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

John Bercow Excerpts

Monday 9th March 2015 Commons Chamber

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

I beg to move amendment 24, page 1, line 9, leave out “is”

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 25, page 1, leave out line 10 and insert—

“(a) has been a member of the regular or reserve forces in the last five years ending with the day on which the appointment is to take effect, or”

Amendment 26, page 1, line 11, after “(b)”, insert “is”

Amendment 27, page 1, line 13, at end add—

“(4A) (a) The period for which a person is appointed shall be not less than five years and not more than seven years.

(b) A person who has been appointed as Ombudsman may not be re-appointed to the office.”

Amendment 28, in clause 2, page 3, line 15, at end insert—

“(5A) Before making regulations under this section the Defence Council must consult the Service Complaints Ombudsman.”

Amendment 23, page 5, line 15, at end insert—

“(2A) Regulations made under section 340E(1)(b) must specify that in relation to any service complaint which includes allegations of discrimination, harassment, or of being victimised as a result of making such allegations—

(a) where a person is appointed by the Defence Council for the purposes of section 340C(1)(a) or 340D(2)(d) that person must have a proven understanding of discrimination and harassment;

(b) where a panel is appointed by the Defence Council for the purposes of section 340C(1)(a) or 340D(2)(d) at least one member of the panel must have a proven understanding of discrimination and harassment.”

This amendment would require that any regulations made by the Secretary of State must specify that the person, or at least one of the panel members, involved in dealing with Service complaints involving allegations of discrimination or harassment should have a proven understanding of discrimination and harassment.

Amendment 29, page 7, line 32, leave out subsection (2).

Amendment 30, page 7, line 34, leave out from “subject to subsection (2),”

Amendment 31, page 7, line 39, leave out subsection (5).

Amendment 32, page 9, line 25, leave out paragraph (c) and insert—

“(c) provision for the imposition on those to whom reports are sent of obligations of confidentiality in the interests of—

(i) national security; or

(ii) the safety of any person.”

Amendment 33, page 9, line 30, at end insert—

“(aa) accept the findings and recommendations of the Service Complaints Ombudsman.”

Amendment 34, page 9, line 32, leave out “(if any)”

Amendment 35, page 9, leave out lines 35 to 37.

Amendment 36, page 12, line 14, at end add—

“( ) The Ombudsman may report to the Secretary of State on any matter relating to service complaints and the procedure for the handling of service complaints as the Ombudsman considers appropriate.”

[Rory Stewart]

These very important amendments were tabled by the Defence Committee. We shall not press them to a vote, but we want to explain crisply and clearly why we believe them to be very important. They focus above all on four things: the independence, freedom, power and scope of the ombudsman. I shall briefly go through each of the amendments in turn.

The principle on which the Defence Committee has acted is the need to get the balance right with regard to the very particular needs of military law and military discipline, which we accept are completely different from those in the civilian sphere. The kinds of things that soldiers are required to do are quite different from those required by a conventional employer. It is not necessary to lay those differences out in detail, but military discipline and military law have been quite different from civilian law in a series of important respects for 400 years.

It is important that, along with preserving the independence of the military and of military discipline and military law, we ensure that the ombudsman is genuinely trusted and respected. The first ingredient of that is, of course, the ombudsman’s independence and making sure there are no conflicts of interest, which is what the first set of amendments in this group—amendments 24 to 27—seek to ensure. They would make sure that the individual had not been in the military—either in the regular or the reserves—in the previous five years. That conflict of interest is obvious, so it is not worth trying the House’s patience. Put simply, if someone had been a senior general a month before they became the ombudsman, there would be a potential conflict of interest in the relationships they might have developed, so we think that a five year gap is sensible.

The second ingredient, which is in amendment 27, is to push for the term to be non-renewable. That is also about having no conflicts of interest: as the ombudsman do their job, they should not be perpetually thinking about how to get the job again. Our focus is on ensuring that they do the job clearly and crisply, without worrying about whether they will be reappointed—that is independence.

The second set of amendments, Nos. 28 to 32, deals with the freedom of the ombudsman. The Committee is pushing to ensure that the Ministry of Defence and the Defence Council do not put regulations or procedures in the way of the defence ombudsman or the Service Complaints Commissioner for the Armed Forces that prevent them from doing their job. We are trying to ensure that although the Ministry of Defence can set the parameters within which the ombudsman operates, it is not in a position to micromanage individual procedures. We believe that the Ministry of Defence should consult the ombudsman on regulations. Finally, on the question of power, we do not believe that the Ministry of Defence should be able to use confidentiality as a reason for denying access to the ombudsman, except in two particular cases: the personal safety of the individual and national security. Except in those cases, the ombudsman should have the scope to pursue an investigation.

The third conceptual issue for the Committee is about the power of the ombudsman. In amendments 33 to 35, we argue that the ombudsman’s recommendations should be binding on the Defence Council. The final conceptual issue is about scope, and amendment 36 touches on thematic reviews. In other words, should the ombudsman find a systemic issue—say, repeated examples of bullying—it may think it necessary to conduct a thematic review of the broader issues.

The Committee will not press the amendments to a vote because the Government have so far addressed them in a constructive fashion. We very much welcome the fact that they have accepted our major amendment to allow the ombudsman to look not simply at maladministration but at the substance of cases. We note that the Government, in appointing Nicola Williams, have already taken into account in practice many of the recommendations that the Committee wanted. We note that in the contract negotiations with her the Government have already ensured that the ombudsman appointed has not been in the armed forces during the previous five years—in fact, Nicola Williams has never been in the armed forces—which deals with our amendments 24 to 26. We note that the Government have said that the appointment will be non-renewable, which is our amendment 27. In practice, the appointment deals with the conflict of interests problem, and we understand that the Government will set out measures in regulations to deal with our anxieties about freedom, power and scope.

However, the Committee will of course watch the Government’s performance on such issues very carefully. Given that the Government do not want to agree to the amendments, that they assure us we can trust them and say that we should look at the precedent set by the appointment of Nicola Williams, and that they will introduce individual regulations to achieve all the measures that the Committee want, we will watch them very carefully. The Committee reserves the right to reintroduce the amendments, particularly in the Armed Forces Bill to be introduced in the next Parliament, if we believe the Government have reneged on what at the moment appears to be a commitment made in good faith, to ensure that the ombudsman’s principles are upheld.

--- Later in debate ---

[Rory Stewart]

I reiterate what the Defence Committee said, which is that the amendments are extremely important conceptual points relating to the independence of the ombudsman and conflict of interest; the power of the ombudsman; the freedom of the ombudsman to operate; and the scope of the ombudsman. We will not press the amendment to a vote at this time. That is a good will gesture to the Government, who have made a concession on an important amendment.

I also wish to take this opportunity to pay tribute to the hon. Member for Bridgend (Mrs Moon), who has been the guiding spirit and soul of this process from the beginning to the end. She has kept the Defence Committee focused and she has kept it honest. I hope that she feels a real sense of achievement at having got through this extremely important amendment.

[Mr Speaker]

For the avoidance of doubt, if the hon. Gentleman could just say the words that he seeks leave to withdraw the amendment.

[Rory Stewart]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2

Reform of System for Redress of individual Grievances

[Anna Soubry]

I beg to move amendment 1, page 6, line 28, after “may”, insert “, on an application to the Ombudsman by a person within subsection (1A),”

This amendment clarifies the provision made in new section 340H(1) of the Armed Forces Act 2006 (inserted by clause 2 of the Bill) about the making of applications to the Service Complaints Ombudsman. See also amendment 5.

[Mr Speaker]

With this it will be convenient to discuss the following:

Government amendments 2 to 6

Amendment 22, page 6, line 37 at end insert—

“() for the purposes of subsection (1)(c)—

“Undue delay” should be considered any length of time longer than one calendar year, or a length of time that the Ombudsman determines constitutes an undue delay in relation to a given complaint.”

This amendment defines “undue delay” for the purposes of paragraph (c) of new section 340H(1) of the Armed Forces Act 2006 (see Government amendment 4).

Government amendments 7 to 21

[Anna Soubry]

The amendments make the changes to the Bill agreed in Committee and ensure that they work correctly from a drafting point of view. I do not mean to insult or to criticise anyone, but we had to ensure that these amendments had the effect that the majority of the Committee wanted. I also want to make it clear that the Government accept the changes made in Committee and that nothing in these amendments seeks to row back on what the Committee agreed. I hope that hon. Members will accept that, because I have seen all the key players—I now see that my hon. Friend the Member for Beckenham (Bob Stewart) is sitting at the back. He might take offence at that, but I hope that he does not. We have done that quite deliberately so that everybody knows why the amendments have been proposed. They fill in significant gaps left by the amendments agreed in Committee and, in particular, ensure that the ombudsman can make recommendations following an investigation into a service complaint, giving her decisions the necessary teeth.

The amendments agreed in Committee reflect some of the recommendations made by the Defence Committee in its report on the Bill, which was published last October. I am grateful for the Defence Committee’s work on the Bill and it is clear that the changes agreed in Committee now have cross-party support, as they did in the Defence Committee. The Government have listened to the arguments made in Committee and by others on Second Reading and have accepted them. I therefore hope that the amendments will be supported across the House.

The Public Bill Committee agreed that the role of the ombudsman should be extended in three ways. The first was that the ombudsman should be allowed to look at the substance or merits of an individual complaint and not just whether it had been handled correctly by the services. In other words, she should be able to consider not just maladministration. The second was that the ombudsman should look for any maladministration that had occurred, not just that alleged by the complainant. If during the course of examining that complaint she comes across any other maladministration, she should be able to consider that.

Those are changes to the ombudsman’s remit, but it is important to emphasise a point that has sometimes been lost in our debates. The ombudsman will ordinarily become involved in individual complaints only once the consideration of them by the services has finished. It is important to reiterate that if an individual makes a complaint it should go through all the necessary stages and processes and if there is no finding in the complainant’s favour, meaning that he or she feels that the grievance has not been met—that they have not won, if you like—they can go to the ombudsman. If complaints are successfully dealt with by the services, there is no need for those complaints to go to the ombudsman. Most complaints are satisfactorily resolved, as one might imagine they would be in any complaints system.

It is important to make a point because the third change agreed in Committee is to allow the ombudsman to investigate allegations of undue delay, as I said to the hon. Member for Strangford (Jim Shannon) earlier, in three different respects: as part of a maladministration investigation, in relation to an ongoing “live” complaint, and pre-complaint. As I am sure you have worked out, Mr Speaker, I mean that when somebody has made a complaint that has got stuck and has not been got on with, even though it has not been completed, that person can go to the ombudsman. Even before a complaint has got into the system, if it is thought that there has been some prevarication or undue delay, the complainant can go to the ombudsman to unstick whatever is gluing things up.

It is in everyone’s interests to have a complaints process in which roles and powers are clear so that there is no confusion. It is also important that the wishes of the individual remain at the heart of the process, given that this is an individual’s grievance procedure. It is about that individual and his or her grievance. It remains the case that the services will in every case still be left to decide how to respond to any findings or recommendations made by the ombudsman, even in relation to the extended remit that the ombudsman will now have.

We have dealt with the amendments made in Committee with those points firmly in mind and the Government’s amendments today make the necessary additional changes to the rest of the Bill’s provisions, which were left untouched by the amendments in Committee, so that there can be no doubt about the precise scope of the ombudsman’s powers. That is why proposed new section 340H(1), as amended by our amendments, will set out in good strong terms that the ombudsman can investigate the following: a service complaint when that complaint has completed the internal system, making it clear that the ombudsman can look into the merits of a complaint; an allegation of a mishandling of service complaints, including undue delay, when that complaint has completed the internal system, which deals with maladministration; and allegations that a service complaint has been unduly delayed before the complaint has completed the internal system or, as I have explained, that there was undue delay before a service complaint was made.

--- Later in debate ---

[Anna Soubry]

I beg to move, That the Bill be now read the Third time.

I thank the members of the Public Bill Committee, who did an excellent job of ensuring that the issues covered by the Bill were thoroughly looked at. The service complaints system is not one of which many Members of this House have first-hand experience. It is therefore to the credit of the members of the Committee that they quickly grasped the key issues behind the Bill. I am very grateful for the contributions that were made from both sides.

In particular, I thank the hon. Member for Bridgend (Mrs Moon) for her involvement in these issues over a number of years. She played a key role in Committee and our debates this afternoon, and I know she feels strongly about the issues she raises. I commend her for her tenacity and for the passion with which she makes her case. I am delighted that she will continue to pursue all those matters and to scrutinise the Bill should it have the good fortune of reaching the statute book. She will not give up on her campaign to ensure that things are done properly by all those who serve in our armed forces, and the Bill is undoubtedly better because of her involvement.

I also thank the hon. Member for North Durham (Mr Jones). There is some rivalry between us, because we went to opposing schools—although not at the same time; he is much younger than I am. I like to think that that is the reason for some of our rivalry in our discourse in the House and Committee. He has approached these matters in a constructive and knowledgeable way. I wish to emphasise that, because he speaks on the basis of knowledge having served as a Defence Minister, and he therefore knows what he is talking about even if we do not always agree. He has done much to ensure that the Bill has been properly scrutinised, which is important in these proceedings.

I thank the Defence Committee and its Chair, my hon. Friend the Member for Penrith and The Border (Rory Stewart). He is no longer in his place, but I am sure he is about somewhere and hopefully he will read this debate. The Committee produced an excellent and detailed report on the Bill last year, which has done much to focus our debates on the most significant issues. I am delighted that my hon. Friend has made it clear that his Committee will continue to do the job that it has been doing over a number of years, to ensure that we have a good, fair, robust complaints system in the way we have identified. In that respect we are absolutely in agreement.

The Bill does two important things: it improves the system for handling service complaints, and—we seem to have forgotten this because it is not contentious, although it is incredibly important—it ensures that we can provide funding anywhere in the world to organisations, notably our great military charities, that support our armed forces community. It is clear from debates on the Bill that there is general agreement about the need to reform the services complaints system, and we all agree on the importance of having a system that is fair, effective, swift when it has to be, and efficient.

Having a robust complaints system is a key part of maintaining morale and therefore ensuring operational effectiveness—a happy crew, ship, team or whatever will work better. That is pretty obvious; unfortunately, it is not always obvious to some, although I hope it will be from now on. It is not a “nice to have” but an essential part of the covenant between our society and those who are willing to lay down their lives to defend it.

As I said, clause 4 has attracted less interest because it is not contentious, although it is important. It will allow us to support organisations that help our armed forces community anywhere in the world, which we all agree is a good thing. The amendments will mean that the proposed service complaints ombudsman will have a wider role than first envisaged. He or she will be able to look at the substance of complaints and at any maladministration in the way it has been handled, not just that alleged by the complainant. The ombudsman will also be able to investigate allegations of undue delay at earlier stages in the process, whether or not a complaint has been made, and that is a good thing.

I will not pretend that this is what the Government initially wanted, but we have listened to arguments from all sides and we have accepted them. I emphasise that on balance I believe that the changes have left us with a stronger and more robust system of oversight with more protections for the individual. The Bill now delivers the right complaints system for our servicemen and women, and on that basis I commend it to the House.

[Mr Speaker]

I call Mr Kevan Jones: Portland school, as opposed to Hartland school, but both rejoicing in their being in or close to Worksop.