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

With this it will be convenient to discuss the following:

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

Amendment 2, in clause 1, page 1, leave out line 10 and insert—

“(a) has been a member of the regular or reserve forces in the last five years ending with the day on which the appointment is to take effect, or”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new Service Complaints Commissioner has said:

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

I totally agree with that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

Amendment proposed: 22, in clause 1, page 1, line 9, leave out “is” and insert “has been”.—(Mr Jones.)

Question put: That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

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

(a) The period for which a person is appointed shall be not less than five years and not more than seven years.

(b) A person who is appointed as Ombudsman may not be re-appointed to the office.”

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

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

The Ombudsman Association said:

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

It continued:

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

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

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

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

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

The new service complaints ombudsman said:

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

She went on to say that it would be

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

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

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

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

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

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

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

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

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

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

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

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

Will the Minister give way?

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

I would like to press the amendment to a vote.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

Clause 1 ordered to stand part of the Bill.