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The Bill also makes other changes. It gives service personnel the right to apply to the ombudsman if they believe that the handling of their complaint has been subject to maladministration. It will reduce the number of appeal levels, which will speed up the process while
2 Feb 2015 : Column 45
remaining fair. It includes a new process of assigning a complaint to someone who has the authority to deal with it and give appropriate redress. It gives the ombudsman a new role at an early stage of the complaints procedure. When the chain of command has decided not to allow a complaint to be considered within the service complaints system because, for example, it is out of time or excluded on other grounds, a service person could ask the ombudsman to determine whether that decision was correct. A decision by the ombudsman will be final. The ombudsman will have a similar role in respect of appeals decided as out of time. The ombudsman will also retain the vital role of offering an alternative route for a serviceman or woman who does not wish, or is unable, to approach the chain of command directly, to have their concerns fed into the system. That is an important safeguard, especially where there are allegations of bullying or harassment.
Finally, the requirement to report annually on the operation of the system will remain, ensuring that there is proper accountability to Parliament. I just wish to re-emphasise that the ombudsman has access to any Minister and any member of any Committee in this place and also has the freedom to go to the media, should he or she wish to do so. So, over and above the annual report, they have an unshackled freedom to report without fear or favour their findings in relation to any particular grievance.
Mr Jim Cunningham: Does that mean that there is a provision for whistleblowers in the armed forces?
Anna Soubry: With respect to the hon. Gentleman, that is a completely different issue. As members of the armed forces do not have the same access and rights as other workers, this Bill ensures that they have a rigorous complaints system, so that when they have a grievance, whether it is about an allowance or because someone is bullying or harassing them, they can make a complaint, which will be taken seriously and dealt with in an efficient and fair manner. If it is found that that complaint is right and it is upheld, there will then be efficient redress. So this is about individuals and their grievances. Whistleblowing is a different matter and does not sit within the service's complaints, and I do not think that anybody would want it to do so.
May I now deal with the remainder of the Bill, which is, I am happy to say, uncontentious? I am talking about the financial assistance to organisations that support our armed forces community. The voluntary and community sector has a long history of supporting our services personnel, veterans and their families. Many of those groups are small and locally based and run by dedicated volunteers and they have the greatest understanding of the sort of caring and focused support that is needed. The Government need to work in partnership with those organisations and that includes providing financial assistance where appropriate.
Over the past four years, the Government have given £105 million to such groups to help them deliver the commitments of the covenant. That money has been used to deliver everything from veterans' accommodation to short breaks for families with disabled children. The groups range from huge organisations—some of our greatest and biggest charities—right down to very small local charities delivering right at a local level.
We are also looking at how the future armed forces covenant grant fund, set at £10 million a year in future—it is set in perpetuity—will be managed. If we are to make the most of that money, we must ensure that it goes to the right places. Organisations working with the armed forces community are based throughout the United Kingdom and beyond, and we want them to be able to benefit from this money wherever they are located.
Under existing legislation, we can fund charities and make payments to local authorities that benefit serving personnel in Great Britain but not to veterans in Scotland. We have navigated those constraints on a temporary basis, but clause 4 enables us to deal with them in the long term by allowing payments to organisations anywhere in the world.
The Bill has already gone through detailed scrutiny in the House of Lords where there was widespread support for its aims. There was a clear consensus on the need for reform of the complaints system although there were, of course, different views on the detail of those reforms. In particular, there was extensive debate on whether the ombudsman should be able to investigate wider issues beyond those covered by individual complaints. I am sure that this will be discussed further as the Bill proceeds through the House. No doubt we will be hearing from Members on this matter. I am happy for them to intervene on me now. It is an important matter and I know that people feel very strongly about it. I do not have any fear about engaging in that debate, although I will not intervene on any speeches from Back-Bench Members if they make the points that I anticipate.
Mr James Arbuthnot (North East Hampshire) (Con): I am grateful to my hon. Friend for trailing her coat in such an attractive way. Might I ask why she is so set against thematic reports to be produced by the ombudsman, which was recommended by the wonderful Dr Susan Atkins?
Anna Soubry: I disagree with my right hon. Friend's interpretation of Dr Atkins's views. Obviously, I have seen the Select Committee's excellent report. I may be wrong—I am quite happy to be corrected if I am—but I do not think she said that we should go as far as thematic reviews.
Rory Stewart (Penrith and The Border) (Con): As a point of information, I spoke to Dr Susan Atkins this morning and she was very clear that she believes that thematic reviews should be conducted.
Anna Soubry: So that is her view now. With great respect to Dr Atkins, I do not agree with her and I will—
Mr Kevan Jones rose—
Anna Soubry: Hang on—I'm going to make the argument before I get intervened on again. I have been very generous.
The ombudsman will look at service complaints and the Bill seeks to ensure that complaints by individuals with a grievance will be dealt with fairly and expeditiously and that justice will be done. In my view, the ombudsman should not look at any wider issues that may come up. I will give an example to support my argument.
Let us say that three people in a unit make a complaint about bullying and it is found that that complaint is justified. As a result, there is redress and the two individuals who have bullied them are punished by being removed from their posts or demoted. That is the end of the matter and it never gets to the ombudsman, who knows nothing about it because justice has been done.
What if, however, the three complainants feel that justice has not been done because their complaint has not been upheld and they believe that there has been maladministration in the way in which it has been handled? They would then go to the ombudsman, who would look at whether the complaint has been the subject of maladministration. The ombudsman might then say, "I have found that there has been maladministration and as a result of my findings I am making the following recommendations to the Defence Council." If, at any stage of her investigation, she believes that there has been systemic, systematic bullying in that particular unit, she can go to the service chiefs, any Minister, media or Member of Parliament and say, "I think there's a lot of bullying going on in this unit. This is outrageous and wrong and I want you to do something about it."
It should not be the ombudsman's job, however, to then conduct an inquiry into that bullying. That is the job of the armed forces or perhaps some other body. The ombudsman's job is to make sure that we have a good, efficient and fair complaints system. With all due respect, that is what the ombudsman should be concentrating on where they should be using their resources. If they start to investigate a systemic or systematic form of bullying in a particular unit, it is my respectful submission that they would be way out of their remit and treading on to the territory of others. That does not mean that I am being by any means soft on the complaint, because the ombudsman is the person who will highlight it, but it is for others, not the service complaints ombudsman, to decide on a full inquiry and make sure that proper action is taken. That is my argument.
Mr Kevan Jones: I accept that, but the hon. Lady is wrong. My understanding of Dr Atkins's views is exactly the same as that of the Defence Committee Chair. Since her appointment she has pushed the boundaries. If the ombudsman is going to look just at maladministration, may I suggest that the Minister speaks to Lynn Farr from Daniel's Trust and other families who have worked with Susan Atkins? The Minister might have great faith in the ability of some of the senior military to make major changes—cultural change and actual change—but that will not be done without an external body at least giving them a gentle push.
Anna Soubry: But the gentle push exactly is the service complaints ombudsman. If they find that there is bullying or harassment in a particular place—in a unit or whatever it may be—they have the ability to make sure everybody is aware of what is going on, but I do not believe it is then their job to investigate it. That would be a diminution of their work, which is to look at complaints, and make sure that individual grievances have full access to a system that works expeditiously and gets to the point of justice. She can raise these
concerns—there is nothing to stop her—which is why I was such a great supporter of Nicola Williams, because she will absolutely be robust. However, such an investigation is not and should not be the ombudsman's job, especially given the resources available to the ombudsman; their job is to look at the service complaints and deal with those individual grievances. I could be cheeky and say that if the hon. Gentleman thought this was such a great idea, why did he not do it in 13 years, but that might be a little underhand—
Mr Jones: I will tell you why I did not do it.
Anna Soubry: And I will hear the hon. Gentleman. But if such an investigation is what he wants, somebody else should do it. It should not be in this Bill and it is not for this ombudsman; this is about service complaints.
Mr Jones rose—
Mrs Moon rose—
Anna Soubry: I was going to take the hon. Lady's intervention, but if the two of them are going to fight, I will take the hon. Gentleman's intervention.
Mr Jones: The Minister asks why we did not do this in 13 years, but she just needs to look at my record, including my time on the last Defence Committee, and at the last Labour Government's record, to know the answer. I argued for this, as did the Select Committee, back in 2004, but, as she knows, those in the chain of command do not like radical change. I see this as a process—we are getting to where we should have been 10 years ago—but I must say that the most vociferous arguments against bringing this in over 10 years ago came from the Conservative Front Benchers.
Anna Soubry: I am grateful for the factual explanation that has been given.
Mrs Moon: The Minister has set out clearly that where complaints come to the commissioner and she begins to see thematic things happening, she can go to the chain of command. She can go the Secretary of State and she can highlight that, but during the entire time the Service Complaints Commissioner for the Armed Forces has been in post, the Secretary of State, having had those reports, has had the power to ask for an investigation and has never done so. That is why we need the Secretary of State to pass those powers to the ombudsman, so that she can investigate.
Anna Soubry: I am struggling to have much sympathy with that argument, because it is certainly my experience that allegations are taken extremely seriously by the Secretary of State, and indeed by any other Minister in the Ministry of Defence. It is also my experience of the service chiefs, notably the new head of the Army—the new Chief of the General Staff—that on issues of bullying, harassment and the role of women and any discrimination against women, they are extremely rigorous. In every conversation and meeting I have ever had with the Chief of the General Staff, even when I might have wanted to talk about one or two matters as well as the role of women, he has insisted that we speak about that, such is his determination to eradicate harassment,
bullying and sexual discrimination in the Army. We have seen a huge sea change, and it is to be welcomed, not criticised.
Mr Mike Hancock: I am grateful for the thorough way in which this matter is being put to the House tonight, but one issue has always hung over the way in which the MOD handles things. If someone makes a complaint of bullying and then, in one way or another, dies, the complaint dies with them. Under this Bill, will it be possible for the next of kin to pursue that complaint, using the ombudsman's powers to do so?
Anna Soubry: The hon. Gentleman raises an important point. In the terrible circumstances in which someone dies when a complaint has started, there are many instances in which we would want that complaint to continue, most notably if it were about something that might affect somebody's pension or allowances and would therefore be to the financial benefit of the family, or if there were a point of principle. The trouble is that when somebody makes a complaint about bullying, they make that complaint against somebody else and if that second person denies that they have bullied the first person, they are entitled to a fair hearing. In the terrible event that the first person has died, the second person cannot challenge the complaint and so the danger is that the person against whom the complaint is made is effectively denied a fair hearing because he or she cannot, in effect, query or challenge the complaint. I hope that that makes sense. It is a terribly important part of natural justice that if somebody makes a complaint against somebody else, the person being complained about should have the right to give their side of events so that whoever is determining the case can hear all the evidence on both sides and reach the right conclusion.
Mr Simon Burns (Chelmsford) (Con): What happens, though, in those circumstances, if the complainant is the one who dies but does so after they have given extensive interviews about their complaint?
Anna Soubry: I was talking about the fact that the person who is complained against should have the right to have their side heard, but I am grateful to my right hon. Friend for his point. When somebody dies suddenly—especially if they have taken their own life, which is what we are talking about here, and if it is thought that there is some link between their doing so and an allegation they have made—that is serious stuff. That is why it is right that, first, there would be a service inquiry and secondly, and arguably even more importantly, there would be a full coroner's inquest.
I do not know whether many Members have had the opportunity of attending a coroner's inquest, but when there is a great coroner—I saw one in my county of Nottinghamshire, working on an important case with which I will not trouble the House—one can see their power. The coroner does not necessarily say that a certain person is responsible for a death, but they investigate all matters leading up to the unexpected death and have extensive powers, including being able to take evidence from people on oath. I am content that in the terrible event that somebody who has made a complaint has taken their own life, and in which it is thought that there
is a link, there already exists an excellent and rigorous system that ensures that justice is done, and that is the coronial system.
Mr Kevan Jones: I am glad that the Minister has so much confidence in the coroners system. I accept that where it works well, it works well, but she also knows that there are some absolutely appalling coroners in this country. May I suggest that she looks at Mr Justice Blake's report on Deepcut? It shows what happened to the families and how the MOD acted, and we hope that things have changed, but I would certainly argue against the idea that there is somehow a universal standard for the coroners service across the country.
Anna Soubry: I am sure that there are perhaps one or two bad coroners, but overwhelmingly the vast majority are outstanding and excellent and do an exceptionally good job. I might be wrong, and I will be corrected if I am, but I think that in the case of Deepcut none of the young people who died had made a complaint. Therefore, they would not have come into this system because they had not made a complaint. Although there might be a good argument that in those cases the coroner had not done a thorough job—I do not know that—we must remember that the Bill is about the complaints system. It starts with an individual making a complaint or raising a grievance on which they seek redress. We are in grave danger of not understanding what the system is and the huge distinction between the other existing processes that can ensure that we get to the root of the problem, find out what happened and make sure that justice is done.
The Bill is small and tightly focused and makes important and much-needed changes. The Select Committee on Defence published its report on the Bill on 23 October and it makes a number of recommendations on how the Bill might be amended. I am open and always have been—my door is always open, and anybody within reason can come and see me. It may be that some of those recommendations can be adopted in Committee. They will certainly be debated. With one or two of those proposals, we have identified the problem we seek to solve, but the method by which we solve it is the difficulty. I do not want overly prescriptive legislation. In defence matters, if we legislate for things and want to change them, it is difficult to get another Bill in Parliament to do so.
We have a duty to ensure that our servicemen and women know that their grievances are taken seriously and dealt with quickly, and that no complaint will be dismissed out of hand. We have a duty to ensure that we can fund those organisations that support our armed forces and their families wherever they are based. The Bill delivers the changes our brave servicemen and women deserve, and I commend it to the House.
5.5 pm
Mr Kevan Jones (North Durham) (Lab): The Opposition welcome the introduction of the armed forces ombudsman. The current Service Complaints Commissioner for the Armed Forces was introduced by the Labour Government as part of the Armed Forces Act 2006, which came into effect in January 2008. I should tell the Minister that that was no easy task. Other hon. Members and I—a few in the Chamber served on the Defence Committee
at the time—did a year-long comprehensive report on the armed forces duty of care. They know that some of the arguments put up against the further extension in the Bill were put up against the 2006 Act. It was said that somehow the earth would stop if we interfered with the chain of command and had external scrutiny of the armed forces.
We have been proved right in terms of how the Service Complaints Commissioner has worked. I pay tribute to Dr Susan Atkins, who has been so successful because she has pushed the boundaries effectively and ensured that her remit is listened to. The commissioner was introduced after the Deepcut tragedy and Lord Justice Blake's report. The report was not only thorough but made some very good recommendations on armed forces discipline and dealing with complaints. In particular, it dealt with matters for the families of those who committed suicide. I put on record my thanks to Lynn Farr from Daniel's Trust, who over many years, and in the tragic circumstance of her son's death in service, not only campaigned to ensure that the system is more transparent and open but made real progress. I also pay tribute to Geoff Gray and Yvonne Collinson for their work on the deaths at Deepcut. I am on record as having said this before, but no matter what happens now we cannot bring those individuals back, and I doubt whether we can get to the truth of what happened at Deepcut. However, the work that those individuals have done has changed how the chain of command and the Government deal with young people in our armed services.
The Service Complaints Commissioner was a step forward. It was the first time that independent oversight was introduced to our armed forces. I remember at the time Conservative Opposition Members arguing that that would be the end of world, and that somehow the world would stop if there was independent oversight or if the chain of command was questioned. The world has not stopped. As the Minister rightly said, the chiefs have accepted that the commissioner has been a major step forward and has helped to increase and enhance the armed forces' reputation, not only in the eyes of the public but in the eyes of those who serve. If the Bill is tightened up through some of the amendments that we will table in Committee, it can enhance that process. No one in the chain of command has anything to fear from the Bill.
The Service Complaints Commissioner drew attention to the efficiency with which complaints are dealt with and the fact that individuals can complain if they feel that something has gone wrong. There is a culture not of complaining for the sake of it, but of questioning behaviour that is not acceptable, no matter whose behaviour it is. In 2013 the armed forces attitudes survey reported that 10% of servicemen and women felt that they had been subject to discrimination, harassment or bullying in service environments in the previous 12 months. That would not be accepted in any other walk of life, and it should not be accepted for members of our armed forces.
Richard Drax: Having been in the armed forces myself, I know that there is always a concern about politicians getting too involved in a service in which ultimately
people have to go and kill the enemy, so a different mentality is required from that in civilian life. A balance must be sought, and I hope the ombudsman will seek it and will not undermine the armed services' discipline and readiness, in the worst situation, to kill somebody. That would undermine the unique brand that makes our armed services so special and respected around the world. It is a fine balance.
Mr Jones: I am glad to see that the dinosaur tendency of the Conservative party is still alive and kicking on the Back Benches. Exactly the same arguments were made against the introduction of the armed forces complaints commissioner. This is not about making the training or the discipline less rigorous; it is about behaviour that is totally unacceptable. The hon. Gentleman should read Lord Justice Blake's report and the Select Committee report that went alongside it to see whether he can justify some of the things that went wrong then. I accept that, as the Minister says, things have moved a long way since then, but the type of behaviour that we saw was not acceptable then and is not acceptable now.
Mrs Moon: The argument that has just been articulated—that somehow the armed forces are different and separate—may be part of the reason why so few Members are present in the Chamber. There is a feeling that that is so. The reality is that the law is set by this House. This House sets the rules and the legislation under which the armed forces operate, and long may that last. That is how a democracy works. The service chain of command must accept that.
Mr Jones: I agree with my hon. Friend. We are making progress by changing the attitudes of some of the old and the bold in the Conservative party and changing the culture among the senior management of all three services, who accept as a fact of life that bullying, harassment and sexual discrimination are not acceptable in our armed forces and will not be tolerated. The Minister is right that the present chiefs, as I know them, take a zero-tolerance view of such behaviour, and this will support them in ensuring that it does not happen.
Dr Lewis: I pay tribute to the hard work of the hon. Member for Bridgend (Mrs Moon), who has been a champion of the Bill. In order to reassure my hon. Friend the Member for South Dorset (Richard Drax), I would share his concerns if I thought there was any danger of the system becoming clogged up with complaints that were designed to paralyse it. That is why I think that the provision in the Bill to which I referred in my intervention on the Minister is so important. The complaints commissioner has the right to investigate or not to investigate a given complaint, which avoids the danger that I think my hon. Friend would otherwise be rightly concerned about.
Mr Jones: All I will say to the hon. Gentleman is that he should read the report of the debate we had when the Service Complaints Commissioner was introduced, because this is not about interfering in the chain of command. The present commissioner has done a very good job of highlighting the delays in the processes, particularly in the Army. Anyone who deals with complaints, whether in industry, local government or anywhere else, knows
that it is better to resolve a matter quickly, rather than leaving it for a long period. The present commissioner has certainly been highly critical. When we look at some of the cases set out in the last report, we have to ask ourselves why on earth they took so long. They could have been resolved quite quickly, which would have not only improved the Army's reputation for dealing with such matters but given the complainants satisfaction.
Rory Stewart: To address the comment made by my hon. Friend the Member for South Dorset (Richard Drax), and also the public, who are not necessarily focused on the details, perhaps it is worth clarifying that military discipline is exempt from the things that the Service Complaints Commissioner looks at. In other words, the commissioner is not set up to deal with questions of military discipline, which remain exempt. That is quite important for the operation of this law.
Mr Jones: I agree with the hon. Gentleman. Certainly, the armed forces Act—I cannot remember which one, having dealt with so many over the years—helped by streamlining the three service Acts, because there had previously been a lot of inconsistency across the three services. I think things are now much clearer, especially as we now have joint operations, so the equal and correct interpretation of military law, rather than the silo system we had previously, with three different service Acts, has helped.
Ultimately, we are asking servicemen and women to do very dangerous things on our behalf—I am not suggesting for one minute that the Service Complaints Commissioner should be on the front line telling generals what they should and should not do—but that does not mean that the general things that we and the current service chiefs certainly accept should be best practice in the three services should not be scrutinised and that there should not be support for individuals who find that the high standards that we all expect are not being met.
Richard Drax: I have great respect for the shadow Minister and am sorry that he resorted to personal slights, which I think was totally unnecessary. For the record, I do not agree with harassment or bullying in the armed services—I never have and never would. Of course those in the armed services should be respected and their rights should be looked after, but ultimately they are being trained to kill. That is the point I was making. As I have said, I welcome the Bill, which I think is a good step forward, and am entirely behind it. I just wanted to put the record straight.
Mr Jones: I thought that the hon. Gentleman might have been proud to be labelled a dinosaur in the present Tory party! I am not criticising him in any way; all I am saying is that some of the arguments made for not doing these things are the same as those that were made 10 years ago, and they have clearly been proved wrong.
Another important aspect is that this is not only about the scrutiny of complaints, but about how many people make complaints. Only 8% of cases involved a formal written complaint. I think that once the Bill is in place, it will ensure that people in the armed forces know how to complain and what redress that they can have. We need a system that encourages people to come
forward, not with frivolous or vexatious cases but with cases of harassment, discrimination, bullying or malpractice, which can then be investigated properly by the chain of command. If not, there should be independent scrutiny to ensure that the highest systems and checks are in place—zero tolerance, as the Minister said.
We ask servicemen and women to do things that most of us would never be capable of, so there is a unique difference between them and the general public. However, there are some modern working practices and standards that we would expect in all walks of life, including in the armed forces, and that is why we support the Bill.
We will be calling for the Bill to be strengthened in a number of ways. I hope that in Committee we will be able to discuss some of its aspects in more detail, which will not only provide another opportunity to discuss the role of our armed forces and the pride that we rightly take in them, but ensures that men and women from all our constituencies who join the armed forces get the protection that they would expect in any other workplace.
I turn to the remit of the ombudsman and the range and scope of the powers that the Bill grants. Under the Bill, the ombudsman will not be able to look at the complaint itself but only at whether maladministration occurred in the handling of the complaint. Many in the House will agree that that is a very narrow scope. It leaves us in a rather perverse situation whereby the central piece of the system will be entirely removed from the issues that regularly affect members of the armed forces. The ombudsman will be powerless to deliver the protection and oversight that are needed in such circumstances.
The Minister will probably tell us that it would be going too far to give the ombudsman such a remit, but, as I said, the same arguments were made when we brought in the Service Complaints Commissioner. It is not unusual for an ombudsman to have such powers. The public services ombudsman, the local government ombudsman of England and the prisons ombudsman all have statutory powers to investigate service failures in addition to maladministration. There is no reason why such a principle cannot be applied with regard to serious complaints brought forward by men and women who serve in our armed forces.
Many Members have expressed the view—we will no doubt hear it again in their speeches—that we need to leave it to the chain of command alone to decide on these issues. I do not accept that. The system is one of partnership. One of the great things that Susan Atkins has done is to work very effectively with the chain of command, not only to educate but to change ways of doing things and move the agenda forward. It is important that the Service Complaints Commissioner does have these powers. The Defence Committee agrees that the ombudsman needs wider powers to investigate the substantial complaints.
Another feature missing from the Bill is an ability for the ombudsman to undertake thematic inquiries of their own. That ability would have been very important in, for example, the inquiry into the events at Deepcut. I am afraid that I do not share the Minister's faith that these issues are just for the coroners. Certainly, the idea that one would have any faith in the Middlesbrough coroner to undertake a vigorous investigation of a service death—
Anna Soubry: It is not just a coronial system because there are also service inquiries. Does the hon. Gentleman agree that those investigations are robust and thorough?
Mr Jones: They are. However, the important point about the ombudsman—this is what is great about the service complaints commissioner—is that it is outside the chain of command, independently looking inwards. That is not to say that it would always be critical. On some issues, Susan Atkins has not been critical and has supported changes that have taken place in our armed forces. I give credit to the service chiefs for bringing forward some of those changes. If, in a modern age, we want a system that is going to be robust and seen to be fair, it is very important to have that element of independence. That is especially true for bullying. We know that on occasion bullying is an isolated incident, but there have also been examples of where it is part of the chain of command and responsible for the culture that exists in some areas.
The Bill gives the ombudsman power to investigate where it sees fit, but we must understand what powers it would have and what it could do with what it finds. Yes, it can report to the Defence Council, but without any further powers or the ability to make changes, the onus in terms of the defence budget might be to ignore what the ombudsman says. We must clarify that point in the Bill.
As I have said, some recommendations can be made, but we need a method to ensure that reports and findings do not sit on a shelf, and that the Minister of the day, or the Defence Council, does not reject or simply note them. That would undermine not only the role of the service complaints ombudsman, but its independence. People who go to the ombudsman expect to get a fair hearing and to know that something will be done about their complaint.
It is vital that any new system works to the benefit of those who come to rely on it and that the Bill does not impose any unnecessary barriers on individuals and families making a complaint. The current Service Complaints Commissioner has been highly critical of the Army for the length of time it takes to deal with the complaints. Any system must obviously have robust time limits, but the Bill proposes that the Secretary of State will set time limits within which the individual must lodge a complaint. That time limit must not be less than six weeks after the date on which the individual receives their decision from their internal complaints system. In an ideal world that might be a simple system, but the nature of service life might lead to a situation where those time limits cannot be met. If that was the case, people would be time-bound when bringing forward a complaint. I think we need to consider that issue in Committee, and see whether we can allow some flexibility in the way that complaints are brought forward, so that someone does not miss taking a complaint forward because of the time limit.
The ombudsman service must be independent from the chain of command and the armed forces, and must be trusted by the people it is investigating. It must also be seen by servicemen and women lower down the chain of command as a process that is clearly independent.
This is a bit like déjà-vu, because I remember when the Service Complaints Commissioner was being appointed that the hon. Member for Aldershot (Sir Gerald Howarth)
was one of the—well, he could certainly be described as a dinosaur if not even worse—people who said that the end of the earth was going to come if the service ombudsman was not someone with a military background. It is clear that service personnel cannot hold that post, but I would also be reluctant to have anyone with a direct service background. Certainly the criticism levelled at Dr Atkins when she was first appointed was unfair and has—quite rightly—been proved wrong given the effective way that she got to know quickly how the armed forces work, and the way that she got the support and good will of people at all levels. It is important that the ombudsman is not seen as part of the old boys' network—interestingly, the first two have been women.
On representation, occasionally those who lodge a complaint, or who speak of an injustice but never enter the complaints system, cannot see the complaint through—we have already heard about people who die before their complaint is heard. In these rare cases, it is sometimes important to family members that the complaint continues, and if someone makes a complaint against an individual, that individual will still have an opportunity to put forward a defence, albeit in the absence of the accuser. Also, many complaints relate to matters of service pay. In these cases, no one is required to make a defence, so it seems only fair that they be allowed to continue to conclusion. To stop such a case would be totally unfair. All cases should be pursued as a matter of due diligence to allow the ombudsman to oversee the entire system.
This touches on something else the Service Complaints Commissioner has done. A complaint might throw up inconsistencies in areas of policy that need addressing, and just because someone dies, it does not necessarily mean the wider implications do not need addressing either by the chain of command or more widely.
Dr Lewis: As the hon. Gentleman will know, I have only recently rejoined the Defence Select Committee after a long absence, so I am not as well sighted on the Bill as perhaps I ought to be. However, given that so much of the concern that led to this sort of legislation was about deaths, will he comment on the role of the ombudsman in relation to complaints brought by families of people who have died?
Mr Jones: That is a very important point. I was a member of the Defence Select Committee when it looked into Deepcut—as, too, was the hon. Member for Portsmouth South (Mr Hancock). We could not help but think that the way the families were dealt with was truly shocking, both in terms of basic human decency and because it meant that, unfortunately, the truth could never be arrived at. That was unfortunate for the families, obviously, and for members of the armed forces who were accused of things they clearly did not do.
We have made progress, however, thanks to the Service Complaints Commissioner and this new Bill. The important thing is independent oversight. Individuals are not going to continue with a course of action if they know it is leading to deaths in the armed forces. We know there will be tragedies in the armed forces, on the battlefield and in training, given the robust and difficult training regime, and when they happen, it is important, for the sake of the families, that we get all the information
early on; that the matter be dealt with compassionately; and that things be put right early on, if mistakes were made.
I think there has been a change in this country—certainly in respect of local authorities and health boards, for example—and sometimes there is a culture of arguing why something should stay the same. However, if people say sorry early on and admit to mistakes, while it will always be difficult for families, at least they would know what happened. If so, lessons can be learned and measures put in place to militate against such things happening again, which will at least give some comfort to the families.
Anna Soubry: We do not disagree on what we want to achieve, and the hon. Gentleman has put it extremely well. I would not demur from anything he said about the need to ensure that the families feel that things have been properly looked at, lessons learned and so forth. Is that not a question of ensuring that we have rigorous investigations into deaths, which is different from the complaints system through which individuals' grievances are rigorously looked at to get justice? I would suggest that the two are very different. Does he agree?
Mr Jones: No, I do not. I suggest the Minister go away and read Mr Justice Blake's report. In these situations, the issues conflate. In the Deepcut case and that of Lynn Farr's son, who died in a training exercise in Catterick, part of the problem was the individual instance and how the individuals died, but there were broader issues surrounding the duty of care in training. I am not saying that training should be downgraded—I know Mrs Farr was not for that—but if we look at Daniel Farr's case and how he was dealt with, we see a needless death that could have been avoided. If issues about the training regime at Catterick had been raised earlier, we could have avoided certain deaths. The two aspects come together. I am all for rigorous investigations of deaths when they occur, but I also want to ensure that if it is possible to avoid getting to that stage in the first place, we actually achieve that.
Let me deal now with the armed forces charities, to which the Minister referred. The second part of the Bill relates to the financial assistance and benefits given to armed forces personnel. Let me put on record that we welcome this. As the Minister knows, I have worked with an array of armed forces charities over many years and they do a fantastic job on behalf of servicemen and women and their families and veterans. We must be sure that they are able to continue that work. The Bill covers two main points in this area, and it has been difficult to know how best to administer them. In fairness to the present Government, they have tried their best to get the funding out to those groups. Clause 4 attempts to put the provisions on some type of proper footing. Many charities, especially the smaller ones, rely on the grants and support they get from the Government.
We also want to ensure that there is robust scrutiny of how the money is spent. The Minister will have been exposed to the internal politics of the veteran community and doubtless has some of the scars from which I still suffer today. It is important to ensure that the system is transparent and fair and that we get not only good value for money, but effective value for money, so that the support goes to the right causes. Some of the
smaller charities should be supported. The Minister knows as well as I do that there are some fantastic very small charities with very small capacities that nevertheless have a great effect in the support they provide to the armed forces.
In conclusion, we welcome the Bill. We will seek to improve it in Committee. The introduction of the Service Complaints Commissioner has, I think, seen a marked change in how the senior military and our armed services operate, and the system has protected those we ask to serve on our behalf. We will not oppose Second Reading, but, as I say, we will put forward amendments in Committee to try to improve and empower the role of the service complaints ombudsman. I see this as a journey. I have certainly dealt with this issue right through my parliamentary career. I thought I had escaped armed services legislation when I became a Minister, but lo and behold, it came back to bite me again. If we do this correctly, we can have a system of which we can be proud for not only protecting the individuals who serve in our armed forces, but upholding the highest levels of integrity and respect, which I know the service chiefs and the whole House would want to uphold.
Mr James Arbuthnot (North East Hampshire) (Con): This is probably the last defence debate in which I shall speak.
It is good that the subject is the introduction of a service complaints ombudsman, because the Defence Committee has been making points about that issue steadily since before I became a member in 2005. As far as I know, the only person who has been a member of the Committee since the beginning of the campaign for the establishment of a Service Complaints Commissioner —which was followed by the campaign for the appointment of an ombudsman—is the hon. Member for Merthyr Tydfil and Rhymney (Mr Havard), who, like me, will stand down as a Member of Parliament in a couple of months. He will leave a gaping hole in the Defence Committee and in the defence community, and I pay tribute to him.
I also pay tribute to the rest of the Committee, and to the amazingly dedicated and talented staff and advisers who support it. Under the chairmanship of my hon. Friend the Member for Penrith and The Border (Rory Stewart)—and I must say that I am delighted with my successor—it has continued to pursue the matter of the need for an ombudsman, and has produced a most thought-provoking and useful report on the Bill.
I agree with some of the Committee's recommendations. I listened to the passionate and thorough argument advanced by my hon. Friend the Minister about the ombudsman's ability to investigate thematic issues, and, on balance, I think that I still disagree with her, although she slightly destabilised my views. I think that she is wrong to rely too much on the idea that the ombudsman would be doing someone else's job. Given all her expertise and access, the ombudsman might be able to add something helpful by producing a report. From time to time, such a report might be a cause of some discomfort in the Ministry of Defence, but an ombudsman is not there to be comfortable; an ombudsman is there to right injustice, and to be a catalyst for improvement.
However, I am not sure that I agree with all the Committee's recommendations. I say that with complete diffidence, not having sat in on its evidence sessions. I do not entirely share its view that the ombudsman's recommendations should be binding on the Defence Council. That position would differ from the position relating to the local government ombudsman, in an area that is even more sensitive because of concerns about the chain of command. On the whole, I agree with the Service Complaints Commissioner, who says that the Bill contains several "reasonable compromises".
The big picture, I think, is this. For more than a decade, the Defence Committee has been pressing for the replacement of the commissioner by an ombudsman, and, over time, it has won both the argument and the battle. I congratulate it on that, but I also congratulate Ministers on listening to the Committee. I especially congratulate my hon. Friend the Minister. Last year, she took the unusual step of delaying the appointment of a successor to the excellent Dr Atkins, because, among other things, she wanted to be sure that we were all getting the right person. She and other Ministers have taken the matter truly seriously. They have taken the Defence Committee seriously, and they have overcome resistance in the chain of command.
Talking of the chain of command, I well remember Dr Atkins telling the Committee:
"Some of the Service Chiefs said they didn't quite understand what an ombudsman did, but they were sure they didn't want one."
It was because of the quality of Dr Atkins's work that she was able to persuade the service chiefs that an ombudsman would in the long run be beneficial. All I can say about her replacement, whom I have not met, is that they have my sympathy because Dr Atkins will be a hard act to follow.
Rory Stewart: On a point of clarification, the courts have ruled that the findings of the ombudsman in a case of maladministration and particular injustice will be binding on the Defence Council. The disagreement is simply about whether that should be in the Bill. I am interested in whether my right hon. Friend is opposed to the idea that the findings be binding, or should that be in the Bill?
Mr Arbuthnot: I spoke earlier of my diffidence. I think I should move into full retreat and just carry on with my speech because my hon. Friend already knows far more about that than I do, and I pay tribute to him again.
I want to change the subject slightly. I have only a page and a half left of my notes. I hope that I can have a little indulgence. Dr Susan Atkins stood up for the men and women of our armed forces as they came under real strain. They have fought overseas, in conflicts not really understood or supported by their countrymen back home, when warfare is changing, technology is evolving, stability is crumbling and new threats are arising on a monthly basis. Against that background, at the NATO summit, which the UK hosted, we set out to persuade other European countries of the imperative of doing what NATO agreed only in 2006—that each country should spend at least 2% of its GDP on defence. How
right we were to argue that. How important it is that, as the world becomes less safe, we do what we can to increase our security and reduce our reliance on others, particularly the United States. So it comes as a real shock that this country appears to be drifting towards an election with not one single party committed to spending 2% of GDP on defence. As the economy recovers, defence must share in that recovery.
Dr Julian Lewis: My right hon. Friend, being as long in the tooth as I am, will recall that during the cold war years this country spent between 4% and 5% on defence. Therefore, is not 2% a pretty modest aim for us to have in the present international climate?
Mr Arbuthnot: My hon. Friend is right, if ambitious, but who could argue that the world is a safer place now than in the cold war years? I think it is far less safe because we live in a multi-polar world. Mutually assured destruction brought us, curiously, some stability.
Richard Drax: Does my right hon. Friend agree that the reports in The Sunday Telegraph that after the election the Royal Marines will be next in line for the target is one step too far?
Mr Arbuthnot rose—
Madam Deputy Speaker (Dame Dawn Primarolo): Order. Out of enormous respect to the right hon. Gentleman and bearing in mind that he is standing down at the next election, I have been a little generous on those points, but I hope that his one and a half pages of notes do not stretch to engaging in a full discussion, tempted by his hon. Friend's question.
Mr Arbuthnot: In order to reassure you, Madam Deputy Speaker, I can say that it is one and a half sentences, and my one and a half sentences relate to the 0.7% statutory commitment that we seem to be moving towards on international development. I approve of international development—I think it does us good, as well as the countries that benefit from improved education—but to have a statutory percentage to be spent on aid and not even a manifesto commitment on defence beggars belief, and we must put that right.
Mrs Madeleine Moon (Bridgend) (Lab): It is a great pleasure to follow my friend the right hon. Member for North East Hampshire (Mr Arbuthnot), who made a calm, measured contribution, and who showed amazing leadership as Chair of the Select Committee on Defence. As a new member of the Committee, I certainly found he set the tone for our many deliberations, and he had, I must admit, a calming effect on some of my more vociferous opinions. The House will miss him for his dedication, his belief in public service and his belief in the defence of the United Kingdom.
This Bill, and this day, have been a long time in coming. A whole decade has passed since the Deepcut review by Nicholas Blake QC and the Defence Committee's "Duty of Care" report, both of which recommended the establishment of a service complaints ombudsman.
In that report, the Committee found that the resolution of complaints was slow and may not always be perceived as accessible and fair.
Much has been said and done during the decade of piecemeal reform, but the underlying inadequacy of the system remains unaltered. In 2008 the newly established Service Complaints Commissioner, Dr Susan Atkins—I will not add to the praise heaped on her for her work, because enough has been said, but I totally endorse every word that has been said—said in her first annual report that while progress had been made, "performance is generally poor". In 2009 she said the system was not working "efficiently, effectively or fairly." She reported the same thing in 2010, 2011, 2012 and in 2013. In that report she said:
"Since the role of Service Complaints Commissioner was established in 2008, she has not been able to report to the Secretary of State that the Service complaints system operates efficiently, effectively or fairly. This has been because of a lack of confidence in the system, unreasonable delays in the resolution of complaints and a lack of accurate data on how complaints are handled."
If this Bill does not tackle those complaints, we are wasting our time. Dr Atkins's seventh and final report is due in the next few weeks, and I think it is relatively safe to assume that the pattern is not going to be broken. This Bill must change that pattern.
The commissioner has pinpointed three main problems. First, there is a
"lack of confidence in the system"
from the very people it is designed to help. In the latest report, the commissioner points out:
"Service personnel have a low level of confidence in the current system which does not offer all complainants the assurance of an independent person overseeing their complaint outside the chain of command in any effective way."
This low and decreasing level of confidence that personnel have in the system can be seen in the armed forces continuous attitudes survey, which shows dissatisfaction increasing in relation to the time taken, being kept informed, and support from assisting officers. For example, the survey asked those who said they did believe they had been the subject of discrimination, harassment or bullying in the last 12 months why they had not made a formal complaint. The reasons given included,
"I did not believe anything would be done if I did complain"—
"I believed it might adversely affect my career or workplace"—
"I was worried that there would be recriminations from the perpetrators"
—30%—and
"I did not want to go through the complaints procedure"—
The commissioner also points to a "lack of accurate data". In last year's report the commissioner found that the data provided by the Army and the RAF contained a number of serious gaps and inconsistencies. Only the naval service was able to provide her with confidence in the accuracy of the data it was providing. That is fairly shocking in the days of electronic data. The inaccuracy of the data coming from the Army was particularly alarming, with the commissioner drawing attention to the Army's failure accurately to record allegations of
indirect discrimination. For an organisation as committed to ensuring diversity and inclusion as the Army, the loss of this crucial data is distressing. As the commissioner points out, these elementary recording failures not only undermine confidence in the efficiency of the system but hamper the shared aim to use
"Service complaint data, together with data on discipline and administrative action, plus information from Service Inquiries, to identify areas and units which have problems and which may affect operational performance."
Thirdly—this is by far most important point—the commissioner highlights the chronic delays that riddle this system from beginning to end. Delay is by far the biggest and most corrosive problem. It exacerbates, and in part helps explain, the two previous problems.
The evidence on the extent of delay in the system is damning. In 2013, aware that they had this problem of chronic delay, the MOD and the services agreed to meet a time limit of 24 weeks to resolve at least 90% of their complaints, and any complaint not dealt with in 24 weeks would be "red flagged". So there was a recognition that there was a problem, and a solution, thanks to the work of Dr Atkins, was put in place.
In 2013, however, only 25% of cases
"were resolved within the 24-week target",
"Only 26% of complaints made in 2013 were closed during the year."
In January 2013, 325 complaints had a "red flag". By December 2013 this had swelled by over 50% to 500 complaints.
One need only look at the case of Parachuter Lance Corporal Tom Neathway to see the harm delay can do, and not only to the lives of our armed forces personnel. His story also stands as a textbook example of the structural flaws that any future system must avoid.
In July 2008, Corporal Neathway, while serving in Helmand, lost both his legs and an arm when a booby-trapped sandbag exploded beneath him. Over the next three years—not 24 weeks, but three years—through sheer guts and determination and with the support of the armed forces, Corporal Neathway rebuilt his life and his career, and I pay tribute to that because the work the armed forces have done with seriously injured personnel is amazing. His story became a case study of how injured personnel can recover and overcome their injuries: he took part in the Olympic torch relay in 2012 and starred in the BBC series "Wounded", showing the fantastic work done with our injured personnel. Sadly, however, in 2011, while at the parachute training support unit at RAF Brize Norton, where he had been based since returning to work in 2009, he was subjected to increasingly serious bullying by Regimental Sergeant Major Alistair Hutcheson, who at one point told the triple amputee:
"You're not much of a paratrooper any more".
Corporal Neathway did the right thing: he lodged a complaint to seek redress against an instance of bullying. That the complaints system failed him is an understatement. He had to endure a three-year ordeal in the search for justice from the British Army, facing a series of unacceptable delays that held him up every step of the way. When Corporal Neathway finally secured justice at the service complaints panel in October last year, the verdict was damning. The panel found definitively that the initial
investigation by his commanding officer, Major John Chetty, constituted a professional failing. His questioning of witnesses was wholly inappropriate, and a review, by Brigadier Greville Bibby, which held up Corporal Neathway's search for redress, was also discredited, with the Brigadier leaving the Army. As Corporal Neathway has said, the Army
"had to be dragged kicking and screaming to an oral hearing. They had told so many lies and finally it all unfolded".
I am unfortunately someone who is often contacted by people when the system fails, so the Minister knows—we have discussed this many times—that I perhaps have a jaundiced view. I tend to hear from the people who are failed by the system. I do not dispute that the system works for some people, but I regularly hear from people who face similar failures to the one that Corporal Neathway experienced. To hold someone in a complaints system for three years is shameful—
Anna Soubry indicated assent.
Mrs Moon: I am glad to see that the Minister agrees with me. There are dozens, perhaps hundreds, of people in situations like Corporal Neathway's who have not been so lucky—
Anna Soubry: I know that it is not normal for a Minister to intervene, but I wanted to say that we are as one on this. The case of Corporal Neathway was shameful and disgraceful. I hope that the hon. Lady will take my word that at no time did I ever say that he was not being wholly honest in his complaint. I wrote to him in October offering to meet him, and I hope that he will take up that offer.
The hon. Lady and I both look forward to a speedy inquiry—an overarching inquiry—into what was a shameful incident.
Mrs Moon: I thank the Minister for her intervention. I know that she said earlier that she would not intervene on Back Benchers, but I have no objection to her intervening. We have had many a robust exchange in the time we have worked together and I have always enjoyed them. I have no objection to robust exchanges because at bottom we have the same conviction—that the best system for the armed forces must and will be put in place. We might disagree about how we get there, but we agree that we have total commitment to ensuring that the men and women of the armed forces will be protected from bullying, harassment and discrimination, and that those involved in such behaviour will be sought out and punished.
Corporal Neathway was in some ways fortunate in that he had the attention of the media and he had contacts, but service personnel noted that it took that to get justice. They too feel the impact of the incredible lethargy in extreme cases such as Corporal Neathway's, which can stretch far beyond 24 weeks into hundreds of weeks. The Minister knows that I have received complaints from several people who had given up on their service complaints and left the armed forces, because the delay compounded their punishment. They felt that the delay was used as a way to force them out, to make them and their complaint disappear. That compounds their distress.
They had given their lives to their country, but when they were the victims, they were told that they were the problem and to get out. That is unacceptable and the system cannot allow that to continue.
In the 2012 armed forces continuous attitude survey, 46% of respondents reported dissatisfaction with the time taken to process a complaint, with only 39% satisfied. In 2013, that had worsened to 66% dissatisfied. The Minister knows of another area in which I have taken an extreme interest. In January 2013, an article in The Times revealed that some 1,400 soldiers in the British Army had been illegally disciplined over three years, between November 2008 and September 2011. That happened because in November 2008 a change in the Rehabilitation of Offenders Act 1974 meant that police cautions were from then on to be considered spent the second they were issued. The Army thought it had an exemption from the Act and continued to punish personnel who received cautions. It only caught up with the change in the law in 2011. It stopped the practice, but that left unresolved the question of what to do with the 1,400 personnel who, over the course of the two years, had received some form of administrative action following a caution. One policy brief revealed that at least 58 personnel had been dismissed from the services as a result of this double jeopardy. They should have received no punishment at all, but at least 58 had been dismissed from the services.
After much presumed handwringing and discussion, the MOD came to the conclusion that it would do nothing. A British Army policy briefing from November 2011 suggested:
"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."
It is now February 2015—
Anna Soubry: Will the hon. Lady give way?
Mrs Moon: If the Minister will tell me that we have finally reached a decision about what we will do about the injustice to those 1,400 people, I will happily give way.
Anna Soubry: The hon. Lady makes, as ever, a good point. I have decided that the right thing to do is to write to all those affected—about 1,500 people—so that they are aware of the position. They will be reminded of the service complaints process which is available to them if they believe that they have been wronged in any way. Notices will also be placed in all the usual places, such as websites and some magazines. I can only apologise for the fact that it has taken us so long to get to where we are today. It has been complex, but we have got it right now and we are committed to making sure that we move forward as quickly as possible. I thank the hon. Lady for giving way.
Mrs Moon: I will give way as many times as the Minister wants if she brings me such good news every time. I am absolutely delighted that justice will finally be done.
Mr Arbuthnot: I cannot remember hearing a victory such as that announced in the Chamber, so I congratulate the hon. Member for Bridgend (Mrs Moon) who has
been pursuing this matter for many years. I should also point out the value of having a lawyer in a ministerial role.
Mrs Moon: I thank the right hon. Gentleman for his compliment: he is very kind, as always.
I am delighted by that change of heart. I was especially concerned because there had actually been service complaints on this issue, but they had been stayed so that people could not proceed with them. The complainants were told that until the Department decided what it would do, their complaints could not proceed. A service complaints process in which complaints can be stayed for four years is unacceptable. That is why one of the amendments that the Defence Committee was eager to ensure was in place was that a person's knowledge that they had suffered an injustice was not a reason for saying that a complaint was out of time. The Committee also wanted to ensure that delays, such as the staying of complaints, would not be acceptable and could be seen as maladministration even during the process of the investigation. I am delighted to hear the statement that the Minister has just made.
I shall turn now to the changes proposed in the Bill. The introduction of the ombudsman is a landmark reform and it is most welcome, as are the powers to overturn the rejection of complaints applications and appeal applications. The rationalisation of the complaints process, including placing a limit on the number of appeals, is a common-sense approach.
The Bill has many positive aspects, but the Minister will not be surprised to hear that I think it could go further. The ombudsman's new powers to investigate allegations of maladministration are welcome. These are significant new powers which, if implemented properly, could allow the ombudsman to root out bad practice, inefficiencies and injustice in the complaints process, to everyone's benefit. However, during the Defence Committee's scrutiny of the Bill, we revealed possible confusion surrounding the extent and nature of the power, and I hope that the Minister will be able to clarify that in her closing remarks, if not now.
There seems to be disagreement between what the Minister understood and what the commissioner felt was a real step-change for service personnel. The commissioner told the Committee that proposed new section 340H did not match the policy that had been agreed with the Ministry, and that it risked undermining what the Minister hoped to achieve from the provision. Proposed new section 340H(4) states:
"The purpose of an investigation is to decide…whether the alleged maladministration has occurred".
The commissioner and the Defence Select Committee are concerned that the wording, "whether the alleged maladministration has occurred", is too restrictive.
The commissioner suggested, and the Committee agrees, that the Bill should be amended to make it explicit that the ombudsman could investigate and report on any maladministration in the handling of a service complaint, and we have suggested amendments to that end, listed in amendment group D in the annex of our report. In their response to the Committee report the Government dismissed this on the ground that it:
"would require the Ombudsman to look for any maladministration in every case".
I thought that that was the whole point. The Minister is looking at me quizzically. Are we on the same ground here, or is there disagreement?
Anna Soubry: This is a classic example of us both wanting the same outcome, but there is a question of how we should achieve it. I am grateful to my hon. Friend the Member for Penrith and The Border (Rory Stewart), who chairs the Select Committee, because we have already discussed this matter with officials this afternoon. We believe that our changes to the regulations will achieve what we want—namely, that if the ombudsman feels that she has discovered further maladministration, she would nevertheless go back to the complainant to ensure that they were content for her to investigate it, rather than taking a blanket approach. The hon. Lady will understand that an individual might not want a particular matter to be pursued, for all manner of reasons. I am happy to discuss this with her after the debate, to see whether I can satisfy her. The point is that we want the same thing; there is just the question of whether we achieve it on the face of the Bill or in the regulations.
Mrs Moon: Again, we seem to have made progress and I hope that we can all agree on this point. I look forward to discussing it further with the Minister and getting clarification.
Anything that streamlines the process is to be welcomed, as is anything that opens up an opportunity for greater investigation of maladministration. The Minister and I agree that maladministration is unacceptable, no matter how or why it occurs. In cases of chronic delay, such as those of Corporal Neathway and of the four service personnel in the police cautions case mentioned earlier, the ombudsman must have the ability to intervene when the delay in handling the case has become egregious. For example, if a complaint has taken twice as long as the Ministry of Defence's self-imposed time limit of 24 weeks, it seems reasonable that the ombudsman should be able to clarify why that delay is happening and intervene and declare it a case of maladministration.
This brings me to another amendment that the Defence Select Committee has proposed, to ensure that the powers of the ombudsman are sound, reasonable, and beneficial. Perhaps the Minister has already made some changes in this respect. The ombudsman should have the authority to undertake, at her own discretion, thematic reviews into the working of the complaints system. In our report, the Committee emphasised the positive benefit that this small but significant reform could bring, not only to individual complainants but to Ministers and the chain of command. Our report states:
"Rather than undermining it, the identification and resolution of these matters would increase confidence in the chain of command...and could contribute to identifying potential areas to be improved in the MOD's and the chain of command's responsibility of a duty of care towards Service personnel."
That proposal has the backing of the Royal British Legion, with the Legion's director general Dr Chris Simpkins powerfully pointing out:
"The problems at Deepcut could have been picked up much earlier if an Ombudsman had had the power to initiate their own inquiry. This is not an outlandish request, as the Canadian Armed Forces Ombudsman has long had the power to start thematic inquiries".
The Equality and Human Rights Commission backs the idea, stating that it will
"support the Defence Committee's view that the Bill should state expressly that the Ombudsman can undertake thematic reviews."
Liberty also supports the amendment, as did Labour and Liberal Democrat peers during the Bill's consideration in another place. The current complaints commissioner supports the principle, saying that there are benefits in the
"Ombudsmen using their broad view of the organisations that they oversee to do research and produce thematic reports so that lessons can be learned about the issues behind complaints within a particular area".
The Government's objections to the amendment, outlined by Lord Astor on Third Reading, seem to boil down to a concern that it could result in the ombudsman morphing into some kind of inspectorate or rapporteur for the armed forces, and that resources and time would be diverted from the ombudsman's primary role. Affording the ombudsman the freedom to report to the Secretary of State on a matter of importance when the ombudsman considers it appropriate does not a revolution make. It is a common-sense, reasoned expansion of the powers with which the Ombudsman will be entrusted. The MOD's fears that as a result of this minor power the ombudsman would become a vigilante investigator are simply unfounded, and stand in contrast to the amount of respect and responsibility with which the office has been entrusted in many other areas of the Bill.
Delay is the enemy. It is the root of the problems in the current system and it is a blight that needs to be eradicated. The amendments will help the ombudsman and the armed forces to build a better complaints system. Doing so will bolster confidence in the system and in the chain of command. It is hard to see why the Government, who are making so many pioneering reforms in the Bill, are unwilling to accept the Defence Committee's major changes and recommendations.
The fight to establish a complaints system that is fit for purpose for our armed forces has been long and hard. We do not want to wait for a further crisis or tragedy before acting. To paraphrase Corporal Neathway, the Government and the chain of command have to be dragged kicking and screaming towards reform. The concerns of the heads of the armed forces are well known. The chain of command must remain pre-eminent and cannot be compromised, and their aversion to ceding too much control over the complaints process is obvious. However it is Parliament, the legislature, that manages and reforms the armed forces. It was Parliament that created the commissioner and is creating the ombudsman, and it is here in Parliament that those institutions should be held to account. The delays, the maladministration and the problems within the system must be resolved, and we must work together to ensure that the Bill does exactly that.
Rory Stewart (Penrith and The Border) (Con): I will try to speak quite briefly. I pay a huge tribute to everyone involved for the way that this debate has been conducted. There has been a very good debate in the House of Lords, some very serious work by the Defence Committee since 2005 and the contribution of my right
hon. Friend the Member for North East Hampshire (Mr Arbuthnot). In particular, I wish to pay tribute to the hon. Member for Bridgend (Mrs Moon) who has put an enormous amount of energy, thought and focus into getting these very specific amendments in place.
Broadly speaking, the Defence Committee is very positively disposed towards the Bill, as it reflects its work since 2005 and is a huge improvement even on where we were in 2008. The commissioner has gone from being a three-day-a-week job to a full-time job, and gone from having nine staff to 20 staff. The scope and the powers of the ombudsman will be massively expanded, and all of that is good. However, there is a "but", and it is that "but" on which we want to focus for a brief moment.
We are not, I hope, being pedantic. It is an important point because this is an unbelievably complex area of legislation. It is easy for people to turn up and try to suggest that the way that the armed forces are treated should be the same as the way that civilians are treated. Clearly, the contexts are completely different. Military discipline is very different from civilian discipline. Many of the criminal Acts that apply to military personnel simply do not apply to civilian personnel. Military personnel live under completely different conditions from civilian personnel in terms of their housing, health, non-union status, 24/7 jobs, and risk to life and limb, all of which put an incredible onus on the Defence Committee and on the Government to get this kind of ombudsman right.
The problems that we have had from the start of this debate are twofold. First, there has been a very strong degree of abstraction. Understandably, people have been very reluctant to talk about concrete examples. When taking testimony in the Defence Committee, it was very striking that almost nobody mentioned the Deepcut case. Much of the conversation around this matter is taking place in a vacuum without people using individual examples. The second problem has been a very comfortable consensus. We have a strange situation in which, when we were taking testimony, there was very little push-back from the chain of command and from Ministers, but now we find that the Committee's recommendations are not being accepted, and we have no clear sense of why that is. The oddity is that there is a basic disagreement between liberty and the chain of command, but that disagreement is not really brought out in public, which is another reason why this Chamber seems to be so empty.
When we have private conversations with people, we realise that the disagreement is really profound. In a private conversation, some human rights lawyers will say that they disapprove of the entire military system and that things that can happen to military personnel would not be acceptable for civilian personnel. Equally, outside this Chamber in private conversations, we might hear retired generals in the House of Lords rejecting the idea of the ombudsman completely. Curiously, in the case of the Committee testimony, there was very much a push towards consensus that papered over some fundamental principled disagreements.
The five principles that the Committee focused on are: independence, flexibility, the scope of the ombudsman, the power of the ombudsman and the transparency of the ombudsman's findings. On independence, the Defence Committee suggested that nobody who had been a member of the armed forces within the previous five years
would be suitable for appointment; that the term of appointment should be between five and seven years, as three years was too short for someone to get their feet under the desk and really understand the job; and that the job should not be liable for reappointment. That is standard practice for such a role around the world. If somebody is up for reappointment, the tendency would be for them to pull their punches in order to get their job back.
On flexibility, we put a big focus on ensuring that there was more flexibility around timelines and procedural control. On scope, we pushed to ensure that any maladministration, the substance of the complaint and thematic issues could be addressed. Power has been another important point. What is going to be the power and how binding will those recommendations be? We went back and forth on that matter with my distinguished predecessor, my right hon. Friend the Member for North East Hampshire. Finally, there is the issue of transparency, confidentiality and whether or not the Government can use national security to make the findings of the ombudsman confidential.
The odd position that the Defence Committee finds itself in is that the Government have said to us that, basically, they agree with almost everything that we say. In line after line in response to our recommendations, the Ministry of Defence comes back and says, "We agree, we agree, we agree, but we do not believe that this should be in the Bill." Looking through the eight amendments proposed by the Defence Committee, there seems to be only one with which the Government have any in-principle disagreement, and that is on the question of thematic investigation. Government seem to be comfortable with the other seven.
Why is it then that the Government seem to agree with seven out of eight recommendations, but are not prepared to put them in the Bill? The answer appears to be that the Government believe that putting these things in the Bill would be over-prescriptive. Indeed the Government are attempting to elevate to a grand point of principle the idea that legislation should not be over-prescriptive. The Defence Committee respectfully argues back that those grand points of principle about what should or should not be prescriptive in legislation are marginal, if not irrelevant, to the specific Bill under consideration. One role on which we should be explicit is that of an ombudsman. The Government should put in the Bill the basic terms of independence.
There is no time here to go through every one of those eight recommendations, but let us take as an example the question of independence. The Defence Committee has stipulated that we believe that the person should be appointed on a non-renewable term for five to seven years, and that they should not have served in the armed forces in the previous five years. The Government accept those recommendations but will not put them in the Bill. Why not? Apparently, because they think it would be over-prescriptive to do so. However, this should be an easy concession for the Government to make. To have the point clearly stated would reassure the public and reinforce the credibility and independence of the ombudsman. In fact, not putting it in the Bill seems to be based on a very abstract and theoretical notion.
Our eight recommendations should be taken seriously because, bluntly, the Defence Committee is an elected Committee of the House of Commons. It is disappointing
that, out of eight recommendations made by the Committee, the Government have inserted in the Bill not seven or five of them but none. No amendments went through in the House of Lords and no amendments appear to be proposed at this stage. Given that we are moving into a world where we have elected Committees, where we want these Committees to play a more active role and where every member of those Committees is elected, we would expect the Government to respond, at least in part, to the Committee's recommendations, if for no other reason—this relates to the Geneva processes on the setting up of an ombudsman—than that we should follow the proper process of inclusion of stakeholders. The first Geneva principle is the inclusion of Parliament in this process. Even if the Government seem to have deep theoretical objections to the independence of the ombudsman, we believe that in this case, purely for procedural reasons, they should listen to the Defence Committee.
In conclusion, Parliament has been deeply involved in setting the rules for the military from the very beginning. It tightened up the articles of war in the 1660s and again in the mid-18th century. It loosened those articles of war in 1776, and it did so again after the first world war and in the 1950s and 2006. That is exactly the sort of thing that Parliament should be doing.
To get this right—and this is a very good opportunity for Britain to do so—we must do it in a way that is honest to our history, confident about the conceptual disagreements, and clear and precise about resolving the reality of the military justice system with the concerns of the rights community. That sounds jargony, but what I mean is that we need to be really clear that the military is different from civilian institutions. Various military criminal offences—such as mutiny, desertion and conduct prejudicial to good order and discipline—do not exist in civilian life. At the same time, however, the right not to be bullied or harassed, as well as other rights, must be protected. Finally, if the Government can find a way of incorporating the Defence Committee's recommendations, Britain has an opportunity to set a model for the world.
This has been a good process for the House of Lords and the Committee and because of the inclusion of Dr Susan Atkins. It has been a particularly good process because of the amount of energy the hon. Member for Bridgend has devoted to it from the beginning. Let us finish the process with as much positive spirit as we began it. I ask the Government to show some flexibility in their response to the independence, flexibility, scope, power and transparency of the ombudsman, as set out by the Defence Committee.
Sir Nick Harvey (North Devon) (LD): I shall not detain the House for more than a few minutes. I welcome and support the Bill so far as it goes, but, like others who have spoken, I believe it could go further.
I welcome the work of the Service Complaints Commissioner for the Armed Forces in recent years and applaud what she has done within the remit she has been given. I welcome the reports she has issued, and the Government are to be commended for listening to some of the points she has made and recognising, as the Defence Committee and others have said, that further progress needs to be made.
I recognise that a delicate balance has to be struck between the authority of the chain of command and the need for a light to be shone on the activities of the armed forces. We know from the sorts of cases that hon. and right hon. Members have referred to that that has not always happened. I agree with the characterisation of the evolution of the system given by the shadow Minister, the hon. Member for North Durham (Mr Jones). When the idea of the commissioner was first mooted, it was claimed that the world would end because it was so revolutionary and it would drive a coach and horses through the traditional conceptions of military authority and discipline, but it has not. It has made some modest and worthwhile progress, but we now need to go further.
Ministers have been right to engage with other stakeholders and to recognise the need to amend the status quo, but their proposals err on the side of caution. I listened with interest to the Defence Committee Chairman describe the five characteristics of an ombudsman system, and my one particular misgiving is that we have not gone further in terms of scope. The Minister said that other ombudsmen restrict themselves to issues of maladministration. That is certainly true of some, but it is not by any means true of all. 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.
It is important that the new ombudsman should be able not simply to report on thematic issues to the Secretary of State, but to institute investigations and make reports and recommendations for everybody to see. They should also be able to get at the substance of a complaint. Of course, the chain of command should always get the first go at that. As the hon. Member for South Dorset (Richard Drax) has said, we cannot compare the relationship between an armed serviceman and the forces in any way to ordinary employment because of the depth of the relationship, which affects housing, families, welfare and service discipline. It is precisely because that relationship is so much more comprehensive that it is important that there should be external scrutiny and a light shone on it. The police, the health service and every other part of our public life has to accept external scrutiny, and I do not believe that the armed forces should be any different.
I shall follow with interest how the debate unfolds in Committee, but it is my belief that the Bill does not go as far as it might and that we are missing an opportunity to take more comprehensive action to improve the way in which complaints are dealt with in the armed forces.
Mr Kevan Jones: This has been an excellent debate and I think there is general consensus across the House that the proposed service complaints ombudsman is a good thing.
I served with the right hon. Member for North East Hampshire (Mr Arbuthnot)—I would prefer to call him my right hon. Friend—on the Defence Committee, and as a Chairman he was not only very effective but tried
to get consensus across the Committee. That made our debates far better and our reports more effective in persuading the Government to take them seriously. I shall certainly be sad to see him leave this place, but I do not think his retirement will be the last we hear of him.
I congratulate my hon. Friend the Member for Bridgend (Mrs Moon) on her tenacious pursuit of fairness for members of our armed forces. I was very sad when I heard about the case of Corporal Neathway. I met him a number of times when I was a Minister, and my hon. Friend is right to say that a braver, more courageous individual you could not meet. He has given service to this country, and despite the appalling injuries he suffered, he had the sense of purpose and character to overcome them. Frankly, they way in which he was treated was unacceptable and I agree with what the Minister said about that.
That case brings us to one of the issues at hand. The Army needs to wake up to the fact that the idea that cases can be allowed to go on for that long without redress is totally unacceptable. The ombudsman should be allowed to focus on that. As I said earlier, speedy resolution of some of the cases would lead not only to satisfaction for either the complainant or those who are being complained about, but to reform and action where needed. The armed forces should not be any different from any other public body with regard to how they react to such complaints.
Bob Stewart (Beckenham) (Con): Will the hon. Gentleman give way?
Mr Jones: Oh, here we go.
Bob Stewart: I totally agree with the hon. Gentleman on this point. I think it was also a failure of the chain of command that it did not push for an early resolution, because that would have sorted it out.
Mr Jones: I was going to label the hon. Gentleman a dinosaur, but he is obviously on the new progressive wing of the Conservative party.
Anna Soubry: You're so tribal!
Mr Jones: Yes, I am—I wear that badge with honour.
The hon. Member for Beckenham (Bob Stewart) is completely right. Without some external push, oversight or, as the hon. Member for North Devon (Sir Nick Harvey) said, light shone on the process, there will be no change. That is what the ombudsman will provide.
I also congratulate the hon. Member for Penrith and The Border (Rory Stewart) on an excellent report on the Bill. He raises a fair point: if there is disagreement, people should say so. The chain of command must say what, if anything, it objects to. It should not say it behind closed doors but should come out into the light.
I look forward to the Committee stage. We shall table amendments and I hope that we will get the ombudsman that not only this House needs but that the servicemen and women who serve our nation with pride and bravery need.
Anna Soubry: With the leave of the House, let me try to respond to some of the good points that have been made in this excellent debate. It would have been nice to have a bit more support for my arguments against the need for a thematic role for the ombudsman, but I have no doubt that we shall continue that debate in Committee and that it will go on and on. I have said why I think that it is not a good idea and I hope that Members on both sides of the House accept that I am not a Minister who stands at this Dispatch Box and says things that I do not believe in. I did not do that when I was on the Back Benches, either. I believe it would be wrong for the service complaints ombudsman to have an extra thematic role for the reasons I have given. I say that because I believe in it, not because I have been told to believe in it by anybody else.
I want to pay tribute to my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot). Sadly, I never served on the Defence Committee, which he chaired with huge integrity, great fairness and utter thoroughness. He will be hugely missed in this place. I congratulate him on his speech and I could not possibly comment on his comments about the funding and the next Government. All I can say is that it is generally accepted that I have gone somewhat native—he might be pleased to know that. He made the sort of sensible speech that we would expect and he showed great understanding and insight.
I also pay tribute to my friend—she is my friend today—the hon. Member for Bridgend (Mrs Moon). I think our relationship started over polycystic kidneys. You do not need to know why, Madam Deputy Speaker, but we once had a debate on the subject. We agree on so much, but let me deal briefly with the stuff on which we do not agree. I would not be over-prescriptive on the question of the delay, because in some cases the nature of the case will mean that it takes more than six months to reach a conclusion. Six months is an eminently admirable goal, but I do not want to be over-prescriptive. Sometimes a witness might be on operations abroad, or things might get complicated because they involve a pension or an allowance. In principle, however, that should absolutely be the goal. There is no excuse for the appalling delays not just in Corporal Neathway's case but in many other examples. I think that the hon. Lady was saying that unfortunately, in too many parts of our armed forces, the attitude is that there is not a problem. That is why we have delays and such lackadaisical attitudes.
Too many have the attitude that there is not a problem and that such cases are just about some whining woman or difficult male. There is a problem. People have grievances and complaints and we need a system that addresses that fact and ensures that they get justice. When they do not, we will have the ombudsman, and I think that that is where there is a bit of confusion. There is a profound difference between the service complaints ombudsman that the Government want and an armed forces ombudsman who might or might not consider the broader matters. That might not be a long way down the line, but it is not covered by this role.
The hon. Member for North Devon (Sir Nick Harvey) made a very good speech. I did not agree with all of it, but nevertheless his point was well made. Finally, let me say this to my hon. Friend the Member for Penrith and
The Border (Rory Stewart), who chairs the Select Committee. I am sorry that this has not happened before and I do not know why it has not, but let us start now. I am more than happy to consider the amendments from the Defence Committee. Some are flawed—I am sorry, but some of them are—but let us meet and go through them. If we can find a way of sorting things out so that we do not fall out and so that we reach compromises, fair enough. He knows why I take the view I do about over-prescription in the Bill, but I do not want to fall out with people. I want this to happen because it is the right thing to do. Notwithstanding the money provisions, it is the right thing to do by our servicemen and women who deserve and need a proper system. That is what this Bill will deliver.
Question put and agreed to.
Bill accordingly read a Second time.
Armed Forces (Service Complaints and Financial Assistance) Bill [Lords] (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Armed Forces (Service Complaints and Financial Assistance) Bill [Lords]:
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 12 February 2015.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Consideration and Third Reading
(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.
Other proceedings
(7) Any other proceedings on the Bill (including any proceedings on consideration of any message from the Lords) may be programmed.—(Mel Stride.)
Question agreed to.
Armed Forces (Service Complaints and Financial Assistance) Bill [Lords] (Money)
Queen's recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Armed Forces (Service Complaints and Financial Assistance) Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of–
(a) any expenditure incurred under the Act by the Secretary of State; and
(b) any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Mel Stride.)
Social Action, Responsibility and Heroism Bill (Programme) (No. 2)
That the following provisions shall apply to the Social Action, Responsibility and Heroism Bill for the purpose of supplementing the Order of 21 July 2014 (Social Action, Responsibility and Heroism Bill (Programme)):
Consideration of Lords Amendments
(1) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement at today's sitting.
Subsequent stages
(2) Any further Message from the Lords may be considered forthwith without any Question being put.
(3) The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Mel Stride.)
Social Action, Responsibility and Heroism Bill
Clause 3
The Lord Chancellor and Secretary of State for Justice (Chris Grayling): I beg to move, That this House agrees with Lords amendment 1.
Madam Deputy Speaker (Mrs Eleanor Laing): With this it will be convenient to consider Lords amendment 2.
Chris Grayling: I welcome the return of the Bill to the House so that we can consider the amendments made in the Lords. I have listened carefully and with interest to the debates as the Bill has made progress and I must say that I have been amused by the position taken by Her Majesty's official Opposition, who have been vociferous in saying that the Bill is pointless and meaningless. When it arrived in the other place, however, they campaigned vigorously against the clause on responsibility. You will understand, Madam Deputy Speaker, that if it is meaningless there is not much point in campaigning against it. The Bill is not at all meaningless. It has a purpose in protecting employers, particularly smaller employers, against the compensation culture and it will, I believe, make a significant difference. If it made no difference at all, why on earth did the Opposition try to strike out the clause? We know that the real reason the Opposition did not vote against the Bill is that they know that it addresses the genuine worries that ordinary people have about the growth of the compensation culture, which they talked about while in government and have conveniently forgotten about.
As hon. Members will recall, the Bill is designed to reassure hard-working individuals and organisations who have demonstrated a responsible approach to safety, who have been acting for the benefit of society or who have intervened in emergencies, that the courts will always take the context of their actions into account when determining whether they have been negligent. In spite of the negative comments about the Bill from the Opposition and in the other place, I am glad that the Bill returns to the House with only two modest changes.
Let me turn to the detail of the changes. Both were Government amendments tabled in response to concerns raised about specific aspects of the drafting and I ask the House to agree with them. Amendment 1 is to clause 3, on responsibility, and amendment 2 is to clause 4, on heroism.
On amendment 1, when clause 3 left this House it provided that the court should consider whether a person had demonstrated a "generally responsible" approach towards safety during the course of an activity in which an act of negligence was alleged to have occurred. The Opposition said that that would erode the rights of workers to sue their employers following injuries suffered in the workplace. On report, for example, the hon. Member for Hammersmith (Mr Slaughter) said that the clause was designed to
"allow a defendant to deflect from or evade responsibility in negligence and breach-of-statutory-duty cases."—[Official Report, 20 October 2014; Vol. 586, c. 689.]
On Second Reading in the other place, Lord Kennedy of Southwark added that
"the legislation could worsen the position of workers."—[Official Report, House of Lords, 4 November 2014; Vol. 756, c. 1570.]
Those assertions are entirely without foundation.
I want to make it clear that the Bill will not stop irresponsible employers from being found negligent when the circumstances of the case warrant it or stop the courts considering all relevant factors when reaching a decision on the claim. It is simply about ensuring that the courts take a common-sense approach to considering claims brought against hard-working owners of small businesses and others by considering their overall approach to safety in the course of the activity in which an accident occurred.
Although amendments proposed in the other place that would have undermined the main policy objectives of clause 3 were not carried, we agreed to one amendment designed to improve the clarity of the clause—namely the replacement of the word "generally" with the word "predominantly". We made that amendment following concerns that were raised about possible uncertainty over the meaning of the term "generally responsible" arising from the fact that the word "generally" is capable of bearing a range of definitions.
Lords amendment 1 helps to provide greater clarity. The word "predominantly" is a stronger and clearer term than the word "generally" and, on reflection, better achieves our policy aims. It makes it clearer that a body or individual who takes a slapdash approach to safety on a particular occasion cannot escape liability merely by pointing to a previously unblemished health and safety record. Instead, it makes it clear that, if a hard-working individual such as the owner of a small business is doing his best to keep people safe and something goes wrong in spite of his best efforts, the courts will always consider whether his approach to safety during the activity in question was a predominantly responsible one.
That is the key point. That is why we introduced the Bill and why clause 3 will make a difference. It will provide greater protection to an employer who seeks to do the right thing and to look after his or her employees, and something goes wrong that could not have been foreseen. Of course, the Labour party, in hock as it is to the trade unions, immediately assumes the worst and immediately wants to do down the small business person. That is a sign of the way the Labour party has gone in the past few years. It has moved away from being sympathetic to the interests of small business and instead is back to the days of union domination and saying, "Let's back the workers." This is a responsible, balanced measure that ensures that those people who are genuinely wronged retain their legal redress, but that the law is on the side of the responsible employer who seeks to do the right thing.
Lords amendment 2 relates to clause 4, on heroism. As hon. Members will recall, the clause requires the court to consider whether a person was intervening heroically in an emergency when the negligence is alleged to have occurred. We know from polls carried out by St John Ambulance and the British Heart Foundation that worries about liability can deter people from intervening
to help others in emergencies. That is something we should all be concerned about, and the clause is designed to give people greater reassurance that the law will be on their side in those circumstances.
We debated a proposed amendment that emanated from St John Ambulance. I listened carefully to the arguments set out by my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) and my hon. Friend the Member for Shipley (Philip Davies). After we passed the measure, I did as I undertook to do and went away and thought carefully about the measure. I listened to debates in the Lords and decided there was no reason not to accept the St John Ambulance recommendation and the recommendation made by my hon. Friend and my hon. and learned Friend. I hope they accept that we made the amendment in the good spirit of trying to get the measure absolutely right.
When clause 4 left this House, the meaning of "heroism" included a requirement that the defendant must have been acting
"without regard to his or her own safety or other interests".
My hon. and learned Friend and my hon. Friend questioned whether the drafting of the clause might inadvertently exempt some very brave people who intervened in emergencies only after considering the risk to themselves and others. Initially, we thought it would be unlikely for the courts to interpret the clause in that way. However, in the light of the concerns raised on that point by St John Ambulance and the British Red Cross, and after discussions with those organisations and after considering the comments made in debates in the House and the other place, we decided that, to avoid any possible misinterpretation, the simplest solution would be to omit from the clause the reference to acting
"without regard to the person's own safety or other interests."
That means that it will be absolutely clear that the clause applies in any case where a person intervenes in an emergency to assist somebody in danger, irrespective of whether he or she acted entirely spontaneously or after carefully weighing up the risks. The amendment has been greeted warmly by St John Ambulance and the British Red Cross, which have said that they will use the opportunity that the Bill provides to encourage and reassure new first aid volunteers that the law is on their side.
That is what the Bill is all about. It is about saying to three groups of people seeking to do the right thing in our society that the law is on their side—people acting heroically, people acting in the interest of others, and people acting responsibly, particularly employers taking a responsible approach to health and safety matters in their own workplace. For many years in this country, we have faced a compensation culture. The Government have sought to make a number of changes to combat that compensation culture. We have made changes to the way in which legal fees are paid, and we have made changes to the way in which the rules apply. The Bill will add to a positive step forward. [Interruption.]
The fact that Opposition Front Benchers are sitting chuntering is, to my mind, a sign that they really do not care about tackling the compensation culture in this country. They do not care about the interests of small employers, and they do not care about people who are seeking to do the right thing. They are interested only in looking after the vested interests that provide them with
their finance and backing. It is a sign of what divides this Government from the Opposition. It is a sign that this Government are on the side of hard-working people and people who seek to do the right thing. Opposite we have a party that simply represents vested interests and does not care about such things. That is why Labour Members have sought to challenge the Bill all the way through. The argument that the Bill was meaningless followed by the attempt to strike out parts of it completely undermined what they said and showed how bankrupt their current thinking is.
The two amendments make a helpful improvement to the Bill. I hope that the House supports them, and that the Bill can pass into law. I hope we send the clear message to those people that this Parliament is on their side.
Mr Andy Slaughter (Hammersmith) (Lab): I do not often feel compassion for the Lord Chancellor, but even he must have approached the Chamber this afternoon with how sad steps. Today, on the heels of the dismissal of the chief inspector of prisons comes the resignation of the conflicted chief inspector of probation, and so, on the first full day of probation privatisation, we have no one in charge of standards in the service.
The Lord Chancellor is scattering confidential data around like confetti, he appears to have changed at whim the burden of proof in criminal cases, and this afternoon, one of his favourite private contractors, Capita, was fined £16,000 by the president of the—
Madam Deputy Speaker (Mrs Eleanor Laing): Order. The hon. Gentleman is meant to be speaking to the Lords amendment. I normally give quite a lot of leeway for a general introduction, but he must speak to the amendment.
Mr Slaughter: Indeed, that is what I intend to do, Madam Deputy Speaker. I was simply making the point that, with all of that going on just in the past few days, here we are talking about the Lord Chancellor's heroes Bill. He is fiddling while Rome burns: more Nero than hero.
We are all sick of the Bill. I suspect the Lord Chancellor is sick of the Bill. Like many of his projects, it began as an exercise in public relations and a nod towards the tabloids, and a coded attack on the rights of the individual to find redress through the law. Both the ridicule and the incredulity with which it has been met on both sides of both Houses, and from almost every expert commentator, has exposed its pointlessness and fragility.
The Bill will be locked away from public gaze, elided by the courts and ignored by everyone else until some future Government finds a space in the legislative timetable to repeal it. The noble Lord Pannick said that he could not
"remember a legislative proposal that has been the subject of more sustained ridicule and derision."—[Official Report, House of Lords, 15 December 2014; Vol. 758, c. 16.]
The chair of the Law Society policy board today wrote that there were two views of the Bill: that is was
"vague, meaningless and otiose"
"so ill-defined that it is dangerous to the point of mischievousness".
Given that history, do the two minor amendments do anything to improve the Bill? They certainly do not make it any worse, if that is any comfort to the Lord Chancellor, so we have no reason to vote against them.
Amendment 2 has been urged on the Government since Second Reading on 21 July 2014, when the hon. Member for Bury North (Mr Nuttall) pointed out the unhelpful nature of the final words of clause 4. I moved to delete the offending words—
"and without regard to the person's own safety or other interests"—
in Committee, supported by a very strong argument from St John Ambulance and the British Red Cross. However, it was not until Report in the other place that the Government finally gave in, stating:
"This will put beyond doubt that the clause applies to anybody who intervenes in an emergency to help somebody in danger, regardless of whether they acted entirely spontaneously or weighed up the risks before intervening."—[Official Report, House of Lords, 15 December 2014; Vol. 758, c. 44.]
I am not sure that that was the point of the objections; rather, it was concern that the Government were encouraging bystanders to intervene, even when it was not safe to do so, and when more lives might be placed at risk, including those of professional rescuers. The Government have at least removed one howler, whatever their motive or excuse for doing so, so we welcome amendment 2. It is just rather late in the day in coming.
As for amendment 1, to leave out "generally" and insert "predominantly", who knows what that will mean? No doubt we will find out in further satellite litigation, but given the brevity of the Bill, it is surprisingly full of imprecise, unhelpful and novel drafting. One belated and half-hearted attempt at reform is of little practical help. What does "activity" mean? What does "heroically" mean? What does "interests of others" mean? None of those issues has been addressed, only that one point.
Lord Pannick summarised his view of the Bill by saying that it
"will stand as a monument to the jurisprudential and policy achievements of Lord Chancellor Grayling. It is a fitting testament to the Lord Chancellor".—[Official Report, House of Lords, 6 January 2015; Vol. 758, c. 262.]
Similar sentiments in less elegant language were expressed last week by the former Member for Harlow, Jerry Hayes.
We are all enjoying "Wolf Hall", but perhaps with a tinge of regret that the office of Lord Chancellor, in the 500 years since Thomas Cromwell held the title, has gone from the indomitable to the unflushable. Cromwell was the architect of the biggest social and religious changes in the country's modern history. This Bill, this Lord Chancellor's last Act, certainly in this Parliament, is literally meaningless, and it is therefore, as has been said, a fitting memorial.
Sir Edward Garnier (Harborough) (Con): I do not need to be as offensive or as rude as the hon. Member for Hammersmith (Mr Slaughter) who spoke from the Opposition Front Bench. It is not in the least bit helpful to indulge in such rather childish and cheap personal remarks. The Lord Chancellor has a lot on his plate. I regret that the Bill was part of the menu, but none the
less Parliament has discussed it and expressed its views on it and I, as a Member of Parliament, have done so as well.
I thank the Chancellor for the decision to agree with Lords amendment 2 and to remove from clause 4 the words
"and without regard to the person's own safety or other interests."
That makes clause 4 marginally better, although I have nothing to resile from in the views that I expressed about the Bill last summer. I thank the Government for that.
On clause 3, I do not particularly welcome the change of "generally" to "predominantly" because I do not think either adverb assists very much. Clause 3 would have been better had the Government moved a little towards what the former Law Lord, Lord Brown, said on Third Reading in the other place on 6 January at columns 253 to 255. I shall not rehearse all that he said, but I would move a little further than him and say that rather than talking about acts or omissions in line 10, the Bill would be better if, instead of
"in carrying out the activity in the course of which"
and so on, it said, "The court must have regard to whether the person responsible for the act or omission in the course of which the alleged negligence" and so on. That would have been a clearer set of words. If the Bill, when it is enacted, is to be of any use to any court, it would be a little more useful had those words been put into clause 3.
Finally, I agree with what Lord Pannick said when he paid tribute to my very good and noble Friend, Lord Faulks, the Minister of State in the Lords. Lord Pannick said:
"However, I pay genuine tribute—I emphasise 'genuine tribute'—to the Minister, who has applied his formidable skills of reason and eloquence, and has done so with consummate courtesy".—[Official Report, House of Lords, 6 January 2015; Vol. 758, c. 262.]
I shall not finish the sentence because it is not necessary to do so. I wish that those of us in this House who remain deeply critical of the Bill will none the less remember the hard work put into its deliberations in the other place single-handedly by my noble Friend, who has, like the Lord Chancellor, a lot on his plate, much of which, I am sure, he might have wished was not there.
There we have it. The Bill will go on to the statute book. I suspect that this particular book will not be opened again, but no doubt we will have other things to think about for the remainder of our busy schedule between now and the general election.
Lords amendments 1 and 2 agreed to.
The Secretary of State for Scotland (Mr Alistair Carmichael): I beg to move,
That the draft Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015, which was laid before this House on 20 January, be approved.
On 18 September last year, the people of Scotland, including tens of thousands of 16 and 17-year-olds, voted in the Scottish independence referendum, and made the historic decision to remain a part of the United Kingdom. The participation of our young people in the vote was truly historic and inspirational to witness. We saw the young people who took part in the referendum in great numbers listen to the arguments, frequently ask the toughest questions, and make up their own minds in a mature and reasoned way. They showed that they were more than capable of being a part of Scottish democracy when they helped their country take the biggest decision we have faced for centuries.
Evidence suggests that, having listened to the arguments and participated in the debate, 16 and 17-year-olds voted in the same way as the population of Scotland as a whole—to maintain Scotland's position in our family of nations. This is, of course, welcome in itself, but it also puts paid to the notion that those who are old enough to marry and have children are not old enough to weigh up the issues and decide how to cast a vote. It demonstrated the desire to be involved in an event that would shape the future of the country, and it demonstrated to us all that when people understand the issue before them, hear the arguments and know the facts, they want to use their democratic right to make a difference.
Sandra Osborne (Ayr, Carrick and Cumnock) (Lab): I very much welcome the motion. Does the Secretary of State think it strange that we are saying that it is all right for 16-year-olds to vote in the referendum, but not in the general election? Surely if they are old enough to vote in one election, they are old enough to vote in every election.
Mr Carmichael: Indeed. We are dealing tonight, however, with the franchise for the Scottish Parliament and Scottish local authority elections. I was about to turn to that very point and say that there is no consensus in this Parliament at this time to allow 16 and 17-year-olds to vote in the UK general election. My view, however, is that there is every reason to believe that the tide has turned in favour of that outcome. When it comes to extending the franchise in this country, the liberal, progressive argument always wins in the end, and afterwards there is a consensus that it was the right thing to do.
John Robertson (Glasgow North West) (Lab): The right hon. Gentleman is being generous in giving way. A few weeks ago I asked the Prime Minister the same question about votes for 16 and 17-year-olds, and he said that although he was inclined to keep the voting age at 18, he was looking forward to a vote. Perhaps the Secretary of State should have a word with him so that we can have that vote.
Mr Carmichael: We may indeed have that vote in time—who knows what business will come before the House, or by what route? However, to all intents and purposes it will not be practically possible to extend the franchise for the UK general election before May, so I think that the House would do better to devote its attention to scrutinising the order before us tonight, whatever sympathy I might have for the proposition that the hon. Gentleman is seeking to advance.
Mr Brian H. Donohoe (Central Ayrshire) (Lab): The Secretary of State is being generous in giving way, which is very useful. Surely it is possible to give 16 and 17-year-olds the vote for the whole United Kingdom, even at this late stage, because in Scotland all the facts and figures are already on the register. Surely that could be replicated across the whole United Kingdom. Would not that be in all our favour?
Mr Carmichael: Well, not by means of this order. That is the short answer to the hon. Gentleman. The order before the House has been brought forward in advance of other recommendations from the Smith commission report and heads of agreement precisely because it will be very challenging, even at this point, to perform the necessary administrative functions to allow 16 and 17-year-olds the vote in May 2016 and, beyond that, 2017. Those are the practical considerations that he would do well to bear in mind, quite apart from questions about the availability of parliamentary time to get measures through this House and the other place.
In the run-up to the referendum, pledges were made to the people of Scotland. The three pro-Union parties—the Conservatives, the Liberal Democrats and Labour—all made a vow to devolve further powers to the Scottish Parliament within the United Kingdom, ensuring that Scotland retains the best of both worlds. Keeping that vow, the Prime Minister announced the day after the referendum that Lord Smith of Kelvin had agreed to lead a commission to agree what those new powers should be. The commission would work with the five parties represented in the Scottish Parliament to make that determination.
The commission invited submissions from political parties, a wide range of business and civic organisations and the wider public to help guide its consideration of what further powers should be devolved to the Scottish Parliament. Following due consideration of all submissions and views garnered by the commission, on 27 November 2014 the report detailing the heads of agreement was published. The report was welcomed by this Government and, as the House is aware, almost two weeks ago we published the draft clauses that will make up the substance of the next Scotland Bill to implement the report's recommendations.
However, one of the commission's recommendations is being taken forward separately from that Bill, and it will be introduced to Parliament following the general election: the recommendation that the UK Parliament should devolve the relevant powers in sufficient time to allow the Scottish Parliament to extend the franchise to 16 and 17-year-olds for the 2016 Scottish parliamentary elections, should it wish to do so. That is exactly what this draft order seeks to achieve.
The order is made under sections 30 and 63 of the Scotland Act 1998, the Act that set out the original devolution settlement for Scotland and continues to
demonstrate that devolution is a fluid entity. Several section 30 and section 63 orders have been made under that Act and we do not expect that to change, even with the upcoming Bill. Where a need for change is identified and agreed, those changes are made.
The 1998 Act specifies what is reserved to the UK Parliament, not what is devolved to the Scottish Parliament. Section 30(2) of the 1998 Act provides a mechanism whereby schedule 4 or 5 to the 1998 Act can be modified by an Order in Council, subject to the agreement of both the UK and Scottish Parliaments. That allows the legislative competence of the Scottish Parliament to be changed.
That mechanism will be used to give the Scottish Parliament the power to legislate to reduce the minimum voting age to 16 at elections to the Scottish Parliament and Scottish local government elections. The order achieves that by making several amendments to schedules 4 and 5 to the 1998 Act. That will include the power to legislate to make provision on the registration of young electors in order to give effect to any such reduction in the minimum voting age. Section 63(1)(b) of the 1998 Act allows for an Order in Council to provide for any functions, so long as they are exercisable by a Minister of the Crown in or with regard to Scotland to be exercisable by Scottish Ministers concurrently with the Minister of the Crown.
The order will also give Scottish Ministers the ability to exercise certain functions relating to the individual electoral registration digital service. Those functions will be exercisable by Scottish Ministers concurrently with UK Ministers, and subject to the agreement of UK Ministers.
The changes to the Scottish Parliament's legislative competence will provide an exception so that the reduction of the minimum voting age to 16 at elections to the Scottish Parliament and at Scottish local government elections, and the registration of electors in order to give effect to provisions reducing the minimum voting age at those elections, will no longer be reserved matters.
The order will also enable the Scottish Government to make provision for the use of the individual electoral registration digital service when giving effect to provisions reducing the minimum voting age. I would like to make it clear that Scottish Ministers will be able to exercise those functions—in relation to the individual electoral registration digital service—only with the agreement of a Minister of the Crown. Scottish Ministers will be able to exercise those functions concurrently with a Minister of the Crown in so far as these are exercisable in or with regard to Scotland.
Mr Donohoe: Could the Scottish Parliament decide in future to lower the voting age further, say to 15 or 14? Does this order make that possible?
Mr Carmichael: Yes, that is the whole point of devolution. If the Scottish Parliament chooses to make a further change, it will have the legislative competence to do so as a result of this order. Of course, the Scottish Parliament is accountable to the people of Scotland for any exercise of the powers it has.
Finally, the order also provides that in certain cases the requirement to consult the Electoral Commission and the Information Commissioner, and to publish
reports prepared by the Electoral Commission, will apply to Scottish Ministers if they exercise the functions given to them relating to the individual electoral registration digital service.
Members will realise that in one respect the order goes further than what the Smith commission recommended: rather than simply devolving the powers necessary to allow 16 and 17-year-olds to participate in the 2016 Scottish Parliament elections and subsequent Scottish Parliament elections, the order devolves the power to enable the Scottish Parliament, if it so desires, to legislate to lower the voting age to 16 in time for the 2017 local government elections in Scotland.
That was felt to be beneficial for two reasons. First, there is an issue of timing. If the Scottish Parliament wished to take forward such legislation, the timing of the Scotland Bill would make it very challenging to devolve the necessary powers in sufficient time for the Scottish Parliament in turn to legislate in time for May 2017 without breaching normal electoral rules. Secondly, the franchise for the Scottish Parliament elections is set by reference to the local government franchise. Devolving only the legislative competence to reduce the minimum voting age for Scottish Parliament elections would have meant that the Scottish Parliament needed to separate the Scottish Parliament franchise from the local government franchise, which in our view would have risked unnecessary complication.
If the approval of this House, the other place and the Scottish Parliament is secured, the order will go forward for consideration by Her Majesty in Council. When the order comes into force, the Scottish Parliament will be able to bring forward the legislation necessary to allow 16 and 17-year-olds to vote in all Scottish Parliament and local government elections. I understand that the Scottish Government intend to introduce this legislation as soon as possible once this order has been made by the Privy Council.
I have always been a firm believer in votes at 16. With the sheer number of young people participating and voting in last year's referendum, I believe that that case has become undeniable. This was reflected in the Smith commission heads of agreement, with all the main political parties agreeing that the voting age for Scottish Parliament elections should be lowered to 16. The UK Government fast-tracked devolving the power for this as an exception from the rest of the Smith package so that it could be in place in time for 16 and 17-year-olds to vote in the 2016 Scottish Parliament elections. I commend the order to the House.
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