Armed Forces (Service Complaints and Financial Assistance) Bill

Rory Stewart Excerpts

Monday 2nd February 2015 Commons Chamber

[Anna Soubry]

I disagree with my right hon. Friend’s interpretation of Dr Atkins’s views. Obviously, I have seen the Select Committee’s excellent report. I may be wrong—I am quite happy to be corrected if I am—but I do not think she said that we should go as far as thematic reviews.

[Rory Stewart (Penrith and The Border) (Con)]

As a point of information, I spoke to Dr Susan Atkins this morning and she was very clear that she believes that thematic reviews should be conducted.

[Anna Soubry]

So that is her view now. With great respect to Dr Atkins, I do not agree with her and I will—

--- Later in debate ---

[Mr Jones]

All I will say to the hon. Gentleman is that he should read the report of the debate we had when the Service Complaints Commissioner was introduced, because this is not about interfering in the chain of command. The present commissioner has done a very good job of highlighting the delays in the processes, particularly in the Army. Anyone who deals with complaints, whether in industry, local government or anywhere else, knows that it is better to resolve a matter quickly, rather than leaving it for a long period. The present commissioner has certainly been highly critical. When we look at some of the cases set out in the last report, we have to ask ourselves why on earth they took so long. They could have been resolved quite quickly, which would have not only improved the Army’s reputation for dealing with such matters but given the complainants satisfaction.

[Rory Stewart]

To address the comment made by my hon. Friend the Member for South Dorset (Richard Drax), and also the public, who are not necessarily focused on the details, perhaps it is worth clarifying that military discipline is exempt from the things that the Service Complaints Commissioner looks at. In other words, the commissioner is not set up to deal with questions of military discipline, which remain exempt. That is quite important for the operation of this law.

[Mr Jones]

I agree with the hon. Gentleman. Certainly, the armed forces Act—I cannot remember which one, having dealt with so many over the years—helped by streamlining the three service Acts, because there had previously been a lot of inconsistency across the three services. I think things are now much clearer, especially as we now have joint operations, so the equal and correct interpretation of military law, rather than the silo system we had previously, with three different service Acts, has helped.

Ultimately, we are asking servicemen and women to do very dangerous things on our behalf—I am not suggesting for one minute that the Service Complaints Commissioner should be on the front line telling generals what they should and should not do—but that does not mean that the general things that we and the current service chiefs certainly accept should be best practice in the three services should not be scrutinised and that there should not be support for individuals who find that the high standards that we all expect are not being met.

--- Later in debate ---

[Mr James Arbuthnot (North East Hampshire) (Con)]

This is probably the last defence debate in which I shall speak.

It is good that the subject is the introduction of a service complaints ombudsman, because the Defence Committee has been making points about that issue steadily since before I became a member in 2005. As far as I know, the only person who has been a member of the Committee since the beginning of the campaign for the establishment of a Service Complaints Commissioner —which was followed by the campaign for the appointment of an ombudsman—is the hon. Member for Merthyr Tydfil and Rhymney (Mr Havard), who, like me, will stand down as a Member of Parliament in a couple of months. He will leave a gaping hole in the Defence Committee and in the defence community, and I pay tribute to him.

I also pay tribute to the rest of the Committee, and to the amazingly dedicated and talented staff and advisers who support it. Under the chairmanship of my hon. Friend the Member for Penrith and The Border (Rory Stewart)—and I must say that I am delighted with my successor—it has continued to pursue the matter of the need for an ombudsman, and has produced a most thought-provoking and useful report on the Bill.

I agree with some of the Committee’s recommendations. I listened to the passionate and thorough argument advanced by my hon. Friend the Minister about the ombudsman’s ability to investigate thematic issues, and, on balance, I think that I still disagree with her, although she slightly destabilised my views. I think that she is wrong to rely too much on the idea that the ombudsman would be doing someone else’s job. Given all her expertise and access, the ombudsman might be able to add something helpful by producing a report. From time to time, such a report might be a cause of some discomfort in the Ministry of Defence, but an ombudsman is not there to be comfortable; an ombudsman is there to right injustice, and to be a catalyst for improvement.

However, I am not sure that I agree with all the Committee’s recommendations. I say that with complete diffidence, not having sat in on its evidence sessions. I do not entirely share its view that the ombudsman’s recommendations should be binding on the Defence Council. That position would differ from the position relating to the local government ombudsman, in an area that is even more sensitive because of concerns about the chain of command. On the whole, I agree with the Service Complaints Commissioner, who says that the Bill contains several “reasonable compromises”.

The big picture, I think, is this. For more than a decade, the Defence Committee has been pressing for the replacement of the commissioner by an ombudsman, and, over time, it has won both the argument and the battle. I congratulate it on that, but I also congratulate Ministers on listening to the Committee. I especially congratulate my hon. Friend the Minister. Last year, she took the unusual step of delaying the appointment of a successor to the excellent Dr Atkins, because, among other things, she wanted to be sure that we were all getting the right person. She and other Ministers have taken the matter truly seriously. They have taken the Defence Committee seriously, and they have overcome resistance in the chain of command.

Talking of the chain of command, I well remember Dr Atkins telling the Committee:

“Some of the Service Chiefs said they didn’t quite understand what an ombudsman did, but they were sure they didn’t want one.”

It was because of the quality of Dr Atkins’s work that she was able to persuade the service chiefs that an ombudsman would in the long run be beneficial. All I can say about her replacement, whom I have not met, is that they have my sympathy because Dr Atkins will be a hard act to follow.

[Rory Stewart]

On a point of clarification, the courts have ruled that the findings of the ombudsman in a case of maladministration and particular injustice will be binding on the Defence Council. The disagreement is simply about whether that should be in the Bill. I am interested in whether my right hon. Friend is opposed to the idea that the findings be binding, or should that be in the Bill?

[Mr Arbuthnot]

I spoke earlier of my diffidence. I think I should move into full retreat and just carry on with my speech because my hon. Friend already knows far more about that than I do, and I pay tribute to him again.

I want to change the subject slightly. I have only a page and a half left of my notes. I hope that I can have a little indulgence. Dr Susan Atkins stood up for the men and women of our armed forces as they came under real strain. They have fought overseas, in conflicts not really understood or supported by their countrymen back home, when warfare is changing, technology is evolving, stability is crumbling and new threats are arising on a monthly basis. Against that background, at the NATO summit, which the UK hosted, we set out to persuade other European countries of the imperative of doing what NATO agreed only in 2006—that each country should spend at least 2% of its GDP on defence. How right we were to argue that. How important it is that, as the world becomes less safe, we do what we can to increase our security and reduce our reliance on others, particularly the United States. So it comes as a real shock that this country appears to be drifting towards an election with not one single party committed to spending 2% of GDP on defence. As the economy recovers, defence must share in that recovery.

--- Later in debate ---

[Rory Stewart (Penrith and The Border) (Con)]

I will try to speak quite briefly. I pay a huge tribute to everyone involved for the way that this debate has been conducted. There has been a very good debate in the House of Lords, some very serious work by the Defence Committee since 2005 and the contribution of my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot). In particular, I wish to pay tribute to the hon. Member for Bridgend (Mrs Moon) who has put an enormous amount of energy, thought and focus into getting these very specific amendments in place.

Broadly speaking, the Defence Committee is very positively disposed towards the Bill, as it reflects its work since 2005 and is a huge improvement even on where we were in 2008. The commissioner has gone from being a three-day-a-week job to a full-time job, and gone from having nine staff to 20 staff. The scope and the powers of the ombudsman will be massively expanded, and all of that is good. However, there is a “but”, and it is that “but” on which we want to focus for a brief moment.

We are not, I hope, being pedantic. It is an important point because this is an unbelievably complex area of legislation. It is easy for people to turn up and try to suggest that the way that the armed forces are treated should be the same as the way that civilians are treated. Clearly, the contexts are completely different. Military discipline is very different from civilian discipline. Many of the criminal Acts that apply to military personnel simply do not apply to civilian personnel. Military personnel live under completely different conditions from civilian personnel in terms of their housing, health, non-union status, 24/7 jobs, and risk to life and limb, all of which put an incredible onus on the Defence Committee and on the Government to get this kind of ombudsman right.

The problems that we have had from the start of this debate are twofold. First, there has been a very strong degree of abstraction. Understandably, people have been very reluctant to talk about concrete examples. When taking testimony in the Defence Committee, it was very striking that almost nobody mentioned the Deepcut case. Much of the conversation around this matter is taking place in a vacuum without people using individual examples. The second problem has been a very comfortable consensus. We have a strange situation in which, when we were taking testimony, there was very little push-back from the chain of command and from Ministers, but now we find that the Committee’s recommendations are not being accepted, and we have no clear sense of why that is. The oddity is that there is a basic disagreement between liberty and the chain of command, but that disagreement is not really brought out in public, which is another reason why this Chamber seems to be so empty.

When we have private conversations with people, we realise that the disagreement is really profound. In a private conversation, some human rights lawyers will say that they disapprove of the entire military system and that things that can happen to military personnel would not be acceptable for civilian personnel. Equally, outside this Chamber in private conversations, we might hear retired generals in the House of Lords rejecting the idea of the ombudsman completely. Curiously, in the case of the Committee testimony, there was very much a push towards consensus that papered over some fundamental principled disagreements.

The five principles that the Committee focused on are: independence, flexibility, the scope of the ombudsman, the power of the ombudsman and the transparency of the ombudsman’s findings. On independence, the Defence Committee suggested that nobody who had been a member of the armed forces within the previous five years would be suitable for appointment; that the term of appointment should be between five and seven years, as three years was too short for someone to get their feet under the desk and really understand the job; and that the job should not be liable for reappointment. That is standard practice for such a role around the world. If somebody is up for reappointment, the tendency would be for them to pull their punches in order to get their job back.

On flexibility, we put a big focus on ensuring that there was more flexibility around timelines and procedural control. On scope, we pushed to ensure that any maladministration, the substance of the complaint and thematic issues could be addressed. Power has been another important point. What is going to be the power and how binding will those recommendations be? We went back and forth on that matter with my distinguished predecessor, my right hon. Friend the Member for North East Hampshire. Finally, there is the issue of transparency, confidentiality and whether or not the Government can use national security to make the findings of the ombudsman confidential.

The odd position that the Defence Committee finds itself in is that the Government have said to us that, basically, they agree with almost everything that we say. In line after line in response to our recommendations, the Ministry of Defence comes back and says, “We agree, we agree, we agree, but we do not believe that this should be in the Bill.” Looking through the eight amendments proposed by the Defence Committee, there seems to be only one with which the Government have any in-principle disagreement, and that is on the question of thematic investigation. Government seem to be comfortable with the other seven.

Why is it then that the Government seem to agree with seven out of eight recommendations, but are not prepared to put them in the Bill? The answer appears to be that the Government believe that putting these things in the Bill would be over-prescriptive. Indeed the Government are attempting to elevate to a grand point of principle the idea that legislation should not be over-prescriptive. The Defence Committee respectfully argues back that those grand points of principle about what should or should not be prescriptive in legislation are marginal, if not irrelevant, to the specific Bill under consideration. One role on which we should be explicit is that of an ombudsman. The Government should put in the Bill the basic terms of independence.

There is no time here to go through every one of those eight recommendations, but let us take as an example the question of independence. The Defence Committee has stipulated that we believe that the person should be appointed on a non-renewable term for five to seven years, and that they should not have served in the armed forces in the previous five years. The Government accept those recommendations but will not put them in the Bill. Why not? Apparently, because they think it would be over-prescriptive to do so. However, this should be an easy concession for the Government to make. To have the point clearly stated would reassure the public and reinforce the credibility and independence of the ombudsman. In fact, not putting it in the Bill seems to be based on a very abstract and theoretical notion.

Our eight recommendations should be taken seriously because, bluntly, the Defence Committee is an elected Committee of the House of Commons. It is disappointing that, out of eight recommendations made by the Committee, the Government have inserted in the Bill not seven or five of them but none. No amendments went through in the House of Lords and no amendments appear to be proposed at this stage. Given that we are moving into a world where we have elected Committees, where we want these Committees to play a more active role and where every member of those Committees is elected, we would expect the Government to respond, at least in part, to the Committee’s recommendations, if for no other reason—this relates to the Geneva processes on the setting up of an ombudsman—than that we should follow the proper process of inclusion of stakeholders. The first Geneva principle is the inclusion of Parliament in this process. Even if the Government seem to have deep theoretical objections to the independence of the ombudsman, we believe that in this case, purely for procedural reasons, they should listen to the Defence Committee.

In conclusion, Parliament has been deeply involved in setting the rules for the military from the very beginning. It tightened up the articles of war in the 1660s and again in the mid-18th century. It loosened those articles of war in 1776, and it did so again after the first world war and in the 1950s and 2006. That is exactly the sort of thing that Parliament should be doing.

To get this right—and this is a very good opportunity for Britain to do so—we must do it in a way that is honest to our history, confident about the conceptual disagreements, and clear and precise about resolving the reality of the military justice system with the concerns of the rights community. That sounds jargony, but what I mean is that we need to be really clear that the military is different from civilian institutions. Various military criminal offences—such as mutiny, desertion and conduct prejudicial to good order and discipline—do not exist in civilian life. At the same time, however, the right not to be bullied or harassed, as well as other rights, must be protected. Finally, if the Government can find a way of incorporating the Defence Committee’s recommendations, Britain has an opportunity to set a model for the world.

This has been a good process for the House of Lords and the Committee and because of the inclusion of Dr Susan Atkins. It has been a particularly good process because of the amount of energy the hon. Member for Bridgend has devoted to it from the beginning. Let us finish the process with as much positive spirit as we began it. I ask the Government to show some flexibility in their response to the independence, flexibility, scope, power and transparency of the ombudsman, as set out by the Defence Committee.