My Lords, I thank the Minister for introducing this instrument, which effectively—with, I believe, four other negative instruments—gives effect to the Service Complaints Ombudsman, established by the 2015 Act, which some of us were privileged to flog through a few months ago.
The concern goes back to the tragic deaths at Deepcut between 1995 and 2002 and the subsequent inquiry. The outcome of that inquiry was the creation of the Service Complaints Commissioner. That role was taken up by a splendid lady, Dr Susan Atkins, who, having taken up the role, declared it not effective, efficient or fair. I commend the Government for reacting to her criticism. My party has long been calling for the introduction of an Armed Forces ombudsman, so we welcome the Act and the instruments designed to put it into effect. Labour is determined that all members of the Armed Forces who serve this country with such professionalism and distinction should be saved from bullying, harassment and other inappropriate or illegal behaviour. Ensuring that this is achieved forms a core component of the Armed Forces covenant. Hence, we support not only this affirmative SI but the negative SIs that go with it.
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However, I have studied the Explanatory Memorandum, the regulations and the Act, and I have to say that it is all stunningly obscure. I did some research to try to find out what we were trying to achieve. Interestingly enough, the office of the Service Complaints Commissioner set out in an information sheet how she will be different from the ombudsman. She says that the extra powers allow her to:
“review and overturn decisions by the chain of command to exclude a complaint or not allow a complaint to proceed, for example, for being out of time … review the handling of a Service complaint once it has finished the internal process, if the complainant feels something is wrong with the way it was dealt with … in certain circumstances, investigate the substance of a complaint once it has completed the internal process”,
and finally to,
“recommend action to the Defence Council to put matters right”.
In the round, put like that, this is a commendable package, but Her Majesty’s Official Opposition have to ask whether the regulations achieve those objectives—to use what I believe is a military term, do they do what it says on the can? I therefore felt a need to probe into them and understand them. Why is it particularly important in this case? It is important because service personnel, of course, have no trade union. Similarly, there was no formal consultation even for these instruments, because in many ways there was nobody to consult. Therefore, it is more important that the limited parliamentary scrutiny we have is of reasonable depth.
I could have looked at every bit of the regulations to see how they cross-referred but I did not have the energy or the time. However, I lighted upon Regulation 3(2), which says:
“A person may not make a service complaint about—”.
However, Regulation 3(2)(a) says that,
“a decision under regulations made for the purposes of section 340B(4)(a) (admissibility of the complaint)”.
Superficially, that looked rather worrying. I then went into the 2015 Act because, while the regulations refer to the 2006 Act, the 2015 Act introduced the new sections into the 2006 Act. New Section 340B(4)(a) says:
“Service complaints regulations must make provision … for the officer to whom a service complaint is made to decide whether the complaint is admissible and to notify the complainant of that decision”.
Superficially, these two things seem to contradict each other. We have a paragraph that says “you cannot make a service complaint about” and refers to Section 340B(4)(a), which says you are unable to make a complaint about the officer who decides that a complaint is not admissible.
Fortunately, I came across Mr Morrison, who has been my tutor on service law over a number of years—on all occasions on the end of the telephone; nevertheless, what little I know he helps me with. He points out that you have to read Section 304B(4)(a) with paragraphs (b) and (c). Subsection (4) states:
“Service complaints regulations must make provision”—
and paragraph (b) of that subsection states:
“for the Service Complaints Ombudsman, on an application by the complainant, to review a decision by the officer to whom a service complaint is made that the complaint is not admissible”.
So you have to read Section 304(B) with paragraphs (a), (b) and (c), and paragraphs (b) and (c) come to life only under the negative instruments which we do not have before us—perhaps we should have done—and therefore paragraph (a) does not contradict itself internally and they all fit together.
I go through all that only to illustrate how incredibly obscure the legislation is at face value. There is clearly a difference between a complaint and an appeal. Essentially, the ombudsman is an appeal service where the complainant is able to appeal the way his complaint is handled. I think that is right. Will the Minister assure me that I have that roughly right—I hope that someone can generate a quick note that says yes—and agree that the regulations are deeply obscure? The problem of the complexity of the detail was illustrated by the JCSI’s concerns. The Minister handled that point by saying that he accepts its criticism and will revise it at a suitable date.
How will this be presented to the average sailor, soldier or airman? You cannot refer him to these regulations. I understand that they will end up in joint service publications and that there will be other material. Will the Minister affirm that there will be a considerable effort to consolidate the legislation into a workable document so that members of the Armed Forces are able to take advantage of the new Act and so that this important step in the creation of the ombudsman is not wasted by the fact that the average person it might affect cannot understand how it works? How can we be assured that the translation into plain language, for want of better, does not defeat the intent of the legislation—in other words, that the strength of the Act is fully clear to the service person?
I assume that the Minister will refer to the commissioner, Nicola Williams, who seems to be an equally splendid lady. I hope he will assure me that she will be fully consulted in the generation of the appropriate joint service publication and any material which is generated to ensure that members of the Armed Forces understand what new capabilities they have. I hope he will also assure me that she will be absolutely satisfied that that material treads what is for any normal human
being an extremely difficult path in moving from the legislation, which amends a previous Act, to the order through all four instruments to a situation where the objectives are achieved and expressed in terms that people can understand without in any way diminishing the power of the two Acts and the orders.
Finally, almost in passing, I mention that the previous commissioner from time to time expressed her concerns about the extent to which she had sufficient resources to do this job. I would value an assurance from the Minister that he is confident that there will be sufficient resources for the new office so that this new and important capability—the new ombudsman function—will be able to operate satisfactorily.
Assuming that I receive appropriate assurances on all those points, I enthusiastically welcome the instrument. After the Deepcut tragedy and the issues of bullying, which even now one gets a little hint of but way back was all too prevalent, the Government have moved in the right direction—the direction we pressed for in our amendments in the other place—to a good position. I know that there is a very delicate balance in introducing an ombudsman in the military but I think we are quite close to the right place. It is important that the ombudsman is effective and properly resourced and that the intent is communicated to all service personnel.