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Armed Forces (Service Complaints Commissioner) Regulations 2007

Volume 696: debated on Tuesday 20 November 2007

rose to move, That the Grand Committee do report to the House that it has considered the Armed Forces (Service Complaints Commissioner) Regulations 2007.

The noble Baroness said: These regulations were laid before the House in October and are being made under powers in the Armed Forces Act 2006. As Members of the Committee will know, that Act represents the first complete overhaul of the service justice system in more than 50 years. As well as providing a single system of service law, it introduces a number of significant and important changes. Today’s debate is about one of those important changes; namely, the new system for dealing with complaints by individual service personnel who think themselves wronged in any matter relating to their service in the Armed Forces.

Historically, service personnel have had few enforceable rights in relation to their conditions of service, and it is for that reason that there is a system that allows service personnel to submit complaints related to their service. The system is designed for the individual and there is, therefore, no provision for group complaints. The key features of the new service complaints procedure are that complaints will be resolved at one of three levels. At the highest level, the Defence Council, complaints may be dealt with by a service complaint panel, for which certain categories of complaint will include an independent person and there will be a Service Complaints Commissioner, which is also a new development.

I shall say a little more about the features. The three levels at which a service complaint may be resolved are, first, the prescribed officer, who will usually be the commanding officer unless he is implicated in the complaint, in which case the complaint would be made to the CO’s immediate superior. The second level is the superior officer; and the third is the Defence Council, whose function in considering complaints has been routinely undertaken by the single service boards but will now include service complaint panels.

When the commanding officer receives a complaint he has three options. First, if he lacks the power to deal with it, he may refer the complaint to the superior officer or to the Defence Council. Secondly, if he decides to deal with it and the complaint is well founded, he will decide what redress should be granted. Thirdly, he can reject the complaint. The superior officer has the same options as the commanding officer: to deal with the complaint, to refer it to the Defence Council or to reject it. It is important to note that if the complainant is not satisfied with the redress to be granted or if the complaint is rejected, he can have the complaint referred to the next highest level for consideration.

Against that background, the regulations which we are debating will establish a number of improvements, including procedural changes, to ensure greater fairness and consistency across the services and to reduce the time taken to resolve complaints. They will also exclude some types of complaint, for example where there is an established alternative system to deal with complaints.

Above all, the regulations introduce two elements of independence and transparency into the system. First, they establish independent members on panels which at the highest level will normally deal with complaints about bullying, harassment, discrimination and other types of inappropriate behaviour. Secondly, they bring in the appointment of a Service Complaints Commissioner.

The Armed Forces (Redress of Individual Grievances) Regulations begin by excluding certain matters from the redress system. As I mentioned previously, this is where an alternative system exists. So, for example, complaints about pensions and compensation are excluded, as are judicial and legal decisions, because those are subject to judicial review and it would not be appropriate to allow lay interference in judicial procedures.

Each service complaint considered by the single service boards, acting on behalf of the Defence Council, involves significant time and effort spent by senior staff in reaching decisions. That imposes a heavy administrative burden and risks causing delay. The Armed Forces Act 2006 therefore provides for the Defence Council to delegate cases to service complaint panels. It also provides that a panel must have at least two members, one of whom is at least of the rank of brigadier or equivalent, although it is our intention that panels will normally consist of two officers of at least that rank, normally from the same service as the complainant. Service complaint panels will operate with the full delegated powers of the Defence Council relevant to the case under consideration.

The regulations ensure that complaints by or about senior officers will be dealt with by a panel that contains at least one officer of the same rank as or a higher rank than the officer concerned. The regulations will ensure that, in the interests of fairness, certain people are excluded from being members of service complaint panels. They include members of the Defence Council, the single service boards and chaplains of the three services, as well as any officer who may have been involved in any way with the complaint that is being considered.

It will be the normal expectation that complaints reaching the highest level will be dealt with by service complaint panels. There will be exceptions, however, because the service boards will always retain some cases, including, for example, complaints about security vetting, a decision or action by a very senior officer of three or four-star rank and the termination of an officer’s service.

The service boards may also decide to retain other cases where the normal expectation would be to delegate them to a panel. This is an important aspect of the system, since it allows the single service boards to exercise their stewardship of the services and to influence decisions that have an effect across the whole service. Examples of such cases may be a complaint about changes to specialist pay or an allowance, a challenge to a job evaluation outcome for a particular branch or trade, or a complaint about the policy of not allowing women to serve in submarines or the infantry. Decisions by panels, exercising powers on behalf of the Defence Council, will be final.

An important new element, in line with the Act, is the introduction of an independent member to the service complaint panels dealing with complaints relating to: bullying, harassment or discrimination; dishonest, biased or other improper behaviour; allegations of failure in clinical care; allegations of the misuse of service police powers; and the rejection of a complaint following referral of an allegation by the Service Complaints Commissioner.

The introduction for the first time of an independent element into the redress process is an important change. We believe that it will give service personnel much greater confidence in the system. This independent element also recognises the recommendations made by the Defence Select Committee and by Nicholas Blake QC in his Deepcut report. Both stressed the importance of demonstrating that bullying, harassment and other forms of inappropriate behaviour have no place in the Armed Forces, and underline the importance of dealing with these things effectively and openly.

Independent panel members are being recruited using the normal public appointments process. We have stipulated that they cannot be members of the Regular or Reserve Forces, but that they should bring experience and expertise relevant to considering and deciding cases relating to bullying, harassment, discrimination and other types of inappropriate behaviour about which we are particularly concerned. I should add that at present an officer has the right to require a report on his complaint to be referred to the Queen if he is not satisfied with a decision at the Defence Council level. That right will still exist under the new system, except where any decision on a complaint is taken by a service complaint panel.

Your Lordships will recall the recent announcement of the appointment of Dr Susan Atkins as the Service Complaints Commissioner. This is a statutory appointment made by the Defence Secretary, and Dr Atkins comes to the post having worked with the Equal Opportunities Commission and having set up and run the Independent Police Complaints Commission. The Defence Select Committee and Mr Blake recommended the appointment of a commissioner, and envisaged the role as being similar to that of an ombudsman. As Ministers said at the time, and I reiterate now, we welcome this further independent element in the service complaints process. However, we could not agree to the commissioner’s role including the ability to intervene in the consideration of complaints, to investigate complaints or to reopen cases. Those actions would have undermined the chain of command, which we have properly placed at the heart of ensuring the effective discipline and welfare of members of the Armed Forces.

What we have provided, through the Act and this secondary legislation, is a commissioner with real powers to make a difference. The commissioner will provide an alternative point of contact for service personnel, their families and friends, and any other member of the public who wishes to make an allegation that a service person has suffered a wrong in their service. This will be particularly helpful to those who do not feel confident about approaching the chain of command directly.

The Service Complaints Commissioner regulations provide that any communication received by the commissioner alleging that a member of the Armed Forces has been wronged through bullying, harassment, discrimination or any other form of improper behaviour may be referred to the chain of command for action. Such an allegation would normally go to the commanding officer of the individual alleged to have been wronged, but would go to another officer if the commanding officer were the subject of or implicated in the complaint. A referral from the commissioner places certain duties on the commanding officer. These include checking whether the person alleged to have been wronged wants to make a service complaint, whether that person knows how to go about it, and the time limits that apply.

The commanding officer must also notify the commissioner of the individual’s decision on whether to make and go forward with a complaint; whether the complaint was excluded under the redress of individual grievances statutory instrument; or whether it was not allowed to proceed, for example for being outside the time limit for a service complaint. The commissioner must also be informed by the commanding officer if the complaint has been withdrawn by the complainant; if the complaint has been referred to a superior officer or the Defence Council; and of any decision in relation to the redress sought.

The commissioner will provide the Defence Secretary with an annual report on the efficiency, effectiveness and fairness with which the complaints process has operated during the period. The report will also cover the exercise by the commissioner of the function of referring allegations and other factors that the commissioner or the Defence Secretary considers appropriate. These reports will, of course, be laid before Parliament. We believe that an annual report, written by an independent Service Complaints Commissioner and made available to Parliament and the public, will make a significant contribution to the overall effectiveness and transparency of the system.

The changes that we are discussing today have the potential to affect every service person and we take very seriously the responsibility to ensure that our service personnel are briefed on changes of this kind. Consistent with that, significant effort will go into ensuring that all service personnel are made aware of the changes that the new system will bring.

A new joint service publication about redress of individual grievances will be published shortly and made available electronically to all service personnel. A defence notice will be issued to publicise the changes further. In addition, leaflets will be published to provide service personnel with a clear explanation of their rights and how to use the complaints system. All three services are making arrangements for their personnel to be briefed in detail nearer to the time when the changes are introduced.

I should like to make a final observation about the statutory instruments that we are considering today. The Government have given an undertaking that Ministers moving instruments subject to the affirmative procedure will tell the Committee whether they are satisfied that the legislation is compatible with the rights provided in the European Convention on Human Rights. I am pleased to confirm that the two statutory instruments before us today are compliant with the European convention. I look forward to hearing the Committee’s views on this important issue and I hope that it will be possible to make progress on this very shortly. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Armed Forces (Service Complaints Commissioner) Regulations 2007. 28th Report from the Statutory Instruments Committee, Session 2006-07.—(Baroness Taylor of Bolton.)

I thank the Minister for introducing these two regulations which are, of course, interdependent. In doing so she amplified somewhat, and clarified a little, the recent Written Statement on the subject and the Explanatory Memorandum as published with the draft regulations.

I wish to make it clear straight away that although we on this side of the Committee do not intend to object to these regulations, we are seriously unhappy with the consequences which seem bound to arise from them. Notwithstanding the assertion at paragraph 7.7 of the Explanatory Memorandum that,

“The regulations, their applications and effects have been developed in full consultation with the armed forces”,

we have very good reason to believe that there are profound concerns at very senior levels about the outcome of that consultation. Parliament and the Minister should be aware that all is not quite as the words used would suggest.

While we accept that the Government have an obligation to give effect, in a suitable way, to the recommendations of Nicholas Blake QC—who is now, I believe, a judge—in his Deepcut inquiry, we have continuing doubts, which we foreshadowed when we debated these clauses of the primary legislation, whether the insertion of these arrangements into the chain of command is an entirely suitable way to render military law, justice and administration more user-friendly.

Our fear is that this arrangement may turn out to be no more than a trouble-maker’s charter. We shall therefore want to watch very carefully how the arrangements, which the orders established, work in practice. Our present view is that at a future date, and in the light of experience, we will want to advocate substantial changes in the arrangements.

In particular, I thank the noble Baroness for confirming that the commissioner-designate is Dr Susan Atkins and for telling us something of the qualifications that the Government believe she has for the job. She lacks, of course, the one qualification which Nicholas Blake said was essential; namely, practical knowledge and experience of the military world into which she will have power to intervene. That was made very clear in an Answer to my honourable friend the Member for Aldershot at col. 485W in yesterday’s Commons Hansard. The Minister admitted that Dr Atkins does not have any direct knowledge or experience of the Armed Forces.

In the light of that Answer, will the Minister clarify what comprehensive induction and orientation Dr Atkins will receive before January next year? What procedure was followed in making this appointment, particularly given that she is the interim chief executive of the Appointments Commission? What are the terms and conditions of the appointment? Is it full-time or part-time, and what is its duration? What is her salary, and what are the budgeted costs of her office for this purpose?

We have a number of further specific questions, some of which relate directly to how Parliament, and this House in particular, will monitor the workings of the commissioner. What do the Government foresee will be the likely scale of cases brought to the commissioner? How is it anticipated that she will categorise these cases? At what intervals will she report? The Minister mentioned an annual report. Although an annual report published long after the event, as proposed, is a necessary record, we feel that that is not adequate and satisfactory for the purposes of parliamentary oversight. How promptly will these reports be disclosed to Parliament? Will a dedicated website be established and kept up to date so that Parliament, members of the Armed Forces and the interested public are able to form a continuing picture of how this is going?

If the whole thing is to work well and in a satisfactory manner, there needs to be a publicly accessible description of the scheme, expressed in simple and comprehensible language, rather than in the tortured complex of language, references and exclusions in which, it would seem, statutory instruments have to be drafted.

There should be such a website and it should display the progress of the commissioner’s work in a suitably summarised form. It should explain the procedures and should include, for reference, the relevant sections of the Act—Sections 334 to 339—and the terms of these orders. It should also include, for information and reference, the terms of the set of Defence Council regulations which, we are told in paragraph 2.1 of the Explanatory Memorandum, form part of the arrangements but which do not come before Parliament for approval.

I make these suggestions to underline the fact that although our serious concerns about the whole arrangement remain, our strong belief is that if the Armed Forces are to have this imposed on them, the arrangements should be as helpful as possible to members of the Armed Forces, their families and professional advisers, as well as to Members of both Houses of Parliament.

I am slightly more positive about these regulations than the noble Lord, Lord Astor. Virtually all those involved have come to accept that something had to be done about complaints procedures in the Armed Forces. We certainly have some sympathy with the notion that bullying, dishonest behaviour, harassment and so on must be dealt with, and we can support the idea of bringing procedures into line with the rest of society, although we probably would have liked the regulations to go slightly further. Signposting and the monitoring of progress is restrictive, with everything being referred back to the Ministry of Defence instead of being made more public. We would have preferred something more independent, perhaps in relation to the commissioner. But, generally speaking, the regulations mark a step in the right direction. While I do not think they can be regarded as the final line to be drawn under these matters, Members on our Benches have largely concluded that we are taking a step forward with them and going in the direction we should.

It is important to bear in mind that if we are to try to improve the lot of service men and women, their rights and privileges as such should be brought more into line with those outside the armed services. We therefore give the regulations a guarded welcome.

I thank the Minister for that helpful explanation. I have just a couple of questions for clarification, and if I have missed something and the answers are already in front of me, I apologise. My first question concerns the regulations covering the redress of individual grievances. Quite understandably, the regulations provide for at least one officer appointed to the panel being of the same rank as or of equivalent rank to the complainant. That provides for a mixed-service panel. However, can the Minister confirm that it is the intention of the Ministry of Defence that for a single service individual who has made a complaint, the panel will be made up of those in the service of the complainant as far as is practicable? I believe that it is important to both the service and the individual that the service concerned is closely involved in the process.

My second question concerns the independent member. The Minister stressed that independence was very important and that there would be no question of the independent member being a member of the Reserve Forces or anything like that. However, I am not clear whether an independent member could be a retired officer, perhaps retired from the services for some years. If there was a reasonable gap, it would mean that the independent member would have a greater knowledge of the services than someone coming in totally from the outside.

My third question relates to the Service Complaints Commissioner. Is the commissioner able to take a view about whether a complaint submitted to her, in this case, should invariably be heard by her, or can she take the view that complaints of a certain sort should be dealt with by the normal service process, including a service complaints panel if necessary? It is not clear whether the commissioner has that flexibility, or indeed whether the Minister thinks that that would be desirable. I believe that it should be available, but I should like to be clear about it.

I, too, have just two or three questions, and I should like to thank the Minister for the very good meeting we had in the Ministry of Defence. At that meeting I gave a possible example of troublemakers en masse. I just want to be sure that the commanding officer’s powers of rejection are strong enough so that something that could be a bit of trouble—or perhaps big trouble—can be nipped in the bud. It does not look so good if he simply passes it upwards. It looks to the men and women under his command as if he is not strong enough or big enough to handle it.

We are also still a little worried about the independent members, as the noble and gallant Lord, Lord Craig of Radley, said. They need some training. I cannot quite work out where they come from, but I agree with the noble Lord, Lord Astor, that we always seem in this new vision of the military to get outsiders, like the commissioner, with absolutely no idea of the military ethos or the military way of life. We had this discussion in our debate on prosecuting officers and so on. Although we do not reject this statutory instrument, a lot of hard work and quite a bit of explanation are needed to make certain that it is a good deal. It needs working on a bit more.

I thank everyone for their contributions, and will try to answer the points that have been made. We are talking about a new area, so it is understandable that some people will have such concerns about the impact of a new system.

The noble Lord, Lord Astor, started by suggesting that the services were not happy with the procedure that we have suggested. I emphasise that there has been a great deal of consultation on the actual processes to be adopted, and there have been significant discussions across the board. The principles and policies that we are putting forward in these statutory instruments have been endorsed by the service personnel executive group, which acts on behalf of the principal personnel officers of the three services, who are members of their respective service boards. I hope that that will allay some of the fears of several of your Lordships, who have expressed concern on the basis of their experience of the old system or of the Armed Forces generally. We are not simply imposing a new system on the Armed Forces without any consultation or consideration of the difficulties that might develop. We have done this carefully, taking on board any considerations that have arisen through those channels. I hope that that particular aspect will reassure the noble Lord, Lord Astor, and others who have had similar concerns.

The noble Lord, Lord Astor, also asked about the commissioner. I hope that he will welcome the appointment of Dr Atkins. She is extremely experienced, as I pointed out earlier, and was recruited through the normal Civil Service Commissioners’ recruitment code. The competition was open. Recruitment consultants trawled for people with the right kind of background, and I would have thought that work with the police complaints system was quite a good foundation for doing work of this kind. Dr Atkins’ appointment is for three years, and it is envisaged that she will work for approximately two and a half days a week. The salary, pro rata, is £105,000. She begins her appointment on 1 December, but is already taking a great deal of interest in this issue and is undergoing some of her induction and familiarisation with the Armed Forces, which again I hope will allay some of the concerns about her background. It is important—I am sure she thinks that it is important—that she visits establishments and talks to people in the three services. That is exactly what is happening at the moment.

The costs of the new system will be found within the existing departmental budget. A small secretariat is being provided, but we must remember that there have always been complaints and that, on occasion, they have taken up a great deal of resources, especially when they have gone to defence counsel and been complex and dependent on people’s time.

It is of course impossible to say at this stage what number of complaints we anticipate. During the past year, there have been 233 service complaints raised by Army personnel; in the Navy, there have been 73 complaints referred up from the commanding officer; for the RAF, there have been 220 service complaints during the past two and a half years. Because we do not have a system common to all the services, those figures are not kept in exactly the same way. It is difficult to predict the future outcome; I give those figures just so that there is a baseline and a starting point with which to compare future figures.

I was grateful to the noble Lord, Lord Addington, for his comments welcoming the new system. There will always be people who want to go further and provide more independence; I think it right that we try to get a balance so that we have a system that has the confidence of everyone. That is very much what we are about in drawing up the statutory instruments.

The noble and gallant Lord, Lord Craig, raised three questions, which I hope that I can answer. He mentioned the question of an officer having someone of the same rank on the panel and talked about the implications of mixed-service panels. His request was that the service of the complainant should be the one from which panel members were drawn. He was very cautious, because he said, “as far as is practicable”. That is exactly what we would say: as far as is practicable, that should be the situation.

The noble and gallant Lord went on to ask about an independent member of the panel and whether that could be a retired officer. Yes, it could, although I think that we would expect panel members to be drawn from a wide variety of backgrounds. They will get induction and training and they will bring their different backgrounds, which I hope will be helpful. He also asked whether the commissioner could refer downwards a complaint made to her. That is the case. If a complaint is made to the commissioner, she will refer it to the complainants’ commanding officer, who will in the first instance look at that complaint to see what needs to be done. It can come back up the system, but in the first instance, it would go to that starting point.

I thank the noble Viscount, Lord Slim, for his comments about the meeting. I thought that it was useful and I appreciate what he said. He also expressed the concern expressed by the noble Lord, Lord Astor, about the possibility for a troublemakers’ charter, but I hope that what I have said about the involvement of the services will be reassuring on that point. I hope that the mechanisms that we have built into the system will provide some security for the armed services that it is a system that they can use to everybody's benefit. The noble Viscount asked specifically about the training of lay members. As I mentioned, they will have to undergo training and induction. I know that he may have some reservations about independent members on the panel, but I remind him that there will always be two panel members from the armed services, so it is not a question of total independence or a total lack of experience.

I hope that those comments will reassure your Lordships that the department has considered this very carefully and has sought to strike the right balance in the new system, which we hope will benefit everyone.

On Question, Motion agreed to.