Armed Forces (Service Complaints and Financial Assistance) Bill [Lords]: 9th March 2015

The Minister of State, Ministry of Defence (Anna Soubry)
I pay tribute to the Defence Committee for its work, and to my hon. Friend the Member for Penrith and The Border (Rory Stewart) for his sensible comments. I also pay tribute to the hon. Member for Bridgend (Mrs Moon) for her long-standing work, and thank her for her contribution today. I am afraid I cannot thank her for everything, because she came to see me last week and gave me part of her very filthy cold; but, as ever, she spoke with great force, and rightly made it clear—as did my hon. Friend the Member for Penrith and The Border—that Members would be watching the ombudsman’s progress very carefully.

While I am confident that the hon. Lady and my hon. Friend will be back here on 10 May, I do not necessarily have the same confidence in my own return. However, I can tell them that, should I be in such a fortunate position thanks to the support of the people of Broxtowe, I too will be keeping an eye on the progress of the ombudsman, regardless of the Bench on which I find myself sitting. Of course, in an ideal world the ombudsman would not have to do any work at all. Would it not be marvellous if she had no work to do? Unfortunately, however, she will have a great deal of work to do, because we have a system that, as we know, is not performing as it should be.

When I had the great pleasure of visiting Northern Ireland and meeting my hon. Friend—as I now consider him to be—the Member for Strangford (Jim Shannon), we spoke about the Bill and about the complaints system. He reminded me earlier today of the genuine concern that he feels about delay. Under the existing system, we hear all too often from members of all three services that there is too much delay, and that there is no excuse for it.

There are sometimes good reasons for delay. It is in the nature of service life that it may not be possible to find a witness—or even a complainant—for some time, because members of the armed forces may be on operations for at least six months. Someone who is serving on a submarine will be literally out of contact for those ​six months, or longer. Delay may also be caused by the complexity of a case, especially if it relates to allowances or pensions. However, all too often it is clearly due to the attitude that is taken. Complainants may be told, “I am very busy. I have a lot of other things on my plate. We are putting together a group of people to build a hospital in Sierra Leone. It is a crisis. It is an emergency and it is not going to wait, but your complaint can wait.”

We must change that attitude. A good, expeditious system will deliver justice. I know many people fear that false complaints will be lodged, but an effective system will ensure that only right and just complaints are dealt with, and people will then begin to have confidence in the system.

Jim Shannon
I thank the Minister for accepting what we said in Committee, and for responding to it so positively. We felt that the delays were untenable and unfair, and were creating problems. Does the Minister think that the new system will enable people to have confidence in it, and to believe that, at long last, the delays will be reduced and they will be helped to secure the satisfaction that they seek?

Anna Soubry
I believe that if the Bill passes through all its remaining stages, of which there are not too many, and if we extend the remit of Nicola Williams, in whom we all have confidence, to create the role of the ombudsman—following the passing of amendments in Committee that the Government did not oppose—the system will be hugely improved, and people will have more confidence in it. It also sends out a very clear message to our armed forces that they have got to sharpen up now and absolutely make sure that when somebody makes a complaint, whether it is a more serious and more appalling bullying and harassment complaint—which mercifully are rare; we know there is nothing peculiar about our armed forces that means we have more such complaints than other professions or fields of work—or complaints about allowances or pay or whatever, it is taken seriously and is acted upon not only fairly and justly, but with all due diligence and expeditiously, so we do not have these delays.

Sir Bob Russell
Does the hon. Lady agree that what we are talking about this evening is a continuation of the good work done by the last two Governments through their respective Armed Forces Bills—the hon. Member for North Durham (Mr Jones) and I are, I think, the only two Members who served on both occasions?

Anna Soubry
Yes, I do. Both the hon. Member for North Durham and my hon. Friend the Member for Penrith and The Border have said that we have seen a progression to where we are today, and we must understand and recognise that some think this is a step too far. They think we have gone too far and perceive some threat to the chain of command. I absolutely do not believe that, but things often take time to develop in the ways we want. I am absolutely confident that we have struck the right balance.

Rory Stewart
The question of whether this is a fundamental threat to the chain of command is a central point. Although people are very polite and do not put ​this about, I know a lot of colleagues and people in the armed forces are concerned that this is going too far. Will the Minister lay out more clearly why this is not a threat to the chain of command?

Anna Soubry
This Bill—it has now been amended and we have accepted the amendments—changes the ombudsman’s remit but not her powers. Somebody who brings a complaint to Nicola Williams can be absolutely confident that it will be thoroughly and properly dealt with, and that she will be in a position to make her recommendations. She has access to Ministers and to others in the chain of command, and can go to them at any time. That chain of command is not under threat because of her. Indeed, I am confident that the creation of the ombudsman will give the chain of command the understanding—the hon. Member for Bridgend or the hon. Member for North Durham made this point—that it has nothing to fear from the ombudsman, nor from a better system, because if complaints are dealt with properly and expeditiously, and fairly and justly, we will have a better team and group of people. This will only strengthen the chain of command’s ability to conduct its business.
 
Bob Stewart (Beckenham) (Con)
Although we have heard a lot about complaints, may I put it on the record that the chain of command deals very properly with most of the problems in the units for which it has responsibility and that we are talking about only a relatively small percentage of people? I just wanted to make that point, because all we have heard is complaints, complaints, complaints. There are not many complaints from the vast number of people who are dealt with properly by the officers in charge of them.

Anna Soubry
I am very grateful to my hon. Friend for making that point. I thought I had made it, but there is no harm in his repeating and endorsing it. Of course the majority serve without any complaint, but sometimes, as my hon. Friend knows, in any organisation there are bad apples, and even in a modern world there are times when people are undoubtedly bullied, and are undoubtedly the subject of discrimination and harassment; there are times when we get it wrong. The hon. Member for Bridgend knows of a very good example of not bullying or harassment but what she called double jeopardy, where something has been done wrong. That may well be to the detriment of certain people, in which case they are right to raise that complaint and we need good, strong systems. No organisation gets things 100% right, and when they go wrong people must have confidence that their complaint will be dealt with fairly and justly, and that if it is not they can go somewhere else—to the ombudsman, in this instance. Now that we have agreed to the amendments tabled in Committee, it will not only be maladministration that can be taken into account. The merits of the case and the matter of delay will also be considered.

I know that we are not going to vote on the amendments, but I should like to tell the House why the Government resist them. Amendment 23 would require anyone appointed to decide on a complaint or on an appeal that related to harassment, discrimination or victimisation to have a proven understanding of such matters. We all acknowledge ​that these can be among the more complex complaints, as they involve relationships that have gone wrong in one way or another. However, no record is or could reasonably be kept of those who may have an understanding of such matters so that they could be called upon when required, as the amendment proposes. I understand the principle behind the amendment, and there is no doubt that it is entirely well intentioned, but I cannot agree to it—certainly at this stage—for the reasons I have just stated.

Amendments 24 to 26 would require there to be a gap of five years between a person ending their service in the regular or reserve forces and becoming eligible to be appointed to the post of service complaints ombudsman. The provision in the Bill simply requires that the individual to be appointed to the post should not currently be a member of the regular or reserve forces or of the civil service. Our people will rightly expect the ombudsman to carry out the role with impartiality and professionalism. That person should also of course be demonstrably independent of those whom they seek to hold to account for the way in which complaints have been handled. For that reason, the ombudsman will be outside the chain of command and will have access to Ministers and to all levels of the chain of command whenever he or she deems it necessary. I make no apology for repeating that the ombudsman will be able to approach the chain of command and Ministers at any time, at any level and on any issue, should they need to do so.

Being in offices that are outside the defence estate and recruiting their own staff in line with civil service recruitment guidelines will further reinforce the ombudsman’s independence from the services and from the Ministry of Defence. A further mark of the role’s independence and the security of the post holder’s tenure is the fact that the Bill provides that the post holder’s appointment will be subject to approval by Her Majesty the Queen. Yet another measure of their independence is that the House of Commons Defence Committee will conduct a pre-appointment hearing with the MOD’s preferred candidate.

Our aim is to attract high quality candidates and to get the best person for this important job. These amendments would restrict the field of possible candidates and exclude those who might have recent, relevant experience. We want therefore to retain the flexibility provided under the Bill’s current provisions, and I must stress that any previous armed forces experience can and will be scrutinised and fully assessed for any impact it might have on perceptions of the candidate’s independence. For those reasons, these proposals are resisted.

Amendment 27 would require the length of the ombudsman’s term in office, and a statement that it was non-renewable, to be set out in the legislation. It would require that the ombudsman not be appointed for fewer than five years or longer than seven, and that the term could not be renewed. The amendment’s aim is to ensure that the person appointed to be the ombudsman would not be influenced in their assessment of how the complaints system was operating or, in their investigation of maladministration claims, by concerns about whether they would be reappointed. It also aims to give the ombudsman, and those whom they serve, some certainty about the length of time they would be in post and to ​make that term of office a reasonable enough length for the post holder to get to grips with the role and to see through changes.

I fully acknowledge all those aims, but I do not accept that those provisions need to be set out on the face of the Bill in order for those matters to be enforced or to give certainty and confidence. The matters have been set out in the letter of appointment for the current commissioner, and we believe that to be the right approach. We want to retain the flexibility to amend those terms of appointment if experience suggests that that might be necessary. The amendment is therefore resisted.

Amendments 29 to 31 would remove the Secretary of State’s power to make regulations about the ombudsman’s procedure for investigations in new section 340I, leaving it to the ombudsman to determine its own procedure. The Secretary of State is responsible to Parliament for the effective operation of the whole service complaints system, including the ombudsman stage, so it is right that certain basic matters are prescribed in regulations. One or two matters, such as time limits, are required to be in regulations in order for the ombudsman to be able to enforce them. The ombudsman is a creature of statute and so only has the powers Parliament provides him or her with. It is up to the ombudsman in each case to determine the procedure for carrying out any investigation. The published draft Armed Forces (Service Complaints Ombudsman Investigations) regulations make it clear that there is no intention unduly to restrict the ombudsman in how it investigates matters. Rather than restrict the ombudsman, we encourage the ombudsman to set her own details of procedural rules. The Secretary of State’s powers through regulations are supplementing powers, rather than limiting ones, in that they enable the ombudsman to have the powers she requires to be effective.

We do believe that some of those details are best set out in regulations, making clear the parameters for the ombudsman’s investigative process. Those include, for example, the ability to hold oral hearings and to provide individuals with the right to be represented at any such hearing. As this is a new ombudsman, we would like to retain the flexibility—again—to amend the procedures based on experience of the system as it develops, which is why we have not set out detailed procedural rules in the Bill. That flexibility enables the system to be more efficient, effective and independent. For those reasons, these amendments are resisted.

Amendment 32 would amend the Bill so that confidentiality obligations that could be imposed by the ombudsman on those to whom she sends investigation reports would be limited to issues of national security and the personal safety of individuals. The amendment would remove the ability to reflect any wider issues about the protection of sensitive information that is currently provided for in the Bill and in regulations. That current provision is important and should be retained. The ombudsman may need to see some sensitive information in order to be able fully to investigate whether maladministration has occurred. The ombudsman will be expected to act in accordance with the Data Protection Act 1998 in the handling and processing of personal data.

Under the Bill, the ombudsman may send an investigation report to any person she considers appropriate. We would expect the ombudsman to place confidentiality obligations on the recipient where the report contains sensitive personal data or other information confidential to the Department, including for reasons of national security. In addition, regulations may make further provision about these obligations, as specified in new section 340L(7)(c). These regulations are not aimed at curtailing freedom of speech; rather they are to ensure that sensitive information is properly protected. For those reasons, amendment 32 is resisted.

Amendments 33 to 35 seek to make the ombudsman’s findings and recommendations binding on the Defence Council. The Government have made clear in the other place and in Committee in this House their intention that the findings of the ombudsman will be binding on the Defence Council, and the services accept this. The legal effect of ombudsman findings is not specified in other legislation, and the courts have had no difficulty in determining, in those contexts, that they are binding on the receiving organisation. We simply do not regard it as necessary to specify the legal effect of findings in the Bill.

Our position in relation to the ombudsman’s recommendations is slightly different. First, as was explained in the other place and again in Committee in this House, our view is that the recommendations will clearly have some legal effect. The Defence Council will not be free simply to reject the recommendations because it disagrees with them. It would need to have very good, cogent, written reasons to do so, such as where the implementation of the recommendations in full was simply unworkable or where significant resource implications may be involved. It is right that the Defence Council should be able to reach the final decision on matters covered in any recommendations made by the ombudsman. The focus of the Defence Council will therefore be, in most cases where the ombudsman has made recommendations, to decide precisely how it will respond. That may simply be a matter of implementing the recommendation, whether it is for an appropriate apology to be made or for a part of the process to be rerun. For those reasons, the legal effect of findings and recommendations will not be specified in the Bill, and these amendments must be resisted.

Amendment 36 widens the scope of matters on which the ombudsman can make a report beyond those already provided for in the ombudsman’s annual report. They are the operation of the complaints process, the execution of their role and any other matters that the ombudsman considers necessary, or that the Secretary of State may direct. The existing provisions at proposed new section 340O are sufficient to cover what the amendment seeks to provide, and for that reason I must resist it.

I wish now to deal with the questions of the hon. Member for Bridgend. In relation to outstanding complaints to be dealt with under the new system, I hope that she will be pleased to hear that we are still looking to put in place transitional arrangements. We are not ruling the matter out on the grounds of retrospection, but we recognise that there would be a benefit in existing complaints having access to the ombudsman; we get that. Our plans will be clear in the regulations, which will be published later on this year.

On the question about reserves, we are already making sensible use of reservists in the existing process. The Army and the RAF already use reservist officers to complement complaint panels, and there is no reason why that should not continue. As is ever the case with reservists, they bring from their civilian life huge amounts of experience. That other side of their life will no doubt enhance their ability to look at complaints with a different eye and a bit of freshness that others sitting on panels may not have—I mean no criticism here—by virtue of being in service for a long time.

As I have said before during the passage of the Bill, there is no bar in this Bill to the ombudsman raising matters that concern them with whoever they wish and whenever they wish, but that does not need to be set out in legislation. The previous service complaints commissioner, Dr Susan Atkins—we pay tribute to her for her work—raised a wide range of matters with the chain of command during her tenure, and, if I can put it in this way, she took no prisoners. She also made mention of whatever matters she so chose to in her annual reports with provisions that were the same as those provided for in this Bill, so we have no reason to think that the ombudsman will not do exactly the same. For all the reasons that I have outlined, these amendments are resisted.

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.

Bob Stewart
Do I assume that if the Service Complaints Commissioner looks at a matter and says that there is no case to answer, it can finish there, rather than there being a long process? Can the commissioner say, “There is no case to answer; this matter is finished”?

Anna Soubry
If somebody says that there has been undue delay, but the commissioner finds that there has not, she can certainly say so, though at that stage, of course, she would not be looking at the merits of the case. If somebody makes a complaint and goes through the system, and there is no finding in their favour, and then says, “I will now go to the ombudsman on the question of the merits of the case”, it is absolutely the ombudsman’s role to look at whether there is any merit ​to the case. If she thinks that there is no merit to it, she will not flinch from saying so. I hope that satisfies my hon. Friend.

It is now possible to apply to the ombudsman alleging undue delay when a complaint in the internal system has not been concluded, or indeed when a complaint has not even been made, so it is important that the Bill sets out for the avoidance of doubt what is meant by the internal process having been completed. That is effected by putting the phrase “finally determined” in proposed new section 340H(1); an explanation of the term is provided in proposed new subsection (5). Several hon. Members raised that issue with me before the debate in private—I mean nothing untoward by that. I want to make it clear for the Hansard record that the phrase “finally determined” does not in any way preclude the ombudsman’s looking into the merits or maladministration of a complaint. It is simply there to make it clear that she can do that only once consideration of the complaint by the services through the internal system has been completed, and only when the applicant has asked the ombudsman to investigate in accordance with the requirements of the Bill. The phrase brings clarity.

It remains important for the ombudsman to have a reasonably clear idea of what the applicant wants them to look into, and for investigations to remain focused and proportionate. One of the amendments would insert a new subsection (4)(b) in section 340H, requiring the applicant to specify which type or types of investigation the complainant wants the ombudsman to carry out. This is not an onerous obligation, and it will help to focus the efforts of the ombudsman on what is most important to the applicant. That is connected with the amendment that would insert new subsection (1)(b) in new section 340I, giving the ombudsman the discretion to decide whether to investigate the whole service complaint or allegation, or just part of it.

New section 340H also reflects the change to the ombudsman’s ability to report on any maladministration identified during an investigation of a complainant’s allegation of maladministration. We want the ombudsman to be free to report on any other aspect of mishandling that she may come across, and have amended the Bill accordingly to make this clear throughout the relevant provisions. Our changes provide an essential clarification to the amendments agreed in Committee; those amendments would have required the ombudsman to look for any maladministration in every investigation, whether or not it had been alleged by the complainant. The amendment that we propose to new section 340H(6) clarifies the scope of this new aspect of the ombudsman’s investigative power.

It is equally important for everyone that it is clear what the ombudsman can do on completing an investigation. Her ability to produce a report with findings and recommendations is fundamental to the view that many will rightly have about whether this new role really does have teeth. The Government amendments will also fill a gap that was left when amendments were made in Committee. We would amend new section 340L to make it clear that the ombudsman must, after carrying out an investigation, prepare a report setting out her findings and recommendations. After an investigation of a service complaint, the ombudsman will need to issue findings stating whether the complaint was well founded, and will need to make any recommendations ​to ensure appropriate redress. The Defence Council retains responsibility for responding to those findings and recommendations, in accordance with new section 340M. The Government amendments also clarify that the ombudsman must set out any recommendations as a result of a finding of maladministration or undue delay.

This group of amendments is a relatively large one, but it is necessary to ensure that the provisions of the Bill are clear. The amendments also ensure that the drafting is coherent and complete, while giving full effect to the amendments agreed to in Committee, which had cross-party support. In a couple of important respects, which I have outlined, they also improve the amendments which were agreed to in Committee.

We could have been, shall I say, a little bit naughty. When we saw what had been voted for, we could have left it there, knowing that it did not do the job that we knew the Committee wanted it to do. We accordingly went to our draftsmen and draftswomen and we have made sure that the spirit of the Committee is now being put into law.

Rory Stewart
Without being too pedantic or too pompous at this point, there is an important procedural point here when we discuss being naughty or otherwise. There is an important conceptual element in setting up an ombudsman, which is showing respect to Parliament, respect to the Committee system—respect to both the Bill Committee and the Select Committee. Rather than getting into the ins and outs of politics, I encourage the Minister to see this as a great success and a great model for the way such things can go forward in the future.

Anna Soubry
I think the hon. Gentleman misunderstands me. We could have played politics, but I absolutely was not going to do that. My officials would not dream of such a thing, of course, but we could have done that because the amendments were not clear. I took the firm view that it was clear what the Committee wanted and that we should do everything we could to put it into effect. There was a good argument for waiting until the next armed forces Bill, but I took the view that that would not be right. It was clear what the Defence Committee wanted and what the Public Bill Committee wanted. That is why the Government have tabled the amendments. We know that that is, in effect, the will of the legislature. I am pleased to see my hon. Friend the Member for Penrith and The Border (Rory Stewart) nodding.

The amendments will give us a Bill and a process that will help our people understand when they can approach the ombudsman, on what matters and at what stage of the process, and they will give the ombudsman the teeth needed to hold the services and the MOD to account. I therefore commend amendments 1 to 21 to the House.

Mrs Moon
Amendment 22, which is in my name, seeks to define “undue delay”. I pay respect to the Minister, who has taken time to meet everyone involved with the Bill. We had considerable discussion on the issue of undue delay and how it could be defined, and we agreed that, although I would not press the amendment today, it was important that there was a dialogue about delay.​

There are two things that one can say for certain about the current complaints system: delay is an endemic problem within the system, and everyone is aware of it. It came to the attention of the Committee many times that only 25% of cases are resolved within a 24-week target, and only 26% of complaints made in 2013 were closed during that year. The internal risk register looking at the implementation of the service ombudsman Bill within the MOD stated that there was a high risk that the system would lose further internal credibility if there was continuing media exposure of how powerless the ombudsman is. Rather than media exposure taking place, it is important that the system operates well so that there can be internal confidence.

There is a high risk that the system will continue to fail and that current delays will continue. There is a high risk that service personnel will be let down, damaging their mental health and leading to suicide attempts. None of us wants to see any of that, which is why the Defence Committee has worked as closely as possibly with the Minister to ensure that we move forward in a constructive and productive manner.

In January 2013, 325 complaints had a red flag. By December 2013 that figure had swelled by over 50% to 500. We have seen repeatedly how delay has been used to wear down complainants so that they go away. It is also used as a punishment for complaints being made in the first place.

Members have raised concerns about this being an attack on the chain of command. Let me say that, since the Bill Committee, I have taken time—I have spoken to the Minister about this—to talk to people in the chain of command and to ask them how they feel about the changes introduced by the Defence Committee. Every person I have spoken to has welcomed the changes and not felt threatened by them. They all felt that the changes were right and that they would focus people’s minds and attentions on complaints so that they are not put in a cupboard and regarded as an annoyance, but are seen as one of the parts of the job to be dealt with first, so that the unit operates efficiently and effectively. The bad pennies that exist would be dealt with quickly and a clear message would be sent that bullying and harassment, in particular, would not be tolerated anywhere in the chain of command.

Delay is caused in part by the labyrinthine system that was initially set up by the Ministry to process complaints. In his evidence to the Defence Committee, retired Lieutenant Colonel Jeremy Field railed against the masses of paperwork involved. The abuse of process by those in the chain of command either to propel a dubious complaint or to hold up a legitimate but inconvenient one is also a worrisome cause of delay. Such abuses can have a devastating impact on individual complainants and on their mental health and well-being. When such cases come into the public domain, the system and confidence in it are undermined.

I raised the case of Tom Neathway on Second Reading and in Committee. Another concerning case that I would like to mention briefly is that of Sergeant Major Michael Booley, who was Prince Harry’s flying instructor. He accused the Army of gross mistreatment after a four-year dispute that ended his distinguished career. When reading about the case, it is very worrying to see that the service complaints panel found that Major Graham, who Sergeant Major Booley claimed had been ​acting deliberately and maliciously against him, was an unreliable witness and that his conduct not only wronged the complainant, but acted against the interests of his employers in the Army. I think that that is the big issue. Where there is bullying and harassment, it is against the interests of the Army, the RAF or the Navy. We must always keep that central to our thinking and our focus when looking at complaints. That is why the changes set out today are so important.

I think that it is important to have some sort of definition of undue delay, but I accept that it might not necessarily need to be in the Bill, or even in regulations. It can be something that the ombudsman sets out herself when setting out the definitions that will guide her judgments. I therefore hope that the Minister will consider and discuss with the ombudsman how we can move that forward.

Mr Kevan Jones
I give the Minister 10 out of 10 for her brass neck, because these amendments were tabled subsequent to her losing the vote in Committee, and the Government do not want to press them to a vote tonight for fear that she might lose again. The amendments are consequential to the major change that took place in Committee, namely that to the nature of the ombudsman. What the Minister originally proposed was a dry institution that would have dealt only with maladministration, but the ombudsman’s role has now been opened up to cover a wider range of complaints. I have been arguing for that for a long time, and the Defence Committee also argued effectively for it in its report.

The Minister said that she could have left out the amendments, but, knowing her civil servants as I do, I do not think they would have thought highly of her if she had attempted to put through legislation that was not appropriately drafted, or if the amendments that were made in Committee resulted in bad law. Based on my experience, I think they would have taken a very dim view of the Minister if she had not tabled the amendments.

These amendments clarify the two major amendments that changed the nature of the Bill in Committee. Government amendments 1 to 6 make it clear that the ombudsman can only investigate a complaint received from an applicant, and they also address the issue of delays. One of the major frustrations for many of those who have made a complaint is that they have faced delays. My hon. Friend the Member for Bridgend (Mrs Moon) has championed their rights, and she and the Defence Committee have highlighted their concerns. I think that the amendments will lead to a change in culture, particularly in the Army. The length of delays in some cases has frankly been ridiculous and that, as my hon. Friend has said, has caused huge grief to some individuals. The amendments may speed up the process and mean that some of the complaints will not end up before the service complaints ombudsman.

Amendments 7 to 15 ensure that it needs to be specified whether an investigation relates to maladministration, a service complaint or another type of complaint. They also make it clear that an investigation should recommend redress in cases of maladministration or delay. The ombudsman will be allowed to investigate any maladministration, not just that which is being complained about. The hon. Member for Penrith and The Border (Rory Stewart) and his Committee wanted the ombudsman ​to have those wider powers. I therefore welcome the amendments, which will put into effect the amendments we agreed in Committee.

The amendments will also allow the ombudsman to decide whether to investigate service complaints as a whole or whether to look at only part of a complaint. The hon. Member for Beckenham (Bob Stewart) asked about frivolous and vexatious cases, but the ombudsman will strike out those that will not go anywhere. The amendments put in place ground rules similar to those that are already in place for the local government ombudsman and the parliamentary ombudsman, whereby we expect the internal processes to be exhaustive in themselves. The amendments will help address cases that are unduly delayed, as highlighted by my hon. Friend the Member for Bridgend.

I have a great deal of sympathy with my hon. Friend’s amendment 22, but it is really difficult to define what is meant by a delay. The amendment would clarify that a delay meant longer than a year or any length of time that the ombudsman thought appropriate. I know why she has tabled it and it is good to discuss it, but I would prefer the matter to be left to the ombudsman.

A very simple issue should be dealt with very quickly—in a matter of weeks or months—so even if we specified one year, we would ask why it had taken so long. However, I understand the spirit behind my hon. Friend’s amendment. As I have said, the overall framework means that the Army will look at the way it deals with service complaints. In local government and other areas, performance indicators mean that deadlines for internal disciplinary procedures have to be met. I hope that such a culture will be driven within the armed forces to ensure that complaints are dealt with quickly and expeditiously, although I accept that in some cases investigations may take a long time, not only because of the complexity of the complaint but because of the nature of armed forces operations.

We support the Government amendments, which give credence to the amendment made in Committee. The recommendations for redress are covered in amendments 16 to 21. Findings on maladministration and the ombudsman’s recommendations will be brought forward within a certain time, which will give some comfort to many members of the armed forces who deal with these issues. If the internal chain of command takes an undue time over what should be a simple inquiry, they will know that there is another avenue available. The ombudsman may well need to highlight some of the complaints to the chain of command to ensure that the logjam in such cases is dealt with more quickly. I support the amendments to ensure that we have a system that will not only address the issue of undue delays, but, as we have hoped for a number of years, provide an ombudsman whose remit is wider than just maladministration.

Anna Soubry
I must say that I thought I had been rather gracious in defeat, so it was a little churlish of the hon. Member for North Durham (Mr Jones)—[Interruption.] He shouts louder than I do from a sedentary position. I have to say that it is to the coalition’s credit that all we are doing in the Bill, with the creation of the ombudsman, has been done in just over four years, while the Labour party did not do it in 13 years.

I want to address amendment 22. I know it is an awful expression, but the hon. Member for Bridgend (Mrs Moon) and I are absolutely on the same page. ​We know that undue delays are the absolute devil of any system. It is not a widespread problem, as my hon. Friend the Member for Beckenham (Bob Stewart), who has moved to a different place, has quite clearly and properly said, but when it happens, it is a real problem. The attitude is, “Oh, let’s prevaricate. Let’s put up some device. They’ll just go away, or they’ll give up in the end.” We must stop such an attitude, so I completely and totally understand what the hon. Lady is seeking to do. In that respect we are absolutely at one, but not on how we achieve it. I obviously accept the good intentions behind amendment 22, but I shall it because it is not the device to achieve what we both want.

The time taken in progressing a complaint can be affected by any number of events, such as illness, deployment, which I have mentioned, and training. Sometimes the complainant shows a lack of interest, even though the complaint is valued and should be pursued. A complainant might decide not to pursue it for a period but then come back to it, or they might not be going to pursue it and then realise that they should do so for reasons that we can imagine, but often because others have given them support. Of course, the need to find relevant information can also delay things.

It is important for all concerned that no strict definition is applied. If one were, it might deter worthy cases from being raised or constrain the ombudsman’s discretion as to what is in scope. I am one who looks for discretion as opposed to fixed, determined dates or targets. It should be for the ombudsman to set out guidance on what individuals might need to consider if they believe that they have suffered undue delay in progressing their complaint.

This is not a matter for legislation. Putting the advice in the ombudsman’s guidance will ensure that there is the necessary flexibility to adapt it to reflect real experiences. With some complaints, undue delay might be six or nine months. We need that flexibility. That is why it is right to leave it to the ombudsman to set out her—or, in time, his—guidance.

Mrs Moon
To use the horrible expression that the hon. Lady used, we are on the same page. As of 26 January 2015, 1,033 complaints that had been open since 2013 were still unresolved. We are on the same page in that neither of us wants to see that continue. Let us hope that the ombudsman finds a way to deal with such undue delays.

Anna Soubry
Absolutely. I hope that the hon. Lady is comforted by the fact that we are looking at whether the complaints that are already in the system can be brought into the new system. I imagine that long delay is a matter that we will want to bring to the ombudsman’s attention. Again, it all depends on the nature of the complaint and what the circumstances are. The Second Sea Lord, Sir David Steel, made the point to me that he had seen some cases in the Navy that were huge because they were about complicated allowances and so on and so forth.

However, it struck me that the cases that the hon. Lady referred to were not particularly complicated. Those delays were absolutely unacceptable. It is often the person-to-person complaints or grievances that must ​be dealt with expeditiously. That is in everybody’s interests, not just the complainant’s. The person against whom the complaint is made also wants determination and justice. Not every complaint is well founded; there are cases in which false allegations are made. It is therefore in the interests of the person against whom the complaint is made that it is dealt with fairly, justly and with all due diligence and expedition.

For all the reasons that I have given, I resist amendment 22 and urge everyone to accept the other amendments.

Amendment 1 agreed to.

Amendments made: 2, page 6, line 29, after “complaint”, insert

“, where the Ombudsman is satisfied that the complaint has been finally determined”.

This amendment makes a drafting change in consequence of amendment 9. It clarifies that the Service Complaints Ombudsman may not investigate a service complaint unless satisfied that the complaint has been finally determined.

Amendment 3, page 6, line 31, leave out from “complaint” to end of line 32 and insert

“(including an allegation of undue delay), where the Ombudsman is satisfied that the complaint has been finally determined;”.

This amendment makes minor drafting changes, including a change in consequence of amendment 9. It clarifies that the Service Complaints Ombudsman may not investigate an allegation of maladministration unless satisfied that the service complaint to which the allegation relates has been finally determined.

Amendment 4, page 6, leave out lines 33 to 37 and insert—

“(c) an allegation of undue delay in the handling of a service complaint which has not been finally determined;

(d) an allegation of undue delay in the handling of a relevant service matter.”

This amendment clarifies when the Service Complaints Ombudsman may investigate an allegation of undue delay in the handling of a service complaint or a relevant service matter (as to which, see amendment 6).

Amendment 5, page 6, line 37, at end insert—

“(1A) The following persons are within this subsection—

(a) in a case relating to a service complaint, the complainant;

(b) in a case relating to a matter in respect of which a service complaint has not been made, the person who raised the matter,

and, in relation to a case mentioned in paragraph (b), references in the remainder of this Part to the complainant and to a service complaint are to be read respectively as references to the person and the matter mentioned in that paragraph.”

This amendment makes provision about who may make an application to the Service Complaints Ombudsman for an investigation under new section 340H(1) of the Armed Forces Act 2006.

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

“( ) For the purposes of subsection (1)(d)—

(a) “relevant service matter” means a matter of a kind about which a service complaint—

(i) may be made, whether or not at the time of the application to the Ombudsman such a complaint has been made, or

(ii) could have been made (but for provision made by virtue of section 340B(2)(c));

(b) the reference to the handling of a matter is to its handling before the making of a service complaint (if any) about the matter.”​

This amendment defines “relevant service matter” for the purposes of paragraph (d) of new section 340H(1) of the Armed Forces Act 2006 (see amendment 4) and makes provision about the reference to the handling of such a matter.

Amendment 7, page 6, line 39, after “writing,”, insert—

“() must specify the kind (or kinds) of investigation which the complainant wishes the Ombudsman to carry out (an investigation under a particular paragraph of subsection (1) being a “kind” of investigation for this purpose),”.

This amendment provides that an application to the Service Complaints Ombudsman must specify which type or types of investigation the applicant wants the Ombudsman to carry out.

Amendment 8, page 6, line 40, leave out “the” and insert “any other”.

This amendment is consequential on amendment 7.

Amendment 9, page 6, line 42, leave out from beginning to “a” in line 44 and insert—

“( ) For the purposes of this section, a service complaint has been finally determined where—

(a) ”.

This amendment converts new section 340H(3) for the Armed Forces Act 2006 into a general proposition about when a service complaint is to be treated for the purposes of new section 340H as having been finally determined.

Amendment 10, page 7, line 5, leave out “that”.

This amendment is consequential on amendment 9.

Amendment 11, page 7, leave out lines 7 to 11 and insert—

“( ) The purpose of an investigation is—

(a) in the case of an investigation under subsection (1)(a), to decide whether the complaint is well-founded and, if so, to consider what redress (if any) would be appropriate;

(b) in the case of an investigation under subsection (1)(b), (c) or (d), to decide—

(i) whether the allegation is well-founded, and

(ii) if so, whether the maladministration or undue delay to which the allegation relates has or could have resulted in injustice being sustained by the complainant.”

This amendment clarifies the purpose of an investigation under each paragraph of new section 340H(1) for the Armed Forces Act 2006.

Amendment 12, page 7, line 11, at end insert—

“(4A) The power to carry out an investigation under subsection (1)(a) or (b) includes power to investigate any maladministration in the handling of the service complaint where it becomes apparent to the Ombudsman during the course of an investigation that any such maladministration may have occurred.”

This amendment provides for the circumstances in which the Service Complaints Ombudsman has power to investigate maladministration in the handling of a service complaint (other than any maladministration that the complainant has specifically alleged).

Amendment 13, page 7, line 12, after “application”, insert

“in respect of a service complaint that has been finally determined”.

This amendment is consequential on the amendments to new section 340H(1) for the Armed Forces Act 2006 (in particular amendments 2 to 4).

Amendment 14, page 7, line 25, leave out “investigated an application relating to” and insert

“carried out an investigation under subsection (1)(a) or (b) in relation to”.​

This amendment confines new section 340H(8), which prevents the Service Complaints Ombudsman from investigating subsequent applications relating to a service complaint that the Ombudsman has already investigated, to cases where the Ombudsman has carried out an investigation under new section 340H(1)(a) or (b) in relation to the complaint.

Amendment 15, page 7, line 31, at end insert “;

(b) whether to investigate a service complaint, or an allegation, as a whole or only in particular respects.”

This amendment provides that the Service Complaints Ombudsman may investigate a service complaint, or an allegation, in whole or in part.

Amendment 16, page 7, line 44, after “investigation”, insert “under section 340H(1)(b)”.

This amendment is consequential on amendments to new section 340H(1) of the Armed Forces Act 2006.

Amendment 17, page 8, line 43, at end insert

“, and

(b) any recommendations referred to in subsection (2A).”

This amendment requires the Service Complaints Ombudsman to include, in a report under new section 340L, any recommendations required by subsection (2A) (see amendment 18).

Amendment 18, page 9, leave out lines 1 to 4 and insert—

“(2A) Those recommendations are—

(a) on an investigation under section 340H(1)(a) where the Ombudsman finds that the =-service complaint to which the investigation relates is well-founded, the Ombudsman’s recommendations (if any) on what redress would be appropriate;

(b) on an investigation under section 340H(1)(b), (c) or (d) where the Ombudsman finds that the allegation to which the investigation relates is well-founded, the Ombudsman’s recommendations (if any) as a result of that finding;

(c) where, by virtue of section 340H(4A), the Ombudsman finds maladministration in the handling of a service complaint, the Ombudsman’s recommendations (if any) as a result of that finding.”

This amendment provides for the recommendations which the Service Complaints Ombudsman can make as a result of findings on an investigation under any paragraph of new section 340H(1) or by virtue of new section 340H(6).

Amendment 19, page 9, line 5, leave out “(2)” and insert “(2A)(b) or (c)”.

This amendment is consequential on amendment 18.

Amendment 20, page 9, line 8, after “maladministration”, insert

“or undue delay to which the finding relates”.

This amendment is consequential on amendment 18.

Amendment 21, page 9, line 10, after “maladministration”, insert “or undue delay”. —(Anna Soubry.)

This amendment is consequential on amendment 18.

Third Reading

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.