three” and insert “six”

Lord Rosser: The purpose of the amendments in this group is to find out from the Government why they have decided that the time limits referred to in new Part 14A, introduced under Clause 2, are deemed appropriate. The amendments suggest that they should be longer. However, at this stage the purpose, as much as anything, is to find out why the Government have decided that, for example, in new Section 340B(3) under new Part 14A the reference is to a period of three months, and in new Section 340D(3) there is a reference

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to six weeks. New Part 14A refers to time limits relating to the day on which the matter complained of occurred. The question is: what does that mean in the context of, for example, a matter, which is the cause of a complaint, that happened over a period of time? Does the time referred to in, for example, the two parts of new Part 14A to which I have referred apply from when the first incident occurred or from the date when the last incident occurred if the complaint has occurred over a period of time? If it is from the date of the last incident, will the earlier incidents also be considered, even though they may be well outside the time limit?

It is also possible that someone might feel they have suffered a wrong but did not realise it for some time because it is only from talking to others that it emerges that, for example, they have been treated very differently and without any obvious explanation. In those circumstances, it might not be possible to raise a complaint within the time limits laid down because the individual was not aware, within those time limits, that they had a potentially justifiable complaint. There may be other circumstances that make it difficult for people who feel they have a complaint to meet the time limits laid down. They may, perhaps, be stationed abroad or in hospital.

It would be helpful if the Minister could say why the time limits provided for in Clause 2 were deemed the most appropriate. What would happen in the kind of circumstances to which I referred? I am again asking the Minister to clarify the point, because I am not quite clear of the circumstances, if any, in which the ombudsman could decide to take a complaint outside the time limit. What discretion will the ombudsman have in that regard? If the ombudsman feels that there is good reason why things were not done within the laid-down time limits, will they have complete discretion to decide that the time limit can be extended? There appear to be references in the draft regulations—frankly, I have not had a chance to fully grasp everything that is in them—to shorter periods of time than those mentioned in the Bill. However, I stress that I am not clear whether what I am looking at in the draft regulations actually relates to the time limits laid down in the Bill. Our Amendments 6A and 8A simply say—in relation to page 3, line 3, and page 4, line 18—that:

“Service complaints regulations must not foreshorten or have the effect of foreshortening the period referred to in subsection (3)”.

I fully accept that I may have misunderstood parts of the draft of the Armed Forces (Service Complaints) Regulations—I mean that quite genuinely—but Regulation 7(2) on page 3 states:

“The Ombudsman must not consider an application under paragraph (1) made more than four weeks beginning with the day the complainant is notified of the specified officer’s decision”.

There is also a further reference on page 5, in Regulation 12(2), to the ombudsman not considering,

“an application under paragraph (1) made more than four weeks beginning with the day the complainant is notified of the decision”.

I am simply concerned that if they do relate in any way to the times laid down in the Bill, that would appear to be a foreshortening; hence these two amendments which would prevent that happening. However, I accept that the Minister may well say that what I have picked up in the draft regulations does not refer to the same

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things as are referred to in the relevant clauses in the Bill. It would be very helpful if the Minister could give an assurance that there is nothing in these draft regulations that foreshortens in any way the timescales laid down in the Bill. It would also be extremely helpful if the Minister could say why the Government feel that the time limits in the Bill are the most appropriate and what discretion the ombudsman will have to deal with matters that are not raised within those limits. Will it be a complete discretion or not? I beg to move.

4.45 pm

Lord Astor of Hever: My Lords, the first amendment in this group would extend from three to six months the period in which a former or serving member of the Regular or Reserve Forces can bring a service complaint. The second amendment would extend from six to 12 weeks the period in which a complainant can submit an appeal about a decision taken on their complaint.

The third and fourth amendments seek to ensure that regulations do not foreshorten periods referred to in the Bill within which a complaint can be made and an appeal can be submitted. The time taken to deal with a complaint from the point at which it is first raised by the complainant with their chain of command, through to their being given a final decision, can be crucial to perceptions that the process is fair. If a complaint is particularly complex and means that a large amount of material needs to be gathered or witnesses interviewed, the time taken may be long, but the parties will most likely consider it to be proportionate and necessary for the interests of justice to be served. In other cases, an informal approach, such as through mediation or a quick discussion to sort out a minor confusion, can be equally as effective in delivering an outcome with which those involved can declare themselves content because it has given them a satisfactory result.

The time allocated in the process for the complainant to formulate their complaint can also be an important factor in whether they consider that the process is working for or against them. If the process gives them only a short time in which to put together their complaint, to gather their thoughts or any material they might need, they may feel that they are being rushed unnecessarily into making a complaint and that they would have been better prepared and would receive a better hearing if they had been given longer. If, on the other hand, they are given too long to prepare, there is a risk that the facts become less clear or are forgotten.

As in any aspect of a complaints process, the procedures should not focus solely on the needs of the complainant, but consideration must also be given to those who may be being complained about. If the period in which a complaint can be made is too long, they may be unaware that they are going to be complained about, so do not capture information or their recollections while still fresh. Fairness must therefore extend to them, especially if there may be consequences for their reputation if they are the subject of a complaint that they have behaved improperly. The time limit in the Bill for making a complaint is the same as that under the current system, which is three months. It is a period that is neither so short that the individual could

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not corral the facts and put together their complaint nor so long that those details will be forgotten. To extend that period to six months would risk the very problems arising that the current time limit is designed to avoid.

The same considerations influenced the provisions in the Bill for the time limit for making an appeal. At the point that the complainant is considering whether to appeal a decision that has been made on their complaint, they will have a keen sense of what it is that they are not satisfied with, whether that is about the decision itself or the way in which it was reached. The process of setting out the reasons for their appeal should therefore be a relatively quick one, compared, for example, to setting out the original complaint. As ever, there is a balance between the need to keep the process moving on and giving individuals time to gather their thoughts. A lengthy period of uncertainty on whether or not a decision will be appealed can also have consequences for any other party to the complaint, especially someone who has been complained about. For these reasons, extending the time limit for making appeals to 12 weeks is considered to be counter to the principles of fairness. Fairness also requires, however, that there should be the ability to react to unforeseen circumstances. Timescales are therefore not hard and fast, which would give the impression that there is simply a process to be followed without the chain of command being able to take a more pragmatic and sensitive approach when individual circumstances require.

I circulated an initial draft of the regulations on 9 July. As noble Lords will see from these, there is scope for those in the chain of command who are dealing with a complaint to extend both of these time limits if it is just and equitable to do so. It may be, for example, that an individual gives notice that they would be unable to respond by the time stipulated because of a personal matter, such as a bereavement, leave, training or operational commitments, or because they are about to receive medical treatment. In such a situation, it would be just and equitable to agree a new timescale but, again, one that is aimed at moving matters on as quickly as possible, with due consideration to other parties.

There is a similar provision in the new procedures in the Bill for making applications to the ombudsman which gives the ombudsman discretion to extend the time limit set out in the Bill within which complainants must make their applications—this was a point that the noble Lord asked about. The draft regulations show that the intention is that the ombudsman would be able to apply the same test to extend the time limit application if the ombudsman considers it is just and equitable to do so. As these are procedural matters, just as in the case of making an initial complaint and in making an appeal, it is right that this is spelt out in regulations rather than in the Bill.

There are two further safeguards in the Bill that aim to protect the complainant from someone in the chain of command who takes what they consider to be an incorrect decision not to extend a time limit. These are at the point at which that decision would prevent a complaint from entering the system or from progressing to an appeal stage. Under a new right, the complainant

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can approach the ombudsman at both junctures if they wish to have those decisions independently reviewed. If the ombudsman finds that the chain of command was wrong not to extend the time limit on just and equitable grounds, the ombudsman’s decision is final, and the complaint or appeal will be returned to the chain of command to proceed as normal.

We gave very careful consideration to these timescales and compared them with those under other procedures which, though not directly comparable, provide a useful benchmark about what is considered reasonable. In respect of matters before employment tribunals, for example, the time limit for making a claim is three months from the first incident complained of, and in respect of discrimination claims within three months of the latest incident complained of.

The noble Lord, Lord Rosser, asked when the time limits start to apply when there is a series of related complaints. I cannot read the writing on this, but I will write to the noble Lord on that.

The third and fourth amendments are also resisted. The Bill sets out minimum periods within which a complaint can be made and an appeal submitted. As such, neither of these can be foreshortened by regulations. For the reasons I have set out, we judge that these time limits are fair and reasonable, especially taking into account the important safeguard that they can be extended where it is reasonable to do so or reviewed by the independent ombudsman.

On that basis, I ask the noble Lord to withdraw his amendment.

Lord Rosser: My Lords, I thank the Minister for his comprehensive reply. I think he has confirmed that there is nothing in the service complaints regulations that will foreshorten or have the effect of foreshortening the time limits referred to in the Bill. The Minister has also explained why the time limits that are in the Bill have been felt to be appropriate and related them either to existing time limits or time limits that exist in other situations. I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendment 6A not moved.

Amendment 7

Moved by Lord Thomas of Gresford

7: Clause 2, page 3, line 12, at end insert—

“( ) The belief of the officer to whom a service complaint is made that the complaint is not well founded does not render the complaint inadmissible.”

Lord Thomas of Gresford: My Lords, this amendment was drafted before I had the chance of seeing the draft regulations. It was, in any event, a statement of the bleeding obvious, as one might say, that the officer to whom the complaint was made could not make up his own mind as to whether it was factually correct, well founded or anything of that sort. I would have hoped for a favourable response from the Minister in any event. However, I now see that the draft regulations flesh out the grounds given in proposed new Section 340B(5)(c). Why that is done in regulations and not in the Bill I do

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not know but those three grounds are well confined and I am quite satisfied that the fear that I had was ill founded. Nevertheless, I beg to move.

Lord Tunnicliffe (Lab): My Lords, for the avoidance of doubt, we degrouped Amendment 20 and will move it in its place.

Lord Astor of Hever: My Lords, Amendment 7 would make it clear that a service complaint could not be rendered inadmissible by the officer receiving it simply because he believed it was without merit. It may be helpful if I explain the role of the specified officer on receipt of a service complaint. His or her role will be to decide whether the complaint is admissible in accordance with new Section 340B. The officer will not consider the merits of the complaint at all at this stage. That is not possible under the Bill as the appointment of a person or panel of persons to decide whether the complaint is well founded can take place only after the admissibility decision under new Section 340C. The officer’s function at the admissibility stage is to see whether, first, the complaint is about a matter excluded from the service complaints system in regulations made by the Secretary of State, secondly, whether the complaint is out of time and, thirdly, whether the complaint is inadmissible on other grounds specified by the Defence Council in regulations.

Noble Lords will have seen the initial draft regulations prepared by the department which cover, among other things, the other grounds of inadmissibility. It is proposed that those grounds are that the complainant does not allege any wrong, or that the complaint is a repeat of one already brought by the complainant and being considered in the service complaints process, or one that has already been determined.

The Delegated Powers and Regulatory Reform Committee helpfully reported on the Bill in advance of Committee, for which we are grateful. It drew attention to the powers conferred by new Section 340B(5)(c) on the Defence Council to specify additional grounds of inadmissibility and concluded that those powers were too widely drawn. My department responded to the committee, explaining what these regulations are intended to cover and made reference to the initial draft regulations that are now available to Members of the House.

Now that noble Lords have seen what is intended here, I hope that some of their concerns about the scope of this provision will have been allayed. There is no intention to use this power to rule out broad categories of complaint. That would run counter to the clear policy behind the Bill to consider all wrongs in relation to a person’s service, subject to very limited exceptions. In any event, I have asked officials to explore whether anything further might be done in relation to the scope of this power. That will be done before Report stage.

The role of the receiving officer at the admissibility stage is quite limited and is strictly focused on the matters set out in the Bill, as will be amplified in the regulations in due course. There is no power for a complaint to be declared inadmissible on its merits at this stage. If a receiving officer declared a complaint inadmissible on merit grounds, the complainant would be able to apply for a review of that decision by the ombudsman. In the circumstances, we would expect

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the ombudsman to overturn the inadmissibility decision and the complaint would proceed. The ombudsman’s decision on any such review will be binding on both the parties. That is provided for in Regulation 7 of the initial draft service complaints regulations. In the circumstances, I must resist Amendment 7 and ask my noble friend to withdraw his amendment.

Lord Thomas of Gresford: My Lords, I am most grateful to the Minister for his clear exposition and statement that this subsection will not be used to extend the grounds of inadmissibility. No officer who receives a service complaint should be under any misapprehension that he is entitled to decide the merits himself before putting it to the panel or Defence Council, who are the proper people for deciding whether it is well founded. I am quite sure that, with that clear statement of policy, there will be no problem. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendments 8 and 8A not moved.

5 pm

Amendment 9

Moved by Lord Rosser

9: Clause 2, page 6, line 25, at end insert—

“( ) The Ombudsman may, after advising the Secretary of State, investigate any matter deemed to be in the public interest on—

(a) any aspect of the system mentioned in section 340O(2)(a);

(b) any matter relating to the Ombudsman’s functions under this Part;

and make a report to the Secretary of State.”

Lord Rosser: My Lords, proposed new Section 340O in Clause 2 provides that the Secretary of State may require the ombudsman to prepare and give to the Secretary of State a report on any aspect of the system mentioned in subsection (2)(a), relating to the complaints system, and any matter relating to any of the ombudsman’s functions in new Part 14A. These powers appear in the proposed new section about the ombudsman’s annual report on the system for dealing with service complaints. It is not clear whether proposed new Section 340O(6) relates to what the Secretary of State may require the ombudsman to include in the annual report, or whether it could also include the Secretary of State calling for an additional report at any time on a particular issue from the ombudsman outwith the annual report. Perhaps the Minister, either in his reply or subsequently, will be able to clear up that point.

Whatever the answer, the reality is that the Secretary of State for Defence has never asked the present commissioner to report on a particular area of concern that she or the Secretary of State may have, outside her normal annual reporting cycle. The Commons Defence Select Committee reported last year that the present commissioner had told it that if she were to report on particular areas of concern, she would look at cases of bullying, which include assault, and issues to do with mental health, and access to services, race and the handling of those cases. The Select Committee

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went on to report that during visits to units the commissioner had been informed of issues that would not come to her as complaints but on which she thought some work needed to be done. The commissioner told the Select Committee:

“That is what I would do, and that is I think what ombudsmen do. They have this broader view, whether they be the health service ombudsman, parliamentary ombudsman or the Children’s Commissioner, who today has powers to do research and inquiries. They can pull together in an informed and responsible way evidence across the piece and put it forward in a way that is very valuable to the organisation that they oversee”.

The Select Committee went on to say that it believed that there would be value in the commissioner being able to undertake research and report on thematic issues in addition to the annual reports. It said that the commissioner’s experience on these issues should be utilised.

The effect of Amendment 9 is to seek to give the Service Complaints Ombudsman the power, after advising the Secretary of State, to investigate any matter deemed to be in the public interest on any aspect of the system that is mentioned in proposed new Section 340O(2)(a), relating to the efficiency, effectiveness and fairness of the system, and any matter relating to the ombudsman’s functions under new Part 14A. That would mean that the ombudsman would be able to report to the Secretary of State on wider and thematic issues if the ombudsman felt that this was desirable and in the public interest.

The purpose of the amendment, which I hope it achieves, is to give the ombudsman rather wider powers to be able to report on thematic issues—not to appear to be dependent on the Secretary of State asking for such reports but for the ombudsman to be able to make that decision. There has clearly been support for that not only from the present Service Complaints Commissioner but from the Defence Select Committee. I should have thought that there would have been a view that it would be helpful if the ombudsman could make reports on such issues where the ombudsman felt that it was in the public interest and would make a contribution to improving an existing situation which the ombudsman did not think was entirely right or appropriate and needed addressing. I hope that the Minister will be able to give a favourable response.

Lord Thomas of Gresford: I shall speak to Amendment 10, which is in my name and that of my noble friends. I follow very much the thinking of the noble Lord, Lord Rosser. I think that the first paragraph of my amendment, which states that the ombudsman,

“shall investigate any matter referred to the Ombudsman by written direction of the Defence Council”,

puts clearly the Defence Council’s power to give such a written direction. I find the power given in proposed new Section 340O(6) to be slightly confusing. It is under the heading, “Annual report on system for dealing with service complaints”, but it is not at all clear that that is a wide power for the ombudsman to investigate something beyond the preparation of a report and the points on which the ombudsman makes a report in that document.

The ombudsman should have a clear power to investigate matters referred to him. Under paragraph (b) of my amendment, I argue, as has the noble Lord,

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Lord Rosser, that it is in the public interest that the ombudsman should on his own motion, after advising the Defence Council,

“carry out an investigation of any allegations of systemic abuse or injustice if it appears to him to be in the public interest”.

We have qualified that by saying that there should be compelling circumstances. It is not that the ombudsman could justify investigating anything. It may very well be that, in the course of the investigation of individual complaints, it will come to the attention of the ombudsman that there is a culture of abuse or bullying in a particular area. He may well feel that he would have to investigate that on his own initiative, and not await instruction, following his annual report, from the Secretary of State.

As the noble Lord, Lord Rosser, pointed out, this has the support of the committee that has looked into it, and I hope that the Minister will be open to amending the Act—if not in the precise words that I have put forward, then certainly in the spirit of my amendment.

Lord Palmer of Childs Hill: My Lords, perhaps I may add just a few words to those of the noble Lord and my noble friend. I spoke about this at Second Reading and gave examples of the Canadian authorities. The words “compelling circumstances” were taken exactly from what the Canadians do—to give the ombudsman the power so that he or she can, in compelling circumstances, do what my noble friend Lord Thomas has described. I hope that the Government will consider examples from overseas which we can incorporate into our legislation.

Lord Astor of Hever: My Lords, these amendments would extend the ombudsman’s authority to conduct investigations beyond those matters raised by complainants about the handling of their case to a much wider range of matters, based on the ombudsman’s judgment of issues that are in the public interest. In the second of these amendments, the ombudsman would also be able to investigate the merits of individual allegations. As such, the second amendment in particular represents a significant development in the role of the ombudsman, which it is right that we have debated, as we seek to improve on the way the complaints system operates through the increased oversight afforded by a reformed commissioner role.

Observations on the way the current complaints system has operated since its introduction in January 2008 have focused primarily on the concerns that, in too many cases, the time taken to reach a conclusion is too long. While it is possible for any complaint to take longer than would reasonably be expected, particular concern has been expressed about complaints that involve bullying and harassment, where the consequence of delay can be more keenly felt and which by their nature have a more damaging effect on relationships, and in some extreme cases, on an individual’s health. The current Service Complaints Commissioner covered a range of issues in her annual reports, including delays. For example, in this year’s annual report she has made recommendations that aim to increase the services’ understanding of what the numbers and types of complaints can tell them about the effectiveness of the training they conduct in values and standards

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and the need to treat everyone with respect. Wider recommendations of this kind might strictly be considered to go beyond the operation of the current system or the exercise of the commissioner’s function, in that they aim to reduce the number of instances of poor treatment by one colleague against another, making a reality of the services’ zero tolerance of bullying and harassment, for example. Recommendations by the commissioner serve a wider aim however, which is to encourage individuals to speak up when they experience such behaviour, as they see that good can come from it, ultimately, if behaviour is changed.

The commissioner is able to make such comments and recommendations under current provisions in the Armed Forces Act 2006 that are replicated in the Bill before us. The focus for the ombudsman will be to provide strengthened and independent oversight of how the complaints process operates. It will hold the chain of command to account for the fairness, effectiveness and efficiency with which it discharges its responsibilities.

Lord Rosser: The Minister said—I think I heard him correctly—that the ability of the ombudsman to undertake the kind of reports and investigations that we are talking about is already contained in previous legislation and is replicated in this Bill. Which are the parts of the Bill that say that the ombudsman can do what we are seeking in this amendment?

Lord Astor of Hever: My Lords, I hope I will come to that point later in my response. The commissioner is able to make such comments and recommendations under current provisions in the Armed Forces Act 2006 that are replicated in the Bill before us. The focus for the ombudsman will be to provide a strengthened and independent oversight of how the complaints process operates. It will hold the chain of command to account for the fairness, effectiveness and efficiency with which it discharges its responsibilities, and through its investigation of individual complaints, the ombudsman will provide a valuable source of lessons that will provide resolution for the individual, and which will also support the Defence Council in its role of delivering a better complaints process.

The service chiefs are clear that the system has not been operating as efficiently as it should and accept the criticism that I referred to earlier, that too many complaints are taking too long to resolve. They are also clear that in taking forward reform of the system, it should continue to be the chain of command that investigates complaints and works with complainants to find a solution that they are satisfied with. That way confidence in the chain of command’s ability to treat them fairly will increase, encouraging more people to speak out when they are unhappy so that, ultimately, we maintain the highly effective fighting forces of which we are rightly proud.

5.15 pm

The ombudsman will undoubtedly be in a position, as the commissioner is now, to spot where patterns may be arising in particular types of complaint across all three services and bring their observation to the attention of the chain of command or, if necessary, to Ministers. The ombudsman will be outside the chain

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of command and have access to whichever point of entry to the services or the Ministry of Defence they deem necessary, depending on the seriousness of the matter that has come to light or the need for speedy escalation or visibility. Having identified a matter of this nature, there may be any number of ways in which any further investigation should or could be taken forward by the appropriate authorities.

While it will remain the principal function of the chain of command to investigate complaints, other investigative means available to the chain of command such as service inquiries might also be appropriate, while other matters may have to be passed to coroners or the police. There is a risk that an ombudsman with a wider remit to investigate matters of their own volition, notwithstanding whether they must first notify the Secretary of State of their intentions, could overlap with these other jurisdictions and cause confusion and difficulties.

New Section 340O in the Bill before us includes a broad scope for the ombudsman to use their judgment when determining what to include in the annual report. It also enables the Secretary of State to ask the ombudsman to prepare a report on any aspect of how the complaints system has operated, or on the exercise of their functions. To that end there is considerable and, in our view, sufficient scope to seek the ombudsman’s input to any wider inquiry or investigation that might be conducted by other relevant bodies, drawing on the ombudsman’s specific experience of the fairness of how the complaints system has operated and of dealing with potential cases of maladministration. The ombudsman’s scope for raising issues of concern also extends to the provisions made in new Section 340L for the ombudsman to make recommendations as a result of finding maladministration. Such recommendations could relate to systematic issues, as well as remedying the maladministration of justice in connection with the complaint at hand.

I hope that answers the questions of the noble Lord, Lord Rosser, and my noble friend. We looked at the ombudsmen within the public sector in the UK and, to answer the noble Lord’s question, we did not look at models from overseas. The noble Lord, Lord Rosser, also asked where the ability to make comments and recommendations under the Armed Forces Act 2006 is replicated in the Bill. The answer is: in new Section 340O(2)(c) and new Section 340O(6).

This group of amendments would extend the ombudsman’s remit beyond that required and against provisions that already offer sufficient scope for the ombudsman to raise wider issues in appropriate ways, as they see necessary, and to provide an input to investigations or inquiries conducted by other appropriate bodies, as would other specialised bodies. On that basis, I must resist the amendments and I ask the noble Lord to withdraw Amendment 9 and my noble friend not to press Amendment 10.

Lord Thomas of Gresford: I am grateful to the Minister for his reply on Amendment 10. I understand him to be saying that it would be possible for the recommendations on an individual case to include a wider overview of the problems that the ombudsman saw. For example, suppose that in a particular unit

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there were some five or six individual complaints about an initiation ceremony that went far too far. Presumably, according to what the Minister has said—I am sure that he will correct me if I am wrong—the recommendations from the ombudsman in each individual case could get stronger and stronger that these matters must stop and must be investigated and dealt with properly. I hope that I have understood the Minister correctly. If I have, then I shall not be moving my amendment.

Lord Astor of Hever: Before the noble Lord, Lord Rosser, responds, I should say that I misunderstood my brief. My noble friend Lord Palmer asked me about Canada, and the answer that I gave relates to Canada, not to the question that the noble Lord, Lord Rosser, asked. With regard to Canada, we looked at ombudsmen within the public sector in the UK but did not look at models from overseas, so we did not look at the Canadian model.

Lord Rosser: I thank the Minister for his reply. I hope that he will forgive me if I say that I am a little confused about the Government’s stance. On the one hand, part of the answer appeared to be—maybe I misunderstood it—that to give the ombudsman the powers suggested in the amendment could cause conflicts with other inquiries and investigations. Having said that, I got the impression that the Minister was saying that those powers were already there in the existing system, whether under new Section 340O, which deals with the annual report, or in new Section 340L, which deals with reports of investigations. I was rather getting the message that, on the one hand, it would be unacceptable because of possible conflicts but that, on the other hand, the powers were already in those two parts of the Bill to which the Minister referred.

The heading of new Section 340O is:

“Annual report on system for dealing with service complaints”,

so it is not dealing with reports outside the annual report or with something separate. It is interesting that the Secretary of State, who has the power to ask the ombudsman to prepare a report on any matter relating to the ombudsman’s functions, has never chosen to do so, as I understand it, hence our amendment saying that the ombudsman, having advised the Secretary of State, and it being perceived to be in the public interest, should have the ability to do so. That is, the ombudsman should not be dependent on the Secretary of State asking them to prepare such a report, because the Secretary of State has apparently never done so.

One finds it a little odd that, if the power is already there for the present commissioner to do this, one does not get the impression that the commissioner felt that the power was already there when one reads the commissioner’s evidence to the Defence Select Committee. The commissioner proceeded, in fact, to give a list of topics on which a wider report could have been written, which—this is the inference—she might have been interested in doing. That does not suggest that the commissioner felt that the existing legislation already gave her the power to produce the kind of reports that are referred to in the amendment.

In view of what I regard as potential slight confusion over the reply, in that on the one hand it seems to be saying that it is undesirable but on the other it is saying

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that the power is already there, I will want to read closely what the Minister has said before considering whether to pursue this issue any further. However, I am genuinely grateful to him for his comprehensive reply, and I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10 not moved.

Amendment 11 had been withdrawn from the Marshalled List.

Amendment 11A

Moved by Lord Rosser

11A: Clause 2, page 8, line 1, at end insert—

“( ) The Ombudsman must not proceed with the investigation until the Ombudsman is satisfied with the information and evidence received.”

Lord Rosser: This amendment, which is fairly straightforward, relates to the provision in the Bill that gives the ombudsman the power to require a person to provide documents for an investigation. However, the draft regulations appear to provide that if the documents are not received the ombudsman may proceed with the investigation and preparation of a report. Of course, the alternative remedy available to the ombudsman is to go to the High Court if the documents required are not forthcoming. The purpose of putting down this amendment is to seek to clarify two points. First, can the Minister confirm, either now or subsequently, whether the word “may” that has been used in the draft regulations —that is, “may proceed with the investigation” without having got the documents—means that and will not be interpreted as “must”?

Secondly, can the Minister confirm whether the position of the ombudsman in respect of the power to require documents is not weakened if it is already written into the draft regulations, and thus generally known, that an investigation can proceed without the ombudsman having got all the documents that are required? Why did the Government deem it necessary to put that into the draft regulations? Are they saying that the ombudsman could not have decided to start an investigation without all the documents sought without this specific provision being in the regulations? Unless the answer is that the ombudsman could not start an investigation, on the face of it, it does not seem particularly helpful to put in the regulations that documents that have been requested and required but have not been produced will not stop the ombudsman starting the investigation. That does not seem to be exactly encouraging those who have been asked to produce documents to do so.

Lord Astor of Hever: My Lords, I hope that I will get an answer to the noble Lord’s two questions. If not, I shall write, but I am fairly optimistic that I will be able to get an answer.

This amendment would ensure that the ombudsman’s investigations can proceed only when the ombudsman is satisfied with the information and evidence received. This may be considered desirable to ensure that the resources of the ombudsman are used efficiently. It may also be desired that the ombudsman may proceed with investigations only when they have all of the

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information and evidence that they need in order to do their job effectively. Otherwise, it might be argued that they could come under pressure to conclude investigations in the absence of all of the evidence that they need.

Under new Section 340I(1) in the Bill, it is for the ombudsman to determine whether to begin, continue or discontinue an investigation. Under new Section 340I(4), the ombudsman may make such inquiries as he or she thinks appropriate. Under new Section 340J, the ombudsman also has broad powers to require a person to provide documents or other information in their possession and has the powers of the High Court in respect of the attendance and examination of witnesses and the production of documents. The effect of this amendment, perhaps inadvertently, would be to limit the discretion of the ombudsman to carry out his or her investigations. It is very important that the ombudsman has all of the information required in order to carry out their role effectively, and the Bill provides for that.

Regulation 6 in the draft Service Complaints Ombudsman investigation regulations permits the ombudsman to proceed with an investigation and prepare a report under new Section 340L, whether or not they have all of the information that they have requested. That is a permissive provision, so that the ombudsman does not have to proceed with an investigation in the absence of information, but they can do so if that would be the fair thing to do, bearing in mind the need for efficiency and effectiveness.

The noble Lord asked whether the word “may” means that, and the answer is that it does. He also asked whether it weakens the position of the ombudsman’s power to get documents, and the answer is that it does not do so in any way.

I must resist this amendment. It is right that the ombudsman retains discretion on whether to proceed with an investigation in all the circumstances of the case based on the information and evidence put before them. I ask the noble Lord to withdraw the amendment.

5.30 pm

Lord Rosser: I will withdraw the amendment, but are the Government saying that, without that provision in the draft regulations stating that the ombudsman may proceed with the investigation and the preparation of a report under Section 340L of the Act if the documents or other information is not provided within that period or not provided under paragraph (b), the ombudsman would not have the power to proceed with an investigation without having got those documents?

Lord Astor of Hever: I do not have an immediate answer, but I will write to the noble Lord on that.

Lord Rosser: I thank the Minister for his reply. I beg leave to withdraw the amendment.

Amendment 11A withdrawn.

Amendment 12

Moved by Lord Boyce

12: Clause 2, page 8, leave out lines 5 to 24

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Lord Boyce (CB): My Lords, at Second Reading the Minister gave us reassuring words about the importance he attaches to the command chain, and that was good to hear. However, I believe that new Section 340K undermines this principle and could be seen to be violating the integrity of the command chain. I have particular difficulty with the argument that this power is necessary because ombudsmen in other organisations have it. The Armed Forces are different, and the Minister does not need reminding about the emphasis given to this in the Armed Forces covenant, especially because other organisations do not have an equivalent of the Armed Forces Act and its inherent disciplinary processes.

If the ombudsman detects obstruction, the Defence Council and the command chain on his or her instruction can issue an order to any person deemed to be obstructing to comply. The failure of that person to comply would be an offence. New Section 340K may be a safety net or a last resort in case such a procedure does not deliver what the ombudsman wants. If so, it might be helpful if that were stated. I welcome the Minister’s comments on this. I beg to move.

Lord Craig of Radley (CB): My Lords, I have added my name to this amendment—as the noble and gallant Lord, Lord Boyce, has explained, it is a probing amendment—because of the importance that must be vested in, and allowed to, the chain of command. I do not need to rehearse in this Committee that importance. The chain must run, and be allowed to run, seamlessly from the highest legal authority, the Defence Council, down through the ranks to the most junior serviceperson.

Since the major part of this Bill is to amend the Armed Forces Act 2006, this should ensure that service personnel involved in a complaint are to be subject to a single disciplinary statute, and are not, as in matters considered to be human rights, dealt with by separate and potentially conflicting legislation. I welcome that.

However, my concern with new Section 340K is that it allows the ombudsman to opine that a serviceperson is in contempt for some obstruction or act, to certify the obstruction or act, and to refer the person directly to a civilian court for investigation. In other words, the ombudsman is given a power of command over the individual even though he—the ombudsman—is not, as the Minister stated, within and does not form any part of the chain of command. It is argued that this contempt-dealing power is normally vested in an ombudsman, although not invariably. Be that as it may, the Armed Forces are, as the noble and gallant Lord, Lord Boyce, has said, dealt with differently in legislation. No other public servant is treated in the same statutory way as are members of the Armed Forces.

Surely a better approach, which would cover the issue of contempt and retain the position of the chain of command, would be for the ombudsman to report the individual and the perceived contempt to the Defence Council. The council would then instruct the individual to comply with the ombudsman’s requirement and, if the individual did not, it would be a blatant case of failing to obey a lawful command and could be dealt with accordingly.

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Allowing the issue of contempt to be taken direct to a civilian court could lead, because of the lack of detailed knowledge of the Armed Forces by the court, to protracted, time-consuming and more expensive consideration of the issue. Surely it is important to the legislation’s aim to speed up resolution of complaints that steps are taken, where possible, to avoid delay and not slavishly to insert and rely on drawn-out procedures, as would be the case with new Section 340K. Bearing in mind the authority invested by new Section 340M in the position of the Defence Council to an ombudsman’s report about a complaint, it would seem acceptable and a more timely solution to the problem faced by an ombudsman of a potential contempt of his authority if that contempt were dealt with through the Defence Council. I urge the Minister to consider this approach and be minded to offer an alternative to the current new Section 340K on Report along the lines that I and the noble and gallant Lord, Lord Boyce, are suggesting.

Lord Deben (Con): My Lords, it will be within many of your Lordships’ memory that I take a particular interest in those occasions when we are discussing the particular interests of sections of the community. We very often have a discussion when the whole debate seems to be by lawyers about what should happen on the law. Similarly, I am concerned when the debate becomes a debate by members of the Armed Forces about what should happen in the Armed Forces. As a non-member of the Armed Forces I support the concern behind this, for two reasons.

The first is not a military reason at all. It is that I dislike very much the concept that, because somebody else has a power, it has automatically to be put into this legislation. That, of course, is an argument that has been used. It seems to me to be almost always a false argument. Indeed, if it is to be here it should be argued that it is right here, not that somebody else argued about it and said it was right somewhere else. There is much in our legislation which has got in because people have never really debated it but merely said, “Well, every time we have a Bill of this kind, we always put this in”. New Section 340K extends the way in which the ombudsman would work to an unacceptable extent.

I do not understand why it would be better to do it this way than in the way noble Lords opposite have put forward. The Government must explain why going through the Defence Council would not be just as good as doing this. If one went to the Defence Council, one would not open oneself to the concern that is here. It is not the most important thing in the world; the pillars of the temple will not come down if we do not make a change here. All the same, we ought to be very careful about making it difficult for the chain of command in the Armed Forces to be clearly a chain without any interference. There is a mechanism for avoiding that and I hope very much that the Government will look at it and see whether there is any real reason for insisting on this format, which may be all right somewhere else but is not necessarily right here. The only reason I intervene is that I think it is important for somebody who is not in the Armed Forces to say that they think this is valuable.

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Lord Thomas of Gresford: As someone else who is not in the Armed Forces, I point out that there is no point in giving to the Service Complaints Ombudsman the powers set out in new Section 340J of requiring a person to provide documents and other information unless there is some sanction. All that new Section 340K does is to put into the Bill the normal sanction that arises in these cases. I draw to the attention of those who have tabled the amendment that the measure does not refer to service personnel but to “a person”. That person could be a civil servant in the Ministry of Defence or a person who has nothing to do with the Armed Forces at all but just happens to have witnessed a particular event, and whose information as a civilian witness would be very helpful to the ombudsman in determining precisely what has gone on. If you are going to give the ombudsman the powers to call for papers and witnesses, as one rightly should, there has to be a sanction attached.

Earl Attlee (Con): My Lords, I remind the Committee of my interest as I am still a serving TA officer, albeit not very active these days. This is the only area of concern that I have with the Bill and I urge my noble friend the Minister to pay very careful attention to it.

I certainly do not regard this as a probing amendment. I do not understand why the ombudsman would not be able to ask the Secretary of State to get on to the chain of command to get the documents, or whatever information is required, released. The Service Complaints Commissioner made it quite clear to us in a recent meeting, for which we were grateful, that she was perfectly happy as regards her access to Ministers. As the noble and gallant Lord said, Ministers can direct the chain of command to release the information. However, a problem could arise with these arrangements if compliance with the ombudsman’s request interfered with current operations to some extent, especially if staff effort had to be diverted from current operations to meet the ombudsman’s request. I hope that my noble friend can meet the concerns of noble and gallant Lords in this regard. I agree with the argument made by my noble friend Lord Deben. It is fine to make legislation consistent provided that no adverse implications can arise from that. I believe that could be the case if this provision is included in the Bill.

Lord Astor of Hever: My Lords, I am grateful to the noble and gallant Lords, Lord Boyce and Lord Craig, for tabling Amendment 12 as it has provided us with the opportunity to debate this very important issue, particularly as regards the chain of command.

Amendment 12 would remove new Section 340K from the Bill. New Section 340K provides that the ombudsman will have the backing of the powers of the courts if someone unlawfully obstructs him or her in carrying out an investigation or does something which would count as a contempt of court. The effect of the amendment would therefore be that the new ombudsman would have no enforcement powers to back up their general power to require the provision of documents or other information not in their possession or control. That lack of enforcement powers would apply in respect of all persons whether they are members of the Armed Forces, civil servants or, indeed, anyone else who may have relevant information in relation to an investigation.

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When investigating the actions of a public authority, any independent body, whether it be an ombudsman, tribunal or court, needs to have appropriate powers to carry out its function effectively. This includes a power to get all the information it needs to investigate and scrutinise the actions of the public authority. The power needs to be backed up with enforcement provisions when co-operation is not forthcoming from the body or individuals under investigation.

The Service Complaints Ombudsman is no different in this respect. Powers of compulsion, such as those provided in new Section 340K, are a common feature of ombudsman legislation. For example, similar provisions can be found in respect of the Pensions Ombudsman in Section 150 of the Pension Schemes Act 1993 and in respect of the Ombudsman for Wales in Sections 14 and 15 of the Public Services Ombudsman (Wales) Act 2005. The reason for that is not because it is envisaged that these powers will be used regularly but because without them there is no effective way of compelling people who are required to help with the ombudsman’s investigations to do so. They may be reluctant to assist the ombudsman for a variety of reasons. The power to require the production of evidence, backed up with powers of compulsion, is therefore necessary for an ombudsman to operate effectively, and this ombudsman is no different.

5.45 pm

The real issue that has been raised therefore seems to be whether such a power should apply to the Armed Forces. This is on the basis that the chain of command can issue lawful orders, and they should be the basis of securing the production of documents or other information for the ombudsman rather than using contempt of court. The concern is that giving the ombudsman these powers will undermine the chain of command, and therefore should be resisted. The difficulty with that argument is, first, that there may be legal arguments to be had about whether lawful orders in fact cover a matter such as this. We do not want that in a reformed system that is intended to be more effective and efficient than the current one. Secondly, and more fundamentally, this would leave the power of enforcement with the body under investigation by an independent ombudsman. That is unacceptable as a matter of principle.

The Service Complaints Ombudsman, while being in a unique position in terms of investigating the handling of an internal employment-type system, is not unique in terms of the powers he or she needs to do their job effectively. Members of the Armed Forces are already subject to powers of compulsion in other types of investigation or legal proceedings, including other ombudsmen, or if they are required to give evidence or produce documents in response to a claim for judicial review. These powers are therefore not new, and are not new in the context of the Armed Forces.

Finally, as I noted at the beginning, removing this provision in its entirety would mean that the ombudsman could not compel the production of relevant evidence or information from civilians or former members of the Armed Forces over whom the chain of command has no ongoing authority. The provision is therefore necessary for these categories of persons, but no more so than in relation to serving members of the Armed

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Forces. It is not anticipated that the power of compulsion would be used in anything other than exceptional circumstances. These would be powers of last resort. We would expect the ombudsman to give those in the chain of command every opportunity to comply with reasonable requests for information. It would be able to resist such a request if, on advice, it considered that there were lawful reasons to withhold information from the ombudsman. That is provided for in proposed new Section 340K. If the chain of command were to refuse to provide information or evidence, we would expect that decision to be elevated to the very highest levels in the organisation, given the potential consequences for non-compliance. However, if there was no lawful reason to withhold the information, it is only right that the ombudsman should be able to enforce their power to get the information that he or she needs by referring the matter to the High Court. The court would then inquire into the matter itself, taking any evidence that was deemed necessary.

My noble friend made some important points about the chain of command and proposed new Section 340K. Those who attended the Peers’ briefing on the Bill on 2 July will have heard the very strong assurance given by the Vice-Chief of the Defence Staff that the Chiefs of Staff were fully behind the Bill in its entirety, including proposed new Section 340K. The services therefore accept the need to have a power of this sort in the Bill, and I assure the noble and gallant Lords that Ministers asked searching questions, and we were satisfied that the chain of command at the highest level was quite happy with the Bill.

I hope that this will give reassurance that the provision is necessary for the effective operation of the reformed system. Without it, we could not reasonably argue that we had created an effective, independent ombudsman to oversee the operation of the service complaints system. On that basis, I urge the noble and gallant Lord to withdraw his amendment.

Earl Attlee: My Lords, I am grateful for the Minister’s response. I am sure that the Committee can understand why the chain of command might be unwilling, without compulsion, to release information. However, if Ministers directed the chain of command, including civilians, to release information, can my noble friend envisage circumstances in which the chain of command would not release the information?

Lord Astor of Hever: I am sorry to disappoint my noble friend, but I cannot give him an immediate answer that I would be happy with. I will come back to him.

Lord Boyce: I am grateful for the Minister’s response to the amendment. I will study what he has said. I am not entirely comfortable, but I take comfort from his comment that new Section 340K would be used only in exceptional circumstances for those in a military chain of command. The noble Lord, Lord Thomas, makes a perfectly fair point that people involved in the Armed Forces but outside the chain of command may be required to disclose things. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

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Amendment 13

Moved by Lord Thomas of Gresford

13: Clause 2, page 8, line 39, at end insert—

“( ) The recommendations of the Ombudsman may include a recommendation for the payment of compensation to the complainant or, in the event of his or her death, to family or personal representative.”

Lord Thomas of Gresford: I think that I am pushing at an open door here, because in his response on Second Reading the Minister said that the recommendations of the ombudsman may very well include the payment of compensation. I could not resist having a confirmation of that position in Committee, because I think that compensation, where appropriate, is a very reasonable remedy for complaints that may be advanced by a complainant. I beg to move.

Lord Astor of Hever: My Lords, this amendment would add to new Section 340L a specific reference setting out that the ombudsman could recommend the payment of compensation if, having investigated a matter raised by a complainant, it were to find that there was maladministration in the way that the complaint was dealt with by the chain of command that has, or may have, led to injustice that should be rectified.

The Bill provides that the ombudsman may make any recommendations that it considers appropriate. The ombudsman has wide discretion in all aspects of the new powers that are provided for it in the Bill. This discretion is an important element in assuring Armed Forces personnel that the ombudsman is independent, without which they will see no benefit in approaching it and no value in its investigations. The reforms that the Bill provides for in the complaints process itself are aimed at making it possible to reach a final decision on a complaint more quickly while still being within a system that is fair in the widest sense. Together, the creation of a strengthened oversight role in the form of the ombudsman and the shortened process are designed to increase the confidence of service personnel in the chain of command and in the process. If they lack that confidence, complaints will not be raised and matters of concern cannot be addressed, which can ultimately have a detrimental effect on unit cohesion and effectiveness.

The draft regulations, which were circulated to noble Lords, would to a limited extent apply procedures to the way in which the ombudsman would deal with applications made to it by complainants, how it would conduct its investigations if it accepted applications, and how it should respond when producing reports on those investigations. It is right that the Bill provides a framework for how the ombudsman will exercise its functions, and that the regulations provide some further detail to the options that should then be available to it. However, it does not follow that there should be a specific reference to a particular form that a recommendation may take, either in the Bill or in the regulations.

In that respect, it must be remembered that a serving or former member of the Armed Forces can make a service complaint about a very wide range of matters.

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They may also make an application to the ombudsman about any number of possible variations of a complaint of maladministration—a term that itself is deliberately not defined, in common with all other ombudsman legislation. Maladministration covers traditional grounds of judicial review, such as procedural impropriety and irrationality, but also wider concepts such as excessive delay, failure to give adequate advice, or rudeness.

While the complainant will be asked to set out what form they think the maladministration has taken in their case, it will be open to the ombudsman, having gone on to investigate the case, to find that another form of maladministration has in fact occurred. From a more practical point of view, it is therefore not possible to provide in the Bill for every permutation of likely recommendation that the ombudsman might make. That is why the provision in the Bill leaves it open to the ombudsman to make such recommendations as it considers appropriate, and it is why this amendment is resisted.

Any recommendation should, however, be reasonable and proportionate based on what the ombudsman has found and the degree of injustice that has or may have been suffered. If the ombudsman therefore considers that compensation of a certain value is appropriate, the Bill also provides that the ombudsman gives reasons for the findings in its report and for the recommendation made.

The amendment also refers to the ombudsman’s ability to recommend the payment of compensation to family or a personal representative in the event that the complainant dies before the complaint has been concluded. All recommendations made by the ombudsman are to be considered by the Defence Council, which must decide how to respond. The Bill provides that a recommendation can be rejected, in which event reasons must be given in writing to the ombudsman and to the complainant. Alternatively, the Defence Council must write to them both setting out the action, if any, that it has taken in response to the ombudsman’s findings and to any recommendations that the ombudsman has made. It is open to the Defence Council to decide that a complaint should be reconsidered to whatever extent it considers appropriate, based on those findings and recommendations. A payment of compensation may be the outcome of any of these courses of action and, where that is appropriate, any payment will be made to the complainant’s estate if the complainant has died.

If in taking forward any action in response to the ombudsman’s recommendations it is necessary to have the personal testimony of the now deceased complainant, the chain of command will need to consider carefully what, if any, further action can reasonably be pursued. That will be particularly important if the complainant’s personal testimony is key to the matter proceeding fairly.

There is a need to preserve the independence of the ombudsman, to give our personnel confidence in the ombudsman’s office, and to give the ombudsman the flexibility that it needs to be able to make recommendations that address the varied nature of complaints that can be brought his way. In the light of that, I ask my noble friend to withdraw his amendment.

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Lord Thomas of Gresford: I am most grateful to the Minister for his very full explanation and for his confirmation that recommendations can involve the payment of compensation to the estate in appropriate circumstances if the complainant has died. In the light of that, I have pleasure in seeking to withdraw the amendment.

Amendment 13 withdrawn.

Amendment 14

Moved by Lord Thomas of Gresford

14: Clause 2, page 9, line 15, at end insert—

“( ) accept the findings of the Service Complaints Ombudsman,”

Lord Thomas of Gresford: Amendments 14, 15 and 16 are concerned with the action following receipt of a report by the Defence Council. At Second Reading, I was very concerned to draw a distinction between the findings of the ombudsman and the ombudsman’s recommendations.

New Section 340M(1) deals with the way in which the Defence Council must consider a report and give its response. If it decides to reject a recommendation, it must give reasons in writing for that rejection. What it does not state is that the Defence Council cannot second-guess the findings of fact on the merits of the ombudsman. The purpose of my amendments is to obtain from the Minister an assurance that the Defence Council cannot interfere with the findings of the Service Complaints Ombudsman, although of course it may consider the recommendations. It has full discretion as to what to do, having regard to the finances involved and the justice of the case.

New Section 340M(1)(c) simply says,

“where the Council decide to reject a recommendation, notify the Ombudsman and the complainant, giving reasons in writing for the rejection”.

My view, which I urge on the Minister, is that it should be quite explicit that the Defence Council can modify instead of reject the recommendations. It can decide to accept the recommendations in part, and simply reject a part with which it disagrees. All that can be dealt with by an assurance from the Minister from the Dispatch Box that that is the intention of the legislation. I beg to move.

6 pm

Lord Rosser: I have one or two comments to make on this group of amendments. Like the noble Lord, Lord Thomas of Gresford, I am waiting to find out whether the Government’s view is that the Bill as it stands gives the Defence Council the right to reject the ombudsman’s findings on maladministration as opposed to the ombudsman’s recommendations. The Bill refers to the Defence Council deciding what action,

“to take in response to the findings”,

of the ombudsman, but it is not quite clear how the Defence Council could decide not to accept the findings without carrying out a separate investigation of its own.