Recently TAG raised several complaints against DIO and their behaviour with the Parliamentary Ombudsman, which covered:

• Wasting volunteer time
• Ignoring the 2019 agreement permitting cycling
• Ignoring a ministerial directive to keep Long Valley open when not in use
• DIO staff asserting that they hold powers of arrest when the law says otherwise

Submitted evidence included written records of meetings and emails to and from DIO staff. Qualified legal advice was shared. Anecdotes or unsubstantiated claims were set aside with hard evidence as the sole basis of the complaints.

The test of evidence isn’t beyond doubt but based on balance so the hurdle to clear and to secure an upheld complaint the hurdle is fairly low. Yet the Ombudsman has found DIO staff have absolutely nothing to answer for.

Written evidence was accepted on one complaint when it supported DIO’s view, yet the very same evidence was set aside and DIO collective memory failure held to dismiss a second. Records intended to eliminate memory failure were carefully read and agreed:

It seems clear that DIO were aware that TAG would draw up the two proposals, but these do not appear to have been formally commissioned by DIO…

Yet goes on to say;

We would not be able to say, even on the balance of probabilities, what should have happened or what actually happened, and therefore we cannot reach a robust decision about this part of the complaint. 

Even when the meeting notes, circulated to all attendees, agreed a report into trail digging mitigation was sought. And duly delivered to Mark Ludlow. And subsequently ignored – which was the crux of the complaint.

It will come as no surprise to find TAG does not agree with the outcome. Regrettably the expense and complexity of a Judicial Review prevents us taking the issue further.

So we thought the best step is share the outcomes with the local community, and pose a few questions such as;

Is this how we should expect civil servants to act and behave?

Or;

As tax payers and voters should we expect and seek higher standards?

We are not going to pick into the finer details of each complaint but we will share the background and outcomes to the significant three that directly impact the community:

• The Ministerial directive to keep Long Valley open when not in use
• The 2019 agreement permitting cycling
• Training Area Safety Marshals and the power of arrest

So with that in mind here is the first of three blog posts with this one exploring how a Minister using the word directed isn’t a directive, and why the Ombudsman thinks 7.6 hours of use from 495 hours of locked gates is fine.

Complaint 1 – Access at Long Valley

Back in July 2020 the Minister for Defence Procurement, Jeremy Quin MP, wrote a letter making it clear Long Valley was to be kept open for recreation when not in use. Here are his exact words:

“I can assure you officials have been directed to ensure that existing gates are open for public access to Long Valley when it is not in use for military training”. indeed there are copies of this on some of the gates.

And you can download a copy of the letter here:

As an aside, note how DIO blame a developer for a fence erected on their land blocking access and the fence was justified to stop anti-social activities. A FOI revealed no records of fly tipping or quad biking in the area.

Also note how Air Accident Investigation employees asked for a new fence. A FOI seeking confirmation revealed the Air Accident people held no records of communication with DIO.

DIO will blame anyone and anything but themselves when a new fence appears.

Back to the complaint. The key points here are:

• Its a Minister giving a very clear instruction
• The word directed has been used

So based on that we have a ministerial directive. A clear, unequivocal instruction given by the elected head of the department – aka the Minister – telling DIO exactly what to do. There is no wriggle room, get out clause or ambiguity permitting DIO to get out of doing as they are told.

This was the basis of our complaint; That Lt Col Bishop and staff at DIO South East were guilty of ignoring a ministerial directive.

With plenty of examples of extended lockout – including the 7.6 hour poster child from October 2020 – we thought it would be a straightforward decision.

What the Ombudsman Says

The first surprise was a Minister using the word directed was not a ministerial directive. According to the Ombudsman:

“…despite the language used, this is not a formal Ministerial Direction…”

But goes on to acknowledge “The minister is telling MOD staff what to do.” yet the gates remain locked for extended periods. This was the crux of the complaint with DIO-authored evidence to support the complaint.

The second surprise was how much emphasis the Ombudsman placed on the byelaws, which was not anticipated as the complaints really focused on individual behaviour rather than how they stacked up legally – although we will discuss how DIO continue to apply a dead law in a forthcoming blog.

The locked vs in use analysis based on the booking on/off records carried no direct comment and the Ombudsman laboured the point how much extra work and planning opening the gates imposed on DIO and how having a timetable helped everyone – particularly DIO – plan.

It should be noted that all the extra work and planning involving opening the gates only happened AFTER the fencing was put up by DIO removing 150 years of free public access when not in use for military training.

Except the timetable is never updated to reflect reality and leaving the locked gates in place is perfectly acceptable – in spite of what the Minister instructed – because:

“…the MOD chooses to grant permissive access to Long Valley and has committed to doing so while training is not in place.”

Which is not true.

Committing to keep an area open when not in use is different to actually meeting that goal. And the Minister’s words are overruled by the primacy of DIO having discretion. Why bother with a minister if DIO can carry on regardless?

The primary concern is the misuse of what should be a system of safety. The DANGER signs really must communicate the truth, and that has been in short supply ever since their first use in 2018 to close the area for a civilian event.

Summary

By locking the gates to align with a calendar that remains unaltered for a month at a time DIO continue to shut the area when not in use. Any claim of “always in use” can be set aside by applying Hitchen’s Razor since DIO now routinely delete records within 48hrs.

TAG raised the concern of record deletion with the Ombudsman. There was no appetite to take this evidence into account, even though record deletion breaches the published principles organisations are expected to meet.

The number of footprints, dog paw prints and cycle tracks left imprinted in the sand tells us more recreation than driver training happens. The local community recognises the DANGER signs and uses them more as a guideline than an absolute instruction.

Perhaps the best we could expect was this observation from the Ombudsman:

…in practice DIO does not appear to amend the timetable once it is published.

And this:

…we accept that training may not always take place. 

No kidding Sherlock!

The evidence was there for all to read. In black and white and DIO’s own inked records. We are at a loss to understand why this has not been accepted and acted upon.

Does it matter the DANGER signs lie?

So what if no one reads the website and carries on climbing the gates whilst keeping an eye out for any training?

Not really, no. DIO will have no idea how much recreation goes on and think the gates work. They are on record claiming that they are a success. Which, if DIO’s intention is to exclude recreation and sell the land in the long term is perfect.

But it really does matter.

TAG would love to see an honest and robust system of safety adopted. When we see an end to a culture that accepts 116.8 hours of use versus 2,215 hours locked as reasonable and proportionate and uses evidence to set policy we will be the first to support it.

Regrettably that will not happen as long as DIO and their behaviour, including the deletion of records, remains unaccountable.

A functioning democracy relies on honesty, truth and transparency and in this regard the local community deserves far better value than is currently being delivered.

We see little hope of political accountability and whilst many fine words have been expressed by the local MPs the measured outcomes are slim to nil, including the gates Ranil Jayawardena promised were coming in April 2021.

Finally, we would urge any and all volunteer groups engaged with DIO South East to proceed with extreme caution. Irrespective of the Ombudsman’s position TAG remain firm in the view a report into trail building mitigation was solicited, and subsequently ignored.

Our advice: Be wary of DIO staff asking for volunteer input only to suffer amnesia later.

From our perspective, its all more evidence of bad faith engagement. Which is contrary to what Brigadier Jonathan Bartholomew claims…and we quote:

“It’s key that we work together to share these spaces with respect and consideration.”

On that we can very much agree.

Regrettably DIO South East has no intention of following what we understood to be a direct order. Fat chance it will deliver change and respect for the local community…After all, if they can ignore a Minister what hope does a mere Brigadier have?

Next week; How DIO can treat one user group so differently and yet bend over backwards to help other user groups and how that introduces a beginners guide to the Human Rights Act.