Armed Forces (Service Complaints and Financial Assistance) Bill

Madeleine Moon Excerpts

Monday 2nd February 2015 Commons Chamber

[Anna Soubry]

On the basis of what my right hon. Friend has just said, I would agree. I urge him, and any other hon. Member, to come to see me. I would have no difficulty in taking up whatever case it may be on behalf of a constituent or an hon. Member. I would be happy to do that. He makes a good point. It is imperative that we work across government. I am pleased that that includes working with local authorities.

Our armed forces do not have the same opportunities for redress on employment issues as civilians—they do not, for example, routinely have access to employment tribunals. We must therefore ensure that there is a robust system in place to deal with any complaints they may have in connection with their service. Such a system needs to be able to deal with grievances quickly and fairly. When it comes to speed, we know that there are some serious failings in the existing system.

That is not just right in principle but is essential for operational effectiveness. If a group of men and women are happy and content in their work, it goes without saying that they will work well, whatever the circumstances of their work may be. Having unresolved complaints breeds discontent, which can undermine morale and diminish our fighting capability.

I turn now to the specific proposals in the Bill. The existing complaints system was set up by the Armed Forces Act 2006 and covers all three services. Many complaints are dealt with promptly and successfully, but we accept that performance is still not good enough and that it can be significantly improved.

It is good to remind the House at this stage of some of the statistics. Fewer than 1% of our service personnel feel that they have any need to raise a grievance and use the complaints system. Of the complaints that are made, it is interesting to note that the majority are not about bullying, harassment and discrimination. It is fair and right to say that those are the most serious complaints, but I note that in the Navy, for example, 10%—I am not going to say only 10%, because 10% is too many —of complaints are about bullying, harassment and discrimination; the overwhelming majority relate to pay, conditions and allowances.

[Mrs Madeleine Moon (Bridgend) (Lab)]

Has the Minister seen the briefing from the Equality and Human Rights Commission? It says that

“there are compelling legal and practical arguments for removing the requirement in section 121 of the Equality Act 2010 for a service complaint to be raised before a discrimination claim is made to the employment tribunal.”

Does she agree that members of the armed forces facing discrimination should have greater rights to go to an employment tribunal?

[Anna Soubry]

I do not think it is as simple and as straightforward as that. As evidence emerges, one of the things we are finding is that more members of the armed forces—notably women—rightly feel more able to make clear allegations, which doubtless are well founded, of bullying, harassment and so on, and that often such grievances are settled privately. What I mean by that is not that they are settled in some cosy way, in a corridor, but that people do not necessarily have formally to go through the grievance system. I am open to making sure we get the right result, and I certainly want to make sure nobody in our armed forces suffers from any form of discrimination, bullying or harassment, but the way in which we achieve that is perhaps the debate to be had—we are all agreed absolutely on the aim.

The hon. Member for Bridgend (Mrs Moon) will, I know, have noticed that 10% of Royal Navy cases were for bullying, harassment or discrimination, and that the figure is 43% for our Army and 38% for the RAF. The figures show that, as we know, we have considerably more to do to make sure that it does not matter what anyone’s sex or sexual orientation is, and that they should be free within our armed forces, and indeed anywhere else, from any form of bullying, harassment or discrimination. I wanted to put on record the fact that the majority of cases are about pay, pensions and allowances.

In her annual report, published on 27 March last year, former Service Complaints Commissioner Dr Susan Atkins could not provide an assurance that the current system was operating efficiently, effectively or fairly. That is of concern not only to everyone in this House but, I assure Members, to all Ministers in the MOD, and rightly so.

It is only right and fair that at this stage I pay tribute to the great work that Dr Susan Atkins did in her time as commissioner. I found it a great pleasure to work with her. I think she started her job in a different place from where she ended it, and I think she made huge strides. I have no doubt that she faced many difficulties in her appointment, but she seized them robustly, she took no prisoners, and she undoubtedly improved the system. I hope that the members of the House of Commons Defence Committee, who I know took a keen interest in her work, will agree with my assessment of the great work she did, and that we will sorely miss her.

I also think I speak on behalf of everybody—and if I do not, I will be intervened on, no doubt—when I say that we have an excellent replacement in Nicola Williams, who will be our first service complaints ombudsman. She, too, is an outstanding individual and, if I may say so, an outstanding woman.

--- Later in debate ---

[Mr Jones]

rose—

[Mrs Moon]

rose—

[Anna Soubry]

I was going to take the hon. Lady’s intervention, but if the two of them are going to fight, I will take the hon. Gentleman’s intervention.

[Anna Soubry]

I am grateful for the factual explanation that has been given.

[Mrs Moon]

The Minister has set out clearly that where complaints come to the commissioner and she begins to see thematic things happening, she can go to the chain of command. She can go the Secretary of State and she can highlight that, but during the entire time the Service Complaints Commissioner for the Armed Forces has been in post, the Secretary of State, having had those reports, has had the power to ask for an investigation and has never done so. That is why we need the Secretary of State to pass those powers to the ombudsman, so that she can investigate.

[Anna Soubry]

I am struggling to have much sympathy with that argument, because it is certainly my experience that allegations are taken extremely seriously by the Secretary of State, and indeed by any other Minister in the Ministry of Defence. It is also my experience of the service chiefs, notably the new head of the Army—the new Chief of the General Staff—that on issues of bullying, harassment and the role of women and any discrimination against women, they are extremely rigorous. In every conversation and meeting I have ever had with the Chief of the General Staff, even when I might have wanted to talk about one or two matters as well as the role of women, he has insisted that we speak about that, such is his determination to eradicate harassment, bullying and sexual discrimination in the Army. We have seen a huge sea change, and it is to be welcomed, not criticised.

--- Later in debate ---

[Mr Jones]

I am glad to see that the dinosaur tendency of the Conservative party is still alive and kicking on the Back Benches. Exactly the same arguments were made against the introduction of the armed forces complaints commissioner. This is not about making the training or the discipline less rigorous; it is about behaviour that is totally unacceptable. The hon. Gentleman should read Lord Justice Blake’s report and the Select Committee report that went alongside it to see whether he can justify some of the things that went wrong then. I accept that, as the Minister says, things have moved a long way since then, but the type of behaviour that we saw was not acceptable then and is not acceptable now.

[Mrs Moon]

The argument that has just been articulated—that somehow the armed forces are different and separate—may be part of the reason why so few Members are present in the Chamber. There is a feeling that that is so. The reality is that the law is set by this House. This House sets the rules and the legislation under which the armed forces operate, and long may that last. That is how a democracy works. The service chain of command must accept that.

[Mr Jones]

I agree with my hon. Friend. We are making progress by changing the attitudes of some of the old and the bold in the Conservative party and changing the culture among the senior management of all three services, who accept as a fact of life that bullying, harassment and sexual discrimination are not acceptable in our armed forces and will not be tolerated. The Minister is right that the present chiefs, as I know them, take a zero-tolerance view of such behaviour, and this will support them in ensuring that it does not happen.

--- Later in debate ---

[Mrs Madeleine Moon (Bridgend) (Lab)]

It is a great pleasure to follow my friend the right hon. Member for North East Hampshire (Mr Arbuthnot), who made a calm, measured contribution, and who showed amazing leadership as Chair of the Select Committee on Defence. As a new member of the Committee, I certainly found he set the tone for our many deliberations, and he had, I must admit, a calming effect on some of my more vociferous opinions. The House will miss him for his dedication, his belief in public service and his belief in the defence of the United Kingdom.

This Bill, and this day, have been a long time in coming. A whole decade has passed since the Deepcut review by Nicholas Blake QC and the Defence Committee’s “Duty of Care” report, both of which recommended the establishment of a service complaints ombudsman. In that report, the Committee found that the resolution of complaints was slow and may not always be perceived as accessible and fair.

Much has been said and done during the decade of piecemeal reform, but the underlying inadequacy of the system remains unaltered. In 2008 the newly established Service Complaints Commissioner, Dr Susan Atkins—I will not add to the praise heaped on her for her work, because enough has been said, but I totally endorse every word that has been said—said in her first annual report that while progress had been made, “performance is generally poor”. In 2009 she said the system was not working “efficiently, effectively or fairly.” She reported the same thing in 2010, 2011, 2012 and in 2013. In that report she said:

“Since the role of Service Complaints Commissioner was established in 2008, she has not been able to report to the Secretary of State that the Service complaints system operates efficiently, effectively or fairly. This has been because of a lack of confidence in the system, unreasonable delays in the resolution of complaints and a lack of accurate data on how complaints are handled.”

If this Bill does not tackle those complaints, we are wasting our time. Dr Atkins’s seventh and final report is due in the next few weeks, and I think it is relatively safe to assume that the pattern is not going to be broken. This Bill must change that pattern.

The commissioner has pinpointed three main problems. First, there is a

“lack of confidence in the system”

from the very people it is designed to help. In the latest report, the commissioner points out:

“Service personnel have a low level of confidence in the current system which does not offer all complainants the assurance of an independent person overseeing their complaint outside the chain of command in any effective way.”

This low and decreasing level of confidence that personnel have in the system can be seen in the armed forces continuous attitudes survey, which shows dissatisfaction increasing in relation to the time taken, being kept informed, and support from assisting officers. For example, the survey asked those who said they did believe they had been the subject of discrimination, harassment or bullying in the last 12 months why they had not made a formal complaint. The reasons given included,

“I did not believe anything would be done if I did complain”—

54%—

“I believed it might adversely affect my career or workplace”—

53%—

“I was worried that there would be recriminations from the perpetrators”

—30%—and

“I did not want to go through the complaints procedure”—

23%.

The commissioner also points to a “lack of accurate data”. In last year’s report the commissioner found that the data provided by the Army and the RAF contained a number of serious gaps and inconsistencies. Only the naval service was able to provide her with confidence in the accuracy of the data it was providing. That is fairly shocking in the days of electronic data. The inaccuracy of the data coming from the Army was particularly alarming, with the commissioner drawing attention to the Army’s failure accurately to record allegations of indirect discrimination. For an organisation as committed to ensuring diversity and inclusion as the Army, the loss of this crucial data is distressing. As the commissioner points out, these elementary recording failures not only undermine confidence in the efficiency of the system but hamper the shared aim to use

“Service complaint data, together with data on discipline and administrative action, plus information from Service Inquiries, to identify areas and units which have problems and which may affect operational performance.”

Thirdly—this is by far most important point—the commissioner highlights the chronic delays that riddle this system from beginning to end. Delay is by far the biggest and most corrosive problem. It exacerbates, and in part helps explain, the two previous problems.

The evidence on the extent of delay in the system is damning. In 2013, aware that they had this problem of chronic delay, the MOD and the services agreed to meet a time limit of 24 weeks to resolve at least 90% of their complaints, and any complaint not dealt with in 24 weeks would be “red flagged”. So there was a recognition that there was a problem, and a solution, thanks to the work of Dr Atkins, was put in place.

In 2013, however, only 25% of cases

“were resolved within the 24-week target”,

and:

“Only 26% of complaints made in 2013 were closed during the year.”

In January 2013, 325 complaints had a “red flag”. By December 2013 this had swelled by over 50% to 500 complaints.

One need only look at the case of Parachuter Lance Corporal Tom Neathway to see the harm delay can do, and not only to the lives of our armed forces personnel. His story also stands as a textbook example of the structural flaws that any future system must avoid.

In July 2008, Corporal Neathway, while serving in Helmand, lost both his legs and an arm when a booby-trapped sandbag exploded beneath him. Over the next three years—not 24 weeks, but three years—through sheer guts and determination and with the support of the armed forces, Corporal Neathway rebuilt his life and his career, and I pay tribute to that because the work the armed forces have done with seriously injured personnel is amazing. His story became a case study of how injured personnel can recover and overcome their injuries: he took part in the Olympic torch relay in 2012 and starred in the BBC series “Wounded”, showing the fantastic work done with our injured personnel. Sadly, however, in 2011, while at the parachute training support unit at RAF Brize Norton, where he had been based since returning to work in 2009, he was subjected to increasingly serious bullying by Regimental Sergeant Major Alistair Hutcheson, who at one point told the triple amputee:

“You’re not much of a paratrooper any more”.

Corporal Neathway did the right thing: he lodged a complaint to seek redress against an instance of bullying. That the complaints system failed him is an understatement. He had to endure a three-year ordeal in the search for justice from the British Army, facing a series of unacceptable delays that held him up every step of the way. When Corporal Neathway finally secured justice at the service complaints panel in October last year, the verdict was damning. The panel found definitively that the initial investigation by his commanding officer, Major John Chetty, constituted a professional failing. His questioning of witnesses was wholly inappropriate, and a review, by Brigadier Greville Bibby, which held up Corporal Neathway’s search for redress, was also discredited, with the Brigadier leaving the Army. As Corporal Neathway has said, the Army

“had to be dragged kicking and screaming to an oral hearing. They had told so many lies and finally it all unfolded”.

I am unfortunately someone who is often contacted by people when the system fails, so the Minister knows—we have discussed this many times—that I perhaps have a jaundiced view. I tend to hear from the people who are failed by the system. I do not dispute that the system works for some people, but I regularly hear from people who face similar failures to the one that Corporal Neathway experienced. To hold someone in a complaints system for three years is shameful—

[Anna Soubry]

indicated assent.

[Mrs Moon]

I am glad to see that the Minister agrees with me. There are dozens, perhaps hundreds, of people in situations like Corporal Neathway’s who have not been so lucky—

[Anna Soubry]

I know that it is not normal for a Minister to intervene, but I wanted to say that we are as one on this. The case of Corporal Neathway was shameful and disgraceful. I hope that the hon. Lady will take my word that at no time did I ever say that he was not being wholly honest in his complaint. I wrote to him in October offering to meet him, and I hope that he will take up that offer.

The hon. Lady and I both look forward to a speedy inquiry—an overarching inquiry—into what was a shameful incident.

[Mrs Moon]

I thank the Minister for her intervention. I know that she said earlier that she would not intervene on Back Benchers, but I have no objection to her intervening. We have had many a robust exchange in the time we have worked together and I have always enjoyed them. I have no objection to robust exchanges because at bottom we have the same conviction—that the best system for the armed forces must and will be put in place. We might disagree about how we get there, but we agree that we have total commitment to ensuring that the men and women of the armed forces will be protected from bullying, harassment and discrimination, and that those involved in such behaviour will be sought out and punished.

Corporal Neathway was in some ways fortunate in that he had the attention of the media and he had contacts, but service personnel noted that it took that to get justice. They too feel the impact of the incredible lethargy in extreme cases such as Corporal Neathway’s, which can stretch far beyond 24 weeks into hundreds of weeks. The Minister knows that I have received complaints from several people who had given up on their service complaints and left the armed forces, because the delay compounded their punishment. They felt that the delay was used as a way to force them out, to make them and their complaint disappear. That compounds their distress. They had given their lives to their country, but when they were the victims, they were told that they were the problem and to get out. That is unacceptable and the system cannot allow that to continue.

In the 2012 armed forces continuous attitude survey, 46% of respondents reported dissatisfaction with the time taken to process a complaint, with only 39% satisfied. In 2013, that had worsened to 66% dissatisfied. The Minister knows of another area in which I have taken an extreme interest. In January 2013, an article in The Times revealed that some 1,400 soldiers in the British Army had been illegally disciplined over three years, between November 2008 and September 2011. That happened because in November 2008 a change in the Rehabilitation of Offenders Act 1974 meant that police cautions were from then on to be considered spent the second they were issued. The Army thought it had an exemption from the Act and continued to punish personnel who received cautions. It only caught up with the change in the law in 2011. It stopped the practice, but that left unresolved the question of what to do with the 1,400 personnel who, over the course of the two years, had received some form of administrative action following a caution. One policy brief revealed that at least 58 personnel had been dismissed from the services as a result of this double jeopardy. They should have received no punishment at all, but at least 58 had been dismissed from the services.

After much presumed handwringing and discussion, the MOD came to the conclusion that it would do nothing. A British Army policy briefing from November 2011 suggested:

“The longer we take no action the fewer the ‘in time’ complaints about other sanctions there will be. MOD policy may be not to accept out of time complaints on this issue.”

It is now February 2015—

[Anna Soubry]

Will the hon. Lady give way?

[Mrs Moon]

If the Minister will tell me that we have finally reached a decision about what we will do about the injustice to those 1,400 people, I will happily give way.

[Anna Soubry]

The hon. Lady makes, as ever, a good point. I have decided that the right thing to do is to write to all those affected—about 1,500 people—so that they are aware of the position. They will be reminded of the service complaints process which is available to them if they believe that they have been wronged in any way. Notices will also be placed in all the usual places, such as websites and some magazines. I can only apologise for the fact that it has taken us so long to get to where we are today. It has been complex, but we have got it right now and we are committed to making sure that we move forward as quickly as possible. I thank the hon. Lady for giving way.

[Mrs Moon]

I will give way as many times as the Minister wants if she brings me such good news every time. I am absolutely delighted that justice will finally be done.

[Mr Arbuthnot]

I cannot remember hearing a victory such as that announced in the Chamber, so I congratulate the hon. Member for Bridgend (Mrs Moon) who has been pursuing this matter for many years. I should also point out the value of having a lawyer in a ministerial role.

[Mrs Moon]

I thank the right hon. Gentleman for his compliment: he is very kind, as always.

I am delighted by that change of heart. I was especially concerned because there had actually been service complaints on this issue, but they had been stayed so that people could not proceed with them. The complainants were told that until the Department decided what it would do, their complaints could not proceed. A service complaints process in which complaints can be stayed for four years is unacceptable. That is why one of the amendments that the Defence Committee was eager to ensure was in place was that a person’s knowledge that they had suffered an injustice was not a reason for saying that a complaint was out of time. The Committee also wanted to ensure that delays, such as the staying of complaints, would not be acceptable and could be seen as maladministration even during the process of the investigation. I am delighted to hear the statement that the Minister has just made.

I shall turn now to the changes proposed in the Bill. The introduction of the ombudsman is a landmark reform and it is most welcome, as are the powers to overturn the rejection of complaints applications and appeal applications. The rationalisation of the complaints process, including placing a limit on the number of appeals, is a common-sense approach.

The Bill has many positive aspects, but the Minister will not be surprised to hear that I think it could go further. The ombudsman’s new powers to investigate allegations of maladministration are welcome. These are significant new powers which, if implemented properly, could allow the ombudsman to root out bad practice, inefficiencies and injustice in the complaints process, to everyone’s benefit. However, during the Defence Committee’s scrutiny of the Bill, we revealed possible confusion surrounding the extent and nature of the power, and I hope that the Minister will be able to clarify that in her closing remarks, if not now.

There seems to be disagreement between what the Minister understood and what the commissioner felt was a real step-change for service personnel. The commissioner told the Committee that proposed new section 340H did not match the policy that had been agreed with the Ministry, and that it risked undermining what the Minister hoped to achieve from the provision. Proposed new section 340H(4) states:

“The purpose of an investigation is to decide…whether the alleged maladministration has occurred”.

The commissioner and the Defence Select Committee are concerned that the wording, “whether the alleged maladministration has occurred”, is too restrictive.

The commissioner suggested, and the Committee agrees, that the Bill should be amended to make it explicit that the ombudsman could investigate and report on any maladministration in the handling of a service complaint, and we have suggested amendments to that end, listed in amendment group D in the annex of our report. In their response to the Committee report the Government dismissed this on the ground that it:

“would require the Ombudsman to look for any maladministration in every case”.

I thought that that was the whole point. The Minister is looking at me quizzically. Are we on the same ground here, or is there disagreement?

[Anna Soubry]

This is a classic example of us both wanting the same outcome, but there is a question of how we should achieve it. I am grateful to my hon. Friend the Member for Penrith and The Border (Rory Stewart), who chairs the Select Committee, because we have already discussed this matter with officials this afternoon. We believe that our changes to the regulations will achieve what we want—namely, that if the ombudsman feels that she has discovered further maladministration, she would nevertheless go back to the complainant to ensure that they were content for her to investigate it, rather than taking a blanket approach. The hon. Lady will understand that an individual might not want a particular matter to be pursued, for all manner of reasons. I am happy to discuss this with her after the debate, to see whether I can satisfy her. The point is that we want the same thing; there is just the question of whether we achieve it on the face of the Bill or in the regulations.

[Mrs Moon]

Again, we seem to have made progress and I hope that we can all agree on this point. I look forward to discussing it further with the Minister and getting clarification.

Anything that streamlines the process is to be welcomed, as is anything that opens up an opportunity for greater investigation of maladministration. The Minister and I agree that maladministration is unacceptable, no matter how or why it occurs. In cases of chronic delay, such as those of Corporal Neathway and of the four service personnel in the police cautions case mentioned earlier, the ombudsman must have the ability to intervene when the delay in handling the case has become egregious. For example, if a complaint has taken twice as long as the Ministry of Defence’s self-imposed time limit of 24 weeks, it seems reasonable that the ombudsman should be able to clarify why that delay is happening and intervene and declare it a case of maladministration.

This brings me to another amendment that the Defence Select Committee has proposed, to ensure that the powers of the ombudsman are sound, reasonable, and beneficial. Perhaps the Minister has already made some changes in this respect. The ombudsman should have the authority to undertake, at her own discretion, thematic reviews into the working of the complaints system. In our report, the Committee emphasised the positive benefit that this small but significant reform could bring, not only to individual complainants but to Ministers and the chain of command. Our report states:

“Rather than undermining it, the identification and resolution of these matters would increase confidence in the chain of command...and could contribute to identifying potential areas to be improved in the MOD’s and the chain of command’s responsibility of a duty of care towards Service personnel.”

That proposal has the backing of the Royal British Legion, with the Legion’s director general Dr Chris Simpkins powerfully pointing out:

“The problems at Deepcut could have been picked up much earlier if an Ombudsman had had the power to initiate their own inquiry. This is not an outlandish request, as the Canadian Armed Forces Ombudsman has long had the power to start thematic inquiries”.

The Equality and Human Rights Commission backs the idea, stating that it will

“support the Defence Committee’s view that the Bill should state expressly that the Ombudsman can undertake thematic reviews.”

Liberty also supports the amendment, as did Labour and Liberal Democrat peers during the Bill’s consideration in another place. The current complaints commissioner supports the principle, saying that there are benefits in the

“Ombudsmen using their broad view of the organisations that they oversee to do research and produce thematic reports so that lessons can be learned about the issues behind complaints within a particular area”.

The Government’s objections to the amendment, outlined by Lord Astor on Third Reading, seem to boil down to a concern that it could result in the ombudsman morphing into some kind of inspectorate or rapporteur for the armed forces, and that resources and time would be diverted from the ombudsman’s primary role. Affording the ombudsman the freedom to report to the Secretary of State on a matter of importance when the ombudsman considers it appropriate does not a revolution make. It is a common-sense, reasoned expansion of the powers with which the Ombudsman will be entrusted. The MOD’s fears that as a result of this minor power the ombudsman would become a vigilante investigator are simply unfounded, and stand in contrast to the amount of respect and responsibility with which the office has been entrusted in many other areas of the Bill.

Delay is the enemy. It is the root of the problems in the current system and it is a blight that needs to be eradicated. The amendments will help the ombudsman and the armed forces to build a better complaints system. Doing so will bolster confidence in the system and in the chain of command. It is hard to see why the Government, who are making so many pioneering reforms in the Bill, are unwilling to accept the Defence Committee’s major changes and recommendations.

The fight to establish a complaints system that is fit for purpose for our armed forces has been long and hard. We do not want to wait for a further crisis or tragedy before acting. To paraphrase Corporal Neathway, the Government and the chain of command have to be dragged kicking and screaming towards reform. The concerns of the heads of the armed forces are well known. The chain of command must remain pre-eminent and cannot be compromised, and their aversion to ceding too much control over the complaints process is obvious. However it is Parliament, the legislature, that manages and reforms the armed forces. It was Parliament that created the commissioner and is creating the ombudsman, and it is here in Parliament that those institutions should be held to account. The delays, the maladministration and the problems within the system must be resolved, and we must work together to ensure that the Bill does exactly that.