Commentary on Sections Section 20: Service complaint panels
79.Under section 334(1) of AFA 2006 a person who is, or has been, a member of the armed forces may make a complaint if he thinks himself wronged in a matter relating to his service. Section 334(3) requires the Defence Council to provide by regulations for the procedure for dealing with such complaints. Under section 334(4) the regulations must include provisions allowing referral of a complaint up to the Defence Council. Under section 334(8) where a decision is made that a complaint is well-founded the appropriate redress (if any) must be decided and granted. Under section 335(1) of AFA 2006 the Defence Council has power to delegate to a panel (called a “service complaint panel”) all or any of its functions under section 334.
80.Under section 336(1) a member of a service complaint panel must be either a senior officer (of or above the rank of commodore, brigadier or air commodore) or a civil servant. That is subject to a power in section 336(5) for the Secretary of State by regulations to make further provision about the composition of service complaint panels. Under section 336(6)(a) those regulations may require a service complaint panel to include one independent member. Under section 336(3) at least one member of all service complaint panels must be a senior officer.
81.Subsection (1) of section 20 substitutes a new subsection (3) for section 335. Under that new subsection the Defence Council must determine the size of a service complaint panel. This is subject to a required minimum (in section 336(2)) of two members and subject to any provision made by virtue of section 336(6), as amended by subsection (6) of section 20). Subsection (3) of section 20 makes the provision in section 336(1) subject to the new provisions relating to independent members. Subsection (4) removes the requirement for all service complaint panels to have at least one senior officer as a member.
82.Subsection (5) of section 20 inserts further subsections into section 336 of AFA 2006. These empower the Defence Council to determine that a service complaint panel (for a particular complaint or for a description of complaint) shall include a specified number of independent members, and to determine that certain functions of a service complaint panel are to be carried out by independent members. The Defence Council is also empowered to delegate these determinations to a civil servant or officer.
83.Subsection (6) of section 20 amends section 336(6). Instead of being limited to requiring one independent member, the Secretary of State may by regulations provide that, where the Defence Council decides to delegate complaint functions to a service complaint panel, the panel must include a prescribed number of independent members, or is to be composed mainly or entirely of independent members. The regulations may also provide for prescribed functions of a panel to be carried out by independent members.
84.Subsection (7) of section 20 adds a new section 336A to AFA 2006. Under that section the Secretary of State may by regulations require the Defence Council, in a prescribed description of complaint, to delegate to a service complaint panel some or all of the Defence Council’s functions under section 334. But the regulations may only require delegation to a panel where they also either require the majority, or all, of the panel to be independent members and/or where they require certain functions to be carried out by independent members of the panel.
85.In the new provisions “independent member” has the same meaning as it currently has in AFA 2006 (see section 336(7)). An independent member must not be a member of the armed forces or a civil servant.