Part of the debate – in the House of Lords am 3:24 pm ar 16 Mawrth 2015.
My Lords, two separate groups of amendments were made to the Bill in the other place. Commons Amendments 1 to 20 reflect changes to the Bill that were made following the Commons Committee stage. They extend the role of the proposed Service Complaints Ombudsman in a number of important ways and are the most significant of the amendments in this group. Commons Amendments 21 to 27 make some changes to equalities legislation in Northern Ireland that are needed as a consequence of the Bill and make minor changes to the transitional provisions. I therefore intend to speak mainly about Amendments 1 to 20, although I will cover the other amendments at the end.
In Commons Committee on
The changes that were made to the Bill in Commons Committee were recommended by the House of Commons Defence Committee in its report on the Bill which was published on
Although the amendments extend the scope of the ombudsman’s role, they follow the framework which the Bill originally set out. It is important to emphasise a point that has sometimes been lost in our debates—the ombudsman will normally become involved in individual complaints only once the consideration of it by the services has finished. That is an important point. The ombudsman is the backstop, the place of last resort on individual complaints that have been through the internal system. If complaints are successfully dealt with by the services, there will be no need for the complainant to go to the ombudsman.
It is important to make that point because of the third aspect of change agreed in the other place. This allowed the ombudsman to investigate allegations of undue delay in three different respects: as part of a maladministration investigation; where delay is alleged in relation to a complaint that is being considered by the services; and, finally, where there is an allegation of undue delay before a complaint has even been made.
It is in everyone’s interests that we have a complaints process where roles and powers are clear so that there is no confusion. It is also important that the wishes of the individual remain at the heart of the process, given that this is an individual grievance procedure, and equally that the rights of anyone alleged to have committed a wrong against another person are also protected. It remains the case that the services will, in every case, still be left to decide how to respond to any findings and recommendations made by the ombudsman, even in relation to the extended scope that the ombudsman will now have.
The Chief of the Defence Staff has confirmed that the amendments do not substantially affect the primacy of the chain of command because the Service Complaints Ombudsman can investigate the substance of a complaint only after the chain of command has done so, or where the chain of command decides not to investigate and the complainant still wishes to pursue the matter. He has made it clear that a well run organisation should have nothing to fear from the system that would be put in place if these amendments are made.
The government amendments that were agreed in the other place also made the necessary additional changes to the rest of the Bill’s provisions, so that there can be no doubt as to the precise scope of the ombudsman’s powers. Commons Amendments 1, 3 and 6 set out in clear terms that the ombudsman can investigate, first, a service complaint, when that complaint has completed the internal system. That is what makes clear that the ombudsman can look into the merits of a complaint. Secondly, the ombudsman can investigate an allegation that there has been mishandling of a service complaint, including undue delay, when that complaint has completed the internal system. This is what deals with maladministration. Thirdly, the ombudsman can investigate allegations that a service complaint has been unduly delayed, before that complaint has completed the internal system, or alternatively that there was undue delay before a service complaint is made.
For everyone concerned to have confidence in the findings made by the ombudsman, particularly where she will now be able to investigate the substance of a complaint, it will be important for her staff to have the right skills and knowledge for the job. This is something that we must now work through carefully with the Service Complaints Commissioner as part of the ongoing work to prepare for implementation of the new system.
As it is now possible to make an application to the ombudsman alleging undue delay when a complaint has not been concluded in the internal system—or, indeed, where a complaint has not even been made—it is important that the Bill sets out for the avoidance of doubt what is meant by the internal process having been completed. This is why Commons Amendment 1 introduces the new wording of “finally determined” to differentiate investigations into the service complaint or alleged maladministration which can only happen after the conclusion of the internal complaints system. This term is defined by virtue of the change to the Bill in Commons Amendment 6. I want to be clear that the phrase “finally determined” does not in any way preclude the ombudsman from looking into the merits or maladministration of a complaint. It is simply there to make it clear that she can do so only once consideration of it has been completed in the internal system by the services, and where the applicant has asked the ombudsman to investigate in accordance with the requirements of the Bill.
It remains important for the ombudsman to have a reasonably clear idea of what the applicant wants them to look into, and for investigations to remain focused and proportionate. Commons Amendment 4 would require the applicant to specify which kind or kinds of investigation the complainant wants the ombudsman to carry out. This is not an onerous obligation for the complainant but will help to focus the efforts of the ombudsman on what is most important to the applicant.
Connected with that is Commons Amendment 14, which would enable the ombudsman, as part of her discretion, to decide whether to investigate the whole service complaint or allegation, or just part of it. It will be open to the ombudsman to decide not to reopen particular aspects of a service complaint or rerun parts of the process if she is satisfied that these were adequately dealt with in the internal process. It is clearly in everyone’s interests that the new ombudsman stage does not add to the delays that these reforms are, at least in part, seeking to address.
Commons Amendment 11 sets out the changes providing for the ombudsman’s power to investigate any maladministration that she identifies in the course of an investigation into alleged maladministration or one looking at the service complaint. We want the ombudsman to be free to report on any other aspect of mishandling that she may come across, and have amended the Bill accordingly to make this clear throughout the relevant provisions. These changes do not require the ombudsman to search for maladministration in every case. That was an essential clarification made in the government amendments agreed to on Report in the Commons. There is also no power for the ombudsman to investigate the service complaint if the application does not ask for the ombudsman to do this.
It is important to stress that this change also does not give the ombudsman an unrestricted power to look into matters that are not related to the complaint being investigated. The ombudsman will not be able to investigate operational matters or to look more generally at service ethos and culture. There are other, more appropriate, forums for any such investigations. Equally, it will remain for the services themselves to grant any appropriate redress where the ombudsman finds that a complaint is well founded. It is equally important for everyone that the powers of the ombudsman are clear regarding what she can do having completed an investigation. Her ability to produce a report with findings and recommendations is fundamental to the view that many will rightly have about whether this new role really does have teeth.
The government amendments will also fill a gap here that was left following the amendments made in Committee in the other place. Amendments 16 to 20 make clear that the ombudsman must, after carrying out an investigation, prepare a report setting out their findings and recommendations. On an investigation into the service complaint, the ombudsman will need to make findings on whether it was well founded and, if so, what recommendations, if any, to make on appropriate redress. We expect that the ombudsman will share a draft of her recommendations with the MoD and the services before making these final. This is covered in the current draft of the ombudsman regulations. The Defence Council will also retain responsibility for how to respond to any recommendations. The amendments also clarify that the ombudsman must set out any recommendations as a result of a finding of maladministration or undue delay.
Amendments 21 to 24 are of a minor and technical nature, so I do not intend to speak to them for long. The Bill originally provided in Clause 6(2)(b) for commencement regulations to make transitional provisions. Those regulations would have been subject to no parliamentary procedure. During the passage of the Bill the department has progressed its preparations for the transitional provisions. It has become clear that some of the necessary regulations might go beyond the scope of this power. This is particularly the case where it may be desirable to transfer some, or perhaps many, existing service complaints on the commencement day to the new system with all the advantages that will bring.
Amendments 21 to 23 would provide the Secretary of State with a free-standing power under a new clause in the Bill to make the necessary transitional provisions for the new complaints provisions to come into force. The transitional regulations will be subject to the negative resolution procedure. The new clause will come into force on Royal Assent. The existing power in the old Clause 6 will be removed by these amendments. Amendment 24 makes a minor and purely procedural amendment to remove a provision made in this House to recognise and maintain the privileges in the other place on financial matters.
We have identified a small amount of other legislation that needs to be amended as a result of this Bill. This is all equalities legislation relating to Northern Ireland and is covered by Commons Amendments 25 to 27. Each of the instruments that needs amending refers to the existing service complaints system and therefore needs to be updated as a result of the Bill. The amendments are similar to those being made in the Bill to Section 121 of the Equality Act 2010. These amendments will remove uncertainty by clarifying how the Bill interacts with other legislation. None of the amendments raises devolution issues.
The amendments agreed in the Commons are necessary to ensure that the provisions in the Bill are clear. They also ensure that the drafting is coherent and complete while giving full effect to the amendments agreed to in the other place, which had cross-party support and that of the Defence Committee. The Commons amendments give us a Bill and a process that will help the services understand when they can approach the ombudsman, on what matters and at what stage of the process. They will give the ombudsman the teeth needed to hold the services and the MoD to account. I beg to move.