Oral evidence: Armed Forces (Service Complaints and Financial Assistance) Bill, HC 508Tuesday 15 July 2014

Oral evidence, 15 July 2014.

Witness

Dr Susan Atkins CB, Service Complaints Commissioner for the Armed Forces, gave evidence.

Chair

Welcome, Dr Susan Atkins, and thank you very much for attending. We will finish this evidence session at 4 o’clock, so we have an hour to move through our procedures. I am going to begin, and essentially I want to get back to the bigger issue. Dr Atkins, you were there during all the earlier evidence.

Dr Atkins

Yes, I was.

Chair

You will have picked up from the nature and tenor of our conversations that we are worried that the power of your successor, the new ombudsman, will not be as extensive as that of other European equivalents and that the chain of command in Britain has created a strange, amorphous type of ombudsman that has its wings clipped, compared with the powers of other ombudsman in the United Kingdom and particularly of armed forces ombudsmen in Europe. Can you try to explain to us why that should be the case, and what your response is to the Committee pushing for more extensive powers?

Dr Atkins

Yes. Thank you for that. You’ll understand that I have given this a lot of thought. I think there are two different aspects. The first is the comparison with other ombudsmen and oversight institutions in Europe and the second is with our own different types of ombudsmen. They are different. Across Europe, there are many different types of oversight bodies for armed forces. Mrs Moon referred to the Geneva Centre for the Democratic Control of Armed Forces. I have been a very active member of that and the international organisation of ombudsmen for armed forces across the world. They differ because of the constitutional position of the armed forces and the constitutional arrangements. Broadly, there are those countries where defence is part of the state ombudsman arrangement, as it were, bringing defence within the parliamentary and health ombudsman. There are those who are inspectors-general, so that in countries such as the Netherlands, Belgium and France, the role is independent but within the armed forces themselves. That is an arrangement. Australia, interestingly, has a hybrid of both of those—a different part of the world. Then there are defence ombudsmen. For the most part they are parliamentary ombudsmen of parliamentary armed forces. They have a duty, not simply to deal with complaints, but with welfare and occasionally with families and civilians as well. That explains in part the difference between the arrangements for this ombudsman and the parliamentary defence ombudsmen that have that broader duty of care and welfare to report to Parliament, through Committees such as yours. That is one aspect. I did say to the Geneva Centre that we were unusual and they said we were unique, but they were commenting on the current role. In relation to other ombudsmen, it seems to me that, as was discussed a little while ago, there is usually not a nexus between the people complaining and the organisation about which they complain. This would be an unusual—I think unique—ombudsman in that it is an employment relationship. It is there because service personnel uniquely don’t have the same protections that every other employee has in relation to going through employment tribunals, contract of employment and everything else. I talked about the third element in my written evidence to the Committee. I have seen from the outset service complaints being part of operational effectiveness. The reason that I have not been able to say that the system is working efficiently, fairly and effectively is largely down to delay, but that delay is because individual commanders and up the chain of command are not grasping and gripping personal responsibility, but are tending to shirk that responsibility and put it on someone else, be it lawyers or elsewhere. Given that, as we discussed the form and role of the ombudsman, the Defence Council said that it was prepared to be governed by the investigations of the ombudsman into its own handling, and given that the ombudsman’s reports would be saying, “This commanding officer or this appeal body within the chain of command dealt with this well or poorly,” it was a means to galvanise the whole system from the Defence Council downwards to deal with their people properly. That seemed culturally the way to go. Of course, you are right that sometimes in this country ombudsmen—the prisons and probation service ombudsman, for example—have started looking at maladministration and gone to the substance. But I think that, although it appears to be like that, there are different factors in play. That is why I think this system will be effective. If it is not effective—and there was a question at the end of the previous session about how we judge whether it is effective—then as I said in my written evidence to you, it may be time to make a change. A caveat to all of that is that there is a category of complaints about the provision of services, not about the employment relationship—I have talked about this with the Committee before—which is those against the military police. Complaints about the military police, in the execution of police duties, are in a different category. I am on record as saying that I think those should be independently investigated and that they should be brought under the same oversight bodies as the civilian police services.

Sir Bob Russell

Can I ask you to clarify? Are you talking about the Royal Military Police exclusively, or are you including the Ministry of Defence Police as well?

Dr Atkins

The Ministry of Defence police are within the Independent Police Complaints Commission; I am talking about the Royal Military Police, the RAF Police and the naval service police.

Chair

Among the recommendations we are tempted to make are that the ombudsman is appointed independently, without involvement from the Secretary of State, that there is a clear fixed-term five-year limit and that, if that were renewed, possibly that would be for no more than three further years. What are your views on that? Why shouldn’t we push for those measures to be in the legislation?

Dr Atkins

As you heard, the intention is that it should be advertised for five years. I think there are legislative precedents. I have worked in non-governmental bodies—they used to be called quangos—where the appointment of the chair was in primary legislation. My staff and I have been working with officials and senior service officers. There is the question of the independence of the ombudsman and that of the perception of their independence. And some things are in regulations that I think should be on the face of the Bill and some things on the face of the Bill would be better left in regulations. It is the role of this Committee and parliamentary scrutiny to get that right.

Chair

Just to clarify, you cannot see, in principle, any philosophical constitutional objection to beefing up the independence of the ombudsman in terms of the Secretary of State’s role in their appointment, nor any great objection to the Bill stipulating a five-year term with limits on its renewability, nor stipulating the minimum time between leaving the armed forces and becoming an ombudsman that should elapse before an individual should be considered for that role.

Dr Atkins

Putting aside your last sub-clause, in relation to the term it is probably not strictly necessary. As you heard, it is a public appointment that is governed by the rules of public appointment, as is mine. But it would help the perception of independence if that was in the Bill. It is sensible to have at least the ability to renew. As you know, I am staying on because my successor was not appointed in time—events happen. But, in principle, I do not see a problem with that.

Mrs Moon

In your written evidence you said, “It is right that the chain of command retains responsibility for handling service complaints,” and that, “The proposed solution is also workable because it has the support of the service chiefs.”

Dr Atkins

Yes.

Mrs Moon

Throughout the evidence session, we were constantly told about the importance of retaining the integrity of the chain of command. Is the new system simply a compromise to maintain the chain of command rather than an opportunity for free and open investigations and inquiries into the operation of complaints?

Dr Atkins

I don’t think that it is a compromise. I think you heard the Minister say that it is a balance. I think that the balance is somewhere else. It seems to me that what it is doing is really holding that chain of command to account. If the ombudsman can review how the Army Board has dealt with its own people and say, “You did not deal with this properly,” and that finding is to be binding, or the recommendations are to be strongly influential, that, through the annual reports, will put in the public domain that the chain of command, at the highest levels, has been reviewed and found wanting as well as the actions taken to correct that deficit. I don’t think you should see it as a compromise or a sop to the chain of command; it really is increasing accountability and transparency.

Mrs Moon

We heard that there are different processes within the different services for handling service complaints. How will the new model take those into account? Do you see any problems with that, and would you have preferred a uniform complaints system?

Dr Atkins

I was a bit bemused by that discussion, because it’s not my experience that there is a different process. There’s certainly a different way of going about the process. You heard the difference between the services in relation to oral hearings, where the Army Board will take a more legalistic approach to whether there should be oral hearings. The RAF may take a more humanistic approach. I’ve recently been in discussion with service chiefs in the RAF where it wasn’t necessary to have an oral hearing for the evidence but it would actually have been the right thing to do, and they’re changing their rules about that. It’s not a different process; it’s the same process but a different approach. The Navy tends to focus on resolving people’s problems, and you heard from the Commodore himself. If the Navy finds there is a quick fix to someone’s problem, they will offer it and see what they can do because they have to get people back into the ship, back to work and out at sea. I think the ombudsman offers a real benefit by being able to look at the handling of complaints in depth, particularly those at a higher level, and make recommendations and say, “This should be something adopted by all.” It may be, “Army, you have to be less legalistic and trust your commanding officers. You trust them with hundreds of men and women on the front line, so trust them to deal with their people when they have problems.”

Mrs Moon

Is that something you would like to say now?

Dr Atkins

I do say it, regularly.

Mrs Moon

You’ve expressed concern in the past regarding the inability of the MOD and the services to provide accurate and timely information on the number of complaints. Do you think the proposed new model will deal with those concerns?

Dr Atkins

What was accepted—the response to my 2013 annual report was published a few weeks ago—is that there will be another audit by the defence internal audit to find out whether their systems for recording are being done accurately. That is exactly the sort of information the ombudsman would have before him or her to be able to test that.

Mrs Moon

Would it be helpful if you had details of the number of complaints withdrawn, the nature of those complaints and the reasons for withdrawal?

Dr Atkins

Yes, it would. That was one of the recommendations I made. At present, the information given to me is withdrawal and informal resolution together but I recommended that those should be separated. A few years ago, I said that people should not be asked to withdraw complaints that are informally resolved; they should simply say, “Those have now been resolved.” That has now been done.

Mrs Moon

Should there be a single form used by the three services?

Dr Atkins

Yes.

Mrs Moon

Should those forms go to both the chain of command and the ombudsman, so that the ombudsman is aware of the numbers coming through at all times?

Dr Atkins

I’m not sure that the ombudsman needs to see the actual forms. What is being retained in the Bill, as you know, is the ability for anyone—whether the individual or someone on their behalf—to put a complaint through the ombudsman and pass it to the chain of command. I now get details of all complaints, whether made through me or not, that have been in the system for over 24 weeks. That’s very useful information and that will continue. I think I refer to that in my written evidence. One of my concerns is that if a case is delayed and the ombudsman only comes to review it at the end and says there has been maladministration and injustice because of delay, it’s too late. I want the ombudsman to be able to raise a flag and say, “Right, now you are on marked time. Be aware that if this is not resolved properly and reasonably within a short time there will be a finding against you.”

Mrs Moon

Do you feel that those powers are in the Bill as it stands?

Dr Atkins

Yes, I do.

Mrs Moon

The Bill’s intention is that the service complaints ombudsman is limited to investigating complaints of alleged maladministration and not the substance of the initial complaint. Other ombudsmen have the power to investigate service failure. Is there something you feel that, in addition to maladministration, the ombudsman should have the power to investigate?

Dr Atkins

It is maladministration and injustice. You heard from the previous witnesses, including the Minister, that that is not to be defined. It is about whether the complaint has been dealt with properly and whether there has been injustice. In general, the judicial review test will be used, which will go a long way. It goes back to the balancing act that I talked to the Chairman about at the beginning. Where do you put the power of the ombudsman to bring about change and justice for all those who are involved in a complaint in an operational setting?

Mrs Moon

So you don’t think the ombudsman should have the power to investigate the substance of individual complaints?

Dr Atkins

No. It is maladministration and injustice, so a lot of the issues will be caught. That is what that evidence shows, and that is the feeling of the other ombudsmen to whom I have spoken. If, in a couple of years’ time, it looks as though the ombudsman is saying, “This isn’t sufficient,” or the changes I talked about with Sir Bob in relation to service providers and the police have not occurred, then ombudsman should have the discretion to do an investigation into complaints about, say, police powers. There is a difference between the provision of services and workplace complaints.

Mrs Moon

If you had a blank piece of paper, which of the other systems for ombudsmen that operate around the world would you implement here?

Dr Atkins

Right here, right now, I think this is good. I followed the debate about the thematic reports, and it would be helpful to clarify that. We got to the answer in relation to Mr Twigg’s question. On your hypothetical example, it seems to me that if the ombudsman became aware that people are deliberately not being allowed to make complaints about wrongs that have been done to them because they are being ruled out of time without the individual circumstances being looked at, or there is delay, or people are not being told about their rights, that is an abuse of the system that goes to the efficiency, effectiveness and fairness of the service complaints system. It seems to me, from the interpretation of that provision in the Bill that was confirmed to you, that the ombudsman would be able to do an inquiry and a report into that. That would be a thematic review. When I was last at the Committee, I was asked what should be the subject of a thematic review. I said, “The handling of complaints about serious bullying.” I had to make a recommendation to the Army to do a review of serious bullying, which it did. I want the ombudsman, under the Bill, to be able to say, “I am not satisfied, from the evidence I have seen, that the handling of complaints about serious bullying is being dealt with properly,” and do a thematic report on that. If there is any question about whether the Bill covers that, it should be clarified.

Mrs Moon

In relation to the case I highlighted, the problem is that people cannot make a complaint because they are not aware of the injustice, so they need someone from outside to make a complaint. Do you think that power should exist?

Dr Atkins

Well, the ombudsman would be able, if they were made aware, to make inquiries. There are organisations—you have taken evidence from some of the people who are involved in them—that can tell people that they can make a complaint. Of course, under the Bill, if people make a complaint and it is ruled out of time, they can appeal to the ombudsman, whose decision about whether it was correctly ruled out of time is binding. That is a really important power. It covers the loophole that I have discussed with the Committee before: for those who have left the services and have a complaint made out of time, there is nothing they can do about it. Now they can; they can go to the ombudsman.

Mrs Moon

New section 340H(2) provides that an application to the ombudsman must be made in writing and must contain the information specified in regulations made by the Secretary of State. Is there a danger that the requirement for a complaint to the ombudsman will be overly prescriptive and dissuade complaints if it has to comply with regulation?

Dr Atkins

I think that is one of those matters that I referred to—it is in the Bill but I think it could be in the regulations. I don’t think it is helpful or in accordance with modern practice. I would very much like my successor to have an ability where people—as they can with other ombudsmen—can telephone, and the ombudsman staff can take a complaint down, look at the information they have got and say, “This is not a matter for us. We’ll redirect you to the people who can help,” or assign somebody to investigate, take further details and move it through. Ironically, the requirement that the complaint to the ombudsman is in writing is in the Bill, but there is no requirement that a service complaint needs to be made in writing. It is just one of those things where, probably, the draftsmen have looked at what was standard ombudsman legislation and put it in, but it would be helpful if it wasn’t there.

Mrs Moon

The concern of the Committee is that perhaps some of the people who may well feel that they have a complaint are not, perhaps, the most articulate to put something down in writing and that, therefore, a conversation would be more appropriate.

Dr Atkins

Yes, and at the beginning of the system somebody can get somebody else, as they very often do, to come to the ombudsman about a concern. That does not have to be in writing. People write to us on somebody else’s behalf and we take it from there. I am concerned that an individual may have gone through the process—they might be very articulate—and could fear that, having been turned down twice, they will be penalised or action will be taken against them if they do go to the ombudsman. It would be helpful for other people to be able to alert the ombudsman and take the matter forward.

Sir Bob Russell

Dr Atkins, do you have any concerns regarding the Ministry of Defence and each of the services providing the documents and information that the ombudsman requires for an investigation?

Dr Atkins

No, I think the Bill provides that the ombudsman should have the powers of the High Court to compel the production of documents. I know that has caused concern elsewhere but the service chiefs have confirmed—through the vice-chief to the Lords’ meeting that I was at a few weeks ago—that they are content with that and it is to remain in the Bill.

Sir Bob Russell

You don’t think it needs to be explicitly spelt out in the Bill?

Dr Atkins

It is in the Bill.

Sir Bob Russell

But you have no concerns that they will comply with the Act?

Dr Atkins

If they get the ombudsman right, no.

Sir Bob Russell

I wonder if I could put to you the question that I put to the Minister and the service people: why is it appropriate that the Bill provides for the Secretary of State to make regulations about procedure to be followed by the ombudsman in carrying out the investigations? Will that not undermine the independence of an ombudsman and reduce confidence in the service complaints system?

Dr Atkins

Well, it is right that the Secretary of State bears ultimate responsibility for the service complaints system but, as with other ombudsmen, it should be for the ombudsman to decide what the procedure should be. I am very much of the view that complaints systems generally should be built on principles and you should not have reams and reams of detailed procedure, but it seems to me that there are matters in the draft regulations—we have not yet been consulted on the draft regulations; they have been published because the House of Lords wanted to see them and it was made quite clear when they were given that they were subject to consultation—that, although it is not the policy intent, would undermine the perception of the independence of the ombudsman, even if in reality they didn’t.

Sir Bob Russell

Thank you for your clear response.

Derek Twigg

Can I ask a few questions about the independence of the ombudsman system as a whole? In your memorandum you say, “Where there has been maladministration and actual or potential injustice, the Ombudsman’s finding will be binding.” Should this be set out more clearly in the Bill?

Dr Atkins

It might be helpful to have it in the Bill. Again, it goes to that issue of giving confidence to people if it is in primary legislation.

Derek Twigg

So are you relaxed about it?

Dr Atkins

It is not for me to decide.

Derek Twigg

I am just asking for your opinion.

Dr Atkins

My answer would be, why not? You have heard that it is the intention that the findings be binding. So, why not?

Derek Twigg

So the recommendations should be binding?

Dr Atkins

No, I think the recommendations, in line with public sector ombudsmen, should be highly persuasive, because—

Derek Twigg

So the same basis as the local authority or health ombudsman?

Dr Atkins

Yes, exactly. There is a safety net there. There is a guarantor. The Bill provides that the Defence Council should give a response to the ombudsman’s findings and recommendations. If they depart they have to give reasons. The ombudsman will then put those in the annual report. The case will be anonymised to protect individuals’ confidentiality, but if the system is truly to hold people to account then that is how it should work. But there may be something that the ombudsman recommends and the Defence Council wants to do something that is stronger or there are good reasons why it is not feasible but actually it is as good as. Again, it goes back to giving the sense of ownership, which is so essential.

Derek Twigg

New section 340L(7)(c) enables the Secretary of State to make regulations about obligations, including those of confidentiality, and that may be imposed on those who receive the ombudsman’s report. Do you agree that there should be this confidentiality? I am thinking in terms of how that works with the health ombudsman and the local government ombudsman, for instance.

Dr Atkins

Again, we have not had a discussion on the regulations. I am not sure that it is necessary. The current legislation that I work under enables the Secretary of State to amend any report that I make on grounds of national security or protection of the safety of individuals. That seems to me, from the evidence that you heard, to cover the harm. So that is an issue that I will want to have discussions about.

Derek Twigg

But you think there is some danger in having that in there, or concern?

Dr Atkins

I don’t think it is the current policy intention, but if there is ability to make regulations, which will come through the Houses of Parliament, it opens the door to the Secretary of State being able to undermine the reports and the power of the ombudsman to speak out freely. There is a risk.

Derek Twigg

Going back to my question to the Minister—you touched on this before, in response to the case given by Madeleine Moon—do you think the Minister’s answer was clear in that the ombudsman should be able to produce a thematic report on their own initiative? Do you think that is clear now or is it still unclear? I thought it was unclear myself, but I don’t want to lead you in any way.

Dr Atkins

I think we got there in the end, but there was quite a debate. It would be helpful for it to be clarified.

Derek Twigg

So we are perhaps part of the way down the road but not quite 100%?

Dr Atkins

My understanding of the current provision is that, although it does not say it because that is the basis on which we have the current yellow and red flag reports on delay, if I am concerned about delay in any case, or if cases are badly delayed, I can make a report on my own volition to the Secretary of State. It is on the basis of exactly the same-worded provision in the current legislation, and both my lawyers and the MOD lawyers agree that that gives me the power to do so. I am assuming, therefore, that it moves on to the ombudsman having the powers to do so, but given that it is an interpretation, it may be helpful to clarify that.

Derek Twigg

Do you think that there can be a report without an investigation, or an investigation without a report?

Dr Atkins

It would have to be a report— there could be, under the other powers, a report about the investigation into a particular complaint. What we are talking about here is, if there are patterns of complaints that are poorly handled or types of complaint that are not being handled properly where there is injustice, for the ombudsman to be able to say, “I am not satisfied that complaints about serious bullying are being dealt with properly,” and to look at that, get information and create a report on the ombudsman’s own volition.

Sir Bob Russell

Dr Atkins, what is your assessment of whether complaints of harassment, bullying, discrimination and so on should go directly to an employment tribunal?

Dr Atkins

Complaints about unlawful discrimination, which is a narrower type, as you know, can go, but service personnel uniquely have to make a service complaint first. It seems to me that this is an issue that probably could be looked at under the Armed Forces Covenant, because they are in a different position.

Sir Bob Russell

That is an interesting observation. The Bill envisages that complaints will usually follow a two-stage process—complaint and, if required, appeal—rather than the three levels as at present. However, does the introduction of the option to appeal to the ombudsman simply replace the level that has been removed, and does the change actually simplify the complaints system?

Dr Atkins

I think it goes further than that, and that is where the development of my proposal has occurred. Although most complaints will go to the commanding officer and up that chain currently, there are some complaints—about medical treatment, about pay and allowances, about housing—that may start as a service complaint, go off into a special-to-type complaint process and then come back. The big step forward is that a complaint will be received and it will be decided whether it is a service complaint, but if it is about, say, medical treatment, it will go into the medical complaints system and there will be a decision by somebody empowered to resolve that complaint, one appeal and then to the ombudsman. So it is cutting out a huge amount of time and process. It also means that instead of having a complaint to a commanding officer who actually has no ability to resolve that complaint, it will go directly to the person who can do something about it if they find that the complaint is well founded. It is a two-stage process, but it is, get the complaint to the person who can fix it, and get it to an appeal. The appeal could be a sort of floating appeal, depending on where the level needs to be, and with an independent person. You can have an independent person sitting with somebody currently who is much lower down than the Defence Council. I think it should be a much more efficient and effective system, and then what you have got is the ombudsman holding the people who have made decisions on that complaint to account.

Sir Bob Russell

Do you envisage a serving member of Her Majesty’s armed forces who has, or is about to, set off on a complaint and is still serving in the forces seeking to involve his or her Member of Parliament as part of that complaints process?

Dr Atkins

I do not see that they would need to, but I am not sure that they could not. Quite often, I get letters from Members of Parliament about members of the services who have got a complaint in the system about whom there are concerns, and I reply to them now.

Sir Bob Russell

So we would not be ruled out?

Dr Atkins

I do not know whether there are any rules about individuals writing to their MP, but I do not think that there are.

Sir Bob Russell

I am not looking for work, but I represent a garrison town. Do you have confidence in the Defence Council’s ability to appoint people to hear an appeal under the internal system with “the necessary authority to grant appropriate redress”?

Dr Atkins

I do not see why they shouldn’t. They appoint people with necessary authority to resolve all sorts of things. If there is a problem, the ombudsman can say so and make recommendations to make sure that they do it right next time.

Sir Bob Russell

My last question is, what is your assessment of the time limits for different parts of the service complaints system in the Bill?

Dr Atkins

For the most part, they follow the current minimums, so giving three months to make a service complaint, six weeks to make an appeal, six weeks to go to the ombudsman. Again, there is a trade-off between timeliness—delay is unfair to the person making the complaint and to the person the complaint is made against—and detail. If you are going to have tight timetables, then you don’t need lots of grounds to be able to make it, if you see what I mean. I think they are fine. I have said to the services that it is reasonable to resolve complaints within six months, 24 weeks.

Mrs Moon

I have two quick questions. You said you had some concerns in relation to the regulations. Would you be willing to share any concerns that you have with the Committee?

Dr Atkins

I am afraid I am not in a position to do so. Regulations were published when I was on sick leave with shingles last week. Although I have looked online, I can’t say that my looking was very intelligent, given that I was coping with pain and exhaustion at the time. If you want me to, at a later date when I have had a look at those, I am very happy to write any observations.

Mrs Moon

I think we would find that most helpful. Your comments are always most helpful. There was one area that we raised with the Minister that we would also welcome your comments on. It is in relation to a request for information and that information not being forthcoming. Do you have any concerns about the suggestion that the ombudsman should proceed even where information hasn’t been forthcoming? Is that a permissive for people to withhold information that might influence how we investigate the ombudsman’s decision?

Dr Atkins

I do not read the regulations as being intended to do that. Again, just taking the hypothetical example that the ombudsman said, “I want that information,” and the person in the services said, “We are not going to give that to you because you can do the investigation without it,” the ombudsman would say, “It’s for me to decide whether I can do it, not for you. If I say I want that and you withhold it, I shall go to the High Court and let them decide.” I don’t sense that there is a problem, but if there were to be a problem, there are powers there for the ombudsman to overcome it.

Mrs Moon

Certainly, our concerns were less that they would refuse to give it, and more that, let’s say, à la the Home Office, things go missing.

Dr Atkins

Records do go missing. They go missing now. I am meeting the Surgeon General after this, but I regularly receive complaints that records are missing. I now take that up and sometimes they are found. If you are moving hundreds of thousands of people around the world and you have been using paper records, things do go missing, but I don’t see that it is deliberate.

Chair

Dr Atkins, I am going to trespass a little bit on your time and colleagues’ time over the last 15 minutes to go back through some of the areas that we have covered. We are hoping, as a Committee, to present amendments to legislation and we wanted to make you feel that you had had a fair opportunity to see the direction in which we are going and see if you had an objections or anxieties. Apologies if some of this is going over ground you have already covered. My understanding is that you do not have any in-principle objection to the notion that a time limit on term could be included in the legislation, but you had some pragmatic comments about how, occasionally, as in your case, it may be necessary to extend the time of an individual.

Dr Atkins

Yes.

Chair

Am I correct in saying that you do not have any in-principle objection to putting a minimum time that needs to elapse between departure from the armed forces and entry into the role of ombudsman? We have suggested a five-year time.

Dr Atkins

No; I parked that issue and did not address it. I think that is for Parliament and the Secretary of State to decide. It seems to me that there are real benefits to have somebody who is independent of the armed forces. With regard to armed forces and civil service, I was a civil servant before I became an ombudsman. There was not a time limit between that and I hope people have not thought that I have been less than independent. My principal approach would be that the focus should be on getting the right person and looking at their bundle of competences when they apply. Rather than putting a restriction on who can apply, it is about trusting your appointment process, with all the checks and balances, the independent elements that we have heard about, to get the right person. From experience here and across the world, I still have the view that having somebody who has not been a member of the armed forces is really helpful to the armed forces, because they come with a different viewpoint. Whatever our profession, we have blindspots. I think it is helpful to have somebody who will have a different blindspot from yours.

Chair

Just to summarise, you are essentially saying that you would tend to the view that they shouldn’t be someone from the armed forces, but you wish to leave some flexibility in the hands of the appointment committee.

Dr Atkins

Absolutely.

Chair

Moving on, then, to someone who has died. Should the family be able to pursue a complaint?

Dr Atkins

I am very interested to follow the discussion here and in the other House in relation to the discretion that is open. You heard today from Commodore Spence that in principle if there is a complaint in the system and the person bringing it has died there is a discretion to continue with that complaint. In answers to other questions Ministers have said that if the family has a concern about something that happened to a service person before they died it would be looked at, not within the service complaints system, but looked at. It seems to me that particularly when someone has died, the services and Ministers would want the families to have no lingering suspicions. It may be helpful in those circumstances for the Secretary of State to ask the ombudsman to review it. Certainly, if the discretion is exercised to keep a service complaint going after someone has died, I don’t see why there should be any problem to the ombudsman reviewing whether that has been dealt with properly for the family. That will then give them that independent assurance.

Mrs Moon

Indeed.

Chair

To be really pedantic about this, do you have any objection to inserting, where the person by whom a complaint might have been made under subsection (1) or (2) of new section 340A has died or is for any reason unable to act for himself, that the complaint may be made by his personal representative, or by a member of his family, or another individual suitable to represent him? That is based on a similar provision in the Parliamentary Commissioner Act 1967. Amendments have essentially been tabled in the Lords by Lords Rosser, Tunnicliffe, Thomas of Gresford, Palmer of Childs Hill, Baroness Garden and Baroness Suttie.

Dr Atkins

Like the Minister, I am a lawyer and I would want to look at that in the context of the Bill before I gave a yes or no. It sounds fine but I think I would like to have it as a discretion. May I come back to you when I have seen the written form?

Chair

Okay. Moving swiftly onwards, as I am very conscious of time, in the last remaining 10 minutes. At the moment there is some ambiguity in the legislation on whether the Defence Council is obliged to consult the Service Complaints Commissioner or ombudsman on creating procedures for making a complaint. Would you agree with us that there should be a statutory obligation for them to consult the ombudsman?

Dr Atkins

About making a service complaint?

Chair

Correct.

Dr Atkins

I think that is a very sensible thing.

Chair

Brilliant, excellent. Now, the real nub of the issue, which we keep edging around and which we keep getting some ambiguity about. We are of course pushing that in addition to being able to investigate simply maladministration, the ombudsman should also be able to investigate a service complaint, so the subsection we are proposing is that the service complaints ombudsman may investigate a) a service complaint, and b) an allegation of maladministration in connection with the handling of a service complaint. We believe that that would bring the ombudsman more in line with European practice. My sense was that you disagreed with that insertion for some reason.

Dr Atkins

I have come to the view that what we have got currently is right for now.

Chair

Just explain to me again, for a bear of very small brain, why is it you do not want this included?

Dr Atkins

Because I think it is wrong to say it brings it in line with European practice, because European practice varies. Where the European ombudsman for the most part can investigate complaints and the substance, it is because they have a welfare duty. So I do not think that that holds up.

Chair

Sorry, can you clarify that a little more? Why is it important that the people who tend to investigate substance have a welfare duty?

Dr Atkins

Because the ombudsmen have a duty to report to Parliament on the welfare of the service personnel. So, if they are only looking at the handling of the complaint, they are not able to say, “I’m looking into bullying.” They are saying, “I’m looking into the handling of bullying.” This ombudsman is not being set up to be the person who gives reassurance to Parliament on the welfare. You may feel that they should do, but that is not how it is set up.

Chair

So, Dr Atkins, just to clarify, I am an individual who feels that I have been bullied or harassed in the system. Presumably, from my point of view as the victim, I would like the ombudsman to be able to consider whether I have been bullied or harassed, rather than simply whether the service correctly handled the procedure for my harassment complaint.

Dr Atkins

Well, you might do, but remember, as with all ombudsmen, and ombudsmen in other countries as well, the ombudsman comes in at the end of the internal process, even when they are looking at the substance of the complaint. If you are being bullied and harassed, you want that bullying and harassment to stop. The ombudsman cannot do that. If you are out in Germany or Cyprus, or even down in Plymouth, and I am sitting in London, I cannot make the bullying stop. Your commanding officer can make the bullying stop. Somebody in the chain of command can make it stop.

Chair

But ultimately, when I go to the ombudsman, I have gone through the process and I am looking for justice. It would be very unfortunate if I got to the end of the process and you stuck your hand up and said, “I don’t have any view on whether you were bullied or harassed; all I am saying is that the service followed the correct procedure.” If I had been bullied or harassed, I would find that pretty rich.

Dr Atkins

But, as you have heard this afternoon, maladministration and injustice is not about reviewing whether the procedure has been followed. It is about whether you have been dealt with properly. Has the way that your complaint has been handled got to the issue of whether you were bullied? Have you been given protection? There is a whole range of things. That is why the word “injustice” is so important. It is not just maladministration; it is not just ticking the box. It is saying, has your chain of command protected you properly when you have raised the complaint and dealt with it properly? And have you been dealt with fairly?

Chair

So what is the distinction? The way that you have defined injustice seems quite broad: have you been dealt with fairly? What is the difference between injustice and the substance of the complaint?

Dr Atkins

Looking into the substance of the complaint would not look at how you have been treated by your chain of command. It would go to how you have been treated by the person whom you told about bullying. In a service context—this is a really helpful discussion—when things go wrong, what service men and women want, and the majority get, but an unfortunate minority don’t, is to have confidence in the people with whom they trust their lives to actually resolve it. They want the system to work properly, and that is what the ombudsman will do.

Derek Twigg

Can I just be clear on the Chair’s question? At the end of the day, it is not whether, on the balance of probabilities or on the balance of evidence, the bullying or whatever was found in her favour. That is not your concern; it is whether the process that gets to that decision is correct. Is that—

Dr Atkins

And whether that is fair.

Derek Twigg

You and I might look at it and think that there was some bullying or that something took place and that some action was needed, but someone else might have a different opinion. The decision is not on the balance of evidence, is it?

Dr Atkins

Yes, it might be, but if you said, “Look, I am pretty certain that you were bullied, but this investigation hasn’t got there,” that investigation, for whatever reason, has not been properly done.

Derek Twigg

So you do make a judgment on whether they were bullied.

Dr Atkins

You do make a judgment, yes. And it is on injustice or potential injustice.

Chair

Finally, I will stop—I am in a pedantic mood—but you made a much bigger claim about why you felt that other kinds of ombudsmen were not a good analogy for service ombudsmen. You drew the distinction that other kinds of ombudsmen do not deal with the relationship between an employer and an employee, but that between the public and the Government. Why is that distinction important in determining the powers of this ombudsman?

Dr Atkins

Because the ombudsman fills a gap between the citizen and the state. The reason for an ombudsman is that there is a power gap. There is a power gap in relation to rank and freedoms between the service personnel and the chain of command, but the chain of command has duties as well—in relation to protecting their lives, housing them and providing for their health—in a way that other employers do not, which is why you have got an ombudsman. But they do have those duties and responsibilities. If a member of the public thinks that they have not been dealt with properly by the health service or by local government, they have not got that same nexus that an employer-employee has.

Chair

I understand that they do not have the same nexus, but I cannot understand why that is relevant in defining that the ombudsman should have reduced powers.

Dr Atkins

Because the employer has those direct responsibilities that a person providing services does not.

Chair

In very concrete terms—help me understand. This ombudsman—your successor—compared with other kinds of ombudsmen will have slightly fewer powers. And you are suggesting that the reason for that is that the services ombudsman will deal with the relationship between an employer and an employee. Why should that difference be relevant in determining the scale of powers? Can you give us a concrete example of a power that exists elsewhere that will not exist here and why the employer-employee relationship makes a difference to that?

Dr Atkins

I am trying to think. I was thinking in terms of—no, that is—in relation to. If you think of the distinction of payment: a complaint about pay—

Chair

Yes.

Dr Atkins

Has that complaint been dealt with properly and has there been an injustice? That needs to be dealt with properly. If it is dealt with properly and it is upheld, that can be ordered and it can be paid; there is a direct relationship. In relation to the provision of, say, social services, who will order the provision of social services? Sorry, you have put me on the spot and I am trying to think—

Chair

Perhaps in addition to the written evidence you very kindly provided to us, could you kindly drop us another note looking exactly at the question of which powers other ombudsmen in the United Kingdom have that this ombudsman does not and your reasons for why this ombudsman should have less significant power?

Dr Atkins

I am happy to do that, yes.

Chair

Okay. Thank you very much indeed for your patience and full answers. Oral evidence: Armed Forces (Service Complaints and Financial Assistance) Bill, HC 508 25