I wasn’t called to speak in the Report Stage of the Armed Forces Bill today. Here’s what I would have said if called:
I rise to speak on clause 10 of the bill, concerning service complaints appeals. My Rt. Hon. Friend the member for Portsmouth South has rightly referred to the ‘narrow’ and ‘weak’ scope of this bill, and nowhere are these deficiencies more apparent than in its failures to address a creaking complaints appeals process which causes frustration, anger and distress for service personnel forced to pursue a convoluted resolution through this route.
The 2019/20 Service Complaints Ombudsman Annual Report was a damning indictment of the handling of armed forces complaints, and made grim reading for the MOD. Of the delayed cases the ombudsman investigated in 2019, undue delay was found in 53% of them. None of the Services met the Key Performance Indicator to resolve 90% of Service Complaints within 24 weeks. Only 46% percent of all complaints were dealt with in the 24 week target – a figure which plummeted to 32% in the case of the Army. This corresponds with the response I received to a recent written question which showed that, in the case of the Army alone, 260 live complaints cases had lingered on for over 6 months. 95 of these complaints were between one and two years old, and 10 were actually between 3 and 4 years old.
Meanwhile the Armed Forces Continuous Attitude Survey indicates that serving members of the Armed Forces have such little faith in the complaints process that they often choose to steer clear of it altogether. The statistics are damning – only one in nine personnel who experience bullying, harassment or discrimination pursue a complaint. 57% of personnel who responded said they chose not to make a complaint because didn’t believe anything would be done if they did. This means that a culture of bullying is effectively being allowed to pass unchecked – a culture which female members of the armed services are disproportionately impacted by. Indeed, 39% of bullying and harassment cases that are reported are from women, despite them making up only 12% of personnel. This obvious question is that is this still just the tip of the iceberg?
In her evidence to the Defence Sub-Committee on Women in the Armed Forces in March, retired Lieutenant Colonel Diane Allen described the services complaints process as “the most perverse, toxic and unpleasant experience,” noting that one of the biggest issues was the Ministry of Defence marking its own homework. There really is very little to address that problem in the bill today, and potentially an even more worrying facet of the legislation is that it would erode the right of access to the Employment Tribunal for service personnel, directly contradicting its ostensible purpose to increase the rights and protections of those who serve our country.
Clause 10 of the bill proposes to cut the amount of time for appeals to be brought forward from 6 weeks to 2 weeks and restrict the grounds upon which an appeal can be brought. As one constituent and veteran puts it to me: “What Clause 10 will, highly likely, cause to happen, is that service personnel who have genuine grievances will be forced to contend with a new set of legally
restrictive criteria composed by the MOD and only have 2 weeks to do so. Those restrictive criteria, as statutory instruments, will not have been scrutinised by Parliament in full and, even if they are fit for purpose and have no unintended consequences, are subject to the whims of the legal ability within the MOD which has a proven track record of being sub-par. This will actively discourage service personnel, who do not have bottomless pockets like the MOD and who are granted no legal assistance by the MOD, from submitting appeals.” This goes back to the ‘two-tier’ system Labour has warned against previously.
Should the service person manage to submit an appeal in time and the MOD decide, using the new regulations, that it isn’t admissible, and the service person thinks the decision is wrong, they would then have to embark on a complex and lengthy legal process of applying for judicial review in the High Court which appears to be, if the Bill is passed as presented, the only mechanism for challenge. These multiple strands of litigation can only mean more expense and ultimately more distress and trauma for complainants.
The tragic case of Lance Corporal Bernard Mongan, which made headlines again this week, suggests that we have much more to do to tackle a toxic culture of bullying in our armed forces. If we are ever to stamp it out, we need our brave service personnel and veterans to have absolute confidence that raising a complaint will make a difference and not be crushed down in an avoidable legal quagmire for many months or even years. There is a real risk that the provisions in this bill will put even more victims of bullying and harassment off from making complaints, and I’d urge ministers to think again.