Independent Defence Authority (IDA) comments on the Armed Forces Bill (AFB) Sub Committee Report released 22 April 2021
1. The IDA would like to commend the AFB Committee for undertaking their work in a professional and committed way in such a short space of time and in the face of COVID constraints and a large measure of lack of co-operation by the Ministry of Defence (MoD).
2. However, the IDA having read the report is profoundly disappointed. The AFB, as currently configured, looks set to miss the opportunity to really address long-standing inequities and miscarriages of justice, and, instead, unintentionally, will allow the MoD to perpetuate inadequate and unfair systems and procedures. These essentially coalesce around continuing shortfalls within the Service Justice System and the Services Complaints Service, where the current inherent imbalance of the system weighted against complainants would not be rectified, and in some instances, worsen. Significantly, it is stated in the report that one of the most important mechanisms, the Service Complaints Ombudsman Armed Forces (SCOAF), is regarded as not fit for purpose with, “the SCOAF … concluded in the last annual report that it was “not efficient, effective, or fair.” ”
Misgivings about the Conduct of the Enquiry
3. Whilst we are dissatisfied with much of the substance in the report, we recognise that much of this is down to the very short timeframe allocated for the Sub-Committee to carry out its oversight of this complex piece of legislation. James Sunderland MP recognised this in his comments to the House, but we believe the lack of proper scrutiny means that many of the important issues have not been properly considered, if at all. Given that the Integrated Review of Security, Defence, Development and Foreign Policy has just been issued, we would have expected the Government to accord sufficient scrutiny time to this important Bill.
4. This has been further exacerbated by the fact that many of those giving evidence to the Sub-Committee are what we would describe as ‘seniors and home team names’ and not by those affected by the substance of the Bill for example, those at the ‘coal face’. This has, in our view, led to group think answers supporting the MoD’s current position rather than being truly impartial and challenging the status quo.
5. In addition, the overwhelming reliance on MoD data is of concern. The MoD annual Continuous Attitude Survey, referred to on many occasions in the report, gives the veneer that areas of concern are being addressed, but the reality is that many issues remain unresolved decades later – the case in point being the appalling situation regarding service accommodation where the Committee was refused permission to visit by the Defence Secretary. Insufficient weight was given to eminent witnesses, for example, Emma Norton from the Centre for Military Justice, Dame Vera Baird QC, the Victims Commissioner and Nicola Williams, the previous Service Complaints Ombudsman. All of them gave damning indictments of the areas they know well, but that is not reflected in the recommendations from the Sub-Committee nor was there time to further examine their insights with other witnesses.
Key Areas of Concern
The Armed Forces Covenant
6. We have concerns about how the Covenant will work in practice, not least the lack of uniform legal application with central and devolved governments being exempt, whilst local government and some public bodies are made liable, without any provision of additional funds for them, at a time of pressures exacerbated by COVID. In essence, these bodies will be picking up the tab for the problems instigated primarily by the MoD.
7. Monitoring of the Covenant through the continuous attitude survey on the surface sounds like a good idea, but the MoD must not be allowed to design the questions, collate, analyse and interpret the data as that allows it to slant the outcome, introducing bias, Education and Health are independently assessed, so the same should apply to defence.
Service Justice System (SJS)
8. This report states, “we found that the Bill, combined with Non legislative measures in the process of being implemented following the Lyons review, demonstrates a commitment to improving the system and ensuring that it has the confidence of those subject to it and of the wider public.” Our view is that while there is some criticism of the SJS, it does not go far enough, and is really just giving it a ‘slap on the wrist’ for not implementing all of the Lyons Review recommendations. Any new SJS authority must set out a clear and prioritised timetable, answerable to an oversight body outside of the MoD chain of Command, and so, as the AFB states, “confidence in the investigative function of the system is imperative.”
9. We note the statement that, “The Ministry of Defence should work quickly to introduce the Defence Serious Crime Capability, and ensure clear protocols are in place to allow effective cooperation with civilian police forces,” seeing this as an acknowledgement that the current system is broken. It is imperative that what are judged as serious crimes in the civil judicial system, such as murder and rape, when carried out by members of the Armed Forces, are only tried within the civil system. Otherwise, what is being proposed under the AFB will just perpetuate an inequitable and inadequate system which is well documented.
Service Complaints System (SCS)
10. The AFB, as configured, does not adequately address the whole issue of safeguarding and equity. In fact, Clause 10 is retrograde introducing more barriers/deterrence through reducing the appeals against a first instance decision period from six to two weeks (with the regulations allowing exemptions in some cases, but without specifying these). There is no corresponding reduction in period as to when a decision should be given. It introduces more bias and does nothing to mitigate uncertainty and confidence in due process. There is no mention in this report of the reduction in times to appeal. References to reducing burdens on Commanding Officers are a complete red herring. Implementing an IDA would provide an opportunity to provide independent mechanisms and introduce effective and impartial adjudication with clear safeguarding measures and bodies.
The Wigston Review
11. The Sub-Committee was very clear, “We recommend that the Ministry of Defence prioritise implementing all recommendations of the Wigston review within 6 months, ensuring that solutions take account of the needs of victims and provide appropriate avenues to redress external to the single Services’ chain of command where needed.” We support this completely.
12. Given that the evidence presented has been long standing, and there are many previous reviews/statements by MoD/Chiefs to tackle all of this, there remains a big gap between words and deeds. The Danuta Grey evaluation of the progress of the Wigston report was issued in December 2020 and showed that there is much that has not been accomplished- there is an absence of prioritisation/ sequencing/ simultaneous matrix management of multiple recommendations in order to have maximum effect.
13. The committee allowed Chief of Defence People to say that the implementation of the Wigston Recommendation to create a Defence Authority was achieved by the creation of a 2-star civil service D&I post. The actual Wigston recommendation says, “the Authority will need to be fully resourced with suitably qualified and experienced people otherwise it will not make a difference. We estimate around 30-50 people will be required, recognising this will be an additional workforce requirement for Defence.” How in any way is one 2-star post the implementation of this recommendation? Therefore, what sanctions will be applied if the Wigston Report recommendations are not implemented by the MoD within the next six months?
14. The report says, “We welcome the Minister committing to “find a mechanism of restorative justice” for veterans dismissed due to their perceived sexuality during the years of the ban on homosexuality in the Armed Forces and the Minister should report back to the House on progress within three months”. The key question here, as with the Wigston Report, is one of accountability and urgency. If there was an IDA, this would be undertaken as routine business, and ensure the MoD can concentrate on other core business. This plays again into the inadequacies of the complaints system.
15. We also note that the report acknowledges the need to factor in the Women in the Armed Forces Inquiry due to report in June. There may well need to be an update to the recommendations, once this report is public.
16. Through no fault of the Committee a rushed job has taken place, with a lack of diverse representatives being called upon. Unintentionally, this will result in a flawed AFB that will continue to perpetuate innate defects which will affect defence’s most prized assets, its workforce. Therefore, we urge you to consider, whilst there is still time, to include the creation of an IDA, which will mitigate these shortcomings and deliver better support to Defence so it can concentrate on military capability.
PJ INGRAM MBE
Co-Founder of the Independent Defence Authority