My Lords, I rise to speak with some diffidence, it being nearly 60 years since I completed my own national service—and I now speak as a superannuated judge. But this new power in the first amendment strikes me as a very remarkable and extreme power. It confers on the complainant an unlimited appeal right on the ombudsman and an unlimited power to hear an open appeal on the substance and merits of the complaint on a de novo basis. By definition, by this stage, the aggrieved complainant will have failed to establish and failed to persuade the various levels in the chain of command of the merits of his complaint on a number of occasions.
This new provision is strikingly different from the well known formula that appears in the TPIM Act 2011, which I take as an illustration, where review and appeal rights are thus constrained:
“the court must apply the principles applicable on an application for judicial review”.
I repeat: here there is an unlimited appeal. When promoting the Bill at Third Reading last October, the Government originally objected to any such provision on the basis that it undermined the military chain of command. That is true, as the Minister said today, but at the end of the process the ombudsman’s findings—and, if they are favourable to the complainant, recommended redress—go to the Defence Council. Frankly, the Defence Council will effectively be obliged to give effect to them, unless it chooses, as would be its right, to judicially review the ombudsman’s conclusions. If the Defence Council does not do that and does not give effect to them, it is highly likely that the complainant will judicially review the Defence Council.
For my part, I can do no more at this stage than offer such support as I can to the urging on the Government from the noble and gallant Lord, Lord Stirrup, to make sure that those who will exercise this radical new power in the ombudsman and entertain a service complaint not against the background of their own service experience, and despite its failure before the various levels of the military, will at the very least be trained so that they fully understand the exigencies of service life.