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

Public Bill Committee, 10 February 2015.

Christopher Chope (Conservative, Christchurch)

Good morning everyone. Before we start, may I make a couple of announcements? First, tea and coffee are not allowed in this room during sittings of the Committee. Secondly, some of the amendments have been grouped together. As Members will know, if they wish to pick out a particular amendment on which to have a Division, it would be helpful if they advised me in advance.

Clause 1 - Creation of office of Service Complaints Ombudsman

Madeleine Moon (Labour, Bridgend)

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

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 22, in clause 1, page 1, line 9, leave out “is” and insert “has been”

Amendment 2, in clause 1, 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 3, in clause 1, page 1, line 11, after “(b)”, insert “is”

Madeleine Moon (Labour, Bridgend)

It is an absolute pleasure to serve under your chairmanship, Mr Chope. I begin with a small confession: I am highly nervous about the progress of these deliberations. I am not a barrister and am not versed in the law. I am what I call a jobbing parliamentarian, in that I feel my job is to look at where changes should and could most helpfully come, on behalf of the people I represent.

I have spent most of my working life examining the abuse of power. I looked at the abuse of children, at the abuse of adults and at abuse in its many manifest forms. I found in every case that abusers abuse because they can and because they can get away with misusing the power they have.

We are here today to look at an important Bill. Most Members in the room feel passionately about either the recommendations in the Bill or the need for the Bill to be strengthened. I am here in two guises, one of which is as a member of the Select Committee on Defence. As such, I will seek to press all of the Defence Committee’s amendments to a vote. I give that advance warning so that Members are aware of what I will be doing.

Today is, in a sense, the end of a long process. The House of Commons report in 2005 and the Deepcut review of 2006 highlighted grave concerns about the abuse of power. At that time, both the Deepcut review and the Defence Committee stressed the need for an ombudsman. We are now doing what we perhaps should have done after those reports were published. Because the chain of command was deeply worried about losing its authority, we decided instead to have a commissioner.

We should start by paying a huge acknowledgement to the work that Dr Susan Atkins has undertaken on behalf of this House and our armed forces. She has single-handedly reduced many of the anxieties and concerns that the chain of command might have about the role of an external complaints examiner. She has taken the chain of command with her and progressed to the point where there is general recognition that additional powers are needed and that an ombudsman would best exemplify those powers.

The Defence Committee feels that parts of the Bill needed strengthening. Most of the Committee are in Cyprus, so I have the job of speaking on their behalf. I apologise to members of this Committee whom we were unable to get to quickly to allow them to add their names to the amendments. The Chairman of the Defence Committee told the House of Commons that the central issues the Committee had looked at were transparency, flexibility, the scope and power of the ombudsman, and the transparency of the ombudsman’s findings. Most of those issues come down to questions of trust and of delay.

People say many things about the armed forces, but I was very interested to hear a sociologist describe the military as a closed society. A closed society is exemplified by a society with its own language, dress code, educational priorities, skills, legal system and behaviours. The armed forces also exemplify something that few of us ever demonstrate: a willingness to risk and give their life—literally, their life—in the service of their country. They are therefore set apart from the wider society they serve. Society employs the skills and values of the armed forces in order to protect itself. The country and Parliament demand loyalty of them, and it is our responsibility to pay back that loyalty. We give them limited access to employment tribunals and no contract of employment. In return, we give them a community covenant and an armed forces complaints system.

I spoke to Lieutenant Colonel Jeremy Field in the Defence Committee hearings and before them. He said that when the complaints system was set up, it was felt that there would be few complaints and many would be minor. The Minister has said previously that many of the complaints that do come in are minor, and that is correct. They involve food, transport and repairs that are not carried out quickly enough, especially to accommodation. We were told there were even complaints about the quality of the pillows provided at one point. However, there are also major complaints—involving bullying, harassment and discrimination—on which the Bill must always focus.

The Minister said in her Second Reading speech to the House that 1% of service personnel raised a grievance in the service complaints system. However, the continuous attitude survey showed that 54% of those who had a grievance did not raise it because they felt that nothing would be done. Some 53% were worried that their complaint would adversely affect their career and workplace, and 30% feared recriminations.

This first group of amendments address the nature of the person we want to fulfil this responsibility. Where there is a genuine grievance—particularly about bullying, discrimination and harassment—people need to feel confident that if they make a complaint, something will be done about it, it will not adversely affect their career and workplace and they will not face recriminations. That has to be the basis of the legislation.

In summing up on Second Reading, the Minister said she was happy to consider the Defence Committee’s amendments. She felt that some were flawed, but did not specify which. We would get off to a flying start if she were to accept this first group of minor amendments, and we would proceed even faster if she could say which she feels able to accept at this point.

Jim Shannon (DUP, Strangford)

On the processes the hon. Lady is outlining, does she intend to ask about timeliness? Sometimes, it is important for the person who makes a complaint that it be dealt with in a certain time scale.

Madeleine Moon (Labour, Bridgend)

The issue of delay can be dealt with appropriately when we consider the group of amendments starting with amendment 6.

The first three amendments in this group relate to the appointment of the service complaints ombudsman, the period they serve for and whether they should or could have been a serving member of the armed forces within the previous five years. Jeremy Field, who ran the army service complaints process for many years, felt that a service complaints ombudsman should serve for “one term” of five years only. Former service personnel are barred from applying for the service complaints ombudsman post until a five-year period has elapsed. However, he felt they could play a valuable role in the ombudsman’s office, providing military balance and understanding.

Sara Ogilvie from Liberty said that the appointment of recent members of the armed forces to the post would undermine confidence in the complaints process:

“If I was in their position and the person at the top of the system was someone who had previously been really involved in the armed forces, I would not have that confidence, even though they were not part of it at that time.”

The new Service Complaints Commissioner has said:

“An individual should be appointed on merit. There is an advantage to be gained from the fresh perspective that comes by recruiting someone who does not have a background in the Armed Forces. Equally there is a risk that someone who has been a senior officer in the Services for years and is most likely still connected to senior serving personnel, even if they left 5 years ago, will be perceived as ‘one of them’ and the independence of the office will be compromised.”

I totally agree with that.

Martin Horwood (Liberal Democrat, Cheltenham)

The commissioner continues, though, after the sentence that the hon. Lady has just read:

“However a blanket exclusion is equally undesirable; someone may have served as a reservist or left at a relatively junior level with subsequent experience outside of the Armed Forces making them a credible candidate for the role of Ombudsman.”

The evidence from the current commissioner suggests that we should not have the blanket exclusion the hon. Lady has proposed.

Madeleine Moon (Labour, Bridgend)

If the hon. Gentleman had taken breath, he would have heard me say that although the Service Complaints Commissioner made the point that is made in the Defence Committee’s amendments, she went on to comment on the blanket exclusion. I will not repeat the words the hon. Gentleman quoted, but the Defence Committee disagrees with her on that last point. From the start, the House should make it clear that we want, as we have twice appointed, individuals who are not, and have not been within the previous five years, serving members of the armed forces. A clear message must go out to those who feel that they cannot make a complaint because they think that nothing will be done or that it will adversely affect their career and their workplace, or because they fear recriminations.

Later in the debate, I will refer to cases in which exactly such things have happened to individuals. I have with me a small selection of cases brought to me by serving and former members of the armed forces who feel they have faced bullying, discrimination and harassment, and recriminations that have affected their careers. I hope to refer to only one or two, so that I do not weary everyone. However, that is the reason why the service complaints ombudsman must be independent. Of course, someone who has served within the previous five years could have admirable qualities, but serving personnel must have confidence in the ombudsman. To make sure that confidence is there and to embed it in the institution of the ombudsman, such independence must be clarified and paramount, and therefore in the Bill.

Christopher Chope (Conservative, Christchurch)

Before inviting Members to participate in the debate, I point out that it is not my intention to have a separate stand part debate because of the breadth of the hon. Lady’s introduction.

Kevan Jones (Labour, North Durham)

Mr Chope, may I ask for some clarification on my amendment 22, which is part of the group—may I move it?

Christopher Chope (Conservative, Christchurch)

It is perfectly in order for the hon. Gentleman to speak to amendment 22; if he wishes to test the will of the Committee on it he will have the opportunity in due course.

Kevan Jones (Labour, North Durham)

It is a pleasure to serve under your chairmanship, Mr Chope. I know that in previous Parliaments we have spent many Friday mornings together discussing private Members’ Bills—those occasions were very enjoyable.

I will be testing the will of the Committee on amendment 22, which stands in my name and those of my hon. Friends the Members for West Dunbartonshire (Gemma Doyle), for Gedling (Vernon Coaker) and for Bridgend. This subject has haunted me—that is the word I want to use, though it is perhaps the wrong one—throughout the entire time I have been in Parliament. I was a member of the Defence Committee when the tragic events at Deepcut were discussed, as was my hon. Friend the Member for Midlothian. In 2005, we did a year-long report not just about Deepcut but more generally about the duty of care. The pressure from that report, along with that on Deepcut by Lord Justice Blake, led to the creation of the role of the Service Complaints Commissioner. We all agreed at the time that that was a major step forward in ensuring oversight of the chain of command, and in enabling those who serve in our armed forces to bring forward complaints.

My hon. Friend the Member for Bridgend has made an important point: members of the armed forces are unique and unlike other employees. They do not have the right to go to an employment tribunal or the right to be a member of a trade union, where they could argue their case when the system fails. I am not criticising any member of the armed forces or the chain of command, because I hold them in high esteem, but an organisation the size of our armed forces cannot have a situation in which everything on every single occasion always goes right. Sadly, Lord Justice Blake’s report showed that, when it goes wrong, it goes very badly wrong. I think the chain of command and the wider military community recognise that oversight and having a Service Complaints Commissioner has been a positive thing.

I have never understood why the chain of command would see independent oversight as a threat to its decision making. The Defence Committee was clear in its 2005 report that it did not want someone from outside interfering in the individual decision making of the chain of command, because of the unique nature of what we ask our armed forces to do.

Madeleine Moon (Labour, Bridgend)

My hon. Friend will have read what the Geneva Centre for the Democratic Control of Armed Forces has said about the role of ombudsmen around the world. Its 2011 report pointed out that the UK was unique in being the only country where the ombudsman sits outside the armed forces. The complaint is administered and investigated by the armed forces, and the ombudsman only has oversight of the complaints system. In all other countries, the complaint goes directly to the ombudsman and not through the chain of command first.

Kevan Jones (Labour, North Durham)

My hon. Friend makes a good point. That is why I do not think the chain of command has anything to fear from external oversight. Given the debate on Second Reading and the way in which the Government are approaching this now, I have a feeling of déjà vu. The arguments being made for why the ombudsman needs to be limited in scope—we will come to that later—are the same as those that were made about why the Service Complaints Commissioner’s role should be limited. It was argued that, if such an institution was set up, it would be the end of the world as we know it. Well, it has not been the end of the world as we know it. Dr Susan Atkins has made a very good contribution not only in providing oversight of the armed forces, but in adding to the understanding of the broader public and Parliament about how our armed forces operate. That has been an important step, so I see this as a continuation of that journey.

I am saddened that we are not giving the powers that are needed to the ombudsman. If the Bill does not do that, I wager that we will get to where we need to be within the next five years. However, we have an opportunity now to do it today.

Amendment 22 goes to the heart of what my hon. Friend the Member for Bridgend said about the independence of the person who is appointed as the ombudsman. When we set up the Service Complaints Commissioner, it was argued that the person had to have a military background. I am sorry, but I do not think that they do. Susan Atkins has proven that someone can do a very effective job without necessarily having an in-depth knowledge of the military from day one. All credit to her. She spent the early months of her appointment visiting units and getting a grounding and knowledge in how the armed forces work, but there is a danger.

Amendment 22 states that the person should not have served in the armed forces. I accept that the Defence Committee has proposed a time limit, which is a compromise. At the root of the matter is the question whether someone who has taken forward a complaint can have confidence that the individual who looks at it will not be influenced by the current chain of command or by previous associations.

Such problems occur not only in the military, but in other walks of life. We refer to the old boys’ network—it is, unfortunately, a boys’ network rather than a boys’ and girls’ network—and we have seen it recently in the appointment of the chair of the Government’s inquiry into child abuse, where it was important for the victims that the chair of the inquiry had no association with any of the individuals or events involved. I am not saying that if a service complaints ombudsman had served in the military, they would necessarily know the individuals or the events that they would be investigating, but they might, through associations resulting from training or career paths, know individuals who were in a position to influence events.

I want to give the example of the Independent Police Complaints Commission. If we turn the clock back to the mid-1980s or early ’90s, independent oversight of the police was seen as something dangerous and radical that would interfere with the policing of our nation. However, it would be difficult now to find many people who would argue that it has not become the norm. I hope that that will also happen with the service complaints ombudsman and that he or she will be seen as part of a process that aids the development of policy and fairness. The IPCC has recently come in for some criticism about employing ex-police officers to do investigations. We can understand that complainants may feel as though their complaints are not being taken seriously enough or as though investigations may be prejudiced because those who investigate complaints could be influenced by associations from their previous careers.

The amendment is important to ensure not only that the process is seen to be fair, but that the person in charge of it is seen to be impartial and cannot be accused of partiality. I do not want the ombudsman to become one of those jobs that are, as I am sure the Minister knows, handed out at the end of illustrious careers as favours for things that have been done in the past. That would be totally unfair and wrong. Having spoken to the Chiefs, I do not believe that they would use the appointment in such a way, but there is a danger that a future Secretary of State could say that it would be a reward for favours past, which would be completely wrong. I will press the amendment to a vote, because the ombudsman’s independence is crucial.

The fall-back position is clearly the time limit on the appointment proposed by my hon. Friend the Member for Bridgend. I put on record my thanks to the Defence Committee for its ongoing work in this area. Its report did an excellent job of getting to the nub of the outstanding issues in the development of the independent Service Complaints Commissioner. If we do not make the amendments that we are discussing now, we will have to make them within two or three years anyway. There is no danger at all that my amendments, or those tabled on behalf of the Defence Committee by my hon. Friend the Member for Bridgend, will in any way affect the fighting capability of our armed forces.

Anna Soubry (Conservative, Broxtowe)

It is a pleasure to serve under your chairmanship, Mr Chope. As I rise to oppose the amendments and to explain my opposition to them, I call to mind the good debate that we had on Second Reading, in which there was much discussion about such amendments and the underlying themes.

I want to make it clear from the outset that there is much that brings this all together: the need to improve the system, and to make sure that the people who use it have confidence in it. I remind the Committee that the Bill is about a complaints system. Much of the Bill, before the ombudsman provisions, is about the nuts and bolts of the complaints system. However, it also creates the ombudsman and sets out the terms and conditions and the principles. That approach is important: there is often, in this place, a grave danger of over-prescription. I do not speak as a lawyer, although obviously that will taint many of my remarks.

Often we are over-prescriptive, as opposed to setting out good, sound principles and then allowing others to act on them to achieve what we all want. We will, in the ombudsman, have someone who will act fairly, without fear or favour. I am biased, of course, because I was at the heart of it, but after the appointment of Nicola Williams and her appearance before the Defence Committee, I am confident that the Bill will put into practice the underlying good words and principles that led to it.

These amendments would require either a gap of five years between a person’s ending their service in the regular or reserve forces and becoming eligible for appointment to the post of service complaints ombudsman, or would completely prevent any former member of the regular or reserve forces, or the civil service, from becoming an ombudsman.

Susan Atkins served with great distinction as the Service Complaints Commissioner for the Armed Forces, but if the amendments had been in force she could not have been appointed, because she was in the civil service in 1989. She served with some distinction for a number of years, but she would have been precluded from even applying for the position. That shows why the amendments—although I understand where they come from—are flawed.

The Bill requires simply that to be appointed to the post, an individual must not currently be a member of the regulars, reserves, or civil service. That is right. The service complaints process is in place to deal with a wide range of matters, as we have heard from the hon. Member for Bridgend, that can be of concern to our personnel. For those concerns to be addressed and resolved, it is essential that everyone who might want to use the process should have confidence that their complaint will be handled with impartiality and professionalism, which are the qualities that we expect from the ombudsman.

The ombudsman must also of course be demonstrably independent of those whom they hold to account for the way in which complaints have been handled. That is why they are to be outside the chain of command, with access to Ministers when they consider it necessary. I cannot emphasise that enough.

From our experience of Dr Atkins and given what we all know of the attitude of Nicola Williams, we can have great confidence in those people, who act without fear or favour. Not only will they knock on my door, or the door of whoever holds my post; without fear or favour, they will knock on the door of the Secretary of State, or the chief of any of the armed services—anyone in any position anywhere. Of course, they will have complete freedom not only to approach the Defence Committee, but to go to anyone in the press or media if they wish. Their unfettered access and ability to speak is crucial to their role; and it is a critical thing for Members to remember in considering the Bill and amendments.

The ombudsman will continue to be accommodated outside the defence estate. I have been to the offices. To reinforce their independence, they will recruit their own staff in line with prevailing civil service recruitment guidelines. The Bill includes a new provision as a further mark of the role’s independence and the security of the post holder’s tenure, in that the post holder will be subject to appointment by Her Majesty. Again, that is an important new feature of the position. As the ombudsman will be a post of public interest, recruitment activity will include a pre-appointment hearing by the House of Commons Select Committee on Defence, as was the case in respect of Nicola Williams.

We want the best candidate to get the job. Frankly, from my experience of considering people for appointment, if somebody has been too near the chain of command or if anything in their history might undermine their ability to do the job, whatever it might be, one does not appoint them. It is as simple as that. That is the rigorous process that we go through.

The current provision gives us flexibility during the recruitment process. Any previous experience of our armed forces can be scrutinised and fully assessed. It could well be that someone who has served at any time in the past could be seen as impartial and independent from the armed forces in whatever they have achieved since leaving service. In other words, somebody may have served as a reservist for a short time—perhaps from the age of 20 to 21—with great distinction. Why should that prevent them, many years on, from being considered for appointment as our ombudsman?

Madeleine Moon (Labour, Bridgend)

We are not asking for many years, but simply for five years. Someone who served at the age of 21 is highly unlikely, even if they served until the age of 22, to be suggested at 27 for the post.

Anna Soubry (Conservative, Broxtowe)

Indeed, but the danger of such over-prescription is that if they served five years and one day before the appointment, they would be all right to be considered. That is not really the issue. We should consider the individual’s experience and what they bring to the role. If we think that they have been too near, or there is any other reason why we do not think that they will do the job required, we simply will not appoint them. The five-year period would run the risk of excluding people who might make a wonderful appointment. That is the danger of over-prescription.

Of course, the independent assessors will also be involved in the process, as will the Defence Committee, which will provide the essential safeguards to ensure that we get exactly the sort of person whom we want, and whom we have already achieved in the appointment of our current Service Complaints Commissioner. For all those reasons, I must resist the amendments, and I urge my colleagues to do so as well.

Madeleine Moon (Labour, Bridgend)

I will not take any more of the Committee’s time, but I would like to press the amendment to a vote.

Madeleine Moon (Labour, Bridgend)

I beg to move amendment 4, in clause 1, page 1, line 13, at end add—

(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 is appointed as Ombudsman may not be re-appointed to the office.”

This simple amendment suggests that the service complaints ombudsman should be appointed for a non-renewable five to seven-year period. The Defence Committee was of the mind that that should be stated in the Bill. We felt that there was an issue with the transparency of the tenure and with increasing trust and confidence. Members of the armed forces have said that there is no fear that the ombudsman will try to make themselves popular with the chain of command to seek a further appointment.

On the previous group of amendments, the Minister said that she did not want to be over-prescriptive. We have not been over-prescriptive; we have said five to seven years and have given flexibility in that. We made that decision on the basis of some of the evidence that we took. The witness from Liberty said that a seven-year non-renewable term would be preferred to a five-year term that can be renewed. It is important to get this right. We do not want a situation where the ombudsman does not know when they are leaving, while people working with them do know.

The Ombudsman Association said:

“The term of office should be of sufficient duration not to undermine independence. The appointment should be for a minimum of five years.”

It continued:

“This is also recognised internationally as best practice to avoid the perception…that an ombudsman’s decisions might be influenced by their employment position. That fixed term should be set out in legislation.”

The Rev. Nicholas Mercer, a former army legal adviser, and Lieutenant Colonel Jeremy Field, the former head of army service complaints, were concerned about the possibility of a reappointment for a further five years. The Rev. Nicholas Mercer thought that there was a danger that the Secretary of State could be tempted to reappoint an ombudsman who had a good relationship with the chain of command. Lieutenant Colonel Field told us that 10 years was too long. He advocated five years initially, and then an

“option to extend it by a year or two”.

We looked at all the different options put to us. The Equality and Human Rights Commission said:

“The Ombudsman’s appointment should be for a non-renewable term of at least five years and…a person should not be eligible to be appointed as Ombudsman for a period of five years after leaving the regular or reserve forces.”

The new service complaints ombudsman said:

“A standard appointment for an Ombudsman is five years and this is reflected in the Ombudsman Association criteria”.

She went on to say that it would be

“helpful for legislation to specify that the initial appointment is for a period of five years. The ability to extend for three years is sensible.”

The Defence Committee’s concern was not restricting the appointment to five years but allowing for a service of seven years. We feel that it should be clear from the beginning how long the ombudsman will remain in office. There should not be reappointments; this should be a set term of between five and seven years. We are quite happy for the term to be set at five, six or seven years because we appreciate that there can be difficulties in finding the right calibre of person, as we found when recruiting Dr Atkins. We feel that the Bill should specify how long the ombudsman will serve, as that will give confidence to all concerned.

Kevan Jones (Labour, North Durham)

I rise in support of amendment 4. If we are appointing someone to such a post such, it is important that we know the length of time involved. As my hon. Friend the Member for Bridgend has already indicated, five years is an internationally recognised period; there needs to be flexibility for the extra two years. Regarding the renewable term, however, the important point—this goes back to our arguments about the last group of amendments—is that this issue is about the independence of the person who has been appointed. As I said then, it is important that the complainants have confidence that the individual who is the commissioner is impartial.

I am not suggesting for a minute that the present Service Complaints Commissioner, or the new one, would go native, to use the phrase, in developing relationships that are too close with the chain of command or with others, but the amendment would prevent that from happening. Clearly, the five-year term is important, because whoever is appointed needs a period, not only to bed in but to understand both the nature of the complaints and the nature of our armed services, so this amendment is practical.

People might ask, “Why should this be in the Bill?” An issue that affects a lot of the amendments tabled by members of the Defence Committee is that, if something is not in the Bill, we would be leaving it to future Ministers to decide. To be clear, regarding what we want—not only in the remit but in the type of person who becomes the ombudsman—stating it in the Bill would give some assurance that a Secretary of State in a future Government could not use any vagueness or flexibility in the Bill. I think that “flexibility” is how the Minister referred to it, and flexibility is okay if it is exercised judiciously by the right hands. However, I am sure that the Minister does not have a crystal ball to show her what will happen in May or in elections in the future, or what type of Government we will end up with. So there could be a situation whereby, if the Bill was not specific, a Minister could decide, for example, that the ombudsman could go on ad infinitum.

It is important that this measure is in the Bill—[Interruption.] The Minister is chuntering. If she has got great faith in future Ministers to do the right thing, that is what we are asking the Committee to do. That is why the Bill should make it quite clear to future Ministers what length of time a service complaints ombudsman can serve; it would not be left to the whims or—in the Minister’s words—“the flexibility” of future Secretaries of State.

Anna Soubry (Conservative, Broxtowe)

I quite agree and I acknowledge the amendment’s aims, in terms of the type of tenure. However, the hon. Gentleman is quite right: I disagree fundamentally with the need for that to be stated in the Bill. It is important for us all to remember that if this Bill is passed and a future Government decided that the perfect term was six years, or indeed four or three, we would have to come back and pass fresh legislation. That is the danger of putting things in the Bill.

As Committee members will know, we have just appointed Nicola Williams as our new Service Complaints Commissioner. The advertisement for the post made it absolutely clear that it was for a five-year, non-renewable term, and that has since been confirmed in her letter of appointment, which is the appropriate place for these terms to be set out.

Kevan Jones (Labour, North Durham)

Therefore, what problem has the Minister got with putting this in the Bill?

Anna Soubry (Conservative, Broxtowe)

Because, as I said before, it is too prescriptive and it ties the hands in a way that is not good legislation, because the commissioner would have to come back if we wanted to appoint somebody for, say, a four-year term, or a six-year term. It would tie our hands and not give us the flexibility to ensure that we appoint the very best candidate to the position. As I say, with Ms Williams, who will be our first service complaints ombudsman, her appointment—assuming it is approved as such—will be approved by the Queen. With a new position and a new complaints system, we want to retain the flexibility to amend those terms of employment if experience suggests that it might be necessary.

Andrew Bridgen (Conservative, North West Leicestershire)

Will there be any flexibility, if the ombudsman loses the confidence of the service or the Minister, for him or her to be removed and replaced during the tenure that they have been given?

Anna Soubry (Conservative, Broxtowe)

Yes, absolutely, my hon. Friend can be assured of that. Especially with a five-year appointment, we want to make sure that we have that ability if it does not work out in the way that we are all clear it must work out. Our concern is about its being in the Bill, so that if experience says that it should be a six-year term or a four-year term, we have to come back. This is all about making sure—

Kevan Jones (Labour, North Durham)

Will the Minister give way?

Anna Soubry (Conservative, Broxtowe)

No, I have given way once. The aim is absolutely to make sure that we have the flexibility to get the best person. That is why I cannot agree to this amendment and ask hon. Members not to vote for it.

Madeleine Moon (Labour, Bridgend)

I would like to press the amendment to a vote.

Clause 2 - Reform of system for redress of individual grievances

Kevan Jones (Labour, North Durham)

I beg to move amendment 23, in clause 2, page 2, line 15, at end insert—

‘(2A) If the person referred to in subsections (1) and (2) is deceased, the complaint may be made or maintained by his or her next of kin, or personal representative.”

The Minister did not allow me to intervene, but I am not sure where the process of removing an ombudsman is in the Bill. The Minister indicated that the Secretary of State could do this. Could she clarify this important point?

In clause 2, we are getting to the meat of the operations of the ombudsman. Amendment 22 would allow a third party to take over a complaint in the event of the death of the complainant. Currently, if the complainant dies the complaint will die with them, which will prevent the individual who has passed away to get any justice. Also, I think that some improvements in the system that could be argued for would not be looked into. This is very relevant if you look at Lord Justice Blake’s report on Deepcut, for example: if any of those individuals had made service complaints and then tragically committed suicide while the complaint was ongoing, the complaint would have died with them. It was clear from Lord Justice Blake’s report that there were issues around not just one but all four of those individuals that could have implications, not just for them personally, but for the wider culture and other events taking place at the time at Deepcut.

The Minister has argued that common sense would be the order of the day in terms of whether the ombudsman would be able to continue a complaint after death. The thread running through all the Government’s resistance to the amendments proposed by the Select Committee and the Opposition is that there is no need for them in the Bill, but I am of the opinion they are needed, because they give clarity for the complainant to know that their complaint will be taken seriously in the event of a death, and for the ombudsman in relation to any doubt about being able to pursue those complaints should he or she wish to do so.

I know that the Minister argued on Second Reading that it would be unfair to the person being complained about if they could not make a proper defence against the person who had complained, but many such cases, we are not just talking about the complaint. We will come on to the meat of what the ombudsman is in the next group of amendments, but the important point is that, yes, someone will make a complaint, but often that will throw up other issues that are both relevant to their complaint and have wider policy implications for the way the armed forces operate. As we know, most complaints are about service life—for example, pay and holiday allowances—so if the complaint dies with the person, that would be unfair.

It is important that family members should be able to continue with complaints. I am thinking about the cases not only at Deepcut, but at Catterick and the death, for example, of Lynn Farr’s son, Daniel. Had he made a complaint, it would have been wrong if that had died with him, because the family would not have felt that the complaints had been dealt with in detail. Some of the broader policy issues that related, for example, to his death would also not have been brought to the attention of the ombudsman and the chain of command, and some of the changes that were subsequently made in his case would not have been made.

I turn to amendment 24 and 25. Amendment 24 relates to—

Christopher Chope (Conservative, Christchurch)

Order. Those amendments are grouped separately.

Kevan Jones (Labour, North Durham)

My mistake, Mr Chope.

Anna Soubry (Conservative, Broxtowe)

It is not as simple as saying that this should not be in the Bill; this is actually a matter of principle. With great respect to the hon. Gentleman, I think he misses entirely the point of the complaints procedure. A service complaint is a personal grievance based on the complainant’s experience of what has taken place and their view of the redress that they want. That can be, “I did not get my allowance to which I was entitled—that is my complaint. The redress I seek is that I get my allowance.” Another example could be, “I’ve been bullied by Sergeant Bloggins. The redress I seek is that he is disciplined in some way.” That is what this is all about: a complaints system based on an individual grievance and the redress that they seek.

Kevan Jones (Labour, North Durham)

This is where the Minister fundamentally misunderstands the role of the ombudsman. For example, if somebody had been bullied, as she suggested, and that led to the individual’s death, even if they had put a complaint in, it would die with them. There may well be issues relating not only to that individual’s complaint but to other events taking place in and around the particular establishment or unit that need addressing. Having dealt with a lot of the families from Deepcut and other instances involving bullying, I can tell her now that they will feel very aggrieved if there is a cut-off for those types of complaints.

Anna Soubry (Conservative, Broxtowe)

I was going to say that I was grateful for the intervention, but if I may say so, it is further evidence that the hon. Gentleman does not understand the reality of his own amendment. If a death occurred—these things are deeply regrettable and mercifully rare—the proper place to deal with it, because it would be an unexplained, unexpected death, would be at a coroner’s inquest. [ Interruption. ] I am being passed notes, which are all very helpful, but bear with me.

If someone dies and it is believed that there may be a link between their death and a complaint that they may or may not have raised in the current or the new system as we anticipate it, it matters not, because the coroner’s court intervenes for the reason that it is an unexplained, unexpected death, and I have complete confidence and faith in the coronial system to do exactly what is required in those cases. Let us remember that the coroner is not looking at whether it was Sergeant Bloggins who particularly—

Kevan Jones (Labour, North Durham)

Will the Minister give way?

Anna Soubry (Conservative, Broxtowe)

No, I will not give way, because this is a very important point that needs to be understood by all of us on the Committee. Not only is there the coronial system, with all the rigour of the coroner, all the powers available to them and the findings that they can go on to make, but there are our own—“our” meaning within the armed forces—internal systems: the service inquiries, which are conducted with vigour and without fear or favour. Those two features, in my view, can give any family in 2015 confidence that in the event of one of their loved ones suffering in this way, the right thing will be done. I will now give way, but briefly.

Kevan Jones (Labour, North Durham)

It is strange that although this is supposed to be a debate, the Minister seems reluctant to enter into any type of dialogue. She should read Lord Justice Blake’s report. If she thinks that the coronial system in every part of this country—I accept that it has been improved since the appointment of the Chief Coroner—is the method for dealing with this matter, she is mistaken. She says service inquiries are rigorous. I am sorry, but they were not rigorous in, for example, Deepcut and other cases. If she thinks that families will accept that they should rely on that, I can tell her now that they will not.

Anna Soubry (Conservative, Broxtowe)

The Bill does not seek to preclude the pursuance of a complaint in the event of the complainant’s death. The Bill does not prevent that from happening. Indeed, it is absolutely the view of the Ministry of Defence, the armed forces and myself that in certain circumstances that should be possible, and that is what the Bill gives: flexibility, if it is in the interests of justice, for the complaint to be continued in any event. We have examples of where people have started a complaints process—it has been commenced and gone through— and unfortunately the complainant has died, but notwithstanding that, the complaint continues to resolution. It may be that the complaint is about a pension or an allowance or about bullying, and those hearing the complaint have heard all or most of the evidence that they need to and they know that continuing the complaint will not cause any disadvantage to anyone. I do not believe that the Opposition appreciate that, either.

Let us put ourselves in the position of the person against whom the complaint is made. Let us say that we are Sergeant Bloggins or a member of his family. We want to ensure that when he denies an allegation of, for example, bullying, he too has the right to have his case and all the evidence properly heard. If unfortunately the complainant is dead and there cannot be that sort of testing of what the complainant has apparently alleged, because that person is no longer with us, there is a real danger that the person against whom the complaint is made will suffer an injustice. That would not be right or fair.

Andrew Bridgen (Conservative, North West Leicestershire)

If the member of service personnel who made a complaint to the ombudsman tragically dies, what does my hon. Friend envisage the relationship will be between the coroner and the ombudsman’s office while they investigate the complaint made?

Anna Soubry (Conservative, Broxtowe)

When there is an unexpected, unexplained death, the coroner in any event steps in and does their brilliant work. If a complaint has got through the complaints system all the way to the ombudsman—we are talking not only about the ombudsman but about the whole of the complaints system—it will be looked at, as the Bill allows, on the basis of whether it is in the interests of justice for that particular complaint to continue. There are instances when we have no objection to a case continuing because it can improve our system, whether it is in relation to allowances, or because it is an allegation of a more serious nature. For all those reasons, I urge everyone to vote against the well intentioned, but wrong, amendment. It really is not needed and the danger is that it will create—

Madeleine Moon (Labour, Bridgend)

Will the Minister give way?

Anna Soubry (Conservative, Broxtowe)

No, I am sorry; I want to complete my remarks. The danger is that it could cause great injustice to others whose voice will effectively be lost, because this is simply the wrong thing to do.

Martin Horwood (Liberal Democrat, Cheltenham)

Although I support of the Bill as a whole, I am sympathetic to the aims of amendment 23. The Minister said that it raised matters of principle about the actual purpose of the Bill—by implication, saying that this was about establishing a complaints process for living service personnel—but there is a wider principle at stake, which is that the whole value of a complaints system is not only for the complainant, but for the entire organisation and the whole structure. That is the value of a complaints process in business, in government, and, indeed, in the military: it enables the organisation to do its business better to avoid such complaints arising in future. So there is a wider principle that says we should see complaints through, especially when they have been initiated, and they should not simply fall when somebody involved in the making of the complaint dies.

Anna Soubry (Conservative, Broxtowe)

Does the hon. Gentleman accept that they absolutely will not fall? If the circumstances are right and it is in the interests of justice, we want such complaints to continue, but under the amendment there would be no discretion involved. That is why it is wrong. This is about an individual’s complaint in their service, as is common in all complaints systems. That is why it is not in the terms that he puts in.

Martin Horwood (Liberal Democrat, Cheltenham)

I am not quite sure I follow the logic of that. The Minister is saying that if the complaint cannot be pursued within the internal system after the person has died, we are to rely on the coronial system or the courts to be the proper place for such complaints. That is no more desirable than pursuing the complaint internally.

The Minister’s answer to the point about the fair right of reply for the people being complained against—this was the case made by her noble friend Lord Astor in the House of Lords—is also slightly curious. Again, if we rely on the coronial system to pick up the complaint, exactly the same principle would apply there and in any other court or complaints process once the person involved had died. Liberty and others make the point that the right of the surviving person who has been complained against to make their own case is not inhibited by continuing with the complaint. They can still put their own side of the argument, and they will have the right to make assertions that are less open to challenge than they would have been if the complainant had survived, so, in a sense, they are in a stronger position.

The amendment is difficult for me. A good principle has now been explored in the House of Lords, on Second Reading and now in Committee, and there comes a point when we have to look at supporting such amendments to make such changes, because it matters to the families of service personnel. I remain sympathetic to the amendment, although I am happy to once against listen to the Minister’s remarks.

Madeleine Moon (Labour, Bridgend)

The new Service Complaints Commissioner has said:

“There is merit in allowing discretion for an individual’s personal representative or a family member to make or continue a complaint on behalf of a complainant who is deceased or otherwise unable to act.”

I am sure that the hon. Member for Cheltenham is aware of that. The complaint on behalf of a complainant who is deceased or otherwise unable to act should be allowed to complete. The Service Complaints Commissioner is concerned about that being allowed in all circumstances. She has said that there will be circumstances where it is not appropriate for a complaint to continue and where

“fairness may be compromised in progressing a complaint in the absence of evidence from the Service person. The Services will also have to consider the entitlement of the personal representative or family member, particularly if there is disagreement between immediate family members.”

She concluded that

“some flexibility in this matter is the best approach, perhaps giving the Services (and the Ombudsman) discretion to investigate complaints made by the personal representative or a family member. The Ombudsman could play a valuable role in reviewing whether the discretion was exercised properly, reasonably and fairly.”

The amendment that my hon. Friend the Member for North Durham has tabled would allow that to happen, and it would also send the message to family members that a complaint does not have to die with their loved one. Thinking back to the case of Anne-Marie Ellement, an examination of the service complaints system in relation to her death found no complaint from her. However, Lieutenant Colonel Jeremy Field, who was head of Army complaints at the time, told us in evidence that he did an exhaustive search, but because of the chaos in the system, a complaint may well have been lodged but he could find no evidence of it, so we do not know for certain that no complaint had been made in that situation. Families should be allowed to continue a complaint if it has been established and if there is no injustice in completing it. I believe that the amendment addresses those issues.

Kevan Jones (Labour, North Durham)

We seem to be having a rerun of Second Reading. The Minister has a hugely inflated opinion of the coronial system, but it does not reflect my experience of the way it actually operates. If she had ever had any dealings with the Middlesbrough coroner, for example, she would have very little faith in his ability to investigate deaths in a timely manner. That is important for family members, and I think it comes down to the way in which she has looked at the Bill right from the beginning. The Bill is being seen as establishing a complaints system for the individual, but it is not. One good thing that Susan Atkins has done is to draw wider lessons from problems that originate in a complaint but which demonstrate that broader issues in a unit, or in the service as a whole, need to be addressed.

The Minister talks about injustice, but I feel that the injustice for families would be if a complaint died with an individual and the ombudsman had no opportunity look at the issues that related to them. The Minister is putting too much emphasis on future Secretaries of State, and that is why the Bill needs to be changed.

Brian Binley (Conservative, Northampton South)

Is it not true that if the coroner service is it fault, it is necessary to reform the coroner service? That is not the point of the debate, however. The coroner is designed to be the last line of defence for all people in this country. If the coroner decides that there is a case to answer, their decision tips off other authorities to become involved. That is the role of the coroner. Having been in exactly that position as a result of some untimely deaths in a care home, we managed to get the coroner’s rules changed, to my relief and to the relief of many others. We are getting two things mixed up here and we need to be a bit careful.

Kevan Jones (Labour, North Durham)

No, I am not. I totally agree that coroner services need reform. That is why Opposition Members and I argued for the appointment of a Chief Coroner, which the hon. Gentleman and his colleagues voted against and resisted up to the last minute. I think that the Chief Coroner will make a difference over time, but we are talking about the role of the service complaints ombudsman and whether he or she—it will be a she in this case—should have the ability to investigate a complaint after someone dies. Without that, the complaint finishes at that point.

Anna Soubry (Conservative, Broxtowe)

No it does not.

Kevan Jones (Labour, North Durham)

I am sorry. The Minister is relying on the flexibility of the Minister of the day or the chain of command to continue the case. As I said earlier, I am not prepared to leave it to future Ministers of whichever political persuasion.

Anna Soubry (Conservative, Broxtowe)

Will the hon. Gentleman give way?

Kevan Jones (Labour, North Durham)

I will, actually, because I believe that Committee should be about debate. I hope that the Minister gives this courtesy in future.

Anna Soubry (Conservative, Broxtowe)

That is a little harsh, because I certainly gave way to one intervention. May I make clear that, if a complaint is in process, it is not for the Minister to say yea or nay to whether it should continue? Once in the system, be it the complaint made to the commanding officer or the complaint that has failed and gone on to the ombudsman, it is for the system to decide whether to continue the complaint in the event of the death of the complainant. For some complaints we would definitely say, “Please let it continue,” because we want a determination, whether on pay or allowances or an allegation of bullying. The Bill as drafted leaves discretion. The amendment would take that away, which would be very bad.

Kevan Jones (Labour, North Durham)

No, it would not take away discretion—the Minister is talking complete nonsense. It allows the ombudsman, who is outside the chain of command and away from Ministers, to make that decision. I always get worried when people talk about “the system” because I am not sure what the system is.

Anna Soubry (Conservative, Broxtowe)

The complaints system.

Kevan Jones (Labour, North Durham)

Well, does it have an independent mind that allows it to decide whether a complaint should go forward? No, it does not. It is impacted on and influenced by the chain of command, Ministers and the Ministry of Defence. [ Interruption. ] The Ministers chuckles, but she should tell me what the system is. Does it automatically decide whether complaints should go forward? No, it involves the chain of command and Ministers may be able to influence it. The amendment would allow the ombudsman to continue with a complaint.

I accept that the ombudsman may make decisions in some cases that complaints will not go any further, but the amendment would allow her to do that. A theme runs through the Bill and what the Opposition and the Select Committee are interested in doing is giving as much power as possible for making decisions to the ombudsman rather than future Ministers or the chain of command. In the years I have been dealing with this subject, I have found that that is exactly what the families of those who die in service require and, I think, that would also lead to an improved system. We saw that with the introduction of the Service Complaints Commissioner, which the chiefs say has improved the system. That would also provide an extra spotlight to be put into parts of the system, as the Minister refers to it, and lead to improvements.

Anna Soubry (Conservative, Broxtowe)

The hon. Gentleman is being a little naughty. When I say “the system” I mean the complaints system as detailed in the regulations, not the system as he interprets it, which involves others. I think my language was accurate, because I was talking about the service complaints system as outlined in detail in the regulations.

Kevan Jones (Labour, North Durham)

In terms of the system, people have to make a decision on whether a complaint goes forward. What I am arguing, as others have argued, is that that decision should lie with the ombudsman. That makes the decision independent and prevents the Minister or the chain of command from influencing the system.

Andrew Bridgen (Conservative, North West Leicestershire)

I am listening with great interest to the hon. Gentleman’s remarks, and he has some good points. Would he support an amendment to the effect that where a complainant unexpectedly died, in whatever circumstances, it would automatically go to the ombudsman for determination?

Kevan Jones (Labour, North Durham)

No, because that is silly. If someone dies of a heart attack or is killed in a car crash, for example, why should the case go to the ombudsman? We are talking about complaints already initiated. It would clog up the entire ombudsman system if, for example, people died from natural causes or tragic accidents.

Andrew Bridgen (Conservative, North West Leicestershire)

I meant that if a person made a complaint, it would automatically go to the ombudsman if they passed away after that.

Kevan Jones (Labour, North Durham)

The hon. Gentleman is therefore agreeing with the point I am making. That would allow the ombudsman then to decide whether the case would go forward. If the hon. Gentleman is arguing that anyone who dies in service should automatically go before the ombudsman, I do not agree.

Anna Soubry (Conservative, Broxtowe)

As the hon. Gentleman knows, if it is about pay and allowance, there are other ways for the family of the deceased to pursue the matter, and rightly and properly so. It would go to the Service Personnel and Veterans Agency, which would undoubtedly determine it to the benefit of the family.

Kevan Jones (Labour, North Durham)

As the former Minister in charge of the SPVA, I hold it in hugely high regard, but I must say that that is not always the case; the decision sometimes ends up on the Minister’s desk.

The Minister is returning to the idea, as she has on numerous occasions in this debate, that somehow the ombudsman just deals with trivia about people’s pay and terms and conditions, or their mattresses being too hard or too soft. That is not the case. If she had read around the subject before this debate, she would know that we are talking about complaints that in some cases are very serious: bullying, intimidation and, in the most extreme cases, as my hon. Friend the Member for Bridgend has described on numerous occasions, sexual assaults and other incidents that have gone unreported.

I do not accept the idea that if someone is in that appalling situation, the system should decide whether their complaint should go forward. The ombudsman should consider that complaint. That would give confidence. If the Minister met some of the families—

Anna Soubry (Conservative, Broxtowe)

I have.

Kevan Jones (Labour, North Durham)

I am not suggesting she has not, but if she has met some of the families involved in Deepcut or of those who have died in service, she will know that they would not trust the system to take care of their loved ones’ complaints.

Martin Horwood (Liberal Democrat, Cheltenham)

The hon. Gentleman is being unfair on the Minister, who has never suggested that the issues it is intended the ombudsman will handle are not serious. I am now slightly confused. Haven risen to speak in sympathy with the amendment, he now seems to be arguing that it should be the ombudsman who decides whether a complaint goes forward. As I understand the Minister’s remarks, that is already the case. What the amendment says is that the next of kin or the personal representative of the deceased should make that decision. I would like him to clarify exactly which argument he is making. He seemed a moment ago to be saying that it should be the ombudsman’s decision, but as I understand it, it already is.

Kevan Jones (Labour, North Durham)

The fact is that in bullying, harassment and similar cases, it is important that family members have the ability to do so. Under the Minister’s proposals, the system would close that down. There are two important issues: that families can ensure that a complaint goes forward, and ensuring that lessons are learned. It will not bring those individuals back—that was the tragedy of Deepcut and other cases—but that is the important point.

Oliver Colvile (Conservative, Plymouth, Sutton and Devonport)

What a delight it is to serve under you, Mr Chope. On a minor point, surely sexual assault is an issue for the police to take up as well.

Kevan Jones (Labour, North Durham)

Well, it is; the hon. Gentleman is right that the service police should investigate, but I ask him to read some of the cases that have emerged where such complaints have not been referred to them, either because the immediate chain of command, though aware of the matter, did not report it, or sometimes—I think things have improved in the past few years—because the service police did not take the cases seriously. It is right that in a perfect system, what the hon. Gentleman suggests should happen. It would be good if the ombudsman could examine the chain of command in such instances. There are later amendments dealing with the service police.

Madeleine Moon (Labour, Bridgend)

I beg to move amendment 40, in clause 2, page 2, leave out lines 25 and 26 and insert—

“(a) for the establishment of a centralised tri-service administrative office for the processing of service complaints; and

(b) for service complaints to be submitted to that office before being passed to an officer of a specified description;”

To help the Committee, I will not press the amendment to a vote. It is a probing amendment on an issue I want the Minister to consider. Much of it comes from extensive discussions with Lieutenant Colonel Jeremy Field, now retired. He was given the job of creating and rolling out the Army’s first ever Service Complaints Wing in 2010, and was given six months to do it. In evidence to the Defence Committee he said he was

“shocked at how little knowledge there was about Service Complaints, how little interest the chain of command took in Service Complaints and the fact that there was no overall oversight as each command was responsible for Service Complaints within its geographic boundaries and all had different systems.”

He set up a system in which all service complaints were sent to him at Army headquarters and he read each one, as did a lawyer. A lawyer was there in case any possible criminal act had occurred. In that case the complaint was stayed pending a Royal Military Police investigation. In several cases that led to the Service Prosecuting Authority deciding that court martial proceedings against respondents were appropriate.

Complaints were allocated to a caseworker, who would liaise with the deciding officer with process advice and maintain an overview of each case with monthly updates. The legal officers provided the necessary legal advice to the deciding officer as the service complaint progressed. In 2010 that brought a chaotic system into some sort of structure.

I mentioned on the previous amendment that Colonel Field had been asked whether a complaint had been made in relation to the late Corporal Ellement. His words may help the Minister:

“I checked our data base and found that we had no record of a complaint. However, if she had made a complaint through her chain of command, given the haphazard system that was in operation before my 2010 changes, it may not have been recorded.”

The Navy has 10% of all bullying, discrimination and harassment complaints, and the RAF 38%; it is thought that that is based on its high number of women. The Army has 43%.

The amendment indicates the need to examine the introduction, tri-service, of a centralised complaint wing, and we have seen such centralising in the Army. Best practice could then be shared, and professionalism and expertise could be built. The work load could also be shared, depending on who was carrying the most complaints. There could be greater trust, in that a single-service ethos would not influence investigations. Delays would also be reduced. Where there was the potential for conflict, or a concern that the chain of command was involved in the complaint in any way, the case could be passed to another service.

Those are my suggestions to the Minister. She can take them away and do with them as she wishes. I merely propose the amendment in the hope that it will be taken into consideration. I do not want to press it to a vote.

Anna Soubry (Conservative, Broxtowe)

This is a good example of where I agree with so many of the sentiments expressed by the hon. Lady, but the question is how we achieve what she proposes. I am more than happy to discuss the issue with her, but I am not persuaded by the arguments in favour of the amendment, and I would certainly resist it.

Let me briefly set out those arguments, because I think that would be helpful. The hon. Lady is right that we need to have consistent handling of service complaints, but the independent scrutiny the ombudsman brings will help to ensure that we do, and an awful lot of work is, of course, already going on in the services to achieve that.

There are no plans at present to set up a tri-service unit. Each service will rightly retain responsibility and accountability for the welfare of its personnel in the widest sense. The nature of the complaints raised, and the efficiency with which they are handled, are a key aspect of that. It will be open to the commissioner, and then the ombudsman, to comment on how the efficiency of the process in any service at any level could be improved.

I very much like the idea of a complaint going straight to a specified officer—straight to the commanding officer—from the very beginning, so that he or she not only takes responsibility for that complaint, but knows exactly what is going on in their unit or under their command. If there are any difficulties, they can take responsibility for making sure things are done properly.

At the moment, therefore, I am not convinced by the hon. Lady’s argument, although I do not disagree that there is more to be done. However, I am confident that our ombudsman will continue to look at that and make improvements.

Madeleine Moon (Labour, Bridgend)

As I said, I do not intend to push the amendment to a vote. Evidence came to me of the need to professionalise the examination of complaints in the armed forces. Far too often, junior officers with little understanding of bullying, harassment and discrimination were providing support to commanding officers. If we are to take these issues seriously, there needs to be professionalism and a concerted effort to have consistency of practice across the three services. The concept behind the amendment was to introduce the idea of a tri-service unit. I beg to ask leave to withdraw the amendment.

Kevan Jones (Labour, North Durham)

I beg to move amendment 24, in clause 2, page 2, line 33, leave out “three” and insert “six”

This probing amendment goes to the heart of the system. It is important not only that we have a system that is adjudicated on, but that it is fair to the individual. The amendment would increase the time within which someone could bring a service complaint from three to six months. It is important to have a system that is accessible. There was a lot of publicity around the most recent armed forces Act to try to ensure that all ranks understood not only their responsibilities under it, but the complaints procedure. On the question of time limits, nothing should prevent someone from bringing what they feel is a genuine complaint. I accept that three months is standard for employment tribunals and other ombudsman services, but the reason for asking for an increased time limit is the unique nature of our armed forces. Deployment make may make it difficult for an individual to bring a complaint within the time limit. They could be posted to areas overseas where the last thing on their minds is meeting a time limit to make a service complaint.

That will also allow the individual to seek the necessary legal advice and to seek alternative resolution to this system. The Service Complaints Commissioner’s complaint, particularly to the Army, concerns the length of time it takes to deal with complaints. She has done a valuable job in highlighting that. The time taken to deal with complaints would be unacceptable in any other walk of life. I do not think that this would lead to any further delay, because it would be at the beginning of the process. The amendment is to probe whether there will be any flexibility. I know that employment tribunals allow for exceptional circumstances in which time limits can be extended.

Anna Soubry (Conservative, Broxtowe)

I am grateful to the hon. Gentleman. This is always difficult because we want to make sure that the period of time is not so long that people begin to forget various events or that material is lost. On the other hand, we do not want to make it so short that people are precluded from making their complaint. I pray in aid of my argument that we have got the balance right that in the regulations that prop up this legislation, which I hope hon. Members have had the opportunity to look at, regulation 6, “Period for making a service complaint: further provisions”, makes it clear that where a service complaint is made after the three-months, where the specified officer—in other words, the person to whom the complaint is made—takes the view that,

“in all the circumstances it is just and equitable”

for it to be made outside the three-month period, that flexibility is there. In the event of the specified officer finding against a complainant, it is open to him or her to go straight to the ombudsman and say, “This is maladministration; this is not right. I am asking the ombudsman to look at that decision because he or she has not made that decision on the basis of justice and equability.” So I think that all the provisions and safeguards are there.

We want three months because we think it strikes the right balance but it also sends out a message to everybody, notably to those who are dealing with complaints, that we will no longer tolerate delays of the sort that hon. Members are very much aware of. We want to make it clear that we want a fair and just system with expedition at its heart.

Kevan Jones (Labour, North Durham)

I beg to ask leave to withdraw the amendment.

Madeleine Moon (Labour, Bridgend)

I beg to move amendment 5, in clause 2, page 3, line 12, at end insert—

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

This is another amendment that came from the House of Commons Defence Committee. The purpose of the amendment is to secure a degree of independent scrutiny of the regulations by requiring the Defence Council to consult the ombudsman. If there is resistance I will be pressing the amendment to a vote.

The Committee considered that there should be a degree of independent scrutiny and input into the content of the regulations for the procedure of making a complaint and determining the admissibility of service complaints. The Committee recommended that the Bill be amended to require that. To go back to the speech of the Committee Chairman during the Second Reading debate, this is about the scope and powers of the ombudsman.

These issues were discussed when we took evidence. Rev. Nicholas Mercer argued that the Defence Council was not sufficiently independent—either organisationally or institutionally—to make the regulations on its own. Liberty argued that civilian best practice suggested that processes for internal grievances in employment tribunals could not be defined solely by the employers, and that there should be an independent element in offering advice and views to the Defence Council on the regulations. The Royal British Legion support the amendment. The Equality and Human Rights Commission said that the Defence Council should be required to consult the ombudsman before making the regulations on the procedure for making and dealing with service complaints. The Geneva Centre, which covers the role of the ombudsman around the world, points out that

“an ombudsman institution is independent from the government and…is not part of any of the bodies”

that it oversees.

Therefore the importance of institutional independence of ombudsmen from Governments is absolutely critical. As I said earlier, the UK is unique in having the only armed forces ombudsman that oversees the armed forces’ own internal complaints system. If we are to open up that system, the least we can do is allow the ombudsman to be party to the writing of the regulations.

In relation to this matter the new service complaints ombudsman has said:

“A requirement for the Defence Council to consult the Ombudsman on the procedure for making a complaint and determining admissibility would be a helpful clarification.”

It seems to be common sense that the ombudsman looks at the regulations and is party to the writing of them, so that, again, the issue of trust, transparency and flexibility is built into this legislation from the start.

Kevan Jones (Labour, North Durham)

I rise to support my hon. Friend on amendment 5. I know that there has been discussion in this Committee and also at Second Reading of the fact that the ombudsman should not try to interfere with the chain of command in any way. However, in this situation she would not be doing so: it is about consultation. If there is an opportunity for the ombudsman at least to look at the regulations and possibly use the knowledge she has built up to inform them, that would help the Defence Council and the Secretary of State. It is also important that, as my hon. Friend said, it would lead to the fact that these have been scrutinised by an external body, so that it is not just the system writing the regulations or putting in things that might lead to issues that need amending later on.

From the Secretary of State’s point of view and that of the Defence Council, this should be a helpful move—except that people would object to this if we were saying that the ombudsman in some way had a veto over the regulations. That is not what the amendment says; it says that the ombudsman should be consulted and have an input into that. It would raise the profile and effectiveness of the ombudsman and be helpful in developing her role and standards in the armed forces and the system as a whole.

Derek Twigg (Labour, Halton)

I do not want to repeat what has been said. My hon. Friends the Members for Bridgend and for North Durham made the points well. This is not a veto, but it is common sense to consult someone with all that experience who knows the system in detail and whether it is working well. The more they can do that within a framework, the better it is for getting regulations and changes in place. It is difficult to understand why that would not be a good thing and I look forward to hearing the Minister’s views. As my hon. Friend the Member for Bridgend said, it is about consulting people who are in the best position to provide a view. I cannot see why the ombudsman would not be in a position to do that very well.

We all know that there can be good and bad regulations. I have always found that if one consults those in a good position to provide advice, it might prevent future problems and bring about better regulations. This is a highly sensible, logical approach, clearly set out by my hon. Friend. I hope the Minister will take account of those views and agree.

Anna Soubry (Conservative, Broxtowe)

Of course consultation is a good thing; that is exactly what we do. Hon. Members know that the previous Service Complaints Commissioner has been involved in the work so far on the draft regulations, as would be expected. We do not have a difficulty with the principle; it is a matter of whether it should be on the face of the Bill. We do not believe it should be, which is why I urge hon. Members not to support the amendment.

The provision does not need to be on the face of the Bill, because it is there and it is set out in principle in any event. There is another important reason why it should not be on the face of the Bill. The ombudsman will be investigating whether there has been maladministration in individual cases. It would be—and I think it is—strange and might affect his or her role and how it is seen, through a legislative requirement, that she has been formally involved in how the procedures have been formulated. She is not part and parcel, formally, legislatively, of the system and that is absolutely right, but the principle of consultation is there.

The ombudsman, as now with the Commissioner, will be able through her annual report and at any time to make comments about how the process might be improved. It is really important to assure hon. Members of the incredible power that the ombudsman has through her unfettered powers to put into her report anything she wishes. At any time she can speak to any Minister, talk to any member of the media, any Committee, any MP and so on, freely and frankly on any matter. That is what matters, but if she is put in the formal process through law, not only is it unnecessary but the danger is that she is seen as part of the process when we want her to stand independent of it. That is why the amendment should be resisted.

Madeleine Moon (Labour, Bridgend)

I wish to press the amendment to a vote.

Kevan Jones (Labour, North Durham)

I beg to move amendment 25, in clause 2, page 4, line 16, leave out “six” and insert “twelve”.

I say at the outset that the amendment will not be pressed to a vote today; it is a probing amendment and shares the arguments—which I will not repeat—that were advanced for amendment 24. This amendment would increase the time limit for an appeal from six to 12 weeks; I will not reiterate the points that I made about service life but it is to make sure that individuals are not hampered in any way in terms of putting in an appeal, should they wish to seek redress of a service complaint because of operational tempo or service life. It is a probing amendment and I will not repeat the arguments that were made for amendment 24 as they are the same. I am interested to hear the Minister’s reply.

Anna Soubry (Conservative, Broxtowe)

Essentially, I would make the same arguments that I advanced when we considered extending the time period to three to six months. I am reminded that it is set out in regulation 11(2). Again, it is not an absolute; there is a process whereby, if in normal circumstances it is just and equitable that the six weeks should be extended then that power is there, as you might expect. We hope that we have struck the right balance so that things are dealt with as swiftly as they possibly can be but in a fair and just way. If for reasons of operations—a submariner often goes away under the water for some six months, out of contact with anybody—in those circumstances it would clearly not be just and equitable for it not to be heard outside the specified period, that is what the regulations allow.

My view is to resist the amendment and I hope that the hon. Gentleman understands that it is for good reason, because fairness and justice are there in the regulations.

Kevan Jones (Labour, North Durham)

I beg to ask leave to withdraw the amendment.

Madeleine Moon (Labour, Bridgend)

I beg to move amendment 6, in clause 2, page 6, line 22, leave out subsection (1) and insert—

‘(1) The Service Complaints Ombudsman may investigate—

(a) a service complaint;

(b) an allegation of maladministration in connection with the handling of a service complaint including an allegation that the handling of a service complaint was inappropriately delayed; and

(c) an allegation of inappropriate delay in relation to a person prior to that person making a formal complaint, or an allegation relating to the staying of a complaint

where the complainant makes an application to the Ombudsman.”

Alan Meale (Labour, Mansfield)

With this it will be convenient to discuss the following:

Amendment 34, in clause 2, page 6, line 24, leave out from “where” to end of line 25 and insert—

“(a) the complainant makes an application to the Ombudsman; or

(b) where a complaint has been active without a decision for longer than one calendar year.”

Amendment 7, in clause 2, page 6, line 30, after “allegation”, insert “or service complaint”

Amendment 35, in clause 2, page 6, line 30, after “allegation”, insert—

“arising from an application made by a complainant under subsection (1)(a)”

Amendment 8, in clause 2, page 6, line 34, after “complaint”, insert “or the complaint”

Amendment 9, in clause 2, page 6, line 34, after “allegation”, insert “of maladministration”

Amendment 36, in clause 2, page 6, line 38, at end insert—

‘(3A) Service Complaints Regulations must make provision for—

(a) procedures for the Ombudsman to be notified when a complaint has been active without a decision for longer than one calendar year; and

(b) the Secretary of State may make regulations in this area, in consultation with the Service Complaints Ombudsman, regarding the circumstances in which the Ombudsman may start an investigation.”

Amendment 37, in clause 2, page 6, line 39, after “investigation”, insert—

“arising from an application under subsection (1)(a)”

Amendment 10, in clause 2, page 6, line 40, leave out “alleged” and insert—

“the service complaint referred to in subsection (1)(a) is well founded or any”

Amendment 38, in clause 2, page 6, line 42, at end insert—

‘(4A) The purpose of an investigation arising from subsection (1)(b) is to decide upon—

(a) the reasons why no decision has been reached on the complaint; and

(b) whether those reasons amount to maladministration and, if so, whether this has, or could have, resulted in injustice being sustained by the complainant.”

Amendment 39, in clause 2, page 7, line 13, at end insert—

(a) In this section a complaint shall be considered active from the time it is made until a decision is made upon it by the Defence Council; and

(b) the period referred to in (a) shall include any period in which the complaint is stayed or paused in any way.”

Amendment 12, in clause 2, page 8, line 35, at end insert—

“(za) the wrong complained of,”

Amendment 28, in clause 2, page 8, line 36, at end insert—

“(aa) the substance of the original complaint”

Amendment 29, in clause 2, page 8, line 38, leave out “of the maladministration” and insert “of subsections (3)(a)(aa)”

Amendment 13, in clause 2, page 8, line 38, after first “the”, insert “wrong complained of or”

Madeleine Moon (Labour, Bridgend)

It is a pleasure to see you in the Chair, Sir Alan.

Kevan Jones (Labour, North Durham)

Easily pleased!

Madeleine Moon (Labour, Bridgend)

From a sedentary position my hon. Friend says that I am easily pleased. He clearly does not know me.

I will speak separately to the amendments in the name of the Select Committee on Defence and those in my own name. I will push all the amendments to a vote. Amendments 6, 7, 8 and 9 relate to the ombudsman having the power to investigate a service complaint, an “allegation of maladministration” in the handling of the complaint—that includes an allegation that the complaint was inappropriately delayed—as well as the power to investigate an allegation of “inappropriate delay” prior to the making of a formal complaint or an allegation relating to the “staying” of a complaint.

Amendment 10 inserts a new requirement that a service complaint where injustice could have resulted, rather than just maladministration, must be “well founded”. Amendments 12 and 13 reinforce the inclusion of “the wrong complained”. I understand that we will move amendment 6 to a vote later.

These are perhaps the most important changes to the Bill. They go to the heart of the ombudsman’s powers and responsibility, and they relate to the issues considered by the Defence Committee concerning the ombudsman’s scope. We believe that the ombudsman should be able to investigate the substance of the original complaint once the service’s internal processes have been completed. We see no reason to believe that that would undermine the chain of command.

In its evidence to us, Liberty described the limitation to maladministration as a

“fundamental omission from the proposed system.”

It was concerned that although the ombudsman might find that the complaint had been handled in a procedurally correct way, it might have been able to report in circumstances where the substantive conclusion of the investigation was in error. Liberty thought it just as important to establish that a complaint was resolved correctly as it was to establish that it had been conducted “in a fair manner”.

The previous Service Complaints Commissioner suggested that the Bill should be amended so that it is explicit that the ombudsman can investigate and report on any maladministration in the handling of a service complaint, rather than the alleged maladministration raised by the complainant. The commissioner also reported that most complaints stem from poor communication and poor management.

Service personnel are impacted by delays. In cases such as that of Corporal Neathway, which I intend to discuss in a moment, those delays can stretch into hundreds of weeks. In the 2012 armed forces continuous attitude survey, 46% of respondents reported dissatisfaction with the time taken to process a complaint. Only 39% were satisfied. By 2013, that had worsened, with 66% dissatisfied with the time taken.

The Defence Committee agreed with the commissioner that the ombudsman should be able to investigate and report on any maladministration that might take place during the handling of a service complaint, not just the maladministration alleged in the application to the ombudsman. The Committee welcomed the clarification by the Ministry of Defence and the Service Complaints Commissioner that maladministration in the handling of a service complaint would include consideration of whether an injustice had resulted or could have resulted from the way the complaint was handled. However, we still believe that the ombudsman should be able to investigate the substance of the original complaint once the service’s internal process has been completed. The commissioner told us that that was an important change.

The Royal British Legion supports the principles behind the amendments. The ombudsman should be able to investigate and report on any maladministration that might have taken place during the handling of a service complaint, not just that alleged in the application to the ombudsman. The Royal British Legion said that chronic delays in dealing with complaints are the main reason for unfairness in the system, and that such delays could give rise to a finding of maladministration by the ombudsman. It argued that if service personnel were deliberately not being allowed to make complaints about wrongs that had been done to them because they were ruled out of time when the individual’s complaints were looked at, because there was delay, or because people were not being told about their rights, it could result in a potential finding of maladministration. All those allegations have been levelled at the current system.

The Equality and Human Rights Commission argued:

“The Ombudsman should be empowered to investigate service complaints about bullying, discrimination, harassment, and of victimisation as a result of raising a service complaint”.

The new service complaints ombudsman said:

“The employment relationship is at the heart of the Service complaints process. It is particularly important that the system is designed to make the employer, the chain of command, deal with complaints promptly and effectively and hold them publically to account for doing so, rather than give them an ‘opt out’ on the basis that someone else can investigate it for them. The quickest way to resolve a complaint will be by a suitably empowered person, within the relevant Service, accepting it is a priority amongst their other responsibilities to investigate and put right.”

I would be perfectly happy if that was what I saw happening, but I have so many examples of complaints that have been stayed and have gone wrong, where people have waited extremely long times—totally inappropriate lengths of time—for justice finally to be done. The reality is that this is not at the heart of the employer relationship.

I have a copy of a letter, which the Minister has seen, from Lance Corporal Neathway to the previous Secretary of State for Defence. He talks about how he tried to raise a complaint. He was singled out for unfair treatment after being wounded in action and lost three limbs. He says,

“I was persistently harassed by phone, blocked from leave, and mocked, ‘You’re not much of a para now, are you?’”

He was then blocked from complaining by his commanding officer, who refused to accept his complaint, and tried to delay it until it was out of time. Delaying complaints until they are out of time comes up in cases that come my way over and over again. I am more than happy to keep the Committee here for a long time to go through them all, but I will focus on prime examples.

Lance Corporal Neathway’s letter continues:

“When I persisted, he blackmailed me: he threatened that if I insisted on complaining he would post me away from my friends and specially-adapted disabled equipment. When I did complain, he punished me: he removed me from my friends and specially adapted equipment, living quarters and adapted home, and actually banned me from my camp. The cover-up started immediately”

The letter goes on to say that there were lies, and the complaint was not properly investigated for a further six weeks. It says,

“only once I was forced to write to the Service Complaints Commissioner was any ‘investigation’ of the Army, by the Army, started. I was never given an assisting officer to help me understand the procedures or to help me with my complaint.”

Lance Corporal Neathway said in the letter that there were legal lines that he could take, but that he would rather prove how effective the service complaints system is than do that. He still believed in the military system. That is the other issue that comes across to me time and again—people are hugely distressed, in some respects less by the complaint than by the rejection by the military that they had served. That is when the distress really starts, and it is often when the bullying and harassment start, and when people really begin to suffer psychological harm, because they believe in the service that they joined. They believed enough to offer their life to that service. Then, they have a problem, and instead of that service helping them to solve it, they themselves are seen as the problem—who should go away.

History has shown that a small minority of cases—I say a small minority, but we know that 1,500 people were also stayed from making a complaint, or the military system came together to not allow a decision to be made about those 1,500 people, who had been wronged and wrongly punished, having been subject between 2008 and 2011 to police cautions.

The Army failed to catch up with the change in the law in 2008, which said that a police caution should fall the minute it is given; so, there should be no further action in relation to a police caution. Instead of which, the military imposed double jeopardy and further punishment. Some people were forced to leave the military; some were demoted; many were fined.

In 2011—this is mainly, if not all, in the Army—people found out that they had been breaking the law since 2008. Was that then immediately put right? No, and I have to say that the only reason we know what happened next is because of a whistleblower. I know that whistleblowing is not included in this Bill. However, leaked documents from the Army Justice Board started coming into my office, which clearly showed that decisions were being made in meetings to drag out decisions about complaints for as long as possible, so that people would be out of time to make a service complaint.

Sir Alan, I do not know about you but I did not come into public service to support, enable and justify a Department of State covering up injustices to the people it is supposed to protect, employ and provide justice to, as an employer. These are the most shocking cases. In each of them, the chain of command failed to reach the high standards; they failed promptly and effectively to accept these complaints as a priority, as the Service Complaints Commissioner talks about.

When I read the Service Complaints Commissioner’s comments, I felt, “Well, she may well learn over the coming five years that these high standards will not be met.” It is for us today in this Committee to look at what we do—how we protect and empower those who are abused by the system. That is the nub of it.

Jim Shannon (DUP, Strangford)

The hon. Lady outlines a number of cases where she has been personally involved in trying to change the direction of an inquiry to ensure that the time scale is correct. In some of the cases in which I have been involved, I have found that only through intervention with Ministers at the highest level is help being put in place for individuals. Does she feel that that is unfair on people who do not resort to their Member of Parliament for help with intervening with Ministers to ensure a change in policy or direction?

Madeleine Moon (Labour, Bridgend)

I thank the hon. Gentleman for his intervention. Members of Parliament have a role, but I probably made the Minister’s life a bit—

Anna Soubry (Conservative, Broxtowe)

Not mine.

Madeleine Moon (Labour, Bridgend)

I probably made not just the current Minister but previous Ministers uncomfortable with the volume of parliamentary questions that I asked. I appreciate that both the current Minister and the previous Minister have met me to talk about this. I also pay regard to the current Minister for finally coming up with a solution and being willing to move forward. In all honesty, should it take from 2008 to 2015 to secure justice when a Department of State has acted illegally? I understand that the Department did not realise between 2008 and 2011, but when a Department finds that it has made a mistake, I do not expect it then to have meeting after meeting in which it says, “Let’s keep moving on this. They’ll run out of time, and they won’t be able to make a complaint.”

Brian Binley (Conservative, Northampton South)

The hon. Lady is making a moving case for our service personnel. Would not a very simple change from “may” to “will” in the amendment’s first line answer all her problems?

Madeleine Moon (Labour, Bridgend)

The hon. Gentleman makes an interesting intervention. However, I am speaking to amendments recommended by the Defence Committee, and it is not for me to make a collective decision on whether this Committee would have gone down a different route. The Committee will vote on the amendment before us today.

We need an ombudsman who can ensure that service personnel who want to make a complaint do not face bullying, harassment, threats of disciplinary action, posts at short notice, sanctions by the annual report and damaged reputations and careers. The service complaints ombudsman should be empowered to investigate where such things happen. It is for Parliament, following our examination of the numerous cases that come our way, to decide what safeguards are required.

Martin Horwood (Liberal Democrat, Cheltenham)

It is a pleasure to serve under your chairmanship, Sir Alan. I have some sympathy with amendment 6 and the consequent amendments, which, as I understand it, seek to replace the ombudsman’s simple remit to address maladministration with a three-headed remit to address maladministration, delay and the substance of the complaint itself.

Madeleine Moon (Labour, Bridgend)

I rise to clarify that the extra provision in the amendments would mean that, where an individual is unaware that they have been the subject of an injustice because that injustice has been deliberately withheld from them, they should be able to make a complaint—it would not be stayed, if that makes sense.

Martin Horwood (Liberal Democrat, Cheltenham)

I am not as clear as I was because what the amendment does is to set out three heads instead of one.

Kevan Jones (Labour, North Durham)

If the hon. Gentleman waits until my amendments 28 and 29, I think that they cover the points that he refers to.

Martin Horwood (Liberal Democrat, Cheltenham)

I am looking at amendment 6. In any case, we are debating the amendments as a group, so I will talk about the issues relating to the thrust of that, which are delay and the substance of the complaint.

On delay, I have a great deal of sympathy with this amendment. The only substantial military justice case that I have had as casework was very complicated. A fight and an alleged assault took place between a member of British military personnel and a British civilian on a British base in Germany. It was immediately unclear which disciplinary or justice system would be used—British military disciplinary processes, British military justice, the German civilian justice system or even the British justice system. It was a complicated case and it dragged on for years. It was the subject of a Westminster Hall debate initiated by myself and another hon. Member who subsequently represented my former constituent.

Many of the delays were not due to the complexity of the case—or if they were, it was only superficially so. At stages, it was clear that the military had lost interest in the process, that things went unanswered and unlooked at for many months at a time. In some instances, the case seemed to have been lost altogether in the system and never seemed to emerge from it. The external pressure applied by Members of Parliament and others was a crucial part in getting any progress at all. Making it clear in the Bill that it does not need to be proved that the delay amounts to maladministration is an important step.

On the question whether the ombudsman should look at the substance of the complaint as opposed to simply maladministration, this is an issue which has come up at almost every stage as the Bill has progressed through the House of Lords and on Second Reading. There seems to be an emerging consensus. The Defence Committee is clearly convinced that there is a problem. It was raised in the Lords. It was raised by my hon. Friend the Member for North Devon (Sir Nick Harvey) on Second Reading. He said:

“If one looks at the definitions of ombudsmen more generally, one will see that their purpose is to address the substance of a grievance or a complaint by an individual against an institution or bureaucracy. I do not believe that simply looking at the question of maladministration is an adequate way of doing that.”.—[Official Report, 2 February 2015; Vol. 592, c. 71.]

It is referred to in the evidence of the current commissioner, who said:

“inserting a clause which enables the Secretary of State to ask the Ombudsman to investigate the substance of individual cases as he saw fit would be a very sensible measure”.

So, there seems to be a consensus. The Government’s answer tends to be that this is outwith the remit of ombudsmen and that they are supposed to look at maladministration. While that is true to a point, and in casework I am sure we have all had experience of the processes behind the local government ombudsman, the Parliamentary ombudsman and so on, I have had experience of ombudsmen who have looked at maladministration, but who have also passed judgment on the injustice of the substantive case. That was certainly true in one major case I had relating to the Department for Work and Pensions. The ombudsman looked not only at the process but at whether that person was due compensation from the DWP and he made a very strong recommendation.

This is a slightly artificial distinction and, in any case, this is Parliament and we make the rules. We can decide to extend the remit of this particular ombudsman if we think that that is justified. The consensus seems to be that it is justified. As always, I will be listening carefully to the Minister’s comments and to further speeches from the other side. At the moment, I have a great deal of sympathy with the amendments.

Kevan Jones (Labour, North Durham)

It is a pleasure to serve under your chairmanship, Sir Alan. This group of amendments goes to the nub of the Bill. The hon. Member for Cheltenham made the point that it is about what we want the ombudsman to do. Is the ombudsman simply going to look at maladministration, or will she have the powers to investigate? In my days in local government, I dealt with the local government ombudsman, who looked at the maladministration of a process but, in many cases, went into the issues surrounding it because there might have been a pattern of similar cases.

I will address the points made by the hon. Member for Bridgend about delays. I met Lance Corporal Neathway on a number of occasions when I was a Minister. As I said at Second Reading, a braver individual you could not meet, not only his bravery in Afghanistan, but the bravery and courage he has shown in overcoming—if one could ever overcome—the horrific injuries that he suffered. I ask the Committee to think of this. If the Army can treat someone like him, who is high profile, very brave, served his country and received horrific injuries, in the way that it did, what hope is there for a junior recruit or someone lower down the ranks? Looking at the way Corporal Neathway was treated, the Army should be ashamed that it would treat not only him but any member of the armed forces in the way it did.

I do not hold out much hope for him or people like him in the future if we do not amend the Bill. As has already been described, the delays that have been outlined by my hon. Friend the Member for Bridgend will be used in an attempt to stop complaints in the first place. Without any substantial change, the ombudsman would have quite a small remit in looking at how that person’s complaint was dealt with.

It is to the credit of Dr Susan Atkins that she has pushed the boundaries of her remit by commenting on things. Later on, perhaps, the Minister will say that the ombudsman will be able to comment on things. That is fine, but it needs to be in the Bill. Having talked to Dr Susan Atkins, I think that is how she envisaged the ombudsman’s role. Otherwise, we will have a very clinical approach to maladministration, and only certain things will be looked at.

Amendments 28 and 29 are in my name and my hon. Friend’s name. Amendment 28 will allow the ombudsman to look at the substance of the original complaint. That is important because it allows the ombudsman to look at the process of dealing with the complaint, and at what lies behind it. I might sound like a broken record, but I ask people to go back and look at Lord Justice Blake’s report into Deepcut and some of the issues that arose at the training centre at Catterick. Blake was able to look in detail, not just at the four tragic deaths but at the culture and other things related to them. That was important to the inquiry. It looked in detail at the individuals and at the culture and other things that were clearly wrong at Deepcut, which led to unacceptable bullying and harassment.

To the credit of the chain of command, it acted on the report and instigated some changes. However, let us suppose for one minute that one of the individuals had come forward with a complaint because they were not happy with something that was happening to them. The ombudsman would have had a very tight remit in looking at their complaint. She would not have been able to look at the substantial bullying that took place or at the culture that existed in non-commissioned officer ranks, which affected not only individuals but a whole group. Quite clearly, a number of cases would have come forward if she had looked at those things. Without the amendment, the ombudsman would have been very limited.

Amendment 29 removes “maladministration” and inserts consequential subsections relating to what actually happens in a complaint. This is very important because, without it, some of the broader lessons will not be learned. On Second Reading the Minister said—and will say again—that there is nothing to stop the ombudsman looking at wider questions and asked why we needed a provision in the Bill. The reason why we need it in the Bill is that we need the chain of command and Ministers to be quite clear about what is expected of them in the future.

If the Bill leaves Committee containing these extra powers for the ombudsman, that would do more than just strengthen the right of redress for members of our armed forces. The hon. Member for Cheltenham made a very important point: these people are our constituents, from all our constituencies, who took the decision to join the armed forces. We should be proud of that fact, but we should also be able to be proud that if people join the armed forces they get full protection, and if something goes wrong there is an independent process to look at what happened.

I am not sure what the chain of command has to fear from this, given the external outlook. The Blake report and the work that Dr Susan Atkins has already done on the broader issues surrounding some of the complaints have helped and informed the process. Without that, we will have an ombudsman who is limited in what they can do, even though there is an understanding that the ombudsman may well look at other issues.

Madeleine Moon (Labour, Bridgend)

These amendments would also be helpful by informing the chain of command of the consequences of not being robust in their management of complaints. There will be injustice if someone inappropriately creates delay prior to the making of a complaint, or in other words if someone withholds information so that the person does not even know that they have suffered an injustice, as happened to the 1,500 people who were not told that the actions taken against them were illegal. If someone knows that they will be investigated, they will cause these delays. The amendments remove the reasons for creating delays.

Kevan Jones (Labour, North Durham)

I agree with my hon. Friend. This would also allow the ombudsman to look at an individual complaint, but there may well be patterns of behaviour that relate to one case. I come back to the case of Lance Corporal Neathway. If those involved were prepared to treat someone like him in such a way, how are they treating other people? Unless the ombudsman can look at that original complaint and those broader issues and then inform the chain of command of that, I do not hold out a great deal of hope that the chain of command will actually change things.

Brian Binley (Conservative, Northampton South)

Forgive me, but I am losing touch with the meaning of maladministration. Is deliberate delay not maladministration? Does the ombudsman not have the opportunity to point out a trend in his annual report anyway?

Kevan Jones (Labour, North Durham)

Yes, I agree with the hon. Gentleman about maladministration in terms of delay. However, is such maladministration due to a lack of resources or activity or is it deliberate? I suspect that in some of these cases it is deliberate, first, to make sure— [ Interruption.] The Minister chunters from a sedentary position that it may be maladministration. It is, but if that is the only thing that the ombudsman can look at, the wider lessons that are needed will not be drawn in terms of the substance of the complaint, which is what my amendment would do, and, more importantly, the broader issues.

The hon. Member for Northampton South says that the ombudsman can put that in her report. Yes, she can, but we want to put it in the Bill, so that there is an onus on the ombudsman to look at broader issues. Those might not come out of complaints; it might be that she is doing an investigation and other things come up that she can then look at. They might relate to the individual complaint she has received, but might also lead to broader issues about the culture or about the way a certain service, or part of it, is operating. If we do not have that, we will be missing a huge opportunity for allowing the oversight that, I have to say, our constituents deserve.

The hon. Member for Cheltenham was right: people go to their Members of Parliament to raise these things. Has the system not failed if people have to go to Members of Parliament? That is no disrespect to any of us who would take them up—because we would take them up, quite rightly—but people should not have to rely on Members of Parliament. We should have a robust system that protects the individual making a complaint, and, if there are broader issues, the ombudsman should be able to make recommendations and look at the substance of those complaints. Without that, we will have a Service Complaints Commissioner by another name: we have changed the name, but not, in practice, the capabilities.

I speak to many people on this subject and have done for many years: this is what we should have put in place in 2006. A lot of us were arguing for it then.

Anna Soubry (Conservative, Broxtowe)

You were the Government.

Kevan Jones (Labour, North Durham)

I was not in the Government then, but I was arguing very vociferously for this as a member of the Defence Committee, along with my hon. Friend the Member for Midlothian; his amendment to that Committee’s report asked for an ombudsman. I am saddened that it has taken so long for us to get there. We are now in a position to do it and, as I said this morning, if we do not do it now, this will come back in two or three years and we will get what we need.

I know, and it has been happening ever since I have been dealing with this issue, the chain of command will not come out publicly and say they do not want this, as I think the Chairman of the Select Committee said on Second Reading, but they will undermine it by saying it is too radical a change. Well, we have had 10 years plus of this process; it is not radical. It is not very revolutionary and it should have taken place before now. If they do not want this full stop, as I think the Chairman of the Select Committee said on Second Reading, they should say so.

Knowing the senior military as I do, I do not think they have anything to fear from this system. It will inform better practice, certainly on things such as delays. If they find bullying and the rest, it will reinforce existing policies, which are clearly not being enforced because of personal failure by officers dealing with situations. I think everyone in this Committee Room genuinely wants to get to a point where we can guarantee to parents whose young men and women join the armed forces that there is a duty of care for their physical safety during training and that, if things do go wrong, that will be properly investigated, someone will be held to account and lessons will be learned.

The Neathway case is important not just because of the individual, but because of the lessons learned. If the Service Complaints Commissioner had powers to investigate and provide reports, that would be the spotlight that is needed to stop people doing some of these things in the first place. Furthermore, once that spotlight had been shone, things would be put in place to improve the situation, inform us and, on occasion—let us be honest—criticise the chain of command. That is true for any ombudsman system, be it parliamentary or local government.

I have been on the receiving end of criticism from the local government ombudsman on more than one occasion. It makes people wake up and ensure that things are put in place and changes made. Without that, all we will have is a change of name. That will be a missed opportunity and we will be back to it, whether we like it or not.

Anna Soubry (Conservative, Broxtowe)

It is a pleasure to serve under your chairmanship, Sir Alan. I am addressing my comments in a certain direction, with no disrespect to you. I feel I am wasting my breath a little, though I hope there is still some opportunity to persuade Opposition Members.

I am cognisant of the arguments made by the hon. Member for Cheltenham, and I am grateful, as ever, to my new very best friend, my hon. Friend the Member for Northampton South, for his sensible intervention. With no disrespect to the Opposition spokesman, his comments were mainly about amendment 26 and touching on amendment 27. It matters not, because I hope to convince everybody that those amendments should not be supported, for good reasons.

We need to get this absolutely clear. We all know and understand that there have been cases where, clearly, people have had totally justified and often concerning serious complaints. Unfortunately, it is not just Lance Corporal Neathway who found himself making a substantive complaint; there have been others in the past. The Government take that very seriously, which is why we introduced the Bill.

We are talking about only a part of the Bill that concerns the ombudsman. It is important to roll back and start again at the beginning. The Bill is about ensuring that we have a strong and robust complaints system, so that all our service personnel who do not have the rights available to other workers, for reasons well explained, do have a robust complaints system.

I make it clear that a strong, effective, good employer has nothing to fear. It is a mark of strength for an individual to put hands up and say, “You know what? I go that wrong,” just as it is for an employer who has a good, strong, robust system who can say, “If you have a complaint, I will take it seriously and we will deal with it.” That does not mean that the judgment will be in favour of that person. Some complaints are not made out, but such a person should have confidence in the system to come forward and make a complaint without fear. That is what the Bill seeks and that is the substance at its heart, which is mainly in the regulations. It will streamline the system and make it more robust. In particular, it will turn the commissioner into an ombudsman.

I am disappointed that the hon. Member for North Durham takes the view that this is not a step forward. It is a significant step forward. I could comment, if his idea is so brilliant, that he was a Minister and he had 13 years to do all these things. We—it is “we”, I hope—have introduced the Bill robustly, without fear or favour, because we know that we have to get it right. We also have to put an ombudsman in place.

It is important to understand that the complaints system is there in a new form. It is more streamlined and robust. There is a process for a complaint that is not substantiated. If an individual makes a grievance, invariably against another individual, and seeks a particular form of redress, as referred to in examples in previous speeches, but the complaint is dismissed, there is a right of appeal. That process exists and it is possible to exercise the right of appeal. If the complaint is still not substantiated, people can then go to the ombudsman on the basis of maladministration.

As my hon. Friend the Member for Northampton South identified, there is no strict legal definition of maladministration, thank the Lord. That is quite right, because as soon as we start overly defining it, we will lop off all the options available and not allow something new that somebody might not have come across or thought of coming forward for. Deliberate delay to someone’s disadvantage must be about as blatant a maladministration as anybody can think of.

If a woman corporal makes a complaint against a sergeant, saying that she has been sexually harassed, and she calls on six other witnesses, all of whom effectively support her complaint to the hilt, and the person against whom the complaint has been made brings forth nobody and gives a half-hearted explanation of what has gone on, it is difficult to see how one would not be able to substantiate as a basis for maladministration some bias on the part of the commanding officer investigating that complaint. We should not be overly hung up on having a narrow definition of maladministration that will not do the job that we want it to do, which is to ensure that our servicemen and women have proper justice.

Martin Horwood (Liberal Democrat, Cheltenham)

I have to tell the Minister that, in my experience, both ombudsmen and Ministers sometimes have a clear view of what constitutes maladministration and refuse to go beyond that. That is one of the issues at stake: we want the ombudsman to be able to have a slightly more relaxed remit.

On the issue of delay, the Minister says that it would clearly be maladministration if a deliberate delaying tactic had been used. I am sure that she is right about that, but the point that I was trying to make is that that adds a burden of proof on the complainant to prove that it was deliberate. In the case that I described, there was no suggestion that it was a cover-up, to use the colourful phrase used by the hon. Member for Bridgend. I was not alleging any kind of cover-up; I was not even saying that there was deliberate delay in the sense that people were trying to prevent justice from being done. Nevertheless, the delay was unacceptable and it was causing an ongoing injustice. In saying that delay in its own right can be considered by the ombudsman, we could make this a much fairer and more just piece of legislation.

Anna Soubry (Conservative, Broxtowe)

Let me put it this way. Sometimes there is delay that seems strange on the face of it and that could be a difficulty. There might be a good reason for that delay. The classic is when an allegation is made against more than one person, or relies on someone else to support it, and the person is away for six months on operations. That will cause delay. The test, to be fair, is whether it creates an injustice. If there is any hint of injustice, it is maladministration, so the ombudsman can consider it. It need not be written down in the strict definition that is in grave danger of being put in the Bill, which would tie people’s hands. We want their hands to be free, not constrained by over-definition. Delay can be at the heart of maladministration. I will move on to that specific point in a moment.

Kevan Jones (Labour, North Durham)

Will the Minister give way?

Anna Soubry (Conservative, Broxtowe)

I will, but I want to make some progress.

Kevan Jones (Labour, North Durham)

It is nice that the Minister is accepting interventions this afternoon, unlike this morning. Can she explain how accepting the amendments, which would allow the ombudsman to consider not only the original complaint but broader thematic issues, will lead to delay and maladministration?

Anna Soubry (Conservative, Broxtowe)

First, there was only one intervention that I did not take this morning.

Kevan Jones (Labour, North Durham)

Two.

Anna Soubry (Conservative, Broxtowe)

Well, we are not going to squabble over that; it is not important. What is important is that, if I can continue addressing the Committee, I can answer all those questions.

Madeleine Moon (Labour, Bridgend)

The Minister has ably set out the case. The person makes a complaint, it goes through the system, it comes out the end and they can appeal. The amendments are for those people who cannot get that far and do not know that there is an injustice. For example, an Army Justice Board briefing says:

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

Five people who knew that they had suffered an injustice made complaints that were stayed. They could not move through the process; they were in never-never land and could not move their complaints forward. Until the Minister spoke on Second Reading, those complaints remained stayed, from 2008. Many people did not know, having been dismissed from the armed forces over a wrong interpretation of the law, that they had suffered an injustice. They had therefore not made a complaint and no complaint was able to get as far as the commissioner. That is the problem.

Anna Soubry (Conservative, Broxtowe)

I do not think anyone can have a complaints system unless an individual raises a complaint in the first instance. That is what this is about. It is about an individual making a complaint about whatever it may be—[Interruption.] I will now make progress in order to advance a good argument in favour of not supporting the amendments.

We have got the balance right between creating a powerful new ombudsman to hold the services to account for the handling of service complaints, and ensuring that it is ultimately up to the services to put things right for their people where they have gone wrong. Any ombudsman would like an empty in-tray: because of their work, they have ensured that those to whom they are accountable have done a better job so that there are fewer complaints coming their way. We are determined for our services, which have already made good progress, to take complaints seriously and to have the right processes so that they can get on and act expeditiously.

We thought long and hard about the right package of powers for the service complaints ombudsman and we remain convinced that the powers provided in the Bill are necessary and appropriate. The ombudsman will, for the first time, have an important role in reviewing the handling of service complaints. They will be able to get all the information they need to carry out thorough investigations into individual cases and then make strong findings and recommendations to the Defence Council to remedy failings that have occurred.

Kevan Jones (Labour, North Durham)

Will the Minister give way?

Anna Soubry (Conservative, Broxtowe)

No, I will not.

The ombudsman will also have important new powers to review the substance of decisions taken at two stages in the internal system: the admissibility and appeal stages. That will act as a further important check on how the services are handling and deciding upon their service complaints.

Kevan Jones (Labour, North Durham)

Will the Minister give way?

Anna Soubry (Conservative, Broxtowe)

Not mid-sentence. I do not think that making comments from the Front Bench advances anyone’s arguments. I will take interventions when I choose to. Forgive me, as I need to make a little bit of progress.

It is right that the services are ultimately responsible for the welfare of members of the armed forces. It is for them to put things right where wrongs affect their personnel. That goes to the heart of unit cohesion and operational effectiveness.

Derek Twigg (Labour, Halton)

I am listening carefully to the Minister, but I have not quite been able to gather from what she said how putting this in the Bill would cause problems. How will the amendments cause a problem if they go into the Bill? Will she explain that to the Committee?

Anna Soubry (Conservative, Broxtowe)

In short, it is because the amendments will extend the scope of the ombudsman’s role to look at the merit and substance of complaints. We do not believe that that is what this role should be. We are content that the powers of the ombudsman as set out in the regulations and in the Bill will do what we want to do and will achieve what we want to achieve, which is a much better service complaints ombudsman—[Interruption.] I am sorry, but I do not agree with the amendments. They extend the scope of the ombudsman into territory that should not be within his or her power. The hon. Gentleman asked for the reasons; he now has them.

Kevan Jones (Labour, North Durham)

I am very, very, very grateful to the Minister for giving way. I accept what she is up against. The senior military want to keep the system as it is. That will not last. If the ombudsman cannot look at the substantial issues around the original complaint, how will the ombudsman be able to make changes? I am at a loss to see how she could do that.

Anna Soubry (Conservative, Broxtowe)

I thought I had explained that the definition of maladministration is such that it will enable the ombudsman to look at a complaint that has not been successful. I take a bit of an exception to the idea that this is not a huge step forward. It is a step forward. We have streamlined the complaints system; we have knocked out some of the tiers; and we have enabled people effectively to go straight to the ombudsman if at first instance they have been told that their complaint is out of time. We have created this role and given the ombudsman the powers that she needs in order to deliver a complaints system that is robust and to ensure that the services themselves ultimately take responsibility for having a robust complaints system that takes complaints seriously, deals with them expeditiously and acts in accordance with the findings. If they do not, there is an appeal process. In the last instance, there is the ombudsman. We believe we have got the balance right.

I take exception to any suggestion that I am leant on in any way. We have given great care to this Bill. We believe that we have struck the balance absolutely right. There are those who would want to go into different territory—the territory of an armed forces complaints ombudsman. That is different. This is about individuals with grievances during the course of their employment that they cannot pursue by virtue of their service. If I may, I would like to make some progress.

The ombudsman’s role in investigating maladministration under the Bill is not to conduct a general review of the handling of the case. It is intentionally focused on specific allegations of maladministration made by the complainant who is dissatisfied with the way their complaint has been handled. The service complaints system is, after all, one that is personal to the service person. It is aimed at providing redress for any wrongs that may have occurred. Under one of the amendments, if the complainant did not want something investigated, they would have no option. That is wrong. This is about individuals and their complaints.

Kevan Jones (Labour, North Durham)

I do not accept that. Let us take a serious case of bullying. Is the Minister suggesting that, if the individual has put in a complaint and been dealt with and there are instances in the original complaint where other people were involved and being bullied at the same time, that one complainant should be dealt with in isolation from anything else that might come out of that inquiry? If the ombudsman had the powers to look at the substance of it, surely she would be helping the situation by addressing the problems of other people who have not come forward because they are too afraid.

Anna Soubry (Conservative, Broxtowe)

In those words we hear what I am afraid the Opposition do not understand. If a complaint has been dealt with, it would never have got to the ombudsman. People would only go to the ombudsman if their complaint had not been dealt with. If it has been dealt with, that is the end of the matter. [Int erruption .] Heckling me achieves nothing. We come back to this. If a complaint is found by the ombudsman to involve an act of maladministration and injustice has occurred to that complainant, and if she believes that others may have been caught up in the situation, she can specifically identify in her report all those things. She does not need to go away. Some of those people might not want to give evidence or make a complaint, but she can act without fear or favour. She can say all those things in her report. More than that, she can go to any Minister, any service chief, any unit commander, any member of the press, any member of any committee or any Member of Parliament and say, “As a result of what I have heard and what I’ve learnt, I believe that we have a serious problem in this unit, whatever it may be.” She does not need to have her hands tied. They are not tied by the Bill. She has that freedom. That must not be forgotten.

Placing a statutory duty on the ombudsman to investigate whether any maladministration has occurred in every case may amount to a positive obligation on her to search for all possible maladministration, whether or not the complainant is concerned with it. That, in the Government’s view, is undesirable and may add considerably to the time it takes each case to be concluded. We all know that we want expeditious investigations to be at the heart of the complaints system.

There is some flexibility provided by the legislation for the ombudsman to look at specific allegations in the round, but if the allegation is, for example, about delay, the ombudsman would not be able to find that there had been bias unless it was separately alleged by the complainant. If the legislation were to permit this, as proposed by amendment 10, it would be likely to amount to a general review in every case, which has never been the policy intention. This is really important: I urge members of the Committee to look at the regulations, because draft regulation 4 specifically allows that, if it becomes apparent that the complainant does not want to raise a specific allegation of maladministration once the investigation is under way, the ombudsman will, at his or her own discretion, be able to permit an amendment to the application for that to be looked at as well. That flexibility is there in the regulations, and if I may say so, I hope that that satisfies the concerns of the hon. Member for Cheltenham.

Many other matters could be put forward as to why the amendments simply should not go into the Bill, mainly for the reasons that I have outlined, but, essentially, it is because we are confident that we have struck the right balance and that we have done so after much careful consideration. If we voted in favour of any of the amendments, far from freeing up our ombudsman, we would tie his or her hands. That is why I hope the Committee decides to vote against.

Madeleine Moon (Labour, Bridgend)

I beg to move.

Kevan Jones (Labour, North Durham)

I want to address some of the issues that the Minister has raised. She is basically saying that we should leave this to the chain of command and that, somehow, giving those powers to the ombudsman would limit her role in being able to investigate—what nonsense. The Minister seems to be arguing in one respect that the ombudsman basically has those powers and has the flexibility to do this, but in the same argument says that the powers should not be in the Bill. I do understand which it is.

The amendments would certainly strengthen the role of the ombudsman and would be of no threat whatever to the chain of command. They would enhance the process and get the thing that we actually need: an ombudsman with real powers to give to an individual and to improve the protection that they deserve. If we do not do that with this Bill, we will back here within a matter of years in an attempt to get to this stage.

Madeleine Moon (Labour, Bridgend)

I rise to speak to amendments 34, 35, 36, 37 and 38, which are around double flag investigatory powers. After a complaint has taken a year—[ Interruption. ]

Anna Soubry (Conservative, Broxtowe)

I am so sorry, Sir Alan, but I thought that we were going to vote, but then the hon. Member for North Durham decided to speak and now we seem to have moved on to a different group of amendments—[ Interruption. ] Are we going to have another debate on those separate amendments?

Alan Meale (Labour, Mansfield)

I should point it out to Members that when we started the arrangement the debate was included in the core of that set of amendments, but, if you would prefer, we could do the other now and then come back again, or we could do it now and finish it off altogether.

Anna Soubry (Conservative, Broxtowe)

I think that I was confused because there had been a move to the vote.

Alan Meale (Labour, Mansfield)

We have got to deal with this perhaps in two votes, which might be done formally. I am going to take the first set of the amendments to which the Minister and Opposition Front Benchers have thoroughly spoken to. Mrs Moon is referring to amendment 34, which was included at the outset.

Anna Soubry (Conservative, Broxtowe)

I am sorry, Sir Alan, but I had thought that all those amendments were grouped and therefore all our speeches referred to that group. Is that not right?

Alan Meale (Labour, Mansfield)

To be fair, Minister, at the beginning, we announced that we were going to take all these things together, but there was a formal request from an individual on behalf of the Defence Committee to move one of those amendments formally later on. With slight confusion, we agreed. If we want to take them all together now, we can, or we can do them quite separately, but I think that the person involved will move that there be a second vote. I think we will be far better if we just allow the hon. Member for Bridgend to conclude. Although I am in no way foretelling the future, I suspect that she might move her amendment formally. In that case, Minister, you will get what you want and they will all be taken in a matter of moments.

Anna Soubry (Conservative, Broxtowe)

I am so sorry, but it is my understanding that this was a group of amendments spoken to as a group and not picked off in this way. I felt under some pressure to go through quite a long speech because I was dealing with all the amendments as one, which I thought we had agreed. We now seem to have changed that.

Alan Meale (Labour, Mansfield)

The problem is that democracy is sometimes difficult. In a democratic institution such as this, Members can choose to speak on different amendments and have votes. That may be traumatic and worrying—at times awful—but we have to proceed along that way.

Anna Soubry (Conservative, Broxtowe)

Let me make it clear, Sir Alan, that I do not have a problem with democracy or with debate—in fact, I rather enjoy it. I do have a problem when we have agreed something and gone down that route only to find, suddenly, that we are agreeing something else and are in a different place. That is all I am saying. I thought we were debating it all together and now we are not. That is not about democracy.

Alan Meale (Labour, Mansfield)

To be fair to Mrs Moon, Minister, she indicated to the Chair at the beginning of business today that she wanted to do two things: first, deal with the collective amendments and, secondly, move this particular amendment formally. I said okay, as I did to other requests made by your side of the Committee.

Anna Soubry (Conservative, Broxtowe)

I am so sorry. What is the one amendment?

Alan Meale (Labour, Mansfield)

Amendment 34 to clause 2.

Madeleine Moon (Labour, Bridgend)

Sir Alan, if it will simplify things, I will move the whole cluster to a vote.

Martin Horwood (Liberal Democrat, Cheltenham)

I was enjoying the conversation until that point. I have not heard a substantive debate on amendments 34, 35 and 36, so I would be unhappy to vote on them as a set with amendments 6, 7, 8 and so on. We have clearly debated amendments 6, 7, 8 and the associated amendments. I would not seek to negotiate with you, Sir Alan, on how this is conducted, but I would not want them all grouped.

Alan Meale (Labour, Mansfield)

The hon. Member concerned has agreed to the solution and has proposed to the Committee that we take them all together, and that is what we intend to do, unless she wants to speak any more.

Madeleine Moon (Labour, Bridgend)

Sir Alan, I may cause too much distress to the Minister and her Members if I do, so I will move to amendment 6.

Alan Meale (Labour, Mansfield)

Well, you may not cause a riot, but you may cause a kerfuffle.

Alan Meale (Labour, Mansfield)

The Ayes were 11 and the Noes were 9.

Mark Lancaster (Conservative, Milton Keynes North)

On a point of order, Sir Alan. How can the result be 11 to nine when there are only 19 members of the Committee?

Alan Meale (Labour, Mansfield)

You are right.

Alan Meale (Labour, Mansfield)

Can I just tail back, Minister, and ask for your patience for a little while longer because of the procedure that was agreed before? We dealt with all the amendments a moment ago. I want to go back to ensure that amendment 34 to clause 2 has already been debated. We have no need to talk about this again.

We now move to amendment 26 to clause 2.

Mrs Moon rose—

Martin Horwood (Liberal Democrat, Cheltenham)

On a point of order, Sir Alan. I thought that we had just grouped this entire group, which I objected to on a point of order, but we decided to go ahead. I am now not at all clear what we are voting on. Perhaps you could clarify that for me.

Alan Meale (Labour, Mansfield)

The debate was on amendment 6. We are now having a vote on amendment 34, which has been debated in the context of amendment 6.

Kevan Jones (Labour, North Durham)

On a point of order, Sir Alan. I tabled amendments 28 and 29. Will we vote on them?

Alan Meale (Labour, Mansfield)

They come later.

Kevan Jones (Labour, North Durham)

Can I have clarification on exactly when, because I am getting a bit confused about where we are now?

Alan Meale (Labour, Mansfield)

We are now going to deal with amendment 26. The amendments that you are talking about will come after amendment 11. Does that make sense? Would you like more time?

Kevan Jones (Labour, North Durham)

No, I know where I am.

Alan Meale (Labour, Mansfield)

Amendments are placed where they come in the Bill. We have just proceeded beyond amendment 34, so we will now deal with amendments 26, 27 and 21.

Brian Binley (Conservative, Northampton South)

Do you know where you are, Kevan?

Kevan Jones (Labour, North Durham)

Yes.

I beg to move amendment 26, in clause 2, page 6, line 25, at end insert—

‘(1A) The Ombudsman may, after advising the Secretary of State, investigate any matter deemed to be in the public interest on—

(a) any aspect of the system mentioned in section 340O(2)(a);

(b) any matter relating to the Ombudsman’s functions under this Part; and make a report to the Secretary of State.”

Alan Meale (Labour, Mansfield)

With this it will be convenient to discuss the following:

Amendment 27, in clause 2, page 8, line 28, at end insert—

‘( ) The Service Complaints Ombudsman may prepare a report at any point in time if it appears to him to be in the public interest.”

Amendment 21, in clause 2, page 11, line 42, 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.”

Kevan Jones (Labour, North Durham)

These amendments relate to the debate that we have just had. This issue came out of the Defence Committee report. Obviously, the Minister and I disagree on what we should want from an ombudsman. Do we want someone who will look just at individual complaints, or will they be able to look at other issues in the public interest that have come forward?

Amendment 26 refers to

“any matter deemed to be in the public interest”.

This is very important, because there are such issues. I go back to the issue at Deepcut. If we had had an ombudsman then, they would have been able to look at issues that were clearly of concern not only to the Members of Parliament who were raising them, but to members of the public. This would not be the state allowing the ombudsman to go off on a free rein, but it would allow them to inform the Secretary of State on such issues.

Also, my hon. Friend the Member for Bridgend raised earlier the double-jeopardy cases. That was an obvious case that the ombudsman, because of the wider public interest, could have looked into. I think that if the commissioner had announced that she was going to look at the case, the Ministry of Defence might have resolved it much quicker than it did, but credit to the Minister for bringing that injustice to a resolution.

This proposal is not about giving the ombudsman a free rein, but about the broader issues that the ombudsman should be able to look at—things that are in the public interest. They would be able to do thematic reports, which, if done properly, could inform not only the debate, but the chain of command with a view to making changes. That would be of benefit to the chain of command, the duty of care and the supervision of members of our armed forces.

Amendment 21 refers to “any matter”, because these issues are broader than complaints about pay and individual grievances, which we talked about this morning, and they clearly need addressing. I have to admit that I agree with the Minister. Changes have been made in terms of the chain of command. I am talking not only about Deepcut, but other changes that have taken place. Improvements have been made—for example, by accepting the recommendation from Lord Justice Blake about having oversight of initial training establishments. That has added to the improvements that we have seen in the past few years, but clearly, within the Army in particular, things still seem to be going on if we have had the situation with the double-jeopardy cases and the Neathway case.

The Minister will say that we are changing the remit and position of the ombudsman. Well, yes, we are, but that comes down to a fundamental disagreement between the Defence Committee and Opposition Members and the Government on what the ombudsman’s role should be. I do not think that we will ever square that circle and agree on that, no matter what we discuss today. These proposals are of fundamental importance. They would allow issues that are in the public interest and that are of grave concern to the public to be investigated. As I said, this is not about the ombudsman going off at free will; it is the ombudsman informing the Secretary of State. If that is done properly and sensitively, it could improve not only the administration of justice, but what is going on at certain establishments in the armed forces.

Anna Soubry (Conservative, Broxtowe)

Amendment 21 would widen the scope of matters on which the ombudsman can make a report beyond those already provided for in terms of the content of their annual report, including the operation of the complaints process, the execution of their role and any other matters that the ombudsman considers necessary or the Secretary of State may direct.

Alan Meale (Labour, Mansfield)

Before we proceed, I must make an announcement. It has been agreed by the Whips and the Front-Bench spokespeople that we will push on with the Bill to try to conclude as much as we can today. That will save hon. Members having to come in on Thursday morning and perhaps later. I ask Members to bear in mind that we have a long and arduous time ahead of us today.

Anna Soubry (Conservative, Broxtowe)

Thank you, Sir Alan. I will try to ensure that we make good progress, although I could be naughty and vindictive and keep on going so that everybody has to be here along with me on Thursday. I shall be here on Thursday, although not under your fabulous chairmanship, Sir Alan. [ Interruption. ] Shall we all settle down? [ Interruption. ] Sorry, Sir Alan, that is your job. I am being the old bossy boots schoolteacher, but we will not have any sexist stereotyping, will we, gentlemen? Let us be serious. The concern that we have about amendments—

Brian Binley (Conservative, Northampton South)

Before the Minister gets too involved with her notes, and recognising that delay can be considered maladministration, I shall be brief in saying that I am fearful and wonder whether the Minister agrees with me. I am fearful that the Opposition are mixing the role of ombudsman with that of a regulator. It seems to me that an ombudsman acts on complaints, whereas a regulator in parliamentary parlance acts on his own behalf on issues he feels are important enough in his area of competence. I am concerned that, if we merge ombudsmen with regulators, we run into serious difficulty. Of course, an ombudsman has the right to point out to a large audience issues and problems in the annual report, but an ombudsman and a regulator should not be merged in that respect. Does the Minister agree that doing so would make the clause especially dangerous?

Anna Soubry (Conservative, Broxtowe)

I absolutely agree and I am grateful for my hon. Friend’s sensible comments. By unfortunately agreeing to amendment 6, the Committee has created effectively another level of appeal and that is not what the ombudsman is meant to be about. I almost said foolishly agreeing, but that would have been rude. It is not an appeal; it is a specific role that we hoped to have defined in the Bill. Should these amendments be accepted, we are in danger of creating—

Kevan Jones (Labour, North Durham)

On a point of order, Sir Alan. The Committee has voted on amendment 6, and the Government lost. Obviously, the Minister did not like that. However, is it in order to have another discussion on amendment 6 when we have already voted on it? Should we not refer to the amendments being discussed now?

Anna Soubry rose—

Alan Meale (Labour, Mansfield)

Minister, may I just point out to the Opposition spokesman that occasionally in debate things do refer backwards as well as forwards? That is a procedure we could speed up.

Anna Soubry (Conservative, Broxtowe)

Thank you, Sir Alan.

There are many different models in this country and across the world for an ombudsman with oversight of armed forces matters. We have set out in the Bill what meets our particular need. There is no bar in the Bill to the ombudsman raising matters that concern them with anyone and whenever they wish, as I have explained on numerous occasions during our deliberations. I want to put on record as an example that the last Service Complaints Commissioner, Susan Atkins, used to go round units and talk to people and find out what was going on, such was the unfettered nature of her appointment. That is one of the points about this ombudsman’s role: it will have that unfettered nature. That does not need to be set out in legislation.

The previous Service Complaints Commissioner raised a wide range of matters during her tenure with the chain of command or in her annual report. She can report at any time, knock on any door and do all the things that I have mentioned, with provisions that were the same as those in the Bill. We do not want or need the ombudsman to have the power to investigate any matter other than allegations of maladministration in how complaints have been handled. If matters are raised that need investigation, a decision will need to be made about who is best equipped and best placed to carry that out. In many cases, the ombudsman is unlikely to be that person, although they will, of course, contribute their expertise and knowledge about complaints matters to the process. For all those reasons, I ask the Committee to resist the amendments.

Kevan Jones (Labour, North Durham)

This comes back to the fundamental point. We are not going to agree, even though I think that amendment 6 fundamentally changes the Bill for the better by giving the ombudsman a wider brief. I cannot for the life of me understand why the Minister and the Government say that the Service Complaints Commissioner and the new ombudsman can go anywhere, look at anything and recommend things, while arguing that those things should not be part of the ombudsman’s remit and should not be in the Bill. Amendment 6 is important, because it broadens the ombudsman’s remit substantially and gives them the role that the Defence Committee and outside organisations feel they need. The Minister has said that the commissioner and the ombudsman have free will to do what they like and influence things, and all we are trying to do is to make that part of the ombudsman’s remit. I do not understand the resistance, except that the Government have tried from the outset to take a narrow interpretation of the ombudsman’s role.

Madeleine Moon (Labour, Bridgend)

I beg to move amendment 14, in clause 2, page 7, line 17, leave out subsection (2).

Alan Meale (Labour, Mansfield)

With this it will be convenient to discuss the following:

Amendment 15, in clause 2, page 7, line 19, leave out from (3) to “the”

Amendment 16, in clause 2, page 7, line 24, leave out subsection (5).

Madeleine Moon (Labour, Bridgend)

I apologise, Sir Alan; I did say at the beginning that I want to press all the Defence Committee’s amendments to the vote. I did not get to speak to amendment 21. Have I missed that opportunity?

Alan Meale (Labour, Mansfield)

Unfortunately, you cannot debate that amendment because it is part of the previous debate. You can bring it back on Report.

Madeleine Moon (Labour, Bridgend)

I shall do so. I shall speak to the Defence Committee’s amendments 14, 15 and 16. The Government’s draft regulations cover areas such as the information to be provided in an application to the ombudsman, the withdrawal of the application, time limits in respect of applications, the ombudsman’s power to request information, documentation and evidence, and action following the receipt of an application, the investigation procedure and the preparation and confidentiality of the ombudsman’s reports on investigations. These amendments speak to the power of the Secretary of State to make regulations and whether those regulations ought to be discussed with the ombudsman.

Liberty thought it appropriate for the Secretary of State to have broader powers to make provision on how the internal service complaints system operates but considered it important that there were distinctions between those powers and those in relation to the independent ombudsman. We were concerned, as a Committee, that the Bill does not make it clear that the regulations are intended to set up the parameters for the ombudsman’s investigatory process, while the detailed, procedural rules will be a matter for the ombudsman. This has the potential to undermine the independence, or the perception of independence, of the ombudsman. Our amendments would clarify the position.

Anna Soubry (Conservative, Broxtowe)

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 those regulations. One or two matters, such as time limits, need to be in regulations so that the ombudsman can enforce them. The ombudsman is a creature of statute, if I may put it that way, and so only has the powers that Parliament provides to him or her. It is up to the ombudsman in each case to determine the procedure for carrying out any investigation.

As can be seen from our published draft Armed Forces (Service Complaints Ombudsman Investigations) Regulations, there is no intention to unduly restrict the ombudsman in how he or she investigate matters. Rather than restrict the ombudsman, we encourage him or her to set detailed procedural rules. The Secretary of State’s powers through regulations are supplementing rather than limiting powers, in that they give the ombudsman the powers he or she requires to be effective. There are, however, certain details which we believe are best covered by regulation, so that the parameters for the ombudsman’s investigative process are made clear. These 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 want the flexibility to amend the procedures based on experience of the system as it develops. This is why we have not set out detailed procedural rules on the face of the Bill. This flexibility will enable the system to be more efficient, effective and independent. For those reasons, I ask that these amendments are resisted.

Madeleine Moon (Labour, Bridgend)

I beg to move amendment 11, in clause 2, page 8, line 29, leave out subsection (2) and insert—

‘(2) Where the Ombudsman finds—

(a) that the service complaint is well-founded;

(b) maladministration in connection with the handling of the service complaint to which the investigation relates;

the report must also set out the Ombudsman’s recommendations (if any) as a result of that finding.”

Alan Meale (Labour, Mansfield)

With this it will be convenient to discuss the following:

Amendment 18, in clause 2, page 9, line 15, at end insert—

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

Amendment 30, in clause 2, page 9, line 15, at end insert—

“(aa) accept the findings of the Service Complaints Ombudsman,”

Amendment 19, in clause 2, page 9, line 17, leave out “(if any)”

Amendment 20, in clause 2, page 9, line 20, leave out paragraph (c).

Madeleine Moon (Labour, Bridgend)

This amendment provides for the Defence Council to be responsible for considering the ombudsman’s recommendations and informing the ombudsman what steps will be taken in response to them. The Bill’s explanatory notes state that,

“the Defence Council will not be free to ignore the Ombudsman’s recommendations, but will have some leeway in deciding what to do”.

I draw attention to some of the comments made by witnesses to the Select Committee on Defence. The Rev. Nicholas Mercer stated that,

“the Defence Council is not required to take account of the findings of the Ombudsman, potentially. Where does it leave the complainant if that happens…? Does it have to go to judicial review?”

The Service Complaints Commissioner for the Armed Forces understood that the ombudsman’s findings would be binding. She commented:

“By agreeing to be bound by the Ombudsman's findings, the whole chain of command will be held to account for its treatment of its people. It is right that the chain of command retain responsibility for handling Service complaints, which for the most part are workplace grievances—but with increased transparency and accountability. Service personnel trust their commanders with their lives; they must be able to trust them with their complaints”.

That must be the case.

Anna Soubry (Conservative, Broxtowe)

The Government have made clear in the other place our intention that the findings of the ombudsman will be binding on the Defence Council, and the services accept this. The legal effect of the ombudsman’s findings is not specified in other legislation, and the courts have had no difficulty in determining in those contexts that those findings are binding on the receiving organisations. 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. The Defence Council would not be free simply to reject the recommendations because they disagreed with them; they would need good, cogent written responses and reasons to do so, such as that the full implementation of the recommendations was unworkable, or that there might be significant resource implications. The Defence Council should be able to reach the final decision on matters covered in any recommendations by the ombudsman.

Kevan Jones (Labour, North Durham)

Again, the Government appear not to object to the effect of the amendment, but do not want it in the Bill. That has happened a few times now. Apart from the fact that, as the Minister mentioned, it has not been done in other situations, has she any objection to the amendment?

Anna Soubry (Conservative, Broxtowe)

I have repeatedly explained that there are often very different reasons for not including something in the Bill. I have just explained the reasons in the present case.

Kevan Jones (Labour, North Durham)

Why?

Anna Soubry (Conservative, Broxtowe)

Because we do not believe it would add anything, and it is not the right way. I am sorry; I have taken an intervention and we disagree on this point. [ Interruption. ] It is not helpful to be heckled from a sedentary position and I am not taking the intervention.

The focus of the Defence Council will in most cases where the ombudsman has made recommendations be to decide precisely how they will respond. That may simply be a matter of implementing the recommendation by, for example, making an appropriate apology to the complainant. The person or persons who made the final decision in the internal process might be asked to reconsider a particular piece of evidence, to see whether it would have affected the outcome.

One of the most important elements of what we are trying to achieve is that when the ombudsman finds maladministration, that is not the end of the matter. They make recommendations. It may be that they simply tell the people who investigated a complaint, “Right. It’s going back to you. Start again, and this time do it in this way, in accordance with my recommendations.”

Andrew Bridgen (Conservative, North West Leicestershire)

From distant memory, there are two great tomes that deal with military law: the “Manual of Military Law” and “The Queen’s Regulations for the Army”. In what way will the Bill interact with or amend those rules?

Anna Soubry (Conservative, Broxtowe)

It is my understanding that it will not touch on them. The Bill is about a service complaints system; it is about grievances affecting an individual in the course of service life, which could extend from serious allegations of harassment or bullying, right across the piece to an allegation that an allowance or pay is not right. It is a huge mixed bag, but it is important not to lose sight of the fact that the Bill concerns an individual’s grievance, usually made against a particular person, and the identifying of redress.

Andrew Bridgen (Conservative, North West Leicestershire)

In that case, how will the Minister ensure that when the Bill progresses, as we hope it will, all ranks, from the top of the service to the newest recruit, will be aware of the process?

Anna Soubry (Conservative, Broxtowe)

My hon. Friend makes a worthwhile point. At the heart of the Bill is the Government’s determination to do the right thing by service personnel. The covenant is one example of that, although some may dismiss its power, and the Bill is another. It will establish a proper and rigorous complaints system. [ Interruption. ] I have just been handed a note saying “extensive communications”. I hope that there will be publicity. People need to understand the importance of what is being brought in.

Oliver Colvile (Conservative, Plymouth, Sutton and Devonport)

Will my hon. Friend confirm that that will apply to Reservists as well?

Anna Soubry (Conservative, Broxtowe)

Indeed. These are not contentious issues, but it is important to say that the Bill applies to Reservists. Actually, the Bill also applies to people who have left the service—they are still able to make a complaint within the time limit unless, of course, it would be an injustice to impose that time limit. The measure marks the seriousness of our determination to ensure that we have a proper system.

Mr Binley rose—

Anna Soubry (Conservative, Broxtowe)

I do not know whether my hon. Friend the Member for Northampton South wants to intervene, but I am happy to oblige.

Brian Binley (Conservative, Northampton South)

My concern lies more with the defence of the realm. Does the Minister foresee even the slightest possibility of a decision under amendment 18 affecting the defence of the realm and the work of our military forces in that respect?

Anna Soubry (Conservative, Broxtowe)

That is an interesting point, and it goes back to what I said at the beginning. This is about striking the right balance so that we not only maintain the confidence of the former and current chiefs of staff but get the balance of power absolutely right with the Defence Council, the chain of command. I would have thought it was a given that people understand what that means, and I think the Bill gets it right. We have a chain of command, and it should not feel threatened by any of this, but must we also have a rigorous complaints system.

I have said this before, but it is important to be clear that we are determined, not just in this Bill but in the other things that we do, to make the services step up to the mark where they have been failing by not taking complaints seriously. They must get on with it and do the right thing. This measure is part of that work, and I am confident that we have the right balance.

Kevan Jones (Labour, North Durham)

Will the Minister give way?

Anna Soubry (Conservative, Broxtowe)

I will give way, but I will then make progress.

Kevan Jones (Labour, North Durham)

I accept the Minister’s point about the chain of command, but Corporal Neathway was let down spectacularly by the chain of command. In terms of ensuring that such cases do not happen in future, I do not know what on earth the chain of command should fear from an ombudsman.

The rest of the debate is in Hansard.