My Lords, we have had debates in Committee and on Report on giving the Armed Forces Service Complaints Commissioner, now to be known as the ombudsman, wider powers to be able to report on thematic issues without being dependent on the Secretary of State asking for such reports. One reason for providing those wider powers—which is what this amendment seeks to do—is that, under the present arrangements, the commissioner has never been asked by a Secretary of State for Defence to report on a particular area of concern that she or the Secretary of State may have. It is therefore not credible to argue that the ability of the Secretary of State to call for such reports covers the situation.
The Commons Defence Select Committee believes there would be value in the commissioner—the ombudsman—being able to undertake research into and report on thematic issues, in addition to the annual reports, and that the ombudsman’s experience on these issues should be utilised. The Defence Committee reported that, during visits to units, the current commissioner had been informed of issues that would not necessarily come to her as complaints but on which she thought some work needed to be done. Such issues, which might refer to a general culture at a particular location or unit, or more widely, of discrimination or bullying, for example, would not be covered by new Section 340L, which relates to recommendations arising as a result of maladministration. A situation or treatment of an individual or individuals could be questionable or unacceptable without there being evidence of maladministration—assuming there was a willingness to make such a complaint, which relates to process, and whether a complaint has been conducted in a procedurally sound way.
In Committee, the Minister, on behalf of the Government, expressed concern that:
“an ombudsman with a wider remit to investigate matters of their own volition, notwithstanding whether they must first notify the Secretary of State of their intentions, could overlap with these other jurisdictions and cause confusion and difficulties”.—[Official Report, 9/7/14; col 243.]
That argument does not stand up. If that is the reason for not giving the ombudsman a wider remit in relation to thematic issues, then it must equally be a matter of concern under the powers in Section 340L. In respect of those powers, the Minister has said the ombudsman could make recommendations relating to wider systemic issues as a result of finding maladministration.
One difficulty of the Bill is that it is not clear what investigations, if any, the ombudsman can or cannot carry out on his or her own volition beyond investigating an individual complaint of maladministration. The Minister said in Committee that such recommendations could relate to systemic issues, but then said that the amendment seeking to provide for this went “beyond that required”, which would suggest that the Bill does not give, in the Government’s eyes, either the wider powers sought by the Defence Committee or sought in this amendment.
The Minister also said in Committee that there was scope for the ombudsman to raise wider issues,
“in appropriate ways … and to provide an input to investigations or inquiries conducted by other appropriate bodies”.—[Official Report, 9/7/14; col. 243.]
Clearly, the latter aspect, of providing an input into an investigation that somebody else has decided to initiate, does not meet the terms of this amendment, on the ability of the ombudsman to be able to carry out his or her own investigation and make his or her own recommendations.
I also have a concern that the Minister’s comment that there is scope under the Bill for the ombudsman to raise wider issues “in appropriate ways” is mainly a reference to being able to put something into the annual report. That view has been strengthened by the Minister’s statement on Report that:
“If systemic failings are identified through the complaints system, it is important that those are brought to the attention of both the individual service and the Ministry of Defence … the Bill gives the ombudsman scope to use their judgement to cover such matters in the annual report as they think relevant to the operation of the system or to the exercise of their role. The ombudsman’s annual reports, like those of the commissioner, will be able to look widely at the system of redress, the sort of complaints that are encountered and what sort of failings and misconduct the system has to deal with”.
The Minister also said on Report that the ombudsman could make wider recommendations,
“beyond those solely relating to maladministration, to addressing the effectiveness of the redress system or other systemic issues. Such wider recommendations could concern the better handling and investigations of complaints of a particular nature, where there is a finding of maladministration in connection with the handling of the complaint at hand. In addition, such recommendations could well concern the commissioning of training in carrying out investigations into certain matters—discrimination being a good example—or appointing a subject matter expert to investigate systemic issues or concerns that have apparently arisen. It is then fundamentally down to the services to respond appropriately and we would expect them to do so”.
It is evident from those quotes from what the Minister said on Report that the Government’s position is that, while the ombudsman can draw attention to systemic issues that have apparently arisen and recommend that they be investigated, the one thing that the Government are not prepared to allow the ombudsman to do is investigate such issues of concern on his or
her own volition unless required by the Secretary of State to do so—and, as we know, Secretaries of State have a track record of not asking the commissioner to do so.
Indeed, the Minister made this position clear on Report when he said:
“Although we want the ombudsman to address wider issues, including where they have identified systemic abuse, we do not want the ombudsman to have any statutory powers to investigate thematic issues. We do not, for example, want the ombudsman to have any powers to require the production of papers or to question witnesses beyond the powers set out in respect of the exercise of the ombudsman’s primary function of investigating alleged maladministration in the handling of service complaints and whether, as a result, injustice has been caused”.
So the issue is not the principle of the ombudsman being able to call for the production of papers or questioning of witnesses—since that could relate to maladministration—but instead to do so in the context of an investigation into a thematic issue of concern to the ombudsman as opposed to an individual complaint of maladministration. The reason given for this stance by the Government on Report was that they,
“do not want the ombudsman to be an inspectorate for the Armed Forces or to perform the functions of a rapporteur. … Conferring such a role on the ombudsman would also serve to divert the resources of the office”.—[Official Report, 29/7/14; cols. 1544-6.]
I hope that the second reason is not a significant one, since it appears to be saying that the reason for not allowing the ombudsman to investigate thematic issues is not related to the merits or otherwise of so doing but rather because the resources cannot be provided to allow him or her to do so.
3.30 pm
The report of the parliamentary Joint Committee on Human Rights on the Bill has recently been published. The committee welcomed the Bill,
“as a significant human rights enhancing measure”,
as have, I think, all parties. Indeed, the committee commended the Ministry of Defence for the exemplary way in which it had assisted it in its human rights scrutiny of the Bill. However, among the issues raised by the Joint Committee was the question of the independence of the ombudsman from the Government and the Armed Forces. The committee says that there is a need to demonstrate,
“the importance of the appearance of independence … to provide the necessary public confidence in the independence of the particular office holder”.
We may have different views on how that can be achieved, but I suggest that independence is not particularly enhanced by the Government saying,
“we do not want the ombudsman to have any statutory powers to investigate thematic issues”.—[Official Report, 29/7/14; col. 1545.]
when the Armed Forces covenant sets out that the Armed Forces have,
“a responsibility to maintain an organisation which treats every individual fairly, with dignity and respect, and an environment which is free from bullying, harassment and discrimination”.
and when the announcement of the creation of the ombudsman came a short time after the verdict was delivered on the inquest into the death of Corporal Anne-Marie Ellement. The inquest found that Anne Marie
had suffered workplace bullying, including rape-related bullying and the Coroner termed the situation a “hothouse”, concluding it was inevitable that incidents would occur.
It really is not clear why the Government are not prepared to go down the road of giving the ombudsman statutory powers to investigate thematic issues other than at the direction of the Secretary of State. What in reality are the concerns that cannot be overcome? What do the Government consider the ombudsman might do that would be unacceptable or would compromise national security if he or she had the right to investigate thematic issues of concern on their own volition? The recommendations arising from such an investigation would not be binding. They would have to go to the Secretary of State or Defence Council, who would decide whether to accept them in full or in part or not at all. Therefore, what is the concern that is so strong that a measure that would certainly enhance both the reality and the appearance of independence of the ombudsman cannot be countenanced? I beg to move.