Employment Rights Bill (Ninth sitting)
Tuesday 10th December 2024
(1 month ago)
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The Chair
Would everyone please ensure that all electronic devices are turned off or switched to silent mode? We will now continue line-by-line consideration of the Bill. The grouping and selection list for today’s sitting is available in the room and on the parliamentary website. I remind Members about the rules on the declaration of interests, as set out in the code of conduct.
Clause 10
Policy about allocating tips etc: consultation and review
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)
It is a pleasure to see you in the Chair this morning, Mr Mundell. As is customary, I refer to my declaration in the Register of Members’ Financial Interests and my membership of the GMB and Unite trade unions.
As Members will be aware, clause 10 introduces new requirements on tipping, namely the requirements for employers to consult workers about the allocation of the tips they have earned, and to review their tipping policy. These new requirements will build on the measures introduced by the previous Government in the Employment (Allocation of Tips) Act 2023. The Act came fully into effect on 1 October this year and ensured that an estimated £200 million-worth of tips each year are no longer retained by employers.
The Act is accompanied by a statutory code of practice on the fair and transparent distribution of tips. Although the Act requires employers to allocate tips fairly to workers, the existing statutory code of practice only encourages consultation with workers in deciding that allocation. The Government were clear in their commitment to going further—indeed, I took part in a debate earlier this year in which I said that the legislation did not go far enough. We will therefore make it mandatory for employers to consult workers in developing or updating their tipping policies, including how tips are allocated.
The clause will support worker participation in the allocation and distribution of tips that they have earned, by mandating that employers consult workers during the development or revision of their written tipping policies. It will also mandate that employers review their tipping policy and maintain records of the consultation they have carried out, as well as giving workers the right to request and review records related to the tipping policy consultation. The consultation will be required to take place at the formative stage, before the policy is finalised or updated, and should be carried out, where possible, by engaging with representatives of recognised trade unions or other chosen representatives. If neither are available, the consultation will be required to be with workers likely to be affected.
We will continue to engage with unions and worker representatives in hospitality and other impacted industries to ensure that the measures in the Bill and in the statutory guidance deliver fully on our aims. Following Royal Assent, we will consult widely and properly with stakeholders to determine what changes should be made to the existing statutory code of practice. We are determined to ensure that guidance is as helpful as possible, ensuring that tips are allocated fairly and that worker consultation is carried out properly.
These measures will be enforced via the employment tribunal system. If an employer fails to consult their workers properly or to distribute tips in a fair and transparent manner, workers will be able to bring a claim to an employment tribunal. The tribunal will be able to order an employer to compensate workers up to £5,000 for financial loss. I think that Members can see what we are trying to achieve with the clause, and I therefore commend it to the Committee.
Greg Smith (Mid Buckinghamshire) (Con)
It is a pleasure to serve under your chairmanship once more, Mr Mundell. The Minister mentioned that the clause builds on private Member’s legislation passed in the last Parliament, and it would be remiss of me not to put on record that the transformation in some employers’ attitudes to their employees and to the retention and fair distribution of tips was in large part down to the former Conservative Member for Watford, Dean Russell, who piloted the original legislation through the House. There were one or two little bumps along the road as he came into ministerial office and then out again in—what was the number?—43 days, but many Conservative colleagues really pushed for the legislation. It is one of those great unfairnesses that, for years, incredibly hard-working people in the hospitality sector and others had an expectation that they would receive the generosity of their customers’ tips at the end of the meal, the round of drinks or whatever but, for various reasons, did not get their fair share. The legislation the Minister referred to righted that historic wrong, and clause 10, which seeks to strengthen that, is very welcome.
Where I gently suggest to the Minister that there needs to be a little more thought and clarity is settings where there is no union to consult. That might be a small business such as a restaurant or pub, where the people who work there are not affiliated with any union or body that could be consulted on their behalf. Will he say something about how those smaller businesses—smaller restaurant or pub settings—will get dialogue going with their employees so that the business has a fair and equitable, and clear and unambiguous policy to ensure that the tips reach those workers?
Steve Darling (Torbay) (LD)
It is a pleasure to serve under your chairmanship, Mr Mundell. I just emphasise what the hon. Member for Mid Buckinghamshire stated in respect of smaller settings. In my constituency there are lots of restaurants and small hotels without the network of support for workers that a trade union would offer. It would be useful if Ministers were alive to the circumstances of those smaller settings. I also wonder whether the Minister is reflecting on what guidance he might issue on the question of what is equitable that could be reflected if people end up going to a tribunal.
Laurence Turner (Birmingham Northfield) (Lab)
I draw attention to my declaration in the Register of Members’ Financial Interests and my membership of the GMB and Unite trade unions. I noticed last week that the Prime Minister made a James Bond joke, and I wondered whether he was following the Committee’s proceedings in real time. There is a valid question here: when James Bond buys a vodka martini, what happens to the tips? Hopefully, thanks to this Bill and the legislation passed last year, we will have a more equitable solution.
I want quickly to raise two issues. The “Make Work Pay” document published earlier this year stated:
“Labour will strengthen the law to ensure hospitality workers receive their tips in full and workers decide how tips are allocated.”
I would be interested in the Minister’s views on whether this measure meets that very welcome commitment. Whether tips that would have been received during shifts that are cancelled fall under the definition of reasonable compensation is presumably a question to be addressed in the future.
In respect of the points raised by the hon. Members for Torbay and for Mid Buckinghamshire about consultation with groups of workers who are not represented by a trade union, I suggest that the kinds of businesses they mentioned should have at least a degree of familiarity with the principles of that, since they are established and well understood in the context of redundancy situations and in other areas.
Justin Madders
First, I will acknowledge, as did the shadow Minister, the hon. Member for Mid Buckinghamshire, the work in this area by previous Members of this place, including the former Member for Ynys Môn. I think it was seven years after the announcement that there was to be legislation that we finally got action, but it is welcome. I note the shadow Minister’s comment that the legislation has transformed attitudes, and that is what we are trying to do with this Bill in general: transform the workplace so that workers have better security and a better voice.
The shadow Minister raised some important questions, as did the Liberal Democrat spokesperson, the hon. Member for Torbay, about what this measure means for smaller businesses where there may not be a trade union. Of course, that is an argument for greater organisation in the workplace so that employers can consult collectively with the workforce. Those smaller employers—the Great British café, for example—would not always have an easy route to consult with their workforce, but in that kind of informal setting, where there is only a handful of employees, it should be fairly straightforward. Everyone will know their role and what goes on, and the existing code of practice deals with the guidance for smaller employers in that sense.
My hon. Friend the Member for Birmingham Northfield asked whether this measure meets our commitments under “Make Work Pay”, and I believe it does. It is a significant step in continuing the welcome, transformational moves that we have seen on tips, and it gives workers an absolute right to be consulted, which I think is important. There is evidence, such as the research by the Chartered Institute of Personnel and Development, that certain sections of the workforce, including agency workers and people working in certain parts of a business, feel that they do not have a voice. This provision will give them that voice and the real teeth they need to ensure that tips are fairly distributed. As the shadow Minister said, this is all about them. It is about ensuring that everyone who contributes to the service that we all enjoy gets those tips, which the customer clearly wants to ensure are spread among the workforce. On that note, I commend the clause to the Committee.
The Chair
It is good to hear the Great British café will be covered by these provisions.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Parental leave: removal of qualifying period of employment
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 12 stand part.
New clause 16—Publication of information about parental leave policies: regulations—
“(1) The Secretary of State must make regulations to require any employer with more than 250 employees to publish information on the internet about the employer’s policies on parental leave and pay for parental leave.
(2) Regulations under subsection (1) must be published within one year of this Act being passed.
(3) Regulations under this section are subject to the affirmative regulation procedure.”
This new clause would require companies with more than 250 employees to publish information about their parental leave and pay policies.
New clause 17—Entitlement to paternity leave—
“(1) The Employment Rights Act 1996 is amended as follows.
(2) In section 80A (entitlement to paternity leave: birth)—
(a) in subsection (3), for ‘two’ substitute ‘six’,
(b) in subsection (4), for ‘56 days’ substitute ‘52 weeks’.
(3) In section 80B (entitlement to paternity leave: adoption)—
(a) in subsection (3), for ‘two’ substitute ‘six’,
(b) in subsection (4), for ‘56 days’ substitute ‘52 weeks’.”
This new clause sets out an entitlement to paternity leave.
The Minister for Equalities (Dame Nia Griffith)
Clauses 11 and 12 enable employed parents to give notice of their intention to take parental leave or paternity leave from their first day in a new job. Clause 11 does that for parental leave by amending section 76 of the Employment Rights Act 1996 to remove the power for the Secretary of State to make regulations relating to the duration for which an employee must be employed before being entitled to be absent from work on parental leave. Clause 12 works in a similar manner for paternity leave, amending sections 80A and 80B of the Employment Rights Act 1996 to remove the power for the Secretary to make regulations relating to the duration for which an employee must be employed before being entitled to take paternity leave.
Currently, parents must complete one year of continuous service to qualify for parental leave, and 26 weeks of continuous service to qualify for paternity leave. Clause 11 will make an additional 1.5 million parents each year eligible for parental leave, while clause 12 will bring an additional 32,300 fathers and partners a year into scope for paternity leave. Clauses 11 and 12 will make it easier for employees to move jobs, which may enable them to secure wage increases without losing their ability to take parental leave or paternity leave. Removing deterrents to changing jobs is important, because research by the Office for National Statistics and the Resolution Foundation shows that people who move jobs are likely to get wage increases.
There is also a benefit from our changes to employers, who will gain access to a larger pool of applicants for vacancies, as parents will be more likely to apply for new jobs because they will not lose their access to those leave entitlements. We have engaged with stakeholders who represent the interests of parents, and they have said that they welcome the removal of continuity of service for parental and paternity leave. Making those entitlements available from day one also brings parental and paternity leave into line with other entitlements, such as maternity and adoption leave, creating a clearer and fairer system.
New clause 16 would commit the Government to introducing regulations that require organisations employing more than 250 people to publish information about their parental leave and pay policies. The hon. Member for Torbay is right to highlight the significance of publishing parental leave policies. It is certainly true that parental leave and pay policies are not perks on a par with gym memberships; they are critical policies that allow people to manage their lives. As well as being hugely important at a personal level, parental leave and pay policies are critical for addressing wider social and economic issues.
The Bill already does a lot to support working families. It reforms the right to request flexible working to make it the default. It puts in place legislation that makes it unlawful to dismiss pregnant women, mothers on maternity leave and mothers who return to work for a six-month period after they return, except in very specific circumstances. It also requires large employers to produce equality action plans. That is why at this point we believe that not requiring publication of parental policies in the Bill is the correct approach. It strikes the right balance between doing more to help working families and being manageable for employers to respond and adapt to.
New clause 17 would increase the length of paternity leave from two weeks to six weeks and also seeks to introduce the ability to take paternity leave at any time in the first year following birth or adoption. The Government value the vital role that fathers and partners play in caring for children and supporting their partners. We recognise that parental leave and pay entitlements, such as paternity leave and pay, play a key role in their ability to do that. That is why we are taking the first step of making paternity and parental leave day one rights.
Recent changes to paternity leave and pay, which took effect on 6 April 2024, allow parents to take their leave and pay in two non-consecutive weeks; to take their leave and pay at any point in the first year after the birth or adoption of their child, rather than only within the first eight weeks; and to give shorter notice for each period of leave. That means that parents are now able to take their paternity leave at any point in the first year following their child’s birth or adoption. While I very much support the intent behind this element of the new clause tabled by the hon. Member for Torbay, it is already in place and so is not required.
If fathers or partners wish to take a longer period of leave and pay, shared parental leave and pay is an option they can consider. Up to 50 weeks of leave and up to 37 weeks of pay can be “created” for parents to share from maternity entitlements that the mother does not intend to use. Parents can use the scheme to take leave together for up to six months or to intersperse periods of leave with periods of work.
We know that more needs to be done to ensure that the parental leave system provides the best possible support for working families. That is why we have committed to a review of the parental leave system. The review will be conducted separately to the Bill and work is already under way across Government on planning for its delivery. I therefore commend clauses 11 and 12 to the Committee and invite the hon. Member for Torbay not to move new clauses 16 and 17.
The Chair
Before I call the shadow Minister, I should tell the Committee that there may be a fire alarm this morning. We will be advised on what to do if that happens.
Greg Smith
Planned fire alarms are always quite disturbing, but never mind. I will broadly address the subject we are debating, before making specific comments on the new clauses tabled by the Liberal Democrats. I do not have a direct interest to declare, but I have had paternity leave three times in my life. I value its provision and the importance of ensuring that fathers and partners are there to support mothers in the early days of a new child arriving in the world. Paternity leave is incredibly important, at any point when it arrives. For my second child, I had only been an MP for four weeks after the 2019 general election, when I disappeared for two weeks. That was vital to support my wife, who had valiantly gone through a general election with me while she was eight months pregnant. Of course, she was not pounding the streets in the way most of us were at that point, but I just wanted to give that personal reflection on how important paternity leave is.
Greg Smith
I will just finish this thought; the hon. Lady knows that I am not shy about taking interventions. Every business, even if it has only one or two employees, will know what the plan is if one of its employees comes to it and says that their wife, partner or whatever is pregnant and that they will require at some point in the near future two weeks of paternity leave. On the grounds that virtually every business that I know has that plan—has that understanding of what it will do in offering the statutory requirement for paternity leave and the way it will remunerate it or not, as the case may be—I am struggling to understand why it should be only those companies with more than 250 employees that are subject to the requirement.
Sarah Gibson
The reason for leaving it at 250 employees, despite a thought among Opposition Members that it should be extended to 500, is that, currently, small and medium-sized businesses are classified as having up to 249 employees. Larger businesses, which will undoubtedly have the infrastructure, should be able to publish the information. The new clause would prevent an onerous burden on very small businesses from having to publish the information. It does not imply that they would have lesser standards; it is merely that they would not be obliged to publish the information.
Greg Smith
I understand the point that the hon. Lady makes. I am the last person to want to put a greater burden or unnecessary burden on any form of business. All I gently suggest is that this probably is not that great a burden on a business, on the grounds that it will already know what it is going to do when an employee comes and asks for paternity leave, maternity leave or whatever. That is particularly the case given that much of the rules and regulations is already set in statute and, when this Bill undoubtedly achieves Royal Assent at some point, will be further enshrined in statute. There are many other regulations that businesses have to comply with when publishing on their website—I am thinking of privacy notices and various GDPR regulations and so on—just as all the members of this Committee and Members of this House have to do on our own websites. I do not think anyone would try to define any of us as large businesses or huge employers, and I do not think that there are any hon. or right hon. Members left who do not have a website. Perhaps one or two do not—
Greg Smith
He is a fine television superstar these days.
All of us will have published these statements on our websites, because that is straightforwardly set out in statute—straightforwardly set out in law. I am at a loss to understand why it would be a burden for a business of any size to do that, but I am mindful that we do not want to overburden businesses. I accept the explanation given by the hon. Member for Chippenham.
Turning to new clause 17, I would have loved to have six weeks of paternity leave when my three children were born. When my first child was born, I was still self-employed. It was before my election to this place, so the time I took off in 2016 was entirely unpaid because I just had to forgo client work, but it was important to do that.
I am slightly concerned that, as desirable as six weeks would be, it is too great a burden for businesses automatically to have to shoulder. Some good and generous employers may well find a way of offering it in one way or another, paid or otherwise. However, to go beyond the current entitlement of two weeks, which can be split up, as the Minister mentioned, seems to be too big an ask for some businesses, desirable though it may be for fathers to be able be there with their new child in the most precious early days of life to support the mother and the child. I gently invite Liberal Democrat Members to reflect on whether six weeks is realistic for every business.
Steve Darling
As a state, we need to reflect on what makes up our society. Often, it is family units. Whether that is the quintessential family of two parents and two children or something similar, supporting the family unit is absolutely essential. I suggest that the two new clauses are about supporting families. New clause 17 allows both partners to engage. Both my lads are now grown up. It is not just about the link with the child; it is about supporting the partnership of the couple—whatever form that couple happens to be—in bringing up the child. Extending leave entitlements would strengthen that bond. The impact of broken families on youngsters can be very profound, and we are strengthening families through these proposals. We will not push the new clauses to a vote, but we stand by them and believe in them wholeheartedly.
The Chair
Just for information, new clauses 16 and 17 would not be voted on at this point. That will come later in the consideration of the Bill.
Sir Ashley Fox (Bridgwater) (Con)
It is a pleasure to serve under your chairmanship, Mr Mundell. I would like to ask the Minister if he could—
Sir Ashley Fox
Sorry. I ask her whether she could advise on what analysis the Government have done on the likely cost to small businesses of making maternity-paternity shared parental leave a day one right. Although I agree that these are important rights for parents, I wonder what analysis has been done. I am concerned for small businesses, such as those with only one or two employees. If they were to take on a new employee, they could immediately find that they have to grant leave and pay, as well as find a substitute worker. I fully accept the importance of these rights, but is the Minister satisfied that it is appropriate to impose those burdens on small businesses, particularly given the other burdens in the Bill, the national insurance charges in the Budget and all other manner of taxes and impositions that the Government are introducing?
Dame Nia Griffith
Let me address that last point first. We have had engagement with stakeholders who represent families, such as Pregnant Then Screwed and Maternity Action, which has shown that they welcome the removal of continuity of service for paternity leave. We can all understand the benefits that that brings in terms of people being able to apply for new jobs and move to better-paid jobs. While the change will have a cost to businesses, it is estimated to be relatively small, at £6.2 million a year, and we believe that the positive impact on families will be much larger. This clause will make 10,000 more fathers and partners eligible for paternity leave, including those with low job security, who are most likely not to meet the current qualifying requirements. I remind the Committee that it is often those people in the most transitory jobs who have the most precarious financial positions and the least opportunity to spend time with their families.
I will address the comments made by the Liberal Democrat Front-Bench spokesman, the hon. Member for Torbay. We are making immediate changes to paternity leave through this Bill. We will make paternity leave available from day one in a new job and enable paternity leave to be taken after shared parental leave. The flexibility that this will give rise to will enable employees to move towards better-paid employment without the fear of losing their right to protected time away to be with their families. We have also committed to review the entire parental leave system to ensure that it best supports families. As I mentioned earlier, that is already in progress across the Government.
I will make a small technical point. The effect of new clause 17 is that fathers and partners who are eligible for paternity leave would be entitled to six weeks of leave, adding four weeks to the existing two weeks offered by the current paternity leave entitlement. The new clause would not affect the entitlement window in which fathers and partners need to take their paternity leave, as this was extended from 56 days to 52 weeks in April 2024. However, the change to enable paternity leave to be taken over 52 weeks was made in secondary legislation. The new clause would make this change in primary legislation, which would mean that it would not be possible to make any future changes to the period in which a parent could take parental leave in secondary legislation. On that note, I commend clauses 11 and 12 to the Committee.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12 ordered to stand part of the Bill.
Clause 13
Ability to take paternity leave following shared parental leave
Question proposed, That the clause stand part of the Bill.
Dame Nia Griffith
The point of clause 13 is to give employed fathers, partners and secondary adopters, including those who have their children through a surrogacy arrangement, the ability to take paternity leave and pay after taking shared parental leave and pay. The clause amends the Employment Rights Act 1996 by removing the limitation that prevents fathers and partners from taking paternity leave and pay after shared parental leave and pay. In April 2024, changes were made to paternity leave and pay, enabling it to be taken at any time in the first year following a child’s birth or adoption. Before then, parents had eight weeks to take their paternity leave and pay. That change means that parents are now more likely to take their paternity leave and pay after their shared parental leave and pay, as they now have more time to take their paternity leave and pay. Removing that restriction creates more flexibility for parents and means that parents who choose to take their shared parental leave and pay first will not then lose their ability to take their entitlement to paternity leave and pay.
Currently, if shared parental leave and pay is taken, parents lose any remaining paternity leave and pay entitlements they have not yet used. Removing that restriction creates a more supportive framework for families by allowing greater flexibility in how parents structure their leave, and ensures that they will not inadvertently lose access to the leave and pay they are entitled to.
Greg Smith
Certainly there is no objection from the Opposition to the principle of flexibility in ensuring people can have that choice and ability to dictate when leave is taken, particularly in the case of paternity leave. I can think of many examples, including colleagues from the previous Parliament. I acted as the proxy vote for one of them while they were on paternity leave. They pushed that back slightly—the obscurities of this place—to ensure that their paternity leave did not marry up with recess. However, there will be many other reasons and flexibilities that people require away from the eccentricities of working in this place.
I ask the Minister to reflect on whether, within that framework of flexibility, which in its own right is a good thing, there needs to be any secondary guidance or advice to businesses on what might turn out to be some very rare but foreseeable circumstances where employees or individuals push the boundaries a bit too far with their employers. and on what to do in those extreme cases. That is not to detract in any way, shape or form from the principle of flexibility, but I ask whether there is a requirement for guidance notes or Government advice, however it is formed, to give employers a bit of a safety net if, in one or two cases, those boundaries be pushed a bit too far.
Sarah Gibson
Given the Liberal Democrat new clauses we discussed earlier, it is clear that we welcome any flexibility that encourages paternity leave and allows parents to share the leave in an equal and welcoming way. Therefore, we welcome this clause.
Dame Nia Griffith
In response to the point made by the hon. Member for Mid Buckinghamshire, there are clearly defined time limits, and I am sure that most employers and employees will manage to work this out. I just point out gently that the impact assessment on these provisions received a green rating, so some work has been done on this. I remind Members that we are undertaking a wider review as well in respect of paternity and parental leave.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14
Bereavement leave
Question proposed, That the clause stand part of the Bill.
Dame Nia Griffith
Clause 14 establishes a new day one right to bereavement leave. The loss of a loved one is a deeply personal experience, and a sad reality that almost all of us will experience. When that happens, the grief that comes with a loss will impact us all in different ways. Some individuals may need time and space away from other demands, including work, to begin to process their loss. Others may prefer to keep working to maintain a sense of familiarity while adjusting to a new normal. Thankfully, for those who need it, the majority of employers respond compassionately to requests for time away from work, and recognise the key role they can play in supporting their employees during this time. In the absence, however, of a statutory right, not all employees may be afforded the time off they need to grieve. We estimate that this would benefit at least 900,000 workers each year. That is a significant proportion of the working population who will be able to access bereavement leave from day one of employment.
Currently, the only bereavement entitlement in legislation is parental bereavement leave, which provides two weeks of leave for parents who experience the devastating loss of their child, from 24 completed weeks of pregnancy until the child reaches the age of 18. That is set out in sections 80EA to 80EE of the Employment Rights Act 1996 and in the Parental Bereavement Leave Regulations 2020. Subsections (2) and (3) of clause 14 amend those sections of the 1996 Act, so that the duty on the Secretary of State to lay regulations establishing parental bereavement leave is widened to require regulations providing for bereavement leave for other loved ones as well.
The amendments in subsection (3) ensure that the regulations, in the case of the new bereavement entitlement, must set out the following: first, the eligibility of the new entitlement by definition of the employee’s relationship to the deceased; secondly, the length of leave, which must be a minimum of one week; thirdly, when the leave must be taken, which must be before the end of at least 56 days after the person’s death; and finally, how the leave is to be taken, such as in one block or two blocks, or whatever is appropriate.
Should an employee suffer multiple bereavements, the clause sets out that they are entitled to leave in respect of each person who has passed away. The approach to regulations mirrors that taken when establishing parental bereavement leave and allows similar provisions to be included in the new regulations. Due to the sensitive and personal nature of bereavement, we will consult stakeholders on the details to be set out in regulations to ensure that the entitlement is constructed with the needs of employees and employers at the forefront.
Subsections (4) to (11) make amendments to other provisions of the 1996 Act to enable the regulations to provide important protections for employees who take bereavement leave, such as protection against detriment, protection of contractual rights, and protection for treating a dismissal that takes place for a reason relating to bereavement leave as unfair.
Subsections (12) to (13) make consequential amendments to His Majesty’s Treasury legislation to provide for how persons on bereavement leave are to be taken into account when assessing an employee’s “committed time” or the number of employees for the purpose of certain initiatives or schemes, in the same way as other family-related entitlements. Subsection (14) makes consequential amendments to the Parental Bereavement (Leave and Pay) Act 2018 to remove provisions that no longer have any effect following the amendments made by clause 14 of this Bill.
Greg Smith
I am grateful to the Minister for her explanation of clause 14. It is quite clear on a purely human level that bereavement can strike any family and any individual, often with zero notice or ability to plan, and it is therefore a basic tenet of humanity that we would all expect employers to be sensitive, generous and sympathetic to any employee who finds themselves in that position. For the record, it is certainly my experience that the vast majority of businesses and employers show compassion, sensitivity and generosity to ensure that anybody who is bereaved has the time, space and freedom to be able to grieve, plan for things such as funerals and start the very hard process of not just saying goodbye to that loved one, but putting various affairs in order, such as registering the death. People have to go through a high burden of bureaucracy when they find themselves in that position.
The core principle of the proposals is fundamentally a good one, and does not warrant opposition. However, there is an area that I think needs a little more debate and potentially some refinement. The Minister spoke about the need to consult and to get these regulations right, and it is important that we do that. I do not in any way oppose the principle of the proposals, but I gently suggest that perhaps it would have been better to do the consultation first, so that this could have been clearer in the legislation as it goes forward. I repeat, however, that I say that not to distract from the good principle that sits underneath these regulations.
I ask the Minister to reflect further on the point from the evidence session about bereavement leave being available to parents who have lost their child after 24 weeks of pregnancy. There are many people who suffer the loss of a pregnancy before 24 weeks. That is one of the most heartbreaking things for mothers, fathers and wider families, and it happens every single day up and down the land. After all the joy, excitement and future planning that go into any mother’s, father’s and family’s life when they find out that they are expecting a child, the often very sudden news that that pregnancy has not made it comes as a huge shock, often with no notice.
There are things that a family, a mother, a father, will go through when they find out that that pregnancy has not been viable and has sadly ended under 24 weeks, including being taken to a small room and being asked the direct question—which, I assure the Committee makes the ears prick up and the reality of what has just happened come into sharp focus—about whether you wish to attend the burial of that failed pregnancy. That brings into sharp focus that you are actually being asked to say goodbye to your child. That can happen at any point in a pregnancy; it happened to my wife at about 14 weeks in 2018, and I remember vividly sitting in that room, having to fill out what seemed like the “Yellow Pages”-worth of forms, and reflecting that what should have been our second child was not going to be our second child. That takes some getting over, and it often involves surgery for the mother afterwards.
Although we have no formal amendment on this at this stage—I reserve the right to perhaps revisit it on Report—it is worth the Government reflecting on a genuine cross-party basis whether the 24-week period can be substantially reduced to give time to families who are saying goodbye. I do not want to get into the debates about when is a child a child, but it is devastating for families who go through that experience, and if the Government can find a way to ensure that families facing those circumstances can have some breathing space, so that we do not just have the “Back to work tomorrow, please” mentality that persists in this country, it would be a welcome and positive step. That might yet bring the whole House together and ensure that people have, as I say, space and time to reflect on what has just happened—to grieve, come back together again and then hopefully plan for the future.
Sarah Gibson
After that incredibly moving speech by the hon. Member for Mid Buckinghamshire, I cannot help but share the absolute concerns of friends of mine who have also lost children in pregnancy quite early on. I appreciate that that causes devastation, and I would be very happy to support any amendments that are suggested on Report. Perhaps an earlier date for bereavement would be appropriate.
Dame Nia Griffith
I, too, thank the hon. Member for Mid Buckinghamshire for sharing such a personal story with us today. As he says, the loss of a child or a baby at any stage is incredibly upsetting. Parents who suffer a stillbirth may be entitled to parental bereavement leave and pay. Although there is no statutory entitlement for miscarriage before 24 weeks, we expect employers to respond with compassion and understanding and encourage employees to discuss the support that they need with their employer. A woman is protected against discrimination in the workplace due to pregnancy, any illness related to pregnancy or absence of that illness. That includes any illness caused by miscarriage extending to two weeks after the end of the pregnancy. After that, the woman is still protected by the Equality Act 2010 sex discrimination protections if she is treated less favourably because she suffered a miscarriage.
Clause 20 will also allow for regulations to be made about dismissal during a protected period of pregnancy, and the enhanced dismissal protection policy will cover women during their pregnancy. I point out that at the moment the Women and Equalities Committee is looking into that and doing an inquiry. We will study the outcome of that very closely as we take our policies forward.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clause 15
Employers to take all reasonable steps to prevent sexual harassment
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 130, in clause 16, page 30, line 24, at end insert—
“(1D) In exercising their duties under this section, an employer must have regard to protecting freedom of expression.
(1E) In subsection (1D), ‘freedom of expression’ is defined in accordance with Schedule 1 of the Human Rights Act 1998.”
This amendment would require employers to have regard to protecting freedom of expression when exercising the Bill’s duty not to permit harassment of their employees.
Amendment 131, in clause 16, page 30, line 24, at end insert—
“(1D) Subsection (1A) shall not apply to—
(a) higher education institutions, or
(b) providers of─
(i) hotels and similar accommodation;
(ii) holiday and other short-stay accommodation;
(iii) restaurants and mobile food service activities; and
(iv) beverage serving activities.”
This amendment would exclude higher education institutions and hospitality providers from the Bill’s duties for employers not to permit harassment of their employees.
Clauses 16 and 17 stand part.
New clause 29—Employer duties on harassment: impact assessment—
“(1) The Secretary of State must carry out an assessment of the likely impact of sections 15 to 18 of this Act on employers.
(2) The assessment must—
(a) report on the extent to which the prevalence of third-party harassment makes the case for the measures in sections 15 to 18;
(b) include an assessment of the impact of sections 15 to 18 on free speech;
(c) include an assessment of the likely costs to employers of sections 15 to 18;
(d) include—
(i) an assessment of which occupations might be at particular risk of third-party harassment through no fault of the employer, and
(ii) proposals for mitigations that can be put in place for employers employing people in such occupations.
(3) The Secretary of State must lay a report setting out the findings of the assessment before each House of Parliament.”
This new clause requires the Secretary of State to assess the impact of the provisions of Clauses 15 to 18.
New clause 39—Duty to prevent violence and harassment in the workplace—
“(1) Section 2 of the Health and Safety at Work etc. Act 1974 is amended as follows.
(2) After subsection (2)(e) insert—
‘(f) the adoption of proactive and preventative measures to protect all persons working in their workplace from violence and harassment, including—
(i) gender-based violence;
(ii) sexual harassment;
(iii) psychological and emotional abuse;
(iv) physical and sexual abuse;
(v) stalking and harassment, including online harassment;
(vi) threats of violence.’
(3) After subsection (3) insert—
‘(3A) It shall be the duty of every employer to prepare, and as often as may be appropriate revise, an assessment to identify potential risks of violence and harassment in the workplace and implement policies and procedures to eliminate these risks so far as is reasonably practicable.
(3B) It shall be the duty of every employer to provide training to all employees on recognising and preventing violence and harassment in the workplace, with a focus on gender-responsive approaches.
(3C) In subsection (3B) a “gender-responsive approach” means taking into account the various needs, interests, and experiences of people of different gender identities, including women and girls, when designing and implementing policies and procedures.
(3D) In this section, “persons working in the workplace” includes—
(a) employees;
(b) full-time, part-time, and temporary workers; and
(c) interns and apprentices.
(3E) In subsection (2)(f) and subsections (3A) and (3B), a reference to the workplace includes remote and hybrid work environments.’”
This new clause will amend the Health and Safety at Work etc. Act 1974 to place a duty on employers to protect all those working in their workplace from gender-based violence and harassment.
New clause 40—Expanded duties of the Health and Safety Executive—
“In the Health and Safety at Work etc. Act 1974, after section 11 (functions of the Executive) insert—
‘11ZA Duties of the Executive: health and safety framework on violence and harassment
(1) It shall be the duty of the Executive to develop, publish and as often as may be appropriate revise a health and safety framework on violence and harassment in the workplace.
(2) This framework shall include specific provisions relating to—
(a) the prevention of gender-based violence and harassment of those in the workplace including the prevention of physical, emotional, and psychological abuse;
(b) the duty of employers to create safe and inclusive workplaces and the preventative measures they must adopt; and
(c) the use of monitoring and enforcement mechanisms to ensure compliance with the duty of the employer in relation to violence and harassment (see section 2(2)(f)).
(3) The Executive shall work with other relevant bodies, including the Equality and Human Rights Commission and law enforcement agencies, to develop and revise this framework.
11ZB Duties of the Executive: guidance for employers
The Executive shall, in consultation with such other persons as it considers to be relevant, issue guidance for employers about the protection of those facing violence and harassment on the basis of gender in the workplace by—
(a) implementing workplace policies to prevent violence and harassment;
(b) establishing confidential reporting mechanisms to allow victims to report incidents;
(c) conducting risk assessments and ensuring compliance with the health and safety framework (see section 11ZA);
(d) reporting and addressing incidents of violence and harassment; and
(e) supporting victims of violence and harassment, including making accommodations in the workplace to support such victims.’”
This new clause will create a duty on the Health and Safety Executive to develop a health and safety framework on violence and harassment and to issue guidance for employers about the protection of those facing violence and harassment on the basis of gender in the workplace.
Amendment 135, in clause 118, page 105, line 20, at end insert—
“(3A) But no regulations under subsection (3) may be made to bring into force sections 15 to 18 of this Act until the findings set out in the report under section [employer duties on harassment: impact assessment] have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown.”
This amendment is linked to NC29.
Dame Nia Griffith
If I may just correct the record, there was not an impact assessment on clause 13—I inadvertently said that there was—because the impact is so small. But there was on clauses 11 and 12, and they received a rating of green.
Dame Nia Griffith
I will now speak to clauses 15 to 17, new clauses 29, 39 and 40, and amendments 130, 131 and 135. Clause 15 will strengthen the new duty on employers to take reasonable steps to prevent sexual harassment of their employees, which came into force on 26 October 2024 under the Equality Act 2010. Clause 15 requires that employers must take all reasonable steps to prevent sexual harassment of their employees. Including “all” emphasises the thorough approach that employers must take to prevent that. At the same time, the requirement remains limited to steps that are “reasonable”. The amended duty will mirror the existing statutory defence for an employer regarding vicarious liability, which requires them to show that they have taken all reasonable steps to prevent harassment.
The concept of “all reasonable steps” has the advantage of being well established and familiar to employers and employment tribunals. This will therefore provide a consistent threshold and decrease uncertainty for all. The Government intend to provide businesses with clear guidance to ensure that they are fully supported in complying with the new legislation.
Clause 16 will introduce an obligation on employers not to permit the harassment of their employees by third parties under section 40 of the Equality Act. As well as employers taking action to prevent sexual harassment, workplaces and working conditions must be free from all forms of harassment. The clause therefore encompasses all three types of harassment set out under section 26 of the Equality Act. As well as sexual harassment, it covers harassment related to a protected characteristic that is covered by the existing harassment provision. It also covers treating someone less favourably because they have either submitted to or rejected sexual harassment, or harassment related to sex or to gender reassignment.
To avoid liability, employers will need to do what is reasonable. What constitutes “all reasonable steps” for third-party harassment will depend on the specific circumstances of the employer. Employers will need to consider the nature of any contact with third parties—for example, the type of third party, the frequency and the environment. In certain sectors, there may be more regular worker interaction with third-party contractors than in others. This amendment to the Equality Act will give much-needed clarity on the rights and responsibilities of employees and employers in these scenarios, and require employers to take action to prevent such harassment from occurring.
The burden of holding perpetrators and employers to account and of driving change is too great to be shouldered alone by employees who have experienced harassment. This measure therefore sends a clear signal to all employers that they must take steps against third-party harassment. That is the right thing to do because tackling misogyny and violence against women and girls is a societal issue in which employers can play a key role. This also means that victims can be confident that they are protected by the law if their employer has not taken all reasonable steps to protect them, and that they are able to take legal action if they so wish. This measure will therefore benefit all employees by making workplaces safer and ensuring that everyone has the same opportunity to succeed at work.
As I said earlier, oral evidence from the Fawcett Society shows that one in five women have been sexually assaulted in the workplace by third parties. These measures could have a positive effect on women, those with disabilities and ethnic minorities across the UK.
Clause 17 introduces a power to make regulations to specify steps that are reasonable for employers to take to prevent sexual harassment. That is to meet the requirements set out in the Equality Act 2010 that employers take all reasonable steps to prevent sexual harassment of their employees. Those are contained in section 40A, the general preventative duty; section 40, as amended by this Bill, to the extent it relates to sexual harassment by third parties; and section 109, employers’ vicarious liability, where that relates to a failure to prevent the sexual harassment. The provisions place broad requirements on employers, but it will be important to ensure that specific steps are taken where the evidence demonstrates that they are proportionate and needed to prevent sexual harassment. The regulations may also require an employer to have regard to specified matters when taking those steps.
The Government have already produced an extensive set of impact assessments, published on Second Reading and based on the best available evidence for the potential impact on business, workers and the wider economy. We intend to refine that analysis over time, working closely with businesses, trade unions, academics, think-tanks and the Regulatory Policy Committee. We will publish an enactment impact assessment once the Bill reaches Royal Assent, in line with the better regulation framework requirements. That will account for where primary legislation in the Bill has been amended in its passage through Parliament in such a way as to change significantly the impacts of the policy on business. That impact assessment will be published alongside the enacted legislation. In addition, we will publish further analysis alongside future consultations ahead of any secondary legislation, to meet our better regulation framework requirements.
No one should fear being sexually assaulted in the workplace, and the measures go further to protect employees. One in five women has been sexually assaulted in the workplace by someone outside their organisation. The measures could have a positive effect on women, those with disabilities, and ethnic minorities across the UK. The amendments and new clauses in this group would not add value, given the extensive impact assessment to which the Government have already committed.
On new clauses 39 and 40, I reassure the Committee that the Government entirely support the importance of ensuring that workers, including women and girls, are protected from workplace violence and harassment. We already have in place a strong and appropriate regulatory regime that provides protection to workers from violence and harassment. Through the Health and Safety at Work etc. Act 1974 and the statutory provisions made under it, employers already have a duty to protect their workers from health and safety risks, including workplace violence, and they must consider ways in which they can remove or reduce such risk. That legislation applies to everyone, irrespective of whether the victims have protected characteristics—it is a law to protect all workers.
The Health and Safety at Work etc. Act, along with associated legislation, requires employers to reduce the risks of workplace violence. As part of that, the Management of Health and Safety at Work Regulations 1999 require employers first to assess the risks in the workplace, including the potential for violence, and then to take appropriate action to reduce those risks. The Health and Safety Executive and local authorities, which are responsible for enforcing the 1974 Act, carry out proactive and reactive work to ensure that employers are complying with their duties under the Act to assess the risks and are implementing appropriate control measures to protect their workers, and others affected by their work, from workplace violence.
The Health and Safety Executive has also published a range of readily available guidance on its website to assist employers in complying with their legal obligations. The right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) has tabled new clause 40, asking the HSE to publish a health and safety framework on violence and harassment in the workplace, including violence against women and girls in the workplace, but employers already have such duties under the 1999 regulations, which require them to have suitable and sufficient arrangements in place to manage health and safety in the workplace, including violence and aggression.
Harassment in the workplace could be covered by the Health and Safety at Work etc. Act, but the HSE does not act where a more appropriate regulator has specific responsibility, or where there is more directly applicable legislation. Police already have powers to prosecute harassment offences under the Protection from Harassment Act 1997, and the Equality and Human Rights Commission can take action under the Equality Act 2010.
Greg Smith
There is quite a lot in this grouping, and I will try to go through it in a sensible order. I will start with new clause 29 and amendment 135. The Regulatory Policy Committee has said that the Government have not managed to demonstrate sufficiently the need for the clauses in the Bill that require employers to prevent harassment of their employees by third parties, nor that the measures are sensible—those are the RPC’s words, not mine—and it has rated the impact assessment on this as red.
I want to be absolutely crystal clear from the outset, across all the clauses, amendments and new clauses that we are debating, that harassment is wrong; that the sort of sexual harassment that the Minister spoke about is absolutely, categorically unacceptable; and that whatever it takes in the law, and from an enforcement perspective, to stamp harassment out must happen. Such harassment is simply unacceptable in our country and society. The comments that I am about to make are not in any way, shape or form critical of action against harassment, therefore; they are about trying to best understand how the Bill and the amendments that have been tabled would work, and the difference they would realistically make to people’s lives, including by protecting them from harassment or other unacceptable behaviour.
With those ground rules set, if I may put it in that manner, the Opposition are concerned, and have doubts about, the need for and the operability of the provisions in clauses 15 to 18. I repeat that that is not about the principle of stopping harassment, but about the operability of the proposals that we are considering. We must question whether the benefits of these clauses will be outweighed by the burden on employers and, in certain respects, by the chilling impact on free speech.
New clause 29 would require the Secretary of State to
“report on the extent to which the prevalence of third-party harassment makes the case for the measures in sections 15 to 18”.
Within that report, the Secretary of State must include
“an assessment of the impact of sections 15 to 18 on free speech…an assessment of the likely costs to employers…an assessment of which occupations might be at particular risk of third-party harassment through no fault of the employer, and…proposals for mitigations that can be put in place for employers employing people in such occupations.”
Amendment 135 quite reasonably provides that clauses 15 to 18 will not come into effect until—not never, but until—the House of Commons has approved the report required under new clause 29.
We then come to the two new clauses tabled by the right hon. Member for Dwyfor Meirionnydd, the leader of Plaid Cymru. I share the Minister’s concerns about the new clauses. I do not think they are necessary, I do not think that they particularly add to the spirit of what the Government are trying to achieve in the Bill and I do not think they pass the Opposition’s tests of operability. The official Opposition will therefore not be supporting them.
Amendment 130 would require employers to have regard to protecting freedom of expression when exercising the Bill’s duty not to permit harassment of their employees. I do not believe any business wants its employees to be harassed. No business owner that I know wants their staff, or any human being, to face harassment at all, in whatever setting. However, the amendment is designed to show the impossibility of the position in which the provisions on third-party harassment will put employers. It is a probing amendment, in the sense that we are not trying to create additional burdens for businesses by giving them another duty. It has been tabled so that we can talk about how unrealistic it is to expect employers to be able to enforce all the provisions in the Bill and, inherent to that, so that we can make the challenge that there may be more appropriate and operable pieces of legislation that already sit in statute or that may yet still need to be debated and passed through Parliament to prevent that.
The amendment is about how an employer can balance the right to free expression with the duties explicitly in the Bill. I do not believe that, in the moment, it will always be clear whether someone’s behaviour, say, in a pub falls on the right or wrong side of the line—it is a subjective test. Leaving that aside, there are situations where it will be frankly impossible for employers to abide by the law that the Government are seeking to make. I am interested in the Minister’s reflections on that.
Laurence Turner
The hon. Gentleman says that there will be situations where it is not just difficult, but impossible for an employer to abide by the Bill. Can he give some examples of the situations he has in mind?
Greg Smith
I am building up to my wider point. To skip ahead, there will be circumstances where, even within the reasonableness test—I understand that test—something so unexpected and unforeseeable happens that the employer could not in any way have planned a protection for their employees around that. Despite that, the employer might find themselves challenged in a tribunal or, worse, some form of criminal investigation about why they did not take reasonable steps against a totally unexpected and unplanned-for eventuality. I accept that, in most cases, there are practical steps that could be put in place to prevent harassment of any sort, but there will be times where that reasonableness test could fall over and someone could find themselves in a very tricky spot, unable to account for why they did not prepare for the totally unexpected.
Jon Pearce (High Peak) (Lab)
I refer the Committee to my entry in the Register of Members’ Financial Interests and my membership of the GMB. The hon. Gentleman is making the point that it would be impossible for an employer to reasonably avoid something so extreme and out of the ordinary, but that would actually fall directly in the test, because the tribunal would look at whether it was reasonable for the employer to have put in arrangements, procedures or preparations to avoid a likely, foreseeable scenario. His concerns are completely misplaced, because no employer could reasonably avoid a situation that was impossible to avoid.
To go back to the fundamentals, as the hon. Gentleman said, we and employers should be taking all appropriate and reasonable steps, because 40% of women in the workplace suffer sexual harassment. These measures are reasonable in and of themselves, so I put it to him that he is worrying about something that is covered by the test.
Greg Smith
In many respects it is my job to be worried, to properly kick the tyres and to understand the operability of what the Government are trying to achieve. I certainly take the hon. Gentleman’s point on sexual harassment, and there is very clear criminal law in place that is probably more appropriate to bring perpetrators of such heinous crimes properly to justice. My concerns about the reasonableness test are less about that which can and should be pursued through criminal legislation; they are more about other forms of very subjectively tested harassment, as well as some points that I hope to make about freedom of speech. Hopefully, the hon. Gentleman will reflect on and understand those concerns when I get to that point.
Michael Wheeler (Worsley and Eccles) (Lab)
I refer the Committee to my declaration in the Register of Members’ Financial Interests and my membership of trade unions. It seems that my thoughts align with those of my hon. Friend the Member for High Peak on the reasonableness of completely unforeseeable and unexpected things, but I would go a slight step further on what we are looking for from employers.
Even in circumstances in which something is so completely unexpected and unforeseeable that it might be reasonable for preparatory measures not to be in place, the duty would also address how employers respond. It is about having systems in place to react to incidents when they happen, rather than foreseeing every possible eventuality of the completely unexpected and unforeseeable. We can have supportive measures in place to prevent harassment from continuing or from happening again, and to support the individual.
Greg Smith
I understand the hon. Gentleman’s point. I broadly agree, but my challenge to him is that reasonableness can be interpreted in many different ways. There will always been an appeals process or something similar, but I worry that unless the legislation is clearer, some good-willed employers who are entirely honest and decent in how they try to protect their staff could, in some circumstances, be on a very sticky wicket trying to defend themselves against something that they never foresaw or dreamed of. They may have been a little too innocent, but they will find themselves in a difficult spot. That is where safeguards need to be locked into the legislation in respect of what is a very subjective test.
I was about to come on to an example. I will preface it by saying that absolutely nobody should be abused in the workplace and absolutely nobody should face any form of harassment in the workplace. However, let us think for a moment about how some of the Bill’s provisions would operate in an NHS accident and emergency department. In any A&E up and down the land, our wonderful doctors and nurses sometimes put themselves in harm’s way, particularly late at night. Perhaps they have a patient who is clearly inebriated but has injured themselves. I am not excusing it for one second, but it can and does happen. Let us say that an incredibly drunk patient, who may have fallen and broken their hand, verbally abuses—not sexually harasses—the doctor or nurse treating them. The doctor or nurse does not deserve that, and that behaviour should not be happening, but I would wager that it happens most Friday or Saturday nights somewhere. It is unacceptable, but it does happen. What should happen in that circumstance?
Greg Smith
Let me just finish this point. I am trying to deal with a real-life scenario that should not be happening, but does. What does the doctor or nurse do, under the Bill? Do they refuse to treat the patient? Some would argue that perhaps they should, but the reality is that that is not what they are there for. They are there to heal, treat and support that patient who has got into a stupid predicament.
Alison Hume (Scarborough and Whitby) (Lab)
Will the shadow Minister give way?
Greg Smith
I will just finish this point. Both hon. Ladies know that I will give way.
Where would the test come? What should the NHS, as the employer, have done to prevent that situation? What is the overall outcome in that scenario? Where does the reasonableness test fall? I repeat that I am not excusing the behaviour; I am putting it forward as a test to the provisions in the Bill, as a situation in which the employer—ultimately the national health service or perhaps the Health Secretary—would find themselves.
Sarah Gibson
I appreciate the shadow Minister’s giving way. I will make an effort not to intervene every time he stands up.
There is a very serious point here that anyone who has ever been in a situation in which they have felt intimidated will understand. An employee in higher education may be intimidated by students who are irritated, angry or frustrated about their results. In my case, they came to my office because they felt that they should not have failed. I have found myself in a small room—the kind of room in which this House would not allow MPs to hold a surgery—with no external access and no security guards on the door to intervene.
Such situations can be hugely difficult. Although the employer is not always in a position to pre-empt the situation, taking reasonable steps surely means providing an option for everybody to have an emergency phone number—that is what was available to me in my university job—or, at A&E, to have security staff intervene when somebody arrives quite clearly inebriated, in the same way that our security staff do at our surgeries. They will immediately foresee the problem and will make sure that the person is accompanied and is not left alone with a member of staff. Those are the sort of reasonable preparations that we would expect; I would be surprised if any employer were not happy to carry them out. I therefore see no reason why that should not be made clear in the legislation.
Greg Smith
I hope that the hon. Lady is right, but part of the test that the amendment sets for the Government is whether it will work. Is it clear? Will it put the protections in place that everybody wants to see? There is a question mark over whether they will work.
The NHS A&E environment is an example with which we are probably all familiar from our postbags. Constituents write to us about situations that they have witnessed or been in themselves, particularly on a busy Friday or Saturday night or in the Christmas season when there are lots of parties and lots of people probably having far too much to drink and sometimes getting themselves into unacceptable situations. There might not be the staff to double up; the patient might be abusive to all of them. It is unacceptable, horrible and wrong, but it is sometimes the reality. Where does that leave the senior doctor or nurse on duty, the chief executive of the trust, and ultimately the Secretary of State or the permanent secretary to the Department of Health and Social Care? Where does the test actually leave them, and what more can be done to make the legislation work?
The hon. Member for Scarborough and Whitby has been waiting patiently to come in.
Alison Hume
It is a pleasure to serve under your chairmanship, Mr Mundell. I thank the hon. Member for giving way. I refer the Committee to my declaration of interests and my membership of Unison and the Writers’ Guild of Great Britain.
The NHS has zero-tolerance policies, in common with the police service and any other service that deals with these difficult situations. They are good employers that have things in place. The shadow Minister spoke about employers not thinking about situations and being innocent. I draw his attention to their responsibility to employees who were innocent, but have lost their innocence as a result of unwanted sexual harassment or worse.
Greg Smith
I do not disagree with a word that the hon. Lady says. The NHS, like every employer, is right to take a zero-tolerance attitude to any form of harassment against its employees, customers, patients or whoever else happens to be on its premises at any time.
I accept the hon. Lady’s point about innocence. My A&E example was not so much about sexual harassment or worse criminality; it is all horrendous criminality, in my view, but there are other criminal laws that can and should be used to bring perpetrators to justice in that space. My example was more about abusive behaviour in the form of verbal harassment from a patient who is drunk or high on drugs. It is still horrible, it is still wrong and it still needs action, but what happens? The zero-tolerance policy, all of a sudden, becomes a poster on the wall rather than real, live action there and then, as that drunk patient makes unacceptable remarks of whatever nature to the nurse or doctor. The test is whether the words in the Bill before us—as opposed to other, potentially even more stringent or stronger legislation that is already on the statute book or that may yet need to be passed—will have a better effect.
Alison Hume
I think the Bill will do that, because it will strengthen the employers’ responsibility to take all reasonable steps.
Greg Smith
I hope that the hon. Lady is right. What my colleagues and I seek, through our amendment, is to test that. I do not think that anyone will criticise any Member of this House, on either side, for trying to properly road-test any legislation that comes before us and check whether it will have the effect that the Government seek.
Amendment 131 is topical, given the intervention that the hon. Member for Chippenham made about higher education. It would exclude higher education institutions and hospitality providers from some of the duties in the Bill, not around criminal behaviour—it would not exclude them from legislation that should rightly be used to challenge sexual harassment, for example—but around free speech. Employers may end up being overly cautious with respect to protecting free speech, as they will be worried about claims being brought under this legislation. That would lead to free speech debate and challenge being eroded. In the case of higher education, those are the very institutions at which free speech, challenge and rigorous and robust debate should frankly be taking place, and where wrong and unacceptable ideas can be knocked down robustly and firmly through the medium of intellectual debate.
Mr Peter Bedford (Mid Leicestershire) (Con)
It is a pleasure to serve under your chairmanship, Mr Mundell. On the point about the hospitality and pubs sector, on which I held a debate in Westminster Hall a few weeks ago, there is real concern about this part of legislation, in particular about freedom of expression and freedom of speech. Does my hon. Friend agree that one consequence of the legislation might be that industry take actions beyond those intended? For example, people might self-censor beyond what could be seen as an off-colour or offensive joke, because they are scared that they could be held liable later for not protecting their employees. My hon. Friend gave an example, but another one is a comedy club, which would be conscious of and concerned about who they invite to entertain because of the perception that some of their staff could be offended, and the reasonableness of how that could be interpreted in the context of harassment. Does my hon. Friend agree that this is a concerning unintended consequence of the legislation?
Greg Smith
My hon. Friend is right that there needs to be greater clarity about that which is already covered in criminal law—sexual harassment, direct racial abuse or abuse to someone on the basis of their sexuality, which clearly has to be actioned under criminal law and it must be ensured that the perpetrators are brought to justice—compared with satire or cutting jokes. Those are things that do not stray into the criminal, but perhaps some people might be offended by them, for whatever reason.
There are quite a lot of comedians openly talking about whether comedy is in fact becoming a thing of the past in this country. They are finding themselves unable to tell jokes that, while not going into the criminal, do risk offending some people. If that ends up shutting down comedy clubs or open-mic nights in pubs, it would be an unintended consequence that I cannot imagine the Government would want to bring about.
Alex McIntyre
I refer to my membership of the GMB union and the Community trade union. I shall come on to some of the nonsense we are hearing around free speech. I ask a direct question, seeing as we seem to be equating jokes with harassment: does the shadow Minister know the definition of harassment under the Equality Act and would he share that with the Committee so that we may understand what we are talking about here?
Greg Smith
What I am trying to test is the point at which the reasonability point would trigger. Is this the right Bill—the right set of clauses—to deal with the problems the hon. Member has outlined? There is a clear difference between that which should be treated under criminal law—and rightly stamped down on hard and forcibly—and the unintended consequence that will force sectors such as higher education or hospitality to become so risk averse that they shut down some of their activities. Yes, those activities, whether some form of comedy or whatever, could potentially be offensive to some people, but they are not criminal.
Alex McIntyre
I am afraid the shadow Minister does not know the definition under the Equality Act. If he did, he would know that the conduct is required to either violate someone’s dignity or create
“an intimidating, hostile, degrading, humiliating or offensive environment”.
That conduct has to be related to someone’s protected characteristic: sex, race, gender or their sexuality. We are talking about very serious circumstances. They fall short of the criminal definition of harassment, but they are within the Equality Act definition.
There is already a test within the current law to avoid some of the free speech arguments the shadow Minister is making. He is seeking to trivialise the experience of many people in those industries who face unacceptable harassment in the workplace.
Greg Smith
I must take issue with the hon. Gentleman. I am not trying to trivialise anything. I have been clear from the outset about how seriously we should take sexual harassment, racial abuse and abuse on the basis of someone’s sexuality, and that I believe the full force of the right laws should be used against any perpetrator of that hideous, evil and unacceptable behaviour. I take issue with his comment that I am trying to trivialise anything. I am trying to ensure that the provisions in the Bill will actually work, and will not have unintended consequences that some might call trivial—which some might be offended by but which do not cross what most people in society would deem some of those lines.
In the definition he just gave, the hon. Gentleman mentioned the issue of undermining someone’s dignity. I am reminded of the Society of Motor Manufacturers and Traders dinner a couple of weeks ago. I cannot remember whether the Minister was there, but the Secretary of State for Business and Trade was. Quite a famous comedian was on stage after the speeches, and their act was essentially to pick on people on various tables to find out which motor manufacturer they worked for and then, I would suggest, be quite brutal with them. He did perhaps undermine their dignity. It was not on the basis of sexuality, race or anything like that, but it was quite a brutal act. Everybody was laughing away, but what if someone in the audience was offended by that and took issue with it? Does that then put the organisers of the dinner—the chief executive of the SMMT—in the spotlight, under the provisions of the Bill? That is the point I think all members of this Committee and, ultimately, all Members of the House, have to be satisfied with before anybody allows this to become statute.
Alex McIntyre
I think the shadow Minister has already answered this question. What protected characteristic were any of those jokes related to? This is the point. It is not to stop people being comedians. If someone sits in the front row of a Ross Noble gig, they are bound to get picked on. If the joke relates to a protected characteristic, that is where it crosses the line into harassment. The example that the shadow Minister has just given is a good example of where this would not be triggered, because none of the jokes related to a protected characteristic.
Greg Smith
I hope that the hon. Gentleman is right, but that is not how the Bill is worded. The Bill allows the reasonability test to be applied over the top of the Equality Act definition he has brought to the attention of the Committee. I gently ask him to reflect on that point and just check, because I do not think he would want this unintended consequence to be followed through into legislation. It would undermine the very serious things we spoke about earlier and, dare I say, trivialise them.
Uma Kumaran (Stratford and Bow) (Lab)
I refer Members to my declaration of interests, and remind them that I am a member of the GMB. It is timely that we are discussing this, as today is Human Rights Day. In 1998, the Labour Government brought the Human Rights Act into domestic law. Freedom of speech is indeed a human right, but that does not mean someone has the freedom to incite hatred, discriminate or attack people with a protected characteristic. In this fictional comedy club we are talking about, what are the things that people are mentioning? Can the shadow Minister give us a specific example of a joke that he thinks the Bill would put in jeopardy of undermining or putting at risk the CEO of said organisation?
Greg Smith
I think I have been clear that every law available should be used—potentially, more could be passed—to properly prosecute, challenge, shut down and stop anyone inciting hatred on the basis of race, religion, sexuality or whatever it might be. I cannot find any better set of words to make my revulsion at those crimes clearer, and I show my absolute support for any enforcement agency or Government of any political persuasion that brings forward workable laws to clamp down on those unacceptable criminal behaviours, full stop.
Greg Smith
I will just finish this point, then I will be delighted to give way to my hon. Friend.
The point I am trying to make is that bits of legislation that we are asked to consider sometimes have unintended consequences, and that there is a risk of someone being offended by something that does not pass the reasonability test in this Bill. Outside the well-defined areas that go into the criminal, part of free speech is the right to offend on certain levels.
Greg Smith
I will give way in a second.
Many comedians—Jimmy Carr is an example—talk frequently at the moment about comedy being shut down. It is not criminal; it is not racial hatred or hatred on the basis of religion, sexuality or anything like that. It is beyond those points.
Uma Kumaran
We all enjoy comedy in this House, but this is a very serious subject. Article 10 of the Human Rights Act 1998, on the exercise of the freedoms that the shadow Minister is talking about, carries with it duties and responsibilities. It states that the freedoms
“may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of”
a number of things. In this fictional comedy club or this fictional speech, all the things that you are saying may—
Uma Kumaran
I apologise, Mr Mundell. All the things that the shadow Minister has referred to are already enshrined in various laws in this country, so what is the fictional scenario that he thinks this Bill jeopardises?
Greg Smith
The hon. Lady is right to bring the Committee’s attention to that which is already laid down in statute. I think that perhaps where the misunderstanding is coming in—the Opposition are trying to test this—is whether the new reasonability test will deliver perverse results in a tribunal. Probably nobody sitting in this room would expect that to happen, but it could supersede that which is already set down and create a new precedent.
Nick Timothy
I should probably make reference to my entry in the Register of Members’ Financial Interests: I am an unpaid trustee at the Index on Censorship, which may be relevant to this debate.
I do not think anybody here is a free speech absolutist. My hon. Friend is trying to test scenarios, but he is in no way talking about issues such as incitement of hatred, which are already criminal matters. We are talking about the codification of things that may be subjective in the light of the law of unintended consequences.
To bring some colour to the conversation, I thought I would make reference to a recent Independent Press Standards Organisation ruling. I cannot imagine that that was ever the kind of ruling that was intended at the time that IPSO was created. Gareth Roberts, who sometimes writes for The Spectator, was writing about a third party who had, in turn, written about issues relating to gender, and referred to them as
“a man who claims to be a woman”.
That person then complained to IPSO, which ruled that it was not wrong as a statement of fact, but still upheld the complaint on account of its being a prejudicial or pejorative reference to that person. I do not think that that is the kind of thing that was ever intended when IPSO was created, but it is the type of example that we may be talking about right now. I would love to know what my hon. Friend thinks about that.
Greg Smith
My hon. Friend highlights an issue that would come down to a subjective test, so “reasonableness” could mean something very different in different tribunal settings and to different individuals casting judgment on any such complaint. That goes to the absolute nub of what we are asking the Government to reflect on. Is the test strong enough? Is it workable? Is it operable? Will it actually produce perverse outcomes?
Alex McIntyre
Is the hon. Gentleman aware that, in the example that the hon. Member for West Suffolk just cited, IPSO found that there was no harassment, and therefore there was a finding under clause 12(i) of the editors’ code of practice, rather than clause 3?
Greg Smith
I am not certain that is quite the point that my hon. Friend the Member for West Suffolk was making. However, in the interest of fairness, I will commit to properly looking up that case, which I had not come across until my hon. Friend mentioned it a couple of moments ago.
Laurence Turner
We are back to talking about perverse outcomes and unintended consequences, which are important things to consider. However, is that not what we are looking at in amendment 131? In in my view, it confuses sectors with functions. The hon. Gentleman says that he and his colleagues have selected these particular cases or sectors because they relate to freedom of speech. However, if we take the example of universities and higher education, a higher education institution contracts services of all sorts, many of them not relating to freedom of speech—for example, security and refuse services—but if the amendment were made and if it failed to conduct even basic vetting on a contractor, it would be exempt from these provisions if an incident of sexual harassment occurred. However, if exactly the same circumstances were to be repeated by a community hall or a church that would fall under the scope of the legislation. Is there not a problem in the drafting of the amendment? On that basis alone, it should not be accepted.
Greg Smith
I understand the point the hon. Gentleman is making. However, in the examples he gave he has shown exactly why there is a need to ask the Government to doubly rethink the way in which the original Bill is drafted to ensure that some of those areas are covered off so that the reasonability test is clearer and people do not find themselves on that proverbial sticky wicket for innocent reasons. We tabled the amendment—we fully accept it does not cover everything and every eventuality—because it is our job as the Opposition to highlight cases which in turn highlight areas where the Bill may be deficient and where it needs a little surgery to ensure that it achieves what the Government are trying to achieve, rather than creating many loopholes and perverse outcomes. I have probably spoken for long enough on this group of amendments.
Nick Timothy
Will my hon. Friend give way just one more time? I have an excellent example that I would like to share.
Greg Smith
How can I say no to the offer of an excellent example from my hon. Friend?
Nick Timothy
It has just been drawn to my attention that the Health Secretary is the subject of an official complaint to the Labour party for his jokes about the former Transport Secretary at The Spectator party last week because his comments were considered “bullying and uncomradely” according to the complaint. That may be another example of this kind of subjective test.
Greg Smith
I thank my hon. Friend for that. It may well be such an example. I must admit I resisted the urge to attend The Spectator awards last week. I am told the Health Secretary did make what many considered a very funny speech. However, it is clear that some deem it uncomradely. Who knows? Had this legislation already been enacted the Labour party itself might have found itself on that sticky wicket. On that note, I ask the Minister to reflect on the provisions in this Bill in that regard and check that the Government really do have this right.
Ordered, That the debate be now adjourned.—(Anna McMorrin.)
Armed Forces Commissioner Bill (First sitting)
Tuesday 10th December 2024
(1 month ago)
Public Bill CommitteesRead Full debate Armed Forces Commissioner Bill 2024-26 View all Armed Forces Commissioner Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 December 2024 - (10 Dec 2024)
The Chair
We will first consider the programme motion as on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions for the oral evidence session. In view of the time available, I hope that we can take these matters formally, without debate. Date Time Witness Tuesday 10 December Until no later than 9.55 am Service Complaints Ombudsman for the Armed Forces Tuesday 10 December Until no later than 10.40 am Royal British Legion; Help for Heroes Tuesday 10 December Until no later than 11.25 am SSAFA, the Armed Forces Charity; COBSEO, the Confederation of Service Charities Tuesday 10 December Until no later than 2.20 pm Defence Medical Welfare Service Tuesday 10 December Until no later than 3.10 pm Army Benevolent Fund; Royal Navy and Royal Marines Charity; Royal Air Force Benevolent Fund Tuesday 10 December Until no later than 4 pm Army Families Federation; Naval Families Association; RAF Families Federation Tuesday 10 December Until no later than 4.20 pm Ministry of Defence
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday10 December meet—
(a) at 2.00 pm on Tuesday 10 December;
(b) at 11.30 am and 2.00 pm on Thursday 12 December;
(c) at 9.25 am and 2.00 pm on Tuesday 17 December;
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clause 1; Schedule 1; Clauses 2 to 5; Schedule 2; Clauses 6 to 8; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 17 December.—(Luke Pollard.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Luke Pollard.)
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Luke Pollard.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Members by email. We will now go into private session to discuss lines of questioning.
The Committee deliberated in private.
Examination of Witness
Mariette Hughes gave evidence.
The Chair
Good morning. We are now sitting in public and the proceedings are being broadcast. Before we start to hear from our witnesses, do any Members wish to make declarations of interest in connection with the Bill?
The Chair
I think we can forgive you for that; thank you. We will now hear oral evidence from Mariette Hughes, the Service Complaints Ombudsman. Before calling the first Member to ask a question, I remind the Committee that questions should be limited to matters within the scope of the Bill and that we must stick to the timings of the programme order that we agreed. For this panel, we have until 9.55 am. Will the witness introduce herself for the record and say a few words?
Mariette Hughes: Good morning; thank you for having me here. I am Mariette Hughes, the Service Complaints Ombudsman for the armed forces. I am pleased to be here to talk about the Bill, which is a positive and important piece of legislation. I am happy to answer any and all questions.
The Chair
A lot of Members are unused to Bill Committees, so if you want to speak, put up your hand in good time, the Clerk will let me know and we will get everyone in. I call Mark Francois.
Mr Mark Francois (Rayleigh and Wickford) (Con)
Q
Mariette Hughes: My remit is extremely narrow. It does what it needs to do in providing oversight of the service complaints system, but it restricts me and those who work in my office to looking only at issues related to service complaints—those complaints that have been through the system and applications that have been made directly to my office.
We know that one issue is that not enough people complain. Between the number of people who report that they experience poor behaviours or unacceptable things in the workplace and the number of people who complain and come through to my office is a huge delta. We are not able to look into the reasons why. The ability to look behind those issues raised as pure service complaints is incredibly advantageous.
For me, there is also an element of being able to look at the further level of “So what?” Too many times when we look at a service complaint, we are considering whether the individual has been wronged because of whether or not a policy has been applied correctly to them, and that is as far as our analysis can go. What the Bill will provide is the ability to go behind that to say, “Does this policy provide the best for our service personnel in terms of their welfare?” Those are the key issues for me.
Mr Francois
Q
Mariette Hughes: Yes, absolutely. When I last spoke in front of the Defence Committee, we mentioned that we would like those powers, and my predecessor had asked for them as well. We were told previously that until we got our backlog and performance sorted, they would not be able to be extended to us, but that is the direction we have been pushing in. We have been asking for them for years, and we would be very excited about it.
Mr Francois
Q
Mariette Hughes: I say this with a pinch of salt because I have not logged on this morning to check whether we have had any new applications, but the backlog is zero. We have around 30 cases in active investigation. Any new cases coming into my office are instantly allocated out. We have brought the backlog down to nothing, and we are at 100% timeliness.
Mr Francois
Q
Mariette Hughes: Thank you. It has been very important to us. When I took on the role, the wait time for individuals to have their cases looked at by me was around nine months. When we are the organisation holding the services to account for how swiftly they deal with complaints, that does not fly very well. If we are going to be the champion of what good looks like, we have to be able to demonstrate that we can apply those lessons to ourselves to make the services trust us, so I am pleased that we have been able to do that over the last three years.
Graeme Downie (Dunfermline and Dollar) (Lab)
Q
Mariette Hughes: One of my main concerns is ensuring a smooth transition. My staff are quite excited for the new remit. Again, we as an organisation have been pushing for it for a while, but naturally there is consternation and a bit of anxiety about what it means for them. Broadly under the scope of the legislation, if the powers and functions of the ombudsman are simply lifting and shifting to the commissioner role, I anticipate that the majority of my staff will continue operating as usual.
It is key for us that we do not disrupt the good work that has been happening. A lot of my staff have been at the organisation longer than I have, and they remember when the backlog was even worse. They are the ones who have done the work and delivered that performance. It would be absolutely devastating for them to see it disrupted, so ensuring that they have somewhere to operate from, have clear legislation, understand what they are able to do and can just continue as usual will be key.
The other element to be considered is the other side of our business—those who look after our finance, IT and stats. Their roles will potentially need to expand to cover more under the Armed Forces Commissioner’s office, and that is what needs to be established through a transitionary period.
Graeme Downie
Q
Mariette Hughes: That depends on the speed at which the legislation goes through and the plans—I noticed that there is an amendment on setting a proposed timeframe. Depending on when you want the office to go live, there needs to be a significant scoping period to determine how many staff will be required and what the budget will look like. Certain roles will be needed ahead of others, and for certain roles, current staff at SCOAF will simply be able to pick up some of the work. We have staff in our organisation who were working for us at the point of transitioning from the commissioner to the Service Complaints Ombudsman, so they have done this process and will be able to guide it through.
Graeme Downie
Q
Mariette Hughes: Absolutely. It is all about collaborative working. There will certainly be areas where the commissioner cannot reach in and touch—or have control over—the provisions for service personnel, but it is about maintaining those good relationships. We are all trying to do the best for people, so it is about ensuring that we have those sensible conversations and everyone understands one another’s remits, and that we are able to bring issues to the fore and talk about them as we go. We are already doing some really good work with the Equality and Human Rights Commission on uniformed protective services and behaviours. That is the sort of work I see expanding with this, and with the devolved Administrations we just sit round the table and talk about whose job it is to take this forward, because we can all agree that this is what needs to happen for people.
David Reed (Exmouth and Exeter East) (Con)
Q
Mariette Hughes: I am not entirely sure I can answer that one for you. We have approached it from two different paths that have converged at a very convenient time. I am aware that the new Government have been pushing this very hard and that it is something they feel very strongly about. I am certainly in favour of it. Separately to that, within the ombudsman community there is a lot of talk about own motion powers and thematic investigations. I think there are only one or two other schemes in the UK that currently have those powers. This is game-changing for everyone. We have been talking about this since I came into role.
When we set up our new five-year strategic objectives, one was around changing our performance, one was around changing the relationship with the services, and the third one was around looking at the strategic and political landscape and how we need to be fixed. What powers do we need to be able to effect real change for service personnel? This has been part of our ongoing conversations for around five years.
Amanda Martin
Q
Mariette Hughes: Trust and confidence in the service complaints system is something that we have been driving hard as SCOAF, and that work would continue. This is what I think is interesting about the commissioner role. When we do outreach visits, I sit down and do focus groups with service personnel, where I kick all the chain of command out of the room and get them to tell me what they actually feel and experience. What is really interesting for me is that in those conversations, a number of issues, frustrations, grumbles and gripes are raised, and they are not the sorts of things that normally become service complaints, because to the individual they do not feel big enough or they do not feel that they have been personally wronged—it is just part and parcel of their service life—or they do not think that raising a service complaint will change it. We have those conversations because it relates to service complaints. It talks about that mental resilience, the things they are putting up with that chip away and then lead them to situations where they feel they have to complain.
Under the commissioner’s powers, you would be able to raise those issues and put those into reports that can be laid in the House and brought into the light—all the issues that people are telling us about, such as their accommodation or concerns around food or policies that affect their families. At the moment, I am gathering that information as good background for service complaints, but the commissioner role would be able to take that forward and say, “This is affecting all three services” or “Actually, it is affecting this service more than the other.” So this really rich information will help promote those welfare things that currently do not have enough light shining on them.
Michelle Scrogham (Barrow and Furness) (Lab)
Can I ask for your views on the German armed forces commissioner? Obviously, this measure has been modelled on that.
Mariette Hughes: You can, of course. I know Dr Eva Högl quite well. We are both members of the International Conference of Ombuds Institutions for the Armed Forces, which is a mouthful, so I will say ICOAF. We have a conference every year. She is an absolutely incredible person and has done really good things with that office. It is an interesting model for this to be based on. There are some differences that we have to be alive to. The key one for me—apologies if this comes up later—is around the terminology. Dr Högl is the Commissioner for the Armed Forces. Germany does not have a fully established ombudsman scheme in the same way that the UK does. We have 22 established schemes under the Ombudsman Association. On Eva’s website, she describes herself as “the ombudsman for the armed forces”. It is simply that the title “parliamentary commissioner” fits with their legal framework.
There are also some interesting differences. Eva has had these powers for a long time and uses them very well. However, she does not have the oversight of service complaints that I have, so this would be an extended remit compared with the German model. It is brilliant to draw inspiration from it. Being members of those communities together, we are always looking at best practice in other countries. There are necessarily some differences in this country, but it is certainly a good starting point.
Michelle Scrogham
Q
Mariette Hughes: I think we have to build our own model; we have to look at what our key issues are. Germany is a different landscape and a different framework and has been operating for a huge number of years. We cannot just pick it up and start doing things the way they do. We need to start with what our key focuses are and how we think we can have the most impact and scale up operations, and go from that.
We might end up looking at things slightly differently. A lot of Dr Högl’s focus is on investment in defence and pushing for bigger budgets. Does that necessarily tie in with what we are seeing about the welfare of service personnel? There may be issues that cross over into that, but we would have a slightly different focus from the German parliamentary commissioner.
Michelle Scrogham
Q
Mariette Hughes: For me, the best thing from the German model that I would like us to learn from and take forward is the voice that Dr Högl has within the German Parliament. She has a permanent seat; she sits in all the sessions. I am not saying that the commissioner should have that, but they should certainly have the ability to lay reports directly or have them laid in the House so that more focus is placed on this. There is absolutely no point having all this access and information and creating the reports if they do not go anywhere and nobody talks about them. That level of parliamentary oversight and visibility is what we should mirror from the German system.
Pam Cox (Colchester) (Lab)
Q
Mariette Hughes: I am also a board member of the Ombudsman Association. You will not be surprised to know that my views align very closely with those of the chair of the Ombudsman Association. I understand why we are using the word “commissioner”, based on the fact that we were mirroring the German system, but as set out in the letter from the chair, the Cabinet guidance is very clear that “ombudsman” is the gold standard.
As I have mentioned, we have 22 established schemes; we have a very wide network of ombudsmen. Within my office, we have spent a lot of time trying to get people to understand the value of an ombudsman, what it is and what it does. Having been the service complaints commissioner previously, I worry that going back towards “commissioner”—going from service complaints commissioner to service complaints ombudsman to armed forces commissioner—is a step back. It feels like if we are doing that, is the next step not armed forces ombudsman? Do we not just go there straightaway?
Pam Cox
Q
Mariette Hughes: The Cabinet Office guidance simply says that if you do not meet the standards for independence, impartiality, integrity and fairness, you cannot use the term “ombudsman”. There is an inherent elevation to “ombudsman”. There are no real prescriptive powers for what an ombudsman can or cannot do compared with a commissioner; it is all broadly set out in the legislation or the rules that govern. Each ombudsman scheme in the UK, whether they are statutory or voluntary ombudsman schemes, have different powers and remits. It is broadly what you make of it. It is about the gravitas of that term and the understanding in the wider landscape of what “ombudsman” means. We as the UK have accepted that an ombudsman is the top tier of fairness and oversight. Unless there are overriding reasons, I simply do not understand why we would use the term “commissioner” instead of “ombudsman”.
Lincoln Jopp (Spelthorne) (Con)
Q
Mariette Hughes: Under the Bill as drafted, the remit is very wide. The key thing will be the secondary legislation—the regulations and schedules that cover exactly what the work looks like. It is also key that the individual sets out what their focus is and where they want to focus the work. There is a danger of thinking this is a magic silver bullet that will fix everything. You simply cannot fix everything, and even with the power to go where you like and look at what you like, you must have that focus on what is key to welfare.
The initial first year would involve a lot of scoping around, “What do we already know, what do we think we can fix, and what do we wish we knew?” We would focus on that within the broad categories set out in the Bill, but this is about welfare, not about going into all the back rooms and looking at all the sneaky files and exciting buttons just because we can. We must always ask the questions, “Why am I looking at this, what do I think I am going to achieve, and how will this make life better for service personnel?” It is very wide, and it will need to be set out in regulations how that is to be directed, but I would not want to constrain the individual in deciding what they need to look at, based on their experience.
Lincoln Jopp
Q
Mariette Hughes: If I am allowed to apply. As the ombudsman, I can do only one term, but obviously this is a new role. If it is decided that I am allowed to put myself forward for the job, I would love to be considered for it. I love what I do, I feel very passionate about it, and these are the powers we have been asking for. It would also provide the opportunity to ensure that the work of SCOAF, which we have got to a really good standard, can continue uninterrupted, while then focusing on, “What does this look like, how can we take it forward, and how can we make this work?”
The Minister for the Armed Forces (Luke Pollard)
Q
One of the key provisions for the Armed Forces Commissioner is their independence. In my mind, if they are not regarded as independent, it will not work in enabling people to raise concerns and issues with them. Could you talk us through how independence works in your current role, and how you feel an Armed Forces Commissioner independent from Government, Ministers and the chain of command might operate on a day-to-day basis?
Mariette Hughes: Absolutely. The key point is that independence does not mean you are completely isolated, or that you cannot talk to Ministers and work collaboratively. It is about having an unfettered ability to decide how your work is shaped. When I took on the role of the Service Complaints Ombudsman, a key thing we always got asked, particularly on social media or in questions and queries about our services, was, “How are you maintaining independence? You are funded by the Ministry of Defence. You must therefore be in MOD’s pocket and none of your decisions is actually independent.” All ombudsmen face this, because we have to be funded from somewhere and it is usually the sector that we are overseeing. It is not an unusual thing.
One of our key priorities was setting out to the public, in a way that people could understand, how we maintain that independence. We designed a governance framework, which, to be honest, I was quite shocked that we did not have already when I took on the role. That has now been laid out to the House, and it sets out publicly that although the Ministry of Defence will provide my funding, it is not allowed to touch my cases, design my business plan, or tell me what I can and cannot do in pursuing the aims set out within the remit of my role. I would expect something similar with the commissioner, setting out who has the power to do what. It will need to be set out that although they report to the Secretary of State and are funded by Defence, they are entirely independent in the decision making.
Luke Pollard
Q
Mariette Hughes: Currently, we do not assess national security. We are overseeing just the service complaints system, which is about personnel issues—the issues service personnel face in the workplace. We naturally have a few cases where information is redacted because it is sensitive, because of the nature of where that individual works, and we work very well with the services on deciding what should and can be redacted. In a report where we are just talking about someone’s workplace experience, they should probably not be putting in information that needs to be redacted.
Going forward with the commissioner role, if the focus remains on welfare, I do not think it is as much of an issue as it might be. I understand the concern, because the Bill is so wide and gives those powers, but again, I cannot really see a situation in which the commissioner would need to get that involved in those issues, if that makes sense.
Luke Pollard
Q
Mariette Hughes: The framework proposed in this Bill is significantly stronger than what is currently in existence with my office. I have similar provisions in my terms and conditions that if for any reason I am unable to fulfil my functions, the Secretary of State can terminate my employment; equally, I can give notice. What is not in the current legislation or in my terms and conditions is the ability to appoint a deputy or an acting person to fill that role. That is a very real risk and it is a gap.
When I took on the role, there was actually a gap between myself and my predecessor during which nobody in the office could do any work, because there is no power unless it is delegated directly from the ombudsman and there is no power for the Secretary of State to put in an interim. There was a small period when nothing could happen. That is a real risk. At the moment, if I get hit by a bus—touch wood—and cannot come into work, there is nothing in the legislation that allows my staff to continue working unless I am there to delegate that power. The Bill allows for the commissioner to appoint a deputy, to delegate specific functions, and, in the event of incapacity or their being unfit to do the job, to be removed from post and an acting commissioner to be put in place. That gives us a lot more security than what we have currently, and I am in favour of it.
Juliet Campbell (Broxtowe) (Lab)
Q
Mariette Hughes: I think it will allow people who are experiencing an issue that affects a wider group or a demographic to bring forward that complaint as a whole. There is a lot of onus in service complaints on the resolution of individual grievances. You cannot bring a group complaint; it has to be an individual’s complaint with a named respondent. We are doing as much as we can to make sure that that system does not feel onerous, combative or scary, but some people are simply not comfortable putting their name down and saying, “I want to complain about my employer because of this.”
This new role has a wider focus on welfare, so you could form really good links with some of the networks to say, “Okay, when people come to you for advice, what are the things they are worried about? What are the things they are scared about? What policies are affecting them?” If those people are still not comfortable raising individual complaints, we need to ask what issues they are facing and whether we can cast a light on them. I want everyone to feel safe to come forward, but equally, if we know there are problems, it should not take the individual coming forward. If we know there are problems, we should be able to go and shine the light on it for them, so that they do not need to do that.
Juliet Campbell
Q
Mariette Hughes: I think it is key to look at the front end of complaints. By the time things come to us, they have been all the way through the process, they are still unhappy with it and they are asking us to fix it. It is really important that we can fulfil that function, but the thing that went wrong for that individual happened maybe 12 months ago, so we have to see what people are coming to welfare for, what people are coming to the networks for, and what people are using “Speak Out” and the “Call it Out” hub for. When people are saying, “I am seeing certain behaviours and I’m having an issue,” where can we get the sources of data to look into it? It will be really important for the commissioner to try to get ahead of some of those issues. It is really important that, when things go wrong, people can use the formal system, but ideally I would like to stop them going wrong, to be able to look at where the hotspots are and to really focus welfare work on them.
The Chair
We have to finish at 9.55 am, but do you want to ask a very quick question, Amanda Martin? You have one minute.
Amanda Martin
Q
Mariette Hughes: I think it absolutely will be a good thing. The Bill pitches it right: such individuals will be able to raise concerns but, as I understand it, the intention is to form a secondary service complaints system for them all to go through. Essentially, those relevant family members are people we expect to live in certain conditions; there are various aspects of service life that apply to them, that they simply have to live by and that affect everything they do, but they are not subject to service law so they cannot come into the system. Understanding how that affects them and how we are providing for the family members of those who serve us and protect us is really important. It also gets around that problem where individuals might not want to raise a complaint because it will go on their record; their spouse might be able to put it forward for them, and say, “They would never say this to you, but this is really affecting our family and I am worried.”
We also have the issue where we know that people still do not like to talk about their emotions or about what is affecting them. It is their family members and the people around them who see clearer than anyone what is happening and when there is a concern. Giving them an avenue to put their hand up and say, “Look, I think we need a bit of help here,” or, “I think you need to look at this issue,” is absolutely brilliant.
The Chair
Thank you very much. That brings us to the end of the time for the Committee to ask questions. I thank our witness on behalf of the Committee. We will now move to the next panel.
Examination of Witnesses
Angela Kitching and Ted Arnold gave evidence.
The Chair
We will now hear oral evidence from Ted Arnold, senior public affairs and policy manager for Help for Heroes, and Angela Kitching, director of campaigns, policy and research for the Royal British Legion. For this panel we have until 10.40 am. Could the panel introduce themselves?
Angela Kitching: Thank you for inviting us to give evidence. I am Angela Kitching, the campaigns, policy and research director for the Royal British Legion. We have been holding focus groups on the Bill with members of the armed forces community and their families—those who are currently serving—to see what their views are. Some of the interesting points that we would like to draw out today are around how we can measure the impact of the role, and what the proper balance is between thematic and individual complaints, given the new scope of the role. We would also like to explore the question of relevant family members and who will be able to raise complaints.
Ted Arnold: Thank you for the opportunity to give evidence this morning. My name is Ted Arnold, and I am the senior policy and public affairs manager at Help for Heroes. We are a veterans’ charity, supporting veterans and their families and I will very much be making comments from that perspective. We very much welcome the Bill and we see the key underlying principle as calling for a more transparent culture to make it harder for Defence to hide embedded problems. That is a conversation that we want very much to be a part of. We believe the veteran community has substantial insights to offer to that conversation, as we seek to improve the lives of serving personnel who one day will become veterans themselves.
Mr Francois
Q
Angela Kitching: As colleagues will know, the covenant is the promise that the Government make on behalf of the nation to those who serve and who have served, their families and the bereaved. I think the role of the commissioner can help to give that some teeth. Hopefully, the way that the welfare remit is written will go beyond the current legal duties under the covenant and will allow the commissioner to consider thematic issues where service personnel and their families face significant problems.
I hope that in places where the covenant does not have legal force, such as Northern Ireland, the commissioner will be able to bring parties together and co-ordinate a proper response from local authorities or national Governments to improve the experience of service personnel and their families.
I particularly want us to think about the position of the bereaved, who are often not well considered in terms of the covenant. They are one of the groups of people who are supposed to be given special consideration under the covenant, yet they are often missed out when local authorities and others plan their services related to the covenant. I hope that, through the definition of “relevant family members”, the commissioner will be able to bring to the fore some of the experiences of the bereaved community.
Mr Francois
Q
Angela Kitching: If the powers transfer as they are at the moment, veterans who have experienced a problem in service and raised that through the service complaints system will, we hope, be able to continue to pursue their individual cases. We would like clarity on that point, because I feel it was not well explained on Second Reading.
In terms of the commissioner’s relationships, it is really important that they think about their relationships with the veterans commissioners and the veterans advisory and pensions groups that exist around the country. If Haythornthwaite is to be properly implemented, it is going to be a spectrum of service where people pass from serving into reserve and into veteran, and back again, so it will be really important to spot the themes to make sure that we have a group of people in the armed forces community who can rely on the knowledge that they will be well treated when they are in a serving scenario.
Mr Francois
Q
Angela Kitching: Yes. You will be aware that that was an open advert and people were being invited to apply just prior to the election. We have not yet heard an update on what will happen to that role. We think it is really important that there is a national veterans commissioner, as described. Clearly, the Armed Forces Commissioner will have a wider, deeper and better resourced role than any of the other commissioners. I think a lot could be learned, particularly from the Scottish Veterans Commissioner, because they report directly to Parliament. The Armed Forces Commissioner can look to that community of commissioners regularly to make sure that they pick up issues as people are leaving service.
Mr Francois
Q
What is Help for Heroes’ perspective on some of the veterans’ issues that I have just put to the RBL, please?
Ted Arnold: To build on what Angela said, in our experience, and from what we are told, the military works well and looks after its own until there is a problem in service, be it injury or illness, when it often closes ranks, withholds vital information, or provides inconsistent or varied support.
The last part of the mantra, “Join well, serve well, leave well”, is often an afterthought, particularly for the wounded, injured and sick. Very much a key message from our beneficiaries relates to that variability, inconsistency and uncertainty during their service, and particularly at the point of discharge and building up to transition. For instance, the German model has looked at the issues of transition out of service, and how those policies and procedures would impact personnel post service. Veterans can probably talk with greater openness about their experiences with their service, with the benefit of distance and hindsight, to really crack some of those issues open. The Minister was right to point out on Second Reading that the agencies and services in place are very different for veterans, and it is important to make that distinction, but a lot of these issues stem from the point of discharge or transition.
One issue on which we have been working closely with the Veterans Minister is the call for an independent review into the medical discharge process. We believe that the policies and processes are very much there but are followed inconsistently across the three services, or not followed properly by the chain of command. Building on the other thematic reviews, in regard to issues such as welfare more broadly, leadership style or elements of training, kit or housing, we believe that we hold a wealth of experience, and a wealth of data and evidence, from that community that we would very much like to build into those thematic reviews.
Mr Francois
Q
Ted Arnold: I think we would broadly say something similar. It is a postcode lottery in terms of support and how the covenant is applied, and there are inconsistencies with the armed forces champions. Some areas are very good—they have some density of serving personnel or veterans, and they are very aligned with some of those issues—and others less so. That seeps into the whole culture, and it touches on a previous point made by the ombudsman about having someone else to advocate on your behalf on those issues, be it getting the right welfare support or getting the right healthcare support. For many, the armed forces champion is seen as that point, but others have to draw on family and the charity sector to get access to the support that they need.
Graeme Downie
Q
In subsection (3) of that new section, do we feel that a “relevant family member” is correctly drawn? Further down, subsection (7) of the new section states that the Secretary of State will give the commissioner “reasonable assistance”. From the focus groups and the work you have done with your members, is there a feeling that that is the correct terminology? Will that capture everything that they feel the commissioner needs to be involved in, or is there any work that can be done to broaden or tighten some of those definitions?
Angela Kitching: I will do my best with that technical question. I think welfare is a well understood term in the armed forces community. Calling out particular experiences of discrimination, bullying and harassment is useful, because that is not held to be a welfare issue; it is held to be an employment and discrimination issue. On that one, that feels appropriate.
The second part that you raised was about a relevant family member. That really does need significant further exploration in Committee, and further definition. I understand that the Government intend to publish regulations when the Bill passes from the Commons to the Lords, but understanding what a “relevant family member” is has been a really disputed point in the armed forces community. For example, the bereaved parents of people who have lost their service person often feel that they are not included in the world of the armed forces community, and it is the same for the siblings of those who are bereaved. The families of non-UK personnel who are not resident in the UK also often feel outside the environment. The issue is about understanding who a relevant family member is, and being open to the fact that that person could raise relevant information.
Establishing really clearly whether somebody can raise a complaint or a concern—three terms are being used, “complaint”, “concern” and “issue”—and getting clarity over who is allowed to do what is extremely important, because otherwise it will unduly raise people’s expectations that they will be able to follow something through in a formal process, when what they are being invited to do is offer additional information for a thematic review. We need absolute clarity in the way that is communicated to the armed forces community—who has right to a complaint versus who is able to raise a concern or issue more broadly.
The only other thing I would mention is that the process will be everything. I was surprised by the focus groups: we thought that we would collect information about issues that people were likely to want to raise with the commissioner if their scope were broadened, but what people wanted to talk about was how safe they would feel in the process—would they be prepared to raise something, would they be able to do it jointly as the commissioner just raised, would family members feel that they were able to raise concerns and would it affect their person’s career progression or ability to continue to make progress?
There is a high level of distrust in certain areas of current service complaints, for example service-to-type complaints, where people are making accommodation complaints. At the moment, there is already a three-stage process that has to be closed before someone is able to approach the ombudsman. The middle section of that process is so overwhelmed at the moment that people are getting standard messages to say, “We are not able to progress your complaint on the current timelines.” That in itself would be a reason for somebody to be allowed to go to the ombudsman, but they will already have been through an extensive paperwork process to try to pursue their individual complaint before they get to the stage where the commissioner is reviewing the process.
It is getting the balance of expectation right for individuals who are serving and their family members of whether this is likely to be effective and get faster, or whether thematic reviews would be a better place to put their efforts if they have a broader based complaint such as an accommodation issue.
Graeme Downie
Q
“in the Commissioner’s opinion…may materially affect the welfare”.
Is the concern that that word choice creates the possibility almost of a bottleneck being artificially created?
Angela Kitching: There is a very broad invitation in new section 340IA in clause 4(3), which states:
“The Commissioner must consider any request made by a person subject to service law or a relevant family member to carry out an investigation under this section.”
That is a very broad funnel, which is helpful, but the question of how material the impact is on the individual could be the point at which it narrows. It is the question of the clarity of the process. If yours is not the issue that is taken forward from an individual complaint into a thematic review, how will you feel about that? Will you feel that your concerns are being dismissed or that you need to get together many more people to make a similar complaint? There will need to be a high degree of transparency about the decision-making in order for that to feel appropriate.
Graeme Downie
Q
Ted Arnold: To build on the RBL’s point in its briefing, it is vital that the commissioner is seen as independent. There is certainly a lot they can draw on from the experience of those independent veterans commissioners throughout Scotland, Wales and Northern Ireland—and, it is hoped, soon in England too. They bring valuable knowledge and insight and act as a voice for veterans in the entire armed forces community throughout the UK.
We would certainly encourage that co-ordination between the two agencies, particularly around data and evidence sharing—not just with the veterans commissioners, but other agencies such as the Office for Veterans’ Affairs, the defence transition services and organisations in the charitable sector. It is important that the work of commissioners is communicated and integrated as clearly as possible with other veterans agencies. That builds on the ombudsman’s point that those key relationships should be built and the right thematic reviews carried out.
Helen Maguire (Epsom and Ewell) (LD)
Q
Angela Kitching: Obviously, there are family members—and, from our point of view as a charity, we have a definition of beneficiary that would mean that there was a degree of dependency between the family member and the person who had served, or the serving person, or somebody who is bereaved of somebody who was in service.
In the real world, though, there is often a much wider group of people who feel most relevant to the person who was serving. That could well be the household that they came into service from; it could be the family that they left behind when they came from another country to serve on our behalf; it could be their grown-up children; or it could be the group of people who immediately surround them and offer them support.
The issue is about trying to make sure that, as you are peeling back the layers of the onion, it is the people who are closest to the person who are serving, but not just their immediate household. If you think about the person who they live with, it might be much more relevant to also think about their parents. At the moment, a large number of non-ranking people in service are typically passing through service between the ages of 18 and 30, so they often do not have other immediate spousal relationships. It is their parents or grandparents, whose household they have come out of, who are closest to them.
Helen Maguire
Q
Angela Kitching: Yes; and it is about where somebody can offer relevant information to the matter under consideration. It is about how much relevant information they could have. However, it is worth thinking about how to challenge the commissioner’s outreach into countries that a person has come from—where that information might be held, for example. Unless there is an active outreach into those immediate relationships, I think people naturally think, “Well, I am not in country and therefore I won’t be able to offer my views on this process.”
Helen Maguire
Q
Angela Kitching: Some of the issues that Ted has raised about discharge are massively important throughout somebody’s career. How somebody leaves the armed forces is crucial to their ongoing experience in life.
In terms of what people raised during our focus group sessions, housing issues are key. Good transition around housing makes a huge difference. Healthcare and education access for family members is a hugely important issue. If you look at the families continuous attitudes survey and the armed forces continuous attitudes survey, the two main opinion-based surveys, issues around family and the extent to which family have access to outside services are key concerns of serving personnel. I understand that those issues will not directly be in the purview of the commissioner but, as part of building relationships, decent healthcare access at discharge, support for family members in accessing local services, and housing are the three things that I would really focus on.
Helen Maguire
Q
Angela Kitching: Independence is really key. It is really important for personnel to able to see that the chain of command are listening and taking action as a result of the commissioner’s report. To be honest, the key thing is that the reports are seen to have impact—they should be reporting not just on the flow of cases and the themes that have come out but on what has happened as a result. That is really the issue at the moment, I feel: people can see that their individual complaints have got so far but cannot see whether there was a wider impact on the system or whether anything was changed as a result. I am hoping that the parliamentary element will add that additional layer of transparency and trust.
One other thing: people talked about being able to raise concerns anonymously, understanding that that meant they would not then personally get feedback on what had happened. But they were very keen on a system that would allow them to raise those concerns, in the manner of Crimestoppers—when you can give information in detail but that does not come directly come back to you as the person who raised it.
Helen Maguire
Q
Angela Kitching: I have not considered that directly. I understand that there is consideration of the extension of the covenant in law. It is really important that we do not tie ourselves to the current legal definition, which is much more limited in the policy areas that it looks at. But anything that demonstrates that the covenant is the promise that the nation makes would be really useful. Among employers, in the healthcare system and in local authorities, it is beginning to be the golden thread that runs through the promise that is made. Anything we can do to strengthen that will be helpful, but I would not want it to be too limited by the current narrow definition of the covenant in law.
David Reed
I thank Angela and Ted for being here today. The title of the role is changing from “ombudsman” to “commissioner”. We previously heard that different perceptions come with those different titles. Do you think that moving to “commissioner” is a good change? If not, where are the limitations?
Angela Kitching: I think it is helpful because it indicates a move from a system that reviews the administration of an appropriate action in relation to individual complaints into a wider and more thematic system. For me, that signals that we are not in a situation where the system is only going to be following through individual complaints and that wider representations can be made. It sounds more like the action of the Children’s Commissioner, for example.
I completely understand concerns that the ombudsman groups would have about the fact that, outside the courts, “ombudsman” is the highest way of considering individual complaints. But as long as it is well communicated within the community that the new role and office are capable of doing both, I do not have particular concerns about the change in title.
Ted Arnold: To build on that, the change is to set expectations and make very clear to the community what the new role is and the new powers will be. Angela spoke about trying to influence a cultural shift to make people feel comfortable about going to the new commissioner and take forward not just grievances but other issues up and down the chain of command—best practice, for example.
Andrew Ranger (Wrexham) (Lab)
Q
Angela Kitching: At the moment, if you look at evidence from the armed forces continuous attitude survey, they say that the impact of service life on their families, the opportunities that they have outside of service and the amount of pay they have are the things that are currently undermining morale. For family members, it is their experiences of living a service life, so you can see that there is an obvious potential for this role to try to improve that experience.
It is helpful to think about not just the individual complaints, but those wider welfare issues that chip away at people’s experiences of their time in service. The No. 1 reason given by service people for leaving is the impact on family and personal life, so anything we can do to improve that has got to help with the broader morale issue.
Ted Arnold: To build on that, persistent issues with the current complaints system have deepened that dissatisfaction with service life. If we look at the various reviews—Haythornthwaite, Etherton, Atherton, Lyons and those that the Defence Committee has carried out over the years—attempts have been made to address concerns with morale or certain groups. The commissioner could bring a much more robust approach to addressing some of those problems. We envisage, as does the Bill, trying to involve the commissioner in day-to-day military life so that there is a real granular understanding of what those issues are.
Andrew Ranger
Q
Ted Arnold: Again, I think that will be difficult to measure. Having an annual review that reports to Parliament, and perhaps the community making observations—not just on thematic reviews, but in the annual report as well, in a similar way as we do as a sector to the covenant—would be an appropriate way of measuring progress.
Angela Kitching: How you measure the impact of the thematic reports is crucial to that. After that annual report, you would then need to think, “Okay, what did we see that changed as a result?”. At that point, I suspect that you will see an impact on morale, with people feeling the difference because there will be something to point to. It is also about the mechanism for the commissioner to follow up on recommendations from previous reports and look at change over time.
There needs to be an adequate capacity in the office for them to have access to data that allows them to track the change over time as a result of it—I note that an amendment has been tabled on this today—particularly for groups whose experience might otherwise be invisible. Those groups are very small percentages of people, such as LGBT personnel, women in particular branches of the armed forces, and the experience of non-UK personnel, but otherwise they would end up being subsumed into the whole. It is important, as in the German reports, that some of those experiences are drawn out in the annual report and we track change over time for particular groups, who otherwise end up being lost in the wider picture.
Luke Pollard
Q
Angela Kitching: What people mentioned to us when we spoke to them in groups was that they needed to understand who the commissioner was. They needed to understand their relationship with the existing welfare services in the individual branches, but also with the wider service complaints process. Knowing exactly what to expect from them was really important, as was their office being seen to be open, both for serving personnel and their family members, so that they could make a direct approach and not feel as though they had to chase through another system to be allowed to approach that person. Also important was that the person was prepared to visit, which obviously is the case for the current Service Complaints Ombudsman.
The digital access is a real issue currently, as you will be aware, on areas of our Defence estate, but also where people are operationally deployed or are struggling to get access to enough technology to allow them to engage with complex digital systems. What they did not want was something where they would have to log in to understand the ongoing process of what was happening. They needed somebody who could be reached via a variety of different sources and, as I have previously mentioned, something that would allow for transparency and a degree of anonymity, if they wanted it, in relation to thematic information, so that they were able to offer what evidence they had, even if they did not want to pursue it as an individual complaint themselves.
Particular attention needs to be given to experiences of bullying, harassment and discrimination. In any other service that we look at that deals with those complaints, people have a significant amount of protection when those are being considered. If, for example, a thematic review were to be opened into an issue that touched on bullying, intimidation or harassment, particular consideration would need to be given to how that evidence was collected, because people understandably feel very vulnerable about offering that evidence. The armed forces is a unique employer in that way, because it is not just a job, it is a life, and the life of your family, and it can potentially control your future career. The level of trust needs to be built because the level of exposure and risk is so high if somebody chooses to step out of line and raise something.
Ted Arnold: To build on that, I think an effort must be made to change the current culture to encourage individuals and people on their behalf to know that they can come to a commissioner. Building on the German model, that is not just to raise issues of grievance, but maybe the spectrum of duty-related issues, and not just those problems, but personal and social problems as well.
Luke Pollard
Q
Angela Kitching: When we have gathered evidence before, particularly on sensitive issues, often we have allowed people to speak openly to us with a very clear and ethical statement about how we are going to use that information, which they previously agreed to. There is certainly the potential for us to be able to pass on that information on behalf of armed forces groups. We did that in relation to the Etherton report when people did not want to give individual evidence and did not want to step forward themselves. We gathered those views and submitted them to the review team on behalf of people who did not want to identify themselves. There is potentially a role for organisations—not just us, but many others—to do that. Thinking about the location of those conversations is really important. They cannot be on bases; they need to be in an environment where people feel comfortable to express themselves.
Overall it is the assurance that the office of the commissioner has a degree of separation from chain of command that is the most important thing. Ensuring that the office has adequate resources to be able to do the kind of work that I have just described will be important, and trying to make sure that that person is able to demonstrate that they are sufficiently independent of the current chain of command, and are really able to bring forward views that will very difficult for chain of command to hear, is important.
Ted Arnold: Also, it is important for chain of command to feel that they are comfortable raising those issues as well, knowing that it is going to the Secretary of State and being considered by Parliament.
That also builds on and adds to the importance of the commissioner drawing upon data and evidence from the veterans’ community, particularly those who have been recently discharged. For some, it takes many years for them to get help and to reach that crisis point—to have those reflections and be able to say what could have been done better during their service. The removal over time—being away from your service and not fearing repercussions, particularly in terms of your career, can add to that. As Angela said, the Etherton review was a great example.
Pam Cox
Q
Angela Kitching: I think it is really important to lay out from the start what the intended change is. When we are asking the commissioner to report, it needs to be a report that looks at the intended impact and then tries to measure against that. It cannot just be a report of activity.
I also think that, as the commissioner opens thematic reviews, they need to make sure that they invite evidence from organisations, academics and others who have depth of experience in some of the best ways to address some of those issues, and looking at the change that could be achieved over time. Many of them are well-trodden paths as research issues either in this country or internationally. They need to be looking at what works and addressing some of the concerns—that evidence is readily available, and we need to make sure that the commissioner is on the front foot in drawing that in.
In terms of Parliament, as soon as reports are laid in Parliament, we obviously do our best to try to make sure that they are well communicated in the community, but it is very difficult to reach into somebody’s service life. They are in the middle of their job, as you will have experienced, and their head is on the job. It is about making sure that they are well networked in the armed forces community. The armed forces champions who were mentioned would be one way of making sure that the wider system understands the changes that are necessary. Armed forces liaison officers, who are Government-appointed in Wales, are a good model for people whose role it is to reach into communities and are additionally resourced to do that, unlike the armed forces roles in local authorities and the NHS, which are usually voluntary. It is about being well networked in the existing armed forces communications structures.
There is also something about the in-service welfare system, which, as Ted mentioned, can be incredibly patchy in the way that it delivers outcomes for people. I think there is probably a duty there that thinks about how better we can require the in-service welfare system to consider changes that come out of the commissioner’s office, perhaps requiring them to write back to say, “This is the impact and this is what has changed as a result of it.”
I am afraid that the way to do it is probably all of those methods at once.
The Chair
That brings us to the end of the session. Thank you very much to our witnesses. We will go on to our next panel.
Examination of Witnesses
Lieutenant General Sir Andrew Gregory KBE CB DL and Lieutenant General Sir Nicholas Pope KCB CBE gave evidence.
The Chair
We will now hear oral evidence from Lieutenant General Sir Andrew Gregory, controller of SSAFA, the Armed Forces charity, and Lieutenant General Sir Nicholas Pope, chair of the Confederation of Service Charities. We have until 11.25 am for this panel. Could our witnesses introduce themselves, perhaps saying a bit about themselves and what they do?
Lt General Sir Andrew Gregory: Good morning, sirs and ma’ams. I am Andrew Gregory. I spent 35 years in the Royal Artillery in the British Army. My last three years were as Chief of Defence People in the Ministry of Defence—very much looking at these sorts of areas —during which the Service Complaints Commissioner became the Service Complaints Ombudsman, so I have seen some of the transition. I left the military in 2016 and have been the controller and chief executive of SSAFA, the Armed Forces charity since then. I am also a trustee of the Armed Forces Parliamentary Trust, which runs the armed forces parliamentary scheme.
Lt General Sir Nicholas Pope: Good morning, ladies and gentlemen. I am Nick Pope. I know some members of the Committee. I was an Army officer for 39 years—I am struck by this witness panel’s age compared with the previous panel’s. I finished in my job as effectively the Army’s second in command, so I dealt with the likes of Mariette and Nicola from the Service Complaints Ombudsman from a single-service perspective. As the Army’s 2IC, I was the principal personnel officer for the Army. I left the Army in 2019 and am now chair of the Confederation of Service Charities, Cobseo. A couple of years ago, I also helped Rick Haythornthwaite to produce the Haythornthwaite review of the armed forces community, which was probably the first time in a generation that we had had a systemic look at the people function for the armed forces. So I sit here in three guises to answer your questions.
Mr Francois
Q
Lt General Sir Nicholas Pope: I must start by commending you for the “Filling the Ranks” report, which I have mentioned here before, and which was one of our opportunities to look at the way we carry out armed forces recruitment. I still go back to that report and read it by my bedside table.
We believe there are currently around 1,735 military service charities. Some people would say, “Golly, that’s an awful lot,” but we are the one percenters—there are 160,000 charities in the UK and about 1,700 military service charities. The first thing to say is that whether that is too much or too little is irrelevant, because each charity is answerable through its board and trustees to the Charity Commission. We are not stuck with the number, because it changes, but that is the number of charities.
All charities are not the same. Of that number, a vast swathe is focused on heritage, museums and monuments, or service funds—ship stations and aircraft stations. About 500 really cover welfare and benevolence—the kinds of military charity organisations you would typically think of. Of the 500, about 25 raise about 90% of the money. If you are going to focus on money and impact at the national level, the likes of Andrew in SSAFA, the Royal British Legion or Help for Heroes are the typical charities you would think of.
That is not to decry the enormous contribution made by smaller charities. At local level, a fantastic amount of work is done, if you are thinking of a drop-in centre or breakfast club—a means of bringing together veterans, particularly for comradeship and belonging—but my point is that the word “charity” covers a smorgasbord of activities.
In the sector, we tend to slice and dice in how we bring our charities together through what are known as clusters or communities of interest, where like-minded charities come together to talk about, for example, mental health, housing or employment or issues affecting non-UK or female personnel, so we use the charity sector to think thematically about issues. Sectorally, we have an executive committee that Andrew sits on, alongside 16 other chief executives—it is like a United Nations council—where we try to garner the systemic issues across the sector. It is right to say that there is not a sector view, but what the sector can do is bring together information to say, “These are the kinds of views that exist across the military charity sector.”
It is probably also fair to say that the sector focuses not exclusively but predominantly on the veterans community, albeit some charities also link back into serving personnel. We tend not to think about either veterans or serving personnel; we try to use the nomenclature of “the armed forces community”, because it picks up the bereaved, spouses, dependants—the entire gamut of those who exist in that community. At the broadest, you might say that around 6 million or 7 million people, so gusting 10% of the UK population, have some relationship with the armed forces. That is a large number.
Mr Francois
Q
Lt General Sir Nicholas Pope: I am well aware, having read the Second Reading Hansard scripts, that most of the issues I cover will not be unfamiliar to you all. The sector welcomes the Bill and it welcomes the creation of an Armed Forces Commissioner. As we approach the selection of the commissioner and further determination of the scope, we will be looking to pick up on some of the issues you have talked about with regard to independence and the boundary between the armed forces serving community and those who have served. We are interested in the ambit and the responsibilities of the commissioner function. From a selfish, sectoral perspective, we are also interested in the way in which we as a stakeholder will engage with the commissioner. Those are the kinds of activities that we are looking at.
Mr Francois
Q
Lt General Sir Andrew Gregory: First, for those who do not know, I will highlight that SSAFA is just coming up to 140 years old. It was formed in 1885 as the Soldiers’ and Sailors’ Families Association. Although Nick says that military charities have mainly focused on the veterans community, we actually do a lot of work in the serving community in many different ways. I will not expand on that now.
Like Nick, I have read the Hansard report. Initially, I was concerned that the commissioner would potentially undermine the chain of command, but I am not concerned any more. I have had a good session with the Minister for the Armed Forces—we both have—and I am reassured on that. The challenge, as Nick has talked about, is that there is a continuum running from before people join the armed forces to when they are thinking about it, to their first day of service, through their service, to their departure and to their subsequent life. Trying to state that the commissioner will look at only the time when people are subject to military law, regular and reservist, will be quite difficult. You cannot divorce some of the consequences of military service from welfare issues within and during military service.
I want to go back to Haythornthwaite and some of the propositions being considered as part of the defence review, particularly the people proposition. The review is quite rightly looking at what we are choosing to call one defence—people in uniform, full and part time, people not in uniform, full and part time, or people delivering to defence outputs. That is absolutely right. That is exactly the model that should be used, but potentially the commissioners will look at only a part of that ability to deliver defence outputs. My only concern is that the commissioner should be looking at how best to sustain defence outputs. The person is tasked to look at welfare issues. I worry that there are some artificial divides that may not help the person do their work.
Terry Jermy (South West Norfolk) (Lab)
Q
Lt General Sir Andrew Gregory: Thank you very much.
Terry Jermy
Prior to my current role, I was a local councillor for a number of years. I worked with SSAFA to encourage people to come forward, first of all to raise an issue, but more often to formalise the issue. Encouraging people to go through that process was quite a barrier. Do you think these proposals will encourage people to be prepared to raise and formalise issues?
Lt General Sir Andrew Gregory: That is a great question. Your previous session discussed how to generate trust. I thought that was a good question too because this person must be trusted. They have to be sufficiently trusted by the chain of command, but equally trusted by the community, to fairly champion their views without, when appropriate, revealing their identity. The challenge we find with many service personnel, particularly veterans, is that they are often too proud to admit they are finding life difficult, perhaps while they are serving and often once they have left the military. They do not want to admit they are a charity case.
Going back to the question of trust, this commissioner is going to have to work hard to say, “I really am here for you. I am here to champion your issues in whatever way we feel is collectively appropriate.” They will also have to work hard to ensure that the chain of command does not get defensive, but instead sees this as an opportunity. I was not serving when Mariette Hughes was the Service Complaints Ombudsman, but when Nicola Williams was doing the job we talked regularly. I was effectively on one side as the policy lead in the Ministry of Defence and she was on the other side. Success to me would have been more complaints. For those of you who have not met Nicola, she is a very approachable person, but trying to get people to have the confidence to step forward, to go to her and say, “This ain’t fair,” was really difficult. The intent is good and I support it, but I think building confidence will continue to be a challenge.
Terry Jermy
Q
Lt General Sir Nicholas Pope: I heard the answers given by the previous panel. I am relaxed about this. What is in a word? We use “veteran” to pick up smorgasbord of individuals. We use “service” for the sector indivisibly. Moving from ombudsman to commissioner does, I suppose, demonstrate a shift in a position. If we use a word from a communications perspective, to get people to think differently, there is utility in that. Having spoken to Mariette about this, although I do not want to put words into her mouth, I suspect she feels she is prescribed in some of her activities by the way that her job has been set up. In moving to “commissioner” we have a chance to think about seeing the new post through a different prism and communicating that well, both to the current armed forces serving community and to those who are to come.
If I may go slightly off-piste, the average tenure of somebody who is serving is about seven years. In that time, most individuals will graze through without ever coming across the ombudsman. Looking forward, one of our challenges—probably a challenge both for the commissioner’s post and for the wraparound of the Department—is to ensure that young men and women who join in the future recognise that function and the idea of a champion who sits outwith the chain of command and gives them a chance to have their voice heard. Thinking about generation Z and beyond, in an area in which agency at the individual level is increasingly important, that matters.
David Reed
Q
Lt General Sir Nicholas Pope: What we have to be very careful about, in relation to the commissioner’s role, is ensuring that we do not chase demons unnecessarily. I love the phrase, the bumper sticker, that underpins the armed forces covenant:
“a thriving Armed Forces community that is valued and supported within our society.”
It has five key points: thriving, armed forces community, value, support and society. Some 97% or 98% of the young men and women who go through service have a fantastic time and come out with additional skills, valued by the individual, valued by organisations that employ them, and valued by society for having served. As for support, in my territory, in the charity sector and in some of the statutory service provision, it is about catching those who need support and getting them back to being thriving members of society.
There is a danger that by concentrating on the areas of damage, harm and complaint, we will not have the context in which we see people thrive. Why is that important? It is because we want young men and women to join the armed forces in the future. They have to recognise that there is value in so doing and that service benefits not only the nation but also themselves as individuals. That is the area in which we need to capture the context, I suppose.
Lt General Sir Andrew Gregory: I completely agree. We need as a nation to better promote the narrative that service in the armed forces is good for people, it makes great people; that it does not damage the majority, and there are systems to pick up those who are damaged.
I do not see the commissioner as a threat. As I said earlier, that did worry me previously. Nick and I have both been commanding officers. When I was a commanding officer, who could the soldiers and officers go to if they wanted to talk to somebody outside the chain of command? They could go to the padre, the doctor, and perhaps the welfare officer, but particularly the padre and the doctor because they were independent. The padre or doctor would have to get the trust of those individuals because often the solution was within the remit of the chain of command. They had to get those individuals’ trust so that they could say, “I would like to go back to the commanding officer with this, and then we can see how we can work through it.” For some, that was a tricky hurdle to overcome.
What the Service Complaints Ombudsman has provided, and what the commissioner will provide, is something at a higher level. I know it is simplistic, but it is not dissimilar to those people who can pick up individual and systemic themes that are affecting people. The chain of command has got to get used to it. The role is not that of a federation or a union, which would have been very different and very dangerous in my view. I do not see it as that. It is an opportunity to improve life and to improve trust on both sides. I really mean that.
David Reed
Q
Lt General Sir Andrew Gregory: Service people are intelligent people and they will make an appropriate judgment. The commissioner will need quite a lot of support to manage two quite different things: the individual issues that will percolate up to that person, and the systemic themes they want to investigate, such as poor-quality housing or whatever issues it happens to be. The commissioner and his or her office will challenge Ministers in Parliament with their reports.
As goes communicating to young servicepeople, you now have a separate opportunity. You have someone who will pick up your issues and run with them for you. I think people will get that actually, I really do. I understand that there is a fine balance here, but if intelligent commanders at various levels see issues that really are to the detriment of their people, they will start to have a conversation. People will have to judge it very carefully with this commissioner, but I can see that happening.
Lt General Sir Nicholas Pope: I would like to tier the answer to this question into political ambition, policy formulation, service delivery and lived experience. You will be looking to the Armed Forces Commissioner to tap into all those areas. On the point that Andrew brings up about lived experience, one of the aspects of the commissioner’s work will be direct interventions with individuals who raise issues that concern them. That is fine and necessary. Part of the commissioner’s function is about dealing with individuals at their individual level.
The next issue, to bring it to the service delivery level, is about whether the system that the Ministry of Defence has set up is sufficient to deal systemically with some of the issues that individuals bring to the commissioner’s attention. That takes you back into policy formulation. To what extent are the current policies—the service complaints system, for example—designed to be efficient, effective and fair? Do we need to look at the policies as well?
The final level becomes a political choice, I suspect. Thinking about the accommodation, we know the answer to this already. We know that service families accommodation and single-living accommodation is not where we would like it to be, but within a finite budget are there political choices to start to address these issues more systemically? The commissioner’s function will tap into each of those four tiers of activity.
I suspect that we will look these things with the commissioner when the commissioner’s report is laid before Parliament. Having the report laid before Parliament and having the opportunity at parliamentary level to debate the report feeds back into the MOD. To what extent will the recommendations that the commissioner makes be manifested in demonstrable changes in the way that the Department thinks? I think about the last eight Service Complaints Commissioner and Service Complaints Ombudsman reports: all of them have said that the system is not effective, efficient and fair, QED, so is the report driving the change in the Department that we seek?
Amanda Martin
Q
Lt General Sir Andrew Gregory: In terms of resources, the honest answer is, how long is a piece of string? Would one always like more? Possibly. Assuming the Bill is approved by Parliament, the Government will want to see the first commissioner given a fair chance to succeed. Once that person is in situ and has looked at the scale of the job, they will challenge the Secretary of State for Defence in particular. Given the ability of the commissioner to go back to Parliament, he or she could then say, “I can’t do my job.” I think there will be an appropriate balance struck.
In terms of this business of gaining trust, once again— I agree with the earlier answers from Mariette and others—it is down to the person to really project themselves, to get out, to be seen on the ground and to talk to the various parts of the community. That is how it is going to work. So in the first year, this person will spend an awful lot of time doing that.
Lt General Sir Nicholas Pope: I would add that I think the figures in the paper are based on analysis from compatriots in Germany and build on the current SCOAF function, so there is a logic to them. Whether we in the Department choose to expand or contract is probably an issue for three or four years hence.
I really buy the idea of trust. The word I would use is “culture”. I will be interested to see how the commissioner starts to pick at some of the issues we have regularly seen through the Wigston report, the Lyons report, the Atherton report and so on, to start to get at the cultural issues and move towards a more inclusive armed forces.
Lt General Sir Andrew Gregory: If I could come back for a second bite at the cherry, the other challenge is seeing through recommendations, which does worry me. I have been part of the armed forces covenant reference group almost since it was established in 2010. As part of that, the Secretary of State is tasked to put a report before Parliament each year. Some of the themes are consistent in all those reports—I think that is the polite way of putting it.
How do we make sure that recommendations made by the commissioner are either addressed or properly answered? It goes back to the question of resources for service family accommodation and single living accommodation. We cannot do it at the moment, but we will go on a journey to improve life for families in that way. That is one of the things that worries me, because these things have their moment in court—their moment in Parliament—and then we move on and forget them.
Helen Maguire
Q
Lt General Sir Andrew Gregory: You are absolutely right. We are all part of the armed forces but we are quite different as tribes, and then within the Army we have sub-tribes called regiments, and they are pretty different too, each with its own traditions and culture, and things like that. Then you have the Brigade of Gurkhas, with which Nick has served very closely, and which has a wonderful tradition and history. How do you capture all that? We do it within SSAFA. We support the whole community. How do we do it? We take the case of each person and each family on its merits. We support 2,000 Gurkha families each year. The support we provide to them is quite different from the support we provide to some of our other beneficiaries.
I am flannelling a bit but, to answer your question, I think the commissioner will need to be sufficiently knowledgeable about the armed forces so that he or she understands the various components of how they live their lives. As I am sure many of you know, Navy personnel have traditionally lived their lives—this is a generalisation—in different ways from the Army. The Navy serviceperson goes to sea and their family stays static, perhaps around Portsmouth, Faslane, Devonport or near their own family. The Army has traditionally had more camp followers, and families have moved as the regiment has moved. That means it is very different, and it puts different pressures on both the serviceperson and their family. The commissioner will have to get his or her head around that.
Helen Maguire
Q
Lt General Sir Andrew Gregory: The needs of people who come to us are absolutely changing. I have been the chief exec of SSAFA for eight-and-a-bit years, and we have seen a significant change even during that time. The people coming to us are younger, and not just because the world war two and national service generation are slowly passing on, sadly. More working-age veterans are coming to us, and there are more complicated, multifaceted issues. I say that one or more of the d’s has gone wrong in their lives: drink, debt, drugs, divorce, depression, domestic violence, a dependency culture, digs or housing, disease, death, or disability. It will not be all of them—I will test you on them later—but it will be more than one.
To take it back to your first question, our people are taking each case on its merits and looking at it. The commissioner will need to understand that, in terms of service families and service personnel, the cases will be different, and he or she will have to pick that up.
Helen Maguire
Q
Lt General Sir Nicholas Pope: If the commissioner is going to be shining a light on the current welfare conditions of the armed forces community, in a way that enables Parliament to have the evidence for a sensible discussion about the way in which the Ministry conducts its business and makes its choices—about resource allocation, policy formulation and service delivery—then, to have proper teeth, I would want to see, within three, four or five years, some tangible changes in either resource allocations or the metrics that are coming back through the commissioner to Parliament. Unless we see that, there will be no real impact or effect out of creating the post. To get real teeth, we have to have the feedback loop that Andrew talked about, in a way that matters.
Graeme Downie
Q
To pick up on something you mentioned earlier, SSAFA has been around for a very long time, so what do you see as some of the thematic issues that have existed with forces personnel over the years? Where do you think the commissioner should be looking first? Are there two or three things from those thematic areas that they could look at?
Lt General Sir Andrew Gregory: I will come to your question. There is an interesting discussion going on. The Minister for Veterans and People, Al Carns, has commissioned Operation Valour, which is great—both Nick and I have engaged with that—to look at how better we can support veterans. I do worry that we have bits looking at veterans and bits looking at servicepeople and their families, working slightly in isolation. I come back to the point about the continuum: for veterans, setting the conditions in service for success outside is absolutely critical.
In terms of themes and areas that the commissioner might wish to focus on, there are some obvious ones, such as the issue of service accommodation. In defence, during my time, we started off with something called the future accommodation model, which then became the new accommodation model. What is the current term?
Lt General Sir Nicholas Pope: Accommodation offer.
Lt General Sir Andrew Gregory: Trying to get something that meets the aspirations of modern servicemen and women and their families has proven quite difficult. So I think that will be an area.
I am very proud of my service. People say, “What would have made you leave early?” I would answer, “Had the services ever compromised on their values and standards.” But I do think there are some cultural areas of shame in the armed forces, and how better we can tackle some of those issues would be another area that the commissioner would certainly wish to look at relatively early in their tenure.
Lt General Sir Nicholas Pope: I will go back to Haythornthwaite to answer the question. One of the pieces of evidence that we put in the report was about how over time the role of the family has changed, and how family conditions drive individual aspects. I was struck when I took Rick down to visit some of the Blades in Poole. We had a table like this one, with 25 members of the Special Boat Service sitting around it, and the question I posed to them was, “Who is going to be here in five years?” Not one hand went up, so I said, “That’s shocking. Why?” The reasons were family-based: time away from Christmases, accommodation standards and the inability to get spousal employment. The issues that matter are focused on spouses. If we have a commissioner who focuses on one area to make a difference, that should be spousal employment.
I remember, about 10 years ago, taking the decision to bring the Army out of Germany, and selling it to the then Secretary of State, Phil Hammond, as a savings measure, because it was a lot cheaper to have the UK Army based in the UK—for the first time in 300 years. The reason we took the decision as an army was predominantly around the lack of spousal employment opportunities in Germany, to be brutally frank. Yes, there was a change in the geostrategic landscape, but we could not get enough young men—particularly men—to want to serve in Germany because it was going to impact on dual-income families. Spousal employment and opportunities and looking at family conditions would be an area I hope we could unpack in a big way.
Graeme Downie
Q
Lt General Sir Andrew Gregory: That is a great question. I hope the commissioner would, in that space, want to work to support the chain of command. I think the chain of command is trying desperately to get it right— I would say that of when I served. Nobody likes the awful headlines we have had over suicides. Obviously the biggest issue ever was Deepcut, but there have been plenty of examples where those of us who are part of the military community have hung our heads in shame, as we should have, because that is not how young people should be treated.
The chain of command is not complacent; it is doing its best. You need someone who is there to say, “Right, I am going to challenge you,” which the commissioner must do, but equally to say, “I am going to support you, because we are all collectively on a journey to make this part of society and employment better.”
Lt General Sir Nicholas Pope: Can I add a little codicil to that?
Graeme Downie
Q
Lt General Sir Nicholas Pope: I will start with the codicil, if I may, which goes back to my beaten record about context. The suicide report is a good example. The report on suicide in the Armed Forces community said that in every sector with young men aged 18 to 24, the Armed Forces were better than UK society. The headline in the paper at the weekend said that young men in the Army aged 18 to 24 are at equal risk as the population to suicide or damage. The commissioner needs the ability to say what it is about the service that is a prophylactic activity. One is too many, but by golly we are doing well.
The Chair
May I interrupt you? We are running out of time, so will the Minister ask his questions?
Luke Pollard
Q
Wearing the hats from your previous roles, can I ask you to think about the unannounced visits power in the Bill? One of the bits that I feel strongly about is the ability of the commissioner to visit any base in the UK unannounced to look at general service-welfare matters. First, could you talk us through the effect that the commissioner having that power would have on how our military would address general service welfare matters in the broadest sense? Whether used or not, it would be a power that the commissioner had in their toolbox.
Lt General Sir Nicholas Pope: There are probably two aspects to that. First, if this works well, units should embrace the perception of challenge that comes with an unannounced visit. If you are a unit that is functioning effectively, you should have no worries about it. If you are a unit that is hiding cultural issues, good—you are going to be found out.
If it is an issue about systemic stuff like housing or accommodation, it will be well known. Your ability in the chain of command to address some of these issues is rather circumscribed, but I hope you would welcome the chance to give evidence to the commissioner and say, “Look at the mould on the walls. Look at the living accommodation. It is provided by the Defence Infrastructure Organisation, which is outwith my control. Please help me to try to make improvements for the young men and women under my command.” I hope people would start to welcome it. The optics of the commissioner coming out to do his or her job are fantastic and will act as a real catalyst for change.
Lt General Sir Andrew Gregory: I would support that entirely. If you have something to hide, you should be worried. If you do not have something to hide, you should be proud of your unit, garrison or base and welcome the commissioner coming to look at some of the wider issues.
Luke Pollard
Q
Lt General Sir Andrew Gregory: In SSAFA, we have deliberately chosen not to be a lobbying organisation. We work with officials in the Office for Veterans’ Affairs, in the Ministry of Defence. We feel that is our best role. Other charities do a great job in that space—in particular, I commend the Royal British Legion and Fighting With Pride, of which I am proud to be the patron. There is a debate on Thursday about some of these issues.
We will not change. Thank you for the compliments about SSAFA. We will continue to work to support serving personnel, veterans and their families. We will not change our position.
Lt General Sir Nicholas Pope: We in the sector have two or three ways of interacting with the commissioner. First, during the generation of a report, I suspect that we as a community will build up a relationship with the commissioner, particularly through the serving UK personnel cluster, so charities with an interest in the serving communities will engage in that fashion.
When a report is laid before Parliament, and when we have looked at the annual covenant report, the Committees tend to come back to the charities for a session such as this to ask our opinions. I suspect that that kind of opportunity will again be of use, particularly with charities that have skin in the game and focus on the serving community.
The Chair
I think we have to stop it there; otherwise, we will not finish on time. Thank you very much for your evidence, gentlemen.
Employment Rights Bill (Tenth sitting)
Tuesday 10th December 2024
(1 month ago)
Public Bill CommitteesRead Full debate Employment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 December 2024 - (10 Dec 2024)
The Committee divided: - Ayes: 4 / Noes: 14 - Question accordingly negatived.
The Chair
I remind the Committee that with this we are considering the following:
Amendment 130, in clause 16, page 30, line 24, at end insert—
“(1D) In exercising their duties under this section, an employer must have regard to protecting freedom of expression.
(1E) In subsection (1D), ‘freedom of expression’ is defined in accordance with Schedule 1 of the Human Rights Act 1998.”
This amendment would require employers to have regard to protecting freedom of expression when exercising the Bill’s duty not to permit harassment of their employees.
Amendment 131, in clause 16, page 30, line 24, at end insert—
“(1D) Subsection (1A) shall not apply to—
(a) higher education institutions, or
(b) providers of─
(i) hotels and similar accommodation;
(ii) holiday and other short-stay accommodation;
(iii) restaurants and mobile food service activities; and
(iv) beverage serving activities.”
This amendment would exclude higher education institutions and hospitality providers from the Bill’s duties for employers not to permit harassment of their employees.
Clauses 16 and 17 stand part.
New clause 29—Employer duties on harassment: impact assessment—
“(1) The Secretary of State must carry out an assessment of the likely impact of sections 15 to 18 of this Act on employers.
(2) The assessment must—
(a) report on the extent to which the prevalence of third-party harassment makes the case for the measures in sections 15 to 18;
(b) include an assessment of the impact of sections 15 to 18 on free speech;
(c) include an assessment of the likely costs to employers of sections 15 to 18;
(d) include—
(i) an assessment of which occupations might be at particular risk of third-party harassment through no fault of the employer, and
(ii) proposals for mitigations that can be put in place for employers employing people in such occupations.
(3) The Secretary of State must lay a report setting out the findings of the assessment before each House of Parliament.”
This new clause requires the Secretary of State to assess the impact of the provisions of Clauses 15 to 18.
New clause 39—Duty to prevent violence and harassment in the workplace—
“(1) Section 2 of the Health and Safety at Work etc. Act 1974 is amended as follows.
(2) After subsection (2)(e) insert—
‘(f) the adoption of proactive and preventative measures to protect all persons working in their workplace from violence and harassment, including—
(i) gender-based violence;
(ii) sexual harassment;
(iii) psychological and emotional abuse;
(iv) physical and sexual abuse;
(v) stalking and harassment, including online harassment;
(vi) threats of violence.’
(3) After subsection (3) insert—
‘(3A) It shall be the duty of every employer to prepare, and as often as may be appropriate revise, an assessment to identify potential risks of violence and harassment in the workplace and implement policies and procedures to eliminate these risks so far as is reasonably practicable.
(3B) It shall be the duty of every employer to provide training to all employees on recognising and preventing violence and harassment in the workplace, with a focus on gender-responsive approaches.
(3C) In subsection (3B) a “gender-responsive approach” means taking into account the various needs, interests, and experiences of people of different gender identities, including women and girls, when designing and implementing policies and procedures.
(3D) In this section, “persons working in the workplace” includes—
(a) employees;
(b) full-time, part-time, and temporary workers; and
(c) interns and apprentices.
(3E) In subsection (2)(f) and subsections (3A) and (3B), a reference to the workplace includes remote and hybrid work environments.’”
This new clause will amend the Health and Safety at Work etc. Act 1974 to place a duty on employers to protect all those working in their workplace from gender-based violence and harassment.
New clause 40—Expanded duties of the Health and Safety Executive—
“In the Health and Safety at Work etc. Act 1974, after section 11 (functions of the Executive) insert—
‘11ZA Duties of the Executive: health and safety framework on violence and harassment
(1) It shall be the duty of the Executive to develop, publish and as often as may be appropriate revise a health and safety framework on violence and harassment in the workplace.
(2) This framework shall include specific provisions relating to—
(a) the prevention of gender-based violence and harassment of those in the workplace including the prevention of physical, emotional, and psychological abuse;
(b) the duty of employers to create safe and inclusive workplaces and the preventative measures they must adopt; and
(c) the use of monitoring and enforcement mechanisms to ensure compliance with the duty of the employer in relation to violence and harassment (see section 2(2)(f)).
(3) The Executive shall work with other relevant bodies, including the Equality and Human Rights Commission and law enforcement agencies, to develop and revise this framework.
11ZB Duties of the Executive: guidance for employers
The Executive shall, in consultation with such other persons as it considers to be relevant, issue guidance for employers about the protection of those facing violence and harassment on the basis of gender in the workplace by—
(a) implementing workplace policies to prevent violence and harassment;
(b) establishing confidential reporting mechanisms to allow victims to report incidents;
(c) conducting risk assessments and ensuring compliance with the health and safety framework (see section 11ZA);
(d) reporting and addressing incidents of violence and harassment; and
(e) supporting victims of violence and harassment, including making accommodations in the workplace to support such victims.’”
This new clause will create a duty on the Health and Safety Executive to develop a health and safety framework on violence and harassment and to issue guidance for employers about the protection of those facing violence and harassment on the basis of gender in the workplace.
Amendment 135, in clause 118, page 105, line 20, at end insert—
“(3A) But no regulations under subsection (3) may be made to bring into force sections 15 to 18 of this Act until the findings set out in the report under section [employer duties on harassment: impact assessment] have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown.”
This amendment is linked to NC29.
Alex McIntyre (Gloucester) (Lab)
It is a pleasure to serve under your chairship this afternoon, Mr Stringer. I welcome the Bill, and this clause is a really important part of it. We are introducing the clause to improve the workplace treatment of individuals who suffer harassment. Before the lunch break, we heard an interesting interpretation of the legislation, but sadly, it was not correct in all places, and I would like to go through some points made by the shadow Minister, the hon. Member for Mid Buckinghamshire. As part of that, I will reflect from the beginning that the Fawcett Society has found that 40% of women have experienced workplace harassment, and women who are marginalised for other reasons, such as race or disability, face an increased risk of and different forms of harassment, including sexual harassment in the workplace.
This clause is a vital part of the legislation, because we know—we heard this in evidence a few weeks ago—that harassment does not always come from a fellow employee or an employer. Quite often, it can come from third parties, particularly in some of the sectors that the Opposition seek to exclude with their amendment. We heard particularly from UKHospitality about the impact of third-party harassment in the hospitality sector, and I have shared my experience of being harassed in the workplace while working in the hospitality sector as a 15-year-old. This is really important. My example was only one—frankly, there will be thousands of examples—and I know that my experience as a young man will be very different from the experiences of women working in hospitality up and down the country.
As we enter the Christmas party season, we will see a massive increase in workplace harassment—not just sexual harassment, but other forms of harassment. This is perhaps where we got into some confusion this morning. There are different types of harassment, and the type that we talked about in particular this morning was harassment under the Equality Act 2010. That has a very specific definition, which will not be changed by the proposed legislation, despite what the shadow Minister said. A different test will be applied to that definition in terms of when it might come into play, but the definition of harassment will not change. Therefore, for something to be harassment, it must be unwanted conduct relating to somebody’s protected characteristic and create an offensive environment, or one that degrades, humiliates or embarrasses individuals.
The hon. Member for West Suffolk tried to introduce a few examples around the free speech argument, but those did not support the argument that he tried to make. The Independent Press Standards Organisation found that there was no harassment in the Gareth Roberts case. It found that there was a lower form of conduct in relation to clause 12(i) of the IPSO code of practice, but there was no harassment.
Nick Timothy
I have absolutely no intention of correcting the record, because the record will be correct. I think the hon. Member misunderstands my point, which was not to say that in that case the conduct was an example of harassment; I am fully aware that the IPSO ruling said that it was not harassment. My point was about the laws of unintended consequences. When IPSO was established, I do not think anybody thought that there would be cases such as this, where a journalist would be penalised by IPSO for saying something that IPSO acknowledges was a statement of fact on the grounds that it may be offensive.
Alex McIntyre
I thank the hon. Member for his intervention, but the fact is that in these circumstances, the definition in the Equality Act is clear. There is already an abundance of case law on what constitutes harassment, particularly in relation to the Equality Act, the different types of protected characteristics and the actions required to reach that threshold. The threshold is not just that there is unwanted conduct or that it relates to a protected characteristic; it is about the environment that is created. There is an abundance of case law on that point.
The second example was about my right hon. Friend the Health Secretary, but again it missed the point entirely. We all enjoy comedy, which is a staple of our culture. Jokes are fine unless they start to become unwanted and are aimed at protected characteristics, such as someone’s gender, gender identity or sexual orientation. The other point that that example missed—we spoke at length about comedy clubs, and I hate to raise them again—is that the Bill is not about punters at a comedy club being offended by what they hear on stage; it is about protecting the employees. For somebody to trigger this legislation, the comedian would have to make a joke directed at one of the employee’s protected characteristics. If the club employs a member of bar staff who has a protected characteristic and the comedian on stage consistently and absolutely humiliates them because of it, one might expect the employer to take some reasonable steps, such as not booking that comedian again, so that the individual is not consistently humiliated on a regular basis because of one of their protected characteristics. That is what the Bill is intended to do.
We are not saying that employers are required to stop all harassment in the workplace; that would not be possible. As the shadow Minister rightly said, there will be cases when somebody comes into a bar during a Christmas party, inebriated, having enjoyed far too much free wine, and says something that is offensive and horrifically wrong, and with which we all across this House would disagree. The Bill requires employers to have policies in place to deal with that. We cannot legislate for the unknown. We cannot legislate for serious circumstances that we cannot predict or for every individual who walks into a bar, but we can have policies in place to deal with those things.
Sir Ashley Fox (Bridgwater) (Con)
Surely one of the unintended consequences of this proposal is that small businesses risk lawsuits from employees who perceive that they have been harassed, perhaps by a third party. The inevitable lawsuit then follows, and it is not so much the offence for the employer that is the problem; it is the legal fees, the time, the effort and the distraction. What I find most concerning about this proposal is that the Minister says that the impact assessment will follow. Our amendment says that this provision should not be introduced before an impact assessment has been carried out. Does the hon. Member for Gloucester not think, given the doubt and uncertainties about the effect of this Bill, that it would be more sensible to have the impact assessment first before exposing small businesses to unintended consequences?
Alex McIntyre
If the hon. Gentleman is inviting me to agree that there should be a two-tier system, whereby employees at small businesses are entitled to be harassed by third parties but employees at larger businesses are not, I have to disagree.
Alex McIntyre
Well, a great deal of things are protected under law. Employees who work for businesses of all sizes are entitled to protection from harassment under the law, and I do not think that we in this House disagree with that principle.
I come back to the reasonableness test. A small business can have a claim brought against it for a whole host of reasons under employment legislation. Claims can be brought for discrimination or for whistleblowing, and that comes at a cost to employers. There is a separate discussion to be had about how to ensure that employment tribunals work for businesses of all sizes, but the point that we are debating is about harassment in the workplace under the Equality Act.
One of the key points that we must keep coming back to is that it does not really matter to the victim whether they are harassed by a third party, a fellow employee or their employer; the impact on them is exactly the same. Disregarding people who work for small businesses and not giving them the protections that are afforded to everybody else is just not acceptable.
Sir Ashley Fox
It clearly does make a great deal of difference to both the employee and the employer where the harassment comes from. If an employer is harassing an employee, they are directly responsible for those actions and they should rightly be held accountable. If the harassment comes from a third party—the drunk person who comes into the pub or into A&E—there is surely a complete difference. The hon. Member is asking for the employer to be responsible for that unless they take all reasonable steps. This clause then exposes that businessman—that small employer—to legal action on something he cannot control.
Alex McIntyre
I thank the hon. Member for setting out the difference. The difference is the “all reasonable steps” test. If an employer harasses someone in the workplace, there is no “all reasonable steps” test that they can take; for a third party, there is.
In tribunals, “reasonable” takes into account, for example, the circumstances of the case, the size of the business, the sector it operates in, the policies it has in place and the training it provides for employees. These points of reasonableness are taken into consideration in tribunals every single day in other areas. For example, there is already a test in section 109 of the Equality Act that deals with a defence that employers have. They cannot be held liable for the actions of their employees if they have taken all reasonable steps to train their employees to avoid issues such as discrimination in the workplace.
Mr Peter Bedford (Mid Leicestershire) (Con)
The hon. Member mentions reasonable steps being taken by small businesses. Does he accept that an impact assessment on the consequences of bringing in this kind of legislation for these businesses should be conducted up front, so that businesses can at least understand how much time and money it will cost them and how much additional bureaucracy it will create for them?
Alex McIntyre
The Minister will answer about what the Government are doing on impact assessments, but the impact on small businesses is that they have to think a little bit about harassment in their industry. That will vary from business to business. Some small businesses are not public facing. The impact in a small café will be different from that in a small office, because of interactions with the general public, but I do not think it is unreasonable to ask a small café or a small bar to think about what they can put in place to deal with someone coming in and abusing or harassing staff.
Again, if somebody comes in and is abusive, these provisions will not necessarily be triggered, because the abuse and unwanted conduct has to be related to their protected characteristic. I know from closing up a number of Christmas parties when I worked in hospitality that people get a bit out of hand. That was not harassment under the Equality Act; it was because people were drunk and disorderly, which is a separate antisocial behaviour issue. There are different channels to deal with that. We are talking here about specific cases where there is abuse of people because of a protected characteristic. Those are very narrow circumstances where people have to think about what kind of policies they have in place.
The hon. Member for Chippenham spoke about how MPs would not operate in similar circumstances. We would not, for example, be alone with individuals in a private room. It is appropriate to have policies in place where we try to think about some of the circumstances.
This proposal does not use the word “requires”, and it does not say that every single step has to be taken—it mentions “all reasonable steps”. That is part of the tribunal, and there will be guidance to set out some examples of things that employers can do to take reasonable steps. It is really important that we do not create a two-tier system where we say that small employers do not have to deal with these issues, because actually it is often in small and medium-sized enterprises that some of this bad behaviour takes place.
I gave an example last week. I went to my boss and said, “I have just been groped by a midwife and was told, ‘I’m going to show you a thing or two’”. When I said that I was only 15 years old, my boss said I should enjoy it: “You are a bloke. Go back in there. Toughen up.” That is not acceptable. Actually, a reasonable step in those circumstances would be the manager saying, “Alex, why don’t you go and work in another part of the business for the rest of the week? Work on the bar this evening, rather than in the function.” It is about having a policy that deals with those kinds of incidents in the workplace. There are different steps that businesses can take.
Let me move on to the argument around free speech, which the Minister talked about at great length. I have set out how some of his arguments do not apply in this instance as this provision is about specific incidents of harassment under the Equality Act. A point that the shadow Minister might have raised that would perhaps have been more legitimate is cases where two protected characteristics are in play. A lot of the free speech cases that have made the press have engaged with two. For example, in some cases someone has expressed their religion, but that might be opposed to someone expressing their sexual orientation; or people have expressed protected views on gender-critical theory, but others have a protected characteristic of a different gender identity.
Those are difficult cases, which can go all the way to the Supreme Court. What is important to note, however—this is where the shadow Minister could have gone, to give us a stronger discussion—is that if we are at the stage where the Supreme Court has to give an opinion on these things, no tribunal in the land will say, “Well, an employer should reasonably have seen that and therefore taken reasonable steps to avoid such scenarios happening.” No, this is the exact example of where tribunals will take “reasonable steps” and say, “What is reasonable in these circumstances for these employers?”
Having represented the NHS for a number of years as an employment lawyer, I should point out that the A&E example that was given unfortunately did not make any sense. First, the NHS operates a zero-tolerance approach. In several instances, policies are in place where individuals can withdraw their support for someone if they are being abused in the workplace. Scenarios and planning are in place to make sure that everyone is looked after, without people being subjected to harassment in the workplace.
To sum up, “all reasonable steps” does not mean that an employer has a duty to stop something altogether. We have to be sensible. There is no point scaremongering so that individuals think this will have a broader impact, closing all comedy clubs and stopping people making jokes in the workplace. That is not the case. This is about specific examples of harassment under the Equality Act—that has to be unwanted conduct related to a protected characteristic, creating an offensive, hostile, degrading or humiliating environment. These are specific examples. It is important that we extend this to third parties, given all the evidence we have heard, and I encourage everyone in the Committee to support the legislation.
Steve Darling (Torbay) (LD)
It is a privilege to serve under you, Mr Stringer. Broadly, I welcome—[Interruption.]
Steve Darling
My reflection on the Opposition amendments is that on this occasion my colleagues may be in danger of throwing the champagne out with the cork. The reality is that the challenges for people who face harassment in the workplace are very serious. As Government Members have highlighted, the comedy club example is relatively bogus, as the Bill would actually affect protection for employees rather than for punters.
On Friday, I am due to visit Torquay Girls’ grammar school in my constituency. I invite the hon. Member for Mid Buckinghamshire to join me and hear directly from young women there about their experiences in the workplace. Strangely enough, apart from universities, the sectors that Opposition amendment 131 would exclude from clause 16 are almost all in the hospitality industry, in which those young women would be working. When I visited the school some time ago, one student shared with me how they dreaded a certain day of the week because they knew that a certain individual would be in, who would make them feel physically sick because of their approach to them, and the sexual harassment that occurred within the workplace.
Greg Smith (Mid Buckinghamshire) (Con)
As much as I would love to join the hon. Gentleman in Torbay and it sounds like a delightful day out, I have a pretty full diary. I was not making a point against trying to stop sexual harassment; I was very clear that we need to use every power, every law and every mechanism available to clamp down hard on anybody who engages in the sexual harassment of anybody. My point was about the unintended consequences, including to free speech. By no definition, in my world, does sexual harassment count as free speech; that is something totally different. I invite the hon. Gentleman to reflect on my arguments, which were not in any way, shape or form about trying to remove powers to deal with sexual harassment.
Steve Darling
I am afraid that the hon. Gentleman and I will have to agree to differ on that point. I am sure that the Government’s proposals will support those who are facing sexual harassment from third parties. As colleagues on the Committee have highlighted, the reality is that the legislation is about taking all reasonable steps. It is not saying that when somebody walks in and abuses an employee it is an immediate red line. The reality is that the employer needs to have taken all reasonable steps. I am very comfortable with the proposals. The Liberal Democrats will vote against the amendment.
Jon Pearce (High Peak) (Lab)
I promise to keep my comments brief. Clause 15 will amend section 40A of the Equality Act 2010 to provide that an employer must take all reasonable steps to prevent the sexual harassment of employees in the course of their employment.
The concept of “all reasonable steps” has been part of the Equality Act 2010 since its inception, as my hon. Friend the Member for Gloucester referred to. Section 109 of the Act provides a defence for the employer in respect of the discriminatory acts of the employee. It is about vicarious liability: in effect, if the employer can show that it has taken all reasonable steps, it will not be liable for the acts of the employee.
Exactly the same “all reasonable steps” test is being applied here. In my experience as an employment lawyer, employment tribunals are very well-versed in it and have a huge amount of experience with it. It would be a matter of fact for them to determine. It is important to understand that it will be, and always has been, a proportionate test that looks at the size and resources of the employer and the context of the employment situation.
There will inevitably be guidance from the Equality and Human Rights Commission on how employers should take all reasonable steps and what those steps might be, but it will be fact-specific. It may well include steps to mitigate, such as some form of risk assessment, policies, training or means by which an employee who is at risk of or has suffered third-party harassment can report it and action can be taken. All those things are fairly standard. They happen already as a result of the vicarious liability element of the Equality Act; the clause would just extend them to third parties.
All third-party harassment cases and issues arise from a case called Burton v. De Vere Hotels, in which Bernard Manning made racist comments to a waitress at a De Vere hotel and the waitress brought a claim. Both the original employment tribunal and the employment appeal tribunal held that it was harassment, but it was overturned on appeal because the right did not extend to protection from third-party harassment. That was the start of the process of trying to protect employees in such circumstances.
The employment tribunal and the employment appeal tribunal said that the employer knew what was likely to be in Bernard Manning’s act—we can all imagine what might be in Bernard Manning’s act—but did not take the necessary steps to protect the employee in the circumstances. These are exactly the scenarios that the shadow Minister raised, in which we would expect the employer to consider very carefully who was staffing the event, what policies should be in place and how any issues should be managed—including, for example, by warning Bernard Manning that he might not wish to make racist remarks to members of staff.
When we talk about risk assessments, we must remember that the biggest risk is that third-party harassment will continue. That is the most fundamental issue. I emphasise a point that the shadow Minister will find relevant: a 2023 Buckinghamshire healthcare NHS trust staff survey showed that there had been nearly 400 incidents of sexual harassment by third parties. Many of those incidents will have affected his constituents. It is vital that we make this legislation, because employee representatives at the trust have said that one thing that would help is a protection against third-party harassment. If we do not include this provision in the Bill, we will continue to leave his constituents exposed. I encourage the shadow Minister, who I genuinely believe cares about harassment, seriously to reconsider his opposition to the clause.
Chris Law (Dundee Central) (SNP)
It is a pleasure to see you in the Chair, Mr Stringer. I rise to speak in support of new clauses 39 and 40, which stand in the name of the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts).
The new clauses follow the publication of the Health and Safety at Work etc. Act 1974 (Amendment) Bill, a presentation Bill that the right hon. Member introduced in co-operation with the Suzy Lamplugh Trust and Rights of Women. They would address a critical gap in workplace safety by mandating proactive employer responsibilities to prevent all forms of violence and harassment, including gender-based violence.
The Health and Safety Executive does not currently accept domestic abuse within its remit. That might come as a surprise to some Members, but the reason is that domestic abuse and other forms of gender-based violence are not explicitly covered in the 1974 Act, even though the Domestic Abuse Act 2021 underlines the fact that employers owe their employees a duty of care that covers protection from domestic abuse.
Discrimination law inadequately protects workers from gender-based violence beyond sexual harassment, especially when such violence is not physical. The UK’s ratification in 2022 of the International Labour Organisation’s convention 190 means that the UK should take a comprehensive approach that addresses all forms and threats of gender-based violence in the workplace, psychological and emotional abuse, physical abuse and stalking, including with respect to people commuting to and from the workplace.
New clauses 39 and 40 would address those issues. They would go further than the Bill’s provisions on protection from harassment, because new clause 39 would introduce clear, actionable duties for employers to safeguard employees from gender-based harm through risk assessments, policy development and training. New clause 40 would mandate that the Health and Safety Executive create an enforceable framework that holds employers accountable and fosters inclusive, violence-free work environments for workers.
I understand that this may have been the Minister’s first opportunity to hear these points. I hope he will consider them, perhaps on Report.
Alison Hume (Scarborough and Whitby) (Lab)
Prior to entering this place, I spent 25 years working in the television production industry, both as a writer and as a producer. I co-own an independent production company—I refer the Committee to my declaration of interests—that has made children’s drama for the BBC, including the hit science fiction series “The Sparticle Mystery”, in which a cut-price British version of the large hadron collider at CERN sends all the adults into a parallel universe, a situation with which I have had some sympathy since arriving as a new Member. I mention that not to burnish my CV in the hope of a writing credit on the next James Bond film, but to make a point about clause 15.
The television industry is full of creative, inventive and hard-working people who wish to make the most of their talents and contribute to making the programmes with which the UK is a world leader and for which it is rightly admired. Unfortunately, the nature of a fast-moving and pressurised industry based on freelancers is that it is left open to abusive practices. Freelancers move between productions, often with no HR departments, with no formal recruitment processes and with a lack of the checks and balances that we all want to see in good workplaces. It is also an industry in which the talent is protected, which has led to a culture of exceptionalism in which appalling behaviour has been allowed to continue for years.
This is not just about sexual harassment and inappropriate behaviour. It is also about power, or rather the imbalance of it. When I was in the green room at the start of a production, someone came up to me—I was on my own with him—and put his arm around me. He said, “Make me a cup of coffee, love.” I said, “Make your own, and then start looking for a new job,” because I was the executive producer on the show. Unfortunately, far too many women endure sexually explicit comments, inappropriate touching and offensive jokes as part of their everyday experience at work.
A few years ago, a survey found that 39% of women working in film and television had been subjected to sexual harassment at work; freelancers, members of the LGBTQ+ community and disabled people are also most at risk. Women are too scared to speak out: they fear that if they do, they will simply not work in the industry again. It is hardly surprising that last year two thirds of women aged between 25 and 59 thought about leaving the industry.
I say to the shadow Minister that clauses 15 to 17 will mean that companies have to proactively take all reasonable steps to close the vacuum of responsibility that currently exists between senior and middle management. They will need to ensure that staff have the training to call out challenging behaviour, support colleagues and prevent future abuse rather than focusing solely on damage limitation, as sadly we have seen time and again.
Anneliese Midgley (Knowsley) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer. I refer the Committee to my entry in the Register of Members’ Financial Interests and my membership of the GMB and Unite.
I want to bring this debate into reality—after all, the Bill seeks to affect real people’s lives and make their life at work better—and talk about my personal experience as a young woman. I was working a couple of jobs to get by, one of them as a silver service waitress on a zero-hours contract and minimum wage. The employer hired only young women, and we worked mostly at high-profile sporting events. To be sexually harassed was seen as normal. We were told to expect it, and we were told that we were expected to accept it—it was part of the job. The employer would also over-hire, so too many of us would turn up and many of us would be sent away, because it was decided that our face or figure did not fit the event that day. Those of us who got to the service were groped, propositioned, reprimanded if we talked back, and threatened with the sack. Travelling home from work together, we would feel completely humiliated and degraded, and we would exchange tales of what had happened to us that day. We took solace in the fact that we were not alone.
That behaviour is not something we should accept, but we know it still happens. That is why this part of the Bill is so important. No one should go to work dreading being harassed. As my hon. Friend the Member for Gloucester pointed out, the Fawcett Society has said that
“40% of women experience sexual harassment throughout their career.”
The Bill is intended to prevent workers from being subject to that vile behaviour, and it will ensure that people can get on with their jobs without being filled with fear, dread or humiliation, or feeling unsafe and degraded.
Michael Wheeler (Worsley and Eccles) (Lab)
I did so this morning, but I draw attention to my entry in the Register of Members’ Financial Interests as a member of the Union of Shop, Distributive and Allied Workers, as it pertains to some what I will say.
First, I want to take us right back to the beginning of the debate, if we can remember that long ago. The shadow Minister referenced the Regulatory Policy Committee’s assessment, in particular on the need for clauses 15 and 16. I strongly welcome what the Bill is doing in this space, in particular on third-party harassment. I do not profess to be an expert in the procedures and mechanisms of the RPC, but if we look broadly at society and at surveys and analysis of the state of work and what workers go through in this country, I think there is ample proper evidence of the need for these clauses.
I draw the Committee’s attention to this year’s “Freedom from Fear” survey released by USDAW, which surveyed retail workers in this country. It is an annual survey and the figures were released as part of Respect for Shopworkers Week in November. It featured responses from 4,000 participants, and the interim results showed that 69% of respondents—69% of a sample of 4,000 retail workers—had been verbally abused while at work, not by colleagues but by customers: a third party. Forty-five per cent had been threatened at work while simply going about their job. That is just one survey of one sample of one sector in our country that demonstrates the need for clauses 15 and 16.
On Opposition amendment 131, I must admit that I was slightly confused, but I was listening closely and I gathered that its thrust was primarily around free speech. We have talked a lot about unintended consequences in this Committee. I suggest that, whether it is intended or unintended, the consequence of the amendment, which would remove two entire sectors from the scope of the Bill, would be far too broad given the protections that are needed. That is particularly the case in the hospitality sector, and we have heard my hon Friends’ experiences of that sector. I question whether the amendment is at all proportionate, considering the overall aims of the Bill, as well as the experiences and evidence that we have heard from my hon. Friends and witnesses.
Sir Ashley Fox
Does the hon. Gentleman agree that the fact that the Government have not undertaken an impact assessment on these measures makes it very difficult to know whether the amendment is proportionate, and that in fact our amendment 135, which states that these provisions should not take effect until after the impact assessment has taken place, is an entirely sensible proposition?
If I may make a second point, Mr Stringer, on the issue of harassment at higher and further education colleges, one can quite imagine a situation where students put forward a point of view—perhaps on gender critical subjects, on which a lecturer or employee has particular strong views and students have other strong views—that could easily result in a charge of harassment by a third party. That is not what should be happening at our higher education establishments. We should encourage free speech. We should encourage students to express themselves forcefully but respectfully, and we should not see that resulting in what I would regard as spurious legal cases.
Michael Wheeler
As I said, I listened closely to the points that Opposition Members made. Like my hon. Friend the Member for Gloucester, I will allow the Minister to come back on the specifics of impact assessments. The point I am trying to make is that we are all looking at the same Bill and the same information. We might desire more information at this point, but we are exercising our judgment. Regardless of the specifics of any impact assessment, I think it is patently obvious that it is a disproportionate response to the concerns raised by Opposition Members to exclude entire sectors from the protections that we are discussing.
On hospitality, we heard in oral evidence from the trade union Unite—of which I am not a member—that it had surveyed its hospitality workers and found that 56% of them had considered leaving the sector entirely as a result of the sexual harassment they were experiencing. We have heard throughout the debate about the desire to support businesses. We heard from UKHospitality about struggles with retention and how measures in the Bill, outside of this one, will aid with that. I hope we can all agree that, beyond edge cases that might raise concerns, the significant protections for workers that we are discussing would be not only good for those workers, but fundamentally good for business.
The Minister for Equalities (Dame Nia Griffith)
We have had a full and thorough debate, and I thank my hon. Friends—in particular my learned hon. Friends the Members for High Peak and for Gloucester—for making many valuable arguments, and everybody for contributing their personal experiences.
I remind the Committee that clause 15 requires employers to take all reasonable steps to prevent sexual harassment of their employees. Including “all” emphasises the thorough approach that employers must take; at the same time, the requirement remains limited to steps that are “reasonable”. The concept of “all reasonable steps” has the advantage of being well established and familiar to employers and employment tribunals. That is a really important point, because the clause clarifies and makes things easier and more straightforward, rather than complicated and burdensome, which is the implication of some of the amendments.
I thank the hon. Member for Dundee Central for speaking to new clauses 39 and 40 tabled by the right hon. Member for Dwyfor Meirionnydd. I pay tribute to the right hon. Lady for her work on violence against women and on stalking, and indeed to the work of her predecessor on stalking. I reassure the hon. Gentleman and the right hon. Lady that the Government entirely support the importance of ensuring that workers, including women and girls, are protected from workplace violence and harassment. There is already in place a strong and appropriate regulatory regime that provides protection to workers from violence and harassment. If the hon. Gentleman so desires, I will ask the Health and Safety Executive to write to him on that point.
Dame Nia Griffith
I will ensure that that happens.
The hon. Member for Mid Buckinghamshire questioned the necessity of this new legislation, so let me explain again. Often, harassment legislation, including the criminal law, allows an individual to take legal action against a perpetrator. However, that does not go far enough in tackling the wider issues and root causes. The burden of holding perpetrators to account and driving change is too great to be shouldered purely by employees who have experienced harassment. This measure therefore sends a clear signal to all employers that they must take all reasonable steps to prevent sexual harassment.
I think the hon. Member is also concerned that the clauses that we are discussing risk being unworkable or burdensome. It is important to remember that they simply require employers to do what is reasonable for their specific circumstances. That means that employers will not be penalised for failing to take unworkable or impractical steps. The clauses will not require employers to foresee the wholly unforeseeable or to police all customers’ private conversations. On one hand, the hon. Member acknowledges that good businesses already accept the need to take all reasonable steps to prevent sexual harassment, but on the other, he wants to make exceptions for a large number of businesses.
Greg Smith
I would be very happy to discuss with the Minister and her colleagues in Government the specific points I made about sectors such as higher education and concerns about the no-platforming of perfectly moderate speakers such as Tony Blair. Would she be willing to engage in that dialogue on safeguards in higher education around no-platforming, so that free speech can be protected?
Dame Nia Griffith
Free speech is absolutely a cornerstone of British values, but I remind the hon. Member that harassment is not free speech. They are two different things. The Bill concerns employer liability for workplace harassment, which is a serious issue, not to be underplayed. As with all cases of harassment under the Equality Act 2010, courts and tribunals will continue to be required to balance rights on the facts of a particular case, including the right to freedom of expression. Harassment is a serious matter that involves being subjected to unwanted conduct of various types that, as set out in the Equality Act,
“has the purpose or effect of violating”
the employee’s
“dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment”
for the employee. Those who seek to harass people at work will not be tolerated.
The hon. Member raised a number of potential scenarios relating to potentially offensive or upsetting speech. It is important to note that in employment tribunal claims for harassment, if certain conduct has a humiliating or degrading effect on the recipient but that was not its intended purpose, the tribunal must consider whether it was reasonable for the conduct to have had that effect. It is not a purely subjective test based on the view of the recipient. The reasonableness and the facts of the individual situation must be considered. On that note, I ask the Committee to accept the clauses unamended.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16
Harassment by third parties
Sarah Gibson (Chippenham) (LD)
I beg to move amendment 163, in clause 18, page 31, line 24, at end insert—
“(4) In section 14K, in subsection (1), after paragraph (cb) insert—
‘(cc) works or worked as a self-employed contractor;
(cd) works or worked as a sub-postmaster;
(ce) is member of the judiciary, non-executive director or a trustee, including a pension trustee;
(cf) is a trade union representatives;
(cg) has applied for a vacant role as an external applicant and makes a protected disclosure about information obtained during the application process;’”.
This amendment extends protections for whistleblowers to other categories.
The Chair
With this it will be convenient to discuss new clause 41—Whistleblowers: protected disclosures—
“In Part X of the Employment Rights Act 1996, for section 103A, substitute―
‘Protected disclosure.
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or one of the reasons) for the dismissal is that the employee made a protected disclosure.’”
This new clause would slightly extend the circumstances in which an employee is considered as unfairly dismissed after making a protected disclosure.
Sarah Gibson
It is a pleasure to serve under your chairmanship, Mr Stringer. Before I make my case, I must make a small correction: the reference to section 14K in the text of amendment 163 should be to section 43K. My apologies for the error.
The Liberal Democrats tabled amendment 163 because although we strongly welcome the Bill’s proposals on whistleblowing, we do not feel that it goes far enough to support all workers: it is not extended to additional workers. We feel that whistleblowing protections should be extended to all those in the workplace who may see wrongdoing and may suffer for raising public interests and concerns. After our long debate about harassment, we must all agree that harassment can often be brought to light only by whistleblowers, so this part of the legislation is incredibly important. As the definition of “worker” in section 43K of the Employment Rights Act 1996 is already slightly different for whistleblowers than for other areas of employment law, there is a sound public policy reason to extend it even further.
In our diverse and complex labour market, many people who wish to blow the whistle do not necessarily qualify as a worker and are therefore not protected either by the existing legislation or under the Bill. The Secretary of State already has the power to make these changes through secondary legislation, but until the Government act on that, we are pushing for Parliament to extend protections to workers such as contractors.
In the modern economy, the boundaries between a self-employed contractor and a worker have never been more blurred. Many people classified as self-employed workers are inside a company, yet do not enjoy whistleblowing rights. That is true in my constituency of Chippenham, where a large number of people working in the care industry are technically subcontracted to the employer for whom they are working. In a large part of Corsham, many people work for the Government in one form or another, through the military or Ministry of Defence, but they are often either self-employed or subcontracted and therefore not entitled to these protections.
This issue is part of a wider problem with our modern economy, particularly the gig economy. It is welcome that the Government have made fighting the insecurities created by bogus self-employment a core plank of their employment reforms, but adopting this amendment would immediately plug the gap in workplace rights and protections for those who are self-employed.
I want to highlight a few cases. If the sub-postmasters, who were effectively contractors, had been afforded whistleblower rights, they might have been able to raise their concerns about the Horizon IT system much faster, and some of the issues would have been resolved faster.
Non-executives and trustees are subject to duties and liabilities under laws such as the Companies Act 2006 and the Trustee Act 2000, but they are not covered by whistleblower legal protections. Not only is blowing the whistle without protection a risk to someone’s employment, but for trustees of charities it could cause reputational damage, yet the law on that is currently unclear.
I do not need to remind Labour Members that the role of trade unions in the workplace is recognised in the Bill. A whistleblower is likely to go to their trade union representative for advice on whistleblowing, but if I have understood correctly, when representatives raise that concern to the employer on behalf of a colleague, there is currently no protection. The amendment would be an important extension to the clause.
If someone is rejected for a job because they blew the whistle in a previous role, they are unlikely to have a remedy in an employment tribunal against a prospective employer for the loss of that job opportunity. That puts them at a significant disadvantage. It leads to whistleblowers being blacklisted and unable to work in the sector in which they have raised concerns. The law is inconsistent; job applicants must not be discriminated against under equality law, and job applicants in the NHS do have whistleblowing protections.
The amendment would ensure that job applicants receive the whistleblowing protections that they deserve, and that extend whistleblowing rights to people working in various other forms who are not strictly considered to be workers. I ask the Committee to support our amendment.
The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)
It is a pleasure to see you in the Chair, Mr Stringer. As always, I draw the Committee’s attention to my entry in the Register of Members’ Financial Interests and my membership of the GMB and Unite trade unions.
I thank the hon. Member for Chippenham for raising these important issues, which we need to explore. She is coming from a good place. We all know that whistleblowers play an important role in shining a light on wrongdoing. The fear, and often the reality, of retaliation is a barrier to people coming forward with concerns.
Before I turn to the substance of amendment 163, I will recap the existing protections for whistleblowers. Workers have the right not to be subject to detriment on the grounds of making a protected disclosure and not to be dismissed for making a protected disclosure: that would be treated as an automatically unfair reason for dismissal. These are day one rights for workers and employees who have recourse to an employment tribunal. The standard employment law definition of “worker” has been extended in recent years to whistleblowing protections. It includes a range of employment relationships, such as agency workers, individuals undertaking training or work experience, certain self-employed staff in the NHS, police officers and student nurses and midwives.
Amendment 163, as the hon. Lady says, would extend the scope of whistleblowing protections to a huge range of other groups, including the self-employed, contractors, office holders including members of the judiciary, non-executive directors, trustees—including personal trustees—and trade union representatives and job applicants, as well as those who acquire information during a recruitment process.
I can see the hon. Lady’s intentions and what she is trying to achieve. However, there are questions that the amendment does not address, particularly given how our current employment law framework is structured, because a lot of the people it covers are not in an employment relationship or a worker relationship. The remedies are based on detrimental treatment and on dismissal, but a lot of those to whom she seeks to extend protection are people who by definition cannot be dismissed, because they are not employees or workers.
It is quite a job to understand exactly where to take the issue of people who acquire information during a recruitment process, which is the final limb of the amendment, paragraph (cg). That is potentially extremely broad in application. In legislation like this, it would be difficult to pin down exactly who it would apply to. Would it apply to someone casually undertaking a job search on the internet? Where do we draw the line?
On the point about job applicants, I take the point that blowing the whistle can have a huge impact on a person’s career prospects. I have represented many people who have found that to be an issue, and there are already blacklisting laws for certain types of protection. However, the tribunal can award compensation and take into account the difficulty that an individual might have in finding suitable employment at a similar level as a result of having blown the whistle. There is a wider question about how we treat people who blow the whistle, which is not necessarily going to be resolved by the amendment.
I agree that we should protect those who speak up and that we should ensure that our legal framework takes account of modern working relationships. I recognise that, particularly for trade unions, there is a benefit to having these groups within scope, and there are issues here that I think bear further scrutiny. Because of the plethora of unintended consequences and knock-on effects, some of which I have touched on, we cannot accept the amendment as drafted, but I assure the hon. Lady that I intend to meet Protect next month to discuss the issues on which it is campaigning. We are aware of the long-overdue requirement to look at whistleblowing law. The previous Government undertook a small exercise and we need to understand its findings, but we will be taking into account some of the issues that the hon. Lady has raised.
We cannot pretend that such an amendment would not bring very large numbers of additional people into scope, so we would want to work with stakeholders to understand what that would mean for them. It is also possible to imagine people becoming professional whistleblowers by having something that they could rely on in perpetuity; again, we have to balance that against the need to ensure that people are properly protected. I am happy to work with colleagues across the House to ensure that if we introduce any legislation in this area, we get it right and recognise modern relationships. The hon. Lady is also right to refer to worker status: we are keen to look at that in our “Next Steps” document, because we know that a whole range of issues arise.
Sarah Gibson
We are happy not to press either amendment 163 or new clause 41, but I ask the Minister to meet us before Report so that we can introduce some, if not all, of the measures in them, and particularly those in amendment 163. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Dame Nia Griffith
Clause 18 will strengthen the protections for whistleblowers by making it explicit that sexual harassment can be the basis for a protected whistleblowing disclosure. It will do so by amending part 4A of the Employment Rights Act 1996, adding sexual harassment to the list of relevant failures about which a worker can blow the whistle.
For context, to qualify for whistleblowing protection, a worker needs to have a reasonable belief that their disclosure tends to show one of the relevant failures and that the disclosure is in the public interest. A worker who blows the whistle by making a protected disclosure has the right not to suffer a detriment or, if they are an employee, not to be unfairly dismissed.
This measure will provide welcome clarity that sexual harassment can form the subject of a qualifying disclosure. This is because, as a result of the measure, a worker will not need to identify an existing legal obligation, criminal offence or breach of health and safety in order to make a qualifying disclosure about sexual harassment.
We anticipate that the measure will have wider benefits, including enabling more workers to use whistleblowing routes to speak up about sexual harassment, and sending a clear signal to employers that workers who make disclosures must be treated fairly. Workers will have legal recourse if their employer subjects them to detriment for speaking up.
This is one of the steps that we are taking to tackle sexual harassment at work. According to data from the Office for National Statistics, more than a quarter of those who have experienced sexual harassment in England and Wales said they had experienced it at their place of work. That must change. I commend the clause to the Committee.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Clause 19
Right not to be unfairly dismissed: removal of qualifying period, etc
Question proposed, That the clause stand part of the Bill.
Justin Madders
I will not speak for long on clause 19, because it is a fairly straightforward clause and there are more detailed clauses and amendments that may generate further debate. Clause 19 introduces schedule 2, which will repeal section 108 of the Employment Rights Act 1996, thereby removing the two-year qualifying period for protection against unfair dismissal.
An estimated 9 million employees have been working for their employer for less than two years and therefore have very limited protection against unfair dismissal. By removing the qualifying period, the Government will make basic protection against unfair dismissal a day one right for all employees, ensuring a baseline of security and predictability. It is about tackling insecurity. Unless there are automatically unfair grounds, an employer can lawfully sack a worker just by giving them their statutory or contractual notice pay and telling them not to come back to work. There is no entitlement to a fair process, nor even a right to a written statement explaining why they have been sacked.
Think about what you can do with two years in your life, Mr Stringer—well, maybe we should not think too much about it. Someone can make an awful lot of commitments, including financial commitments. They can get married, buy a house, start a family and take out loans of all descriptions, but they have no protection at work and nothing to stop them being arbitrarily dismissed in that two-year period. We think that that is wrong: it creates a great deal of insecurity in the workplace, and it has to change.
Our changes will not prevent fair dismissal. We will ensure that businesses can hire with confidence. We will ensure that employers can operate contractual probation periods, which are separate from the new statutory probationary periods. During the statutory probationary periods, employers will have a lighter-touch standard to meet when they need to dismiss an employee who is not suitable for the job.
Our changes will ensure that newly hired workers are not arbitrarily dismissed. We believe that that will help to drive up standards in the workplace. It will ensure that there is greater fairness and greater understanding between employees and businesses. It will drive up standards, quality and security—all things that we believe will improve our economy. We do not intend to bring in these measures in until autumn 2026 at the earliest. I commend the clause to the Committee.
Greg Smith
It is a pleasure to serve under your chairmanship, Mr Stringer. I accept the Minister’s point that clause 19 essentially just introduces schedule 2. Several amendments in my name and in the name of my hon. Friends will explore schedule 2 in detail over the coming days and potentially even weeks.
However, as we discuss clause 19, I think it is important gently to challenge what is actually quite a big leap, from two years down to day one. It is incumbent on the Government to come up with a rationale and a reason for such a considerable change. This is not a taper or a gradual decrease from two years to a year or six months; we can have a debate about what the right number is.
It is clear that the Government wish to move down from two years, but what we heard in our public evidence sessions shows the very real risk that introducing these day one rights for all employees will mean that employers are reticent, are more risk-averse and do not hire as readily, freely or easily as we might want in order to create jobs in our economy. I remind the Minister what Jane Gratton of the British Chambers of Commerce said about her members:
“Members say that there would be a reduced hiring appetite were this legislation to come in, and that they would be less likely to recruit new employees due to the risk and difficulty, particularly under the day one rights”.––[Official Report, Employment Rights Public Bill Committee, 26 November 2024; c. 8, Q2.]
She went on to argue for a nine-month probationary period—a period to which it would potentially be feasible to reduce this timeframe.
Whenever a new law comes in and makes a significant change, be it to business, regulation or whatever sector, I gently ask the Minister to reflect on the time period. Is it really necessary to make such a giant leap in one go? Even if in years to come the Government get what they want in terms of day one rights, would it not be better to face this now, listen to industry, listen to the evidence that this very Committee heard a couple of weeks ago and be more measured, proportionate and risk-averse as to what these measures might end up doing to the overall jobs market in the United Kingdom of Great Britain and Northern Ireland? If the Government did that, it would help with some of the stark and staggering business confidence numbers in the economy at the moment. Businesses are worried about where the future lies, and real people out there looking for work are worried that jobs might not be as readily available after the Bill comes into effect.
Chris Murray (Edinburgh East and Musselburgh) (Lab)
I declare an interest as a member of a trade union. We have seen a change in the labour market over recent decades. Previously, people used to stay in work for much longer; currently, the average tenure is 4.5 years—there has been a slight increase, because it has been bang on four years for the past five or six years. That means that people nowadays spend half their time in a job without any rights, because of the two-year threshold. The proposals in this legislation are updating the labour market to the realities of today’s jobs. People spending half their time without rights leads to a lack of confidence and security. The way to address business confidence and worker security is by bringing these rights in from day one, as this legislation proposes; sticking with the status quo is what leaves people more insecure.
The Chair
Order. I remind hon. Members that they can catch my eye to make significant points in the debate. Interventions should be short and to the point.
Greg Smith
Thank you, Mr. Stringer. I am grateful to the hon. Gentleman for his points. He is right that the labour market has changed significantly in recent decades. In fact, it is constantly evolving and has been since time immemorial, and certainly since the industrial revolution, although I suspect I will be trying the Committee’s patience if we go through all that history—the hon. Member for Birmingham Northfield might be keen to do so, but that is perhaps one for the bar some time, rather than the Committee.
Michael Wheeler
I thank the shadow Minister for giving way, and I will keep my intervention short, Mr Stringer. We are hearing a lot of grandiose threats when it comes to the economy, and I would like to drag us back to the specifics. This measure is not a ban on dismissal; it is not even a protection from dismissal. It is a protection from unfair dismissal, so it is quite narrow. It still allows for dismissal, disciplinary procedures and all of that. Does the shadow Minister have a timeframe in which he thinks it would be acceptable for workers to be unfairly dismissed?
Greg Smith
The hon. Gentleman is right about the unfair dismissal point. Nobody wants to see anybody unfairly dismissed, but it is impossible to see each measure in the Bill in its own silo or its own column; each is part of the cumulative impact of many measures reverting to day one rights. So, too, is the measure before us, and the Committee has heard direct evidence from representatives of real businesses out there that it could have a damaging effect.
I am not arguing against the principle of what the Government are trying to do here—to protect workers against unfair dismissal. I am trying to test the waters on the operability of the Bill, and on the unintended consequence that it may have in terms of overall numbers in the job market and the rate at which companies out there make new hires, or indeed choose not to. It is a worthwhile exercise for the Committee to really test these things to see how this measure will work out in practice.
Laurence Turner (Birmingham Northfield) (Lab)
Throughout these proceedings, we have talked a lot about evidence bases and the likely impact of particular measures on business. The clause might be short and to the point—I do take the points made by the shadow Minister that we will come on to more detailed discussions, and it is right to debate the general principles here—but it does have precedents. In terms of the dilemma or decision over whether the qualifying period should be two years, one year or, as in the Bill, day one—but with that important provision for a probationary period—the issue has been road-tested.
The period was set at two years for many years. Then it was reduced to one year in the late 1990s, and economic growth continued. When the qualifying period was raised from one year to two years in 2012, the impact analysis that the then Government produced said that one year was easily sufficient in the overwhelming number of cases. On this aspect of the Bill, the businesses I have spoken to in my constituency and in the general Birmingham area have told me that, in almost all roles, employers are not still talking about whether someone is suitable for the job 12 months in; it is usually apparent within weeks. That circumstance is still covered by the initial period of employment provided for in the Bill.
According to the impact assessment, the estimated saving to business across the entire the economy, after the familiarisation cost period, was relatively small—I believe it was around £2 million to £3 million in 2011 prices, so probably somewhere around double that today. I think my hon. Friend the Member for Worsley and Eccles used the word “grandiose”. We are really not talking about that, but about a relatively small number of cases that could fall under that initial period of employment provision.
Let me return to an argument that has been made previously in the Committee, but that is relevant here. One undesirable effect of that change in the qualifying period was that because a worker who faced detriment and unfair treatment in the workplace had no recourse to an unfair dismissal claim through the employment tribunal system until they reached their two years, they found themselves relying on equalities arguments instead—a day one right in law as it stands. The effect—another perverse outcome—has been to overload that part of the employment tribunal system.
This change is sensible. It will help with the undesirable effects in the court system as it stands. The Chartered Management Institute, which we heard evidence from, surveyed its members and found that 83% of managers agreed that improvements in family-friendly policies and day one rights, including in respect of unfair dismissal, would positively impact workplace productivity.
In some of the related provisions in the Bill, particularly around the initial period of employment, there is promise that we will see a light-touch regime, and we are all looking to see what the details will be. I know that the Government are due to come back on that.
Chris Murray
I promise that I will make a short intervention this time, Mr Stringer. The statistics show that one in 10 workers never spend more than a year in a job, so they are particularly affected by the lack of provision on day one. At any one time, one in five workers are within the first two years of their employment. Does my hon. Friend agree that we are talking about a group of people who need the security of these rights to improve their productivity, but who are currently completely excluded from them?
Laurence Turner
My hon. Friend makes an important and relevant point. The people who are most adversely affected are those who have the least and who are on the lowest incomes in the economy, and the social care sector is a good example of that. In the city of Birmingham, the average turnover rate for care workers is around 30% every year. An enormous number of people are concentrated in particular sectors. One of the difficulties in Committee is that we use overall, aggregate numbers when weighing the impact of policies, but they are felt particularly in certain sectors—that is a common point of agreement among Members on both sides. If we get this change right, the benefits will be felt most keenly in the parts of the economy, and by the people, that need these protections most.
Again, it is worth reflecting on what we heard in the evidence sessions. We heard from Professor Bogg, from the University of Bristol, that
“if you look at the OECD countries, we are the fifth least regulated on dismissal protection out of 38 countries, and we are the third least regulated on hiring on temporary contracts”,
and that the change
“just pushes the UK back into the mainstream of other…OECD countries with employment regulation that works effectively.”––[Official Report, Employment Rights Public Bill Committee, 28 November 2024; c. 143, Q147.]
There can be a lot of sound and fury about the individual measures that we are debating, but I want to reinforce the point that all the evidence we have had, whether that is written evidence from interested parties, evidence the Committee has heard or historical evidence—maybe not going quite back to the industrial revolution, but at least over the past 30 years of changes in the qualifying period—shows that the effect on the overall economy will be sensible and limited. However, it will be the lowest-income workers, whose living standards, rights and dignity of work we all want to improve, who will benefit most. The clause is extremely welcome, and I commend it to the Committee.
Sir Ashley Fox
It is a pleasure to see you in the Chair, Mr Stringer. I do not believe that unfair dismissal should be a day one right. I think this is a fundamental error by the Government. It is interesting that during the previous Labour Governments, under Tony Blair and Gordon Brown, the qualifying period was one year. There was a reason for that: by reducing it—by making it a day one right—we introduce an aspect of procedural unfairness to all small businesses. Small businesses might decide after a week that they do not want to keep someone in employment. They might not follow the letter of the law, and it might be procedurally unfair because not every t was crossed and not every i was dotted, and that will lead to an unfair dismissal case.
Sir Ashley Fox
Let me just make this point. My hon. Friend the Member for Mid Buckinghamshire asked what the rationale was behind the day one qualifying period. I think the answer is that it is a demand from the trade unions; it is one of a long list of demands from the trade unions. This Bill is payback for the trade unions’ support for the Labour party. Those demands continue to come in, and we know that because the Bill is not even properly written. It is half-written—
Sir Ashley Fox
No. It is half-written and, with each week that goes by, we have more amendments as more demands come in.
My concern is that small businesses are less likely to employ people, because of these costs. Take a look at the Government’s impact assessment: table A7 says that these day one unfair dismissal rights will cost businesses £372 million. That will fall disproportionately on small businesses. They will be afraid of legal action; they will be wary of the costs. It will make them less likely to take people on—to employ that marginal employee. The cumulative effect of this proposal, taken with the many other proposals in the Bill, is to make our labour market less flexible, which is precisely what the trade unions want. They do not want a flexible labour market. This measure will make our economy more like France’s and will, in the long term, lead to higher unemployment. I think that is a great pity.
We are told that there will be a probationary period, but that it will be set out in regulations. This is another reason to think that the Bill is half-baked: the Government have not decided what should be a reasonable period. I suggest that two years is reasonable; if not, then the one year under Blair and Brown certainly seemed to work. However, the Government will find that introducing more and more day one rights will lead to higher unemployment. We all know that every period of Labour government ends with unemployment higher than when it began, and I suspect that this Bill will help to maintain that record.
Jon Pearce
It is a pleasure to serve under your chairmanship, Mr Stringer. Protection from unfair dismissal is already a day one right in respect of certain carve-outs from the two-year qualifying period, including for dismissal relating to a protected disclosure—whistleblowing—refusal to allow somebody to undertake jury service, or refusal to allow somebody to take family leave. That protection, and the principle of unfair dismissal, is already in statute as a day one right.
Let us look at other day one rights, which are worth exploring a bit further. As my hon. Friend the Member for Birmingham Northfield said, employees have a whole raft of day one rights, including most of the discrimination acts under the Equality Act and protections for whistleblowing. I want to continue my hon. Friend’s argument in order to try to give employees reassurance, which I think will come with guidance and the statutory probation period.
Certainty on this issue would help many employers. What I found in practice was that there would be a probation period in the contractual relationship, but smaller employers that I advised often did not have a policy; they just had a shortened notice period—often a month, rather than the three months after the probation period. There would be no structure in place. All too often, I found that many of those employers got themselves into difficulty because they believed that they did not have to follow any process whatsoever, due to the two-year qualifying period.
More often than not, those employers were dismissing people for reasons of capability: the employee had not got up to the necessary standard, and there was an issue with their work. In those circumstances, the employer often did not have much of a structure or procedure in place, and would eventually get to the point at which it would, in effect, give up and decide that the employee was never going to get to the standard that it wanted within the probationary period. The employer would dismiss people without any process or meeting—even without speaking to the employee at all—and without taking any evidence.
All too often in the cases that I dealt with, it would come to light that there was a reason for an employee’s lack of capability, which related to an impairment. Many of those impairments were protected under the Equality Act, and those employees had protections against discrimination on the basis of disability. They had a right to reasonable adjustments that the employer had not considered because it did not ask the question, and which had not been implemented. In those circumstances, the employer is exposed to uncapped discrimination claims, which are very serious and very difficult to respond to, because no process has been followed.
It is really important that we seek to reassure small, medium and large employers that having a light-touch, clear structure will mean that no employer falls into that trap again, and that we will save a lot of employers unnecessary litigation.
Laurence Turner
Does my hon. Friend agree that, in those cases where someone has ended up taking the equalities route because that is the only route available to them, it can be particularly reputationally damaging to the employer? Does he also agree that, because by the nature of those claims—particularly where they relate to disability discrimination—the system requires the claimants to stress an impairment of some kind, that process is also distressing for the claimant in a way that is wholly unnecessary? Making these changes would at least avoid those circumstances for both employer and employee.
Jon Pearce
I absolutely agree. Often, in those circumstances, it is extremely distressing for the employee, who, had the reasonable adjustment been in place to assist them with disability or to enable them to get to the required standard, would still be employed. They have to face the extra hurdle of declaring their particular impairment to the world.
Reputationally, these claims can often be hugely damaging for employers that had never intended to discriminate and would never have discriminated against an employee, but for the lack of process. As I say, there is nothing new in day one rights—protection from unfair dismissal is already, in certain circumstances, a day one right; Equality Act claims are a day one right; whistleblowing is a day one right—but the Bill will help employers not to fall foul of those day one rights that already exist and give a far clearer structure to the employment sphere. With those reassurances and with guidance, there is nothing for employers to fear from this legislation.
Anneliese Midgley
It is a pleasure to serve under your chairmanship, Mr Stringer. About a year ago, one of my constituents in Knowsley was told that she needed IVF. She went to her employer to let them know that she was going to start treatment, and a few days later she was sacked. She was a few weeks short of having worked two years for her employer. She had previously passed probation and had no previous complaints or warnings on her work. Hon. Members will be happy to know that she did get pregnant and she had that baby a month ago, but while trying to get pregnant and in the early stages of her pregnancy she could not find another steady job. No employer wanted to take her on and being unemployed obviously caused immense stress.
My constituent did not qualify for maternity pay. She has worked hard all her life; she has studied and has a doctorate. She is now with a small baby on a statutory maternity allowance of £184 and is still not in a job. One in nine women are forced out of the labour market every year due to pregnancy and maternity discrimination. The two-year period in which someone can be dismissed was used unfairly against my constituent. The Bill will protect women across the UK, allowing them the right to a secure job and a family. I am sure we can all agree that the current situation for workers is unacceptable.
Alex McIntyre
I start by aligning myself with the very good arguments that my hon. Friend the Member for High Peak made from his professional experience. I saw many of the same circumstances in my professional career.
There are a couple of points that I want to add. To the extent that there are people who want to bring claims in bad faith, there are already avenues for them to do so. If they wanted to bring a claim against their employer vexatiously they could, as my hon. Friend said, bring a claim under the Equality Act or on the basis of whistleblowing. Part of the concern here is some of the—quite frankly—scaremongering going on about what some of these processes might entail. If the hon. Member for Bridgwater would like to intervene and say exactly which part of the capability process he thinks small businesses will be concerned by, and would be disproportionate for a small business to undertake, I will happily take that intervention.
Most employers—and nearly every MP in this room is a new employer, although there are some returning colleagues—get an idea pretty quickly whether someone is going to be a fit or not. If there are concerns about their performance, there is a very straightforward process that can be followed. It is not particularly onerous. There is often a disproportionate concern about what that process might look like. Part of the issue, as my hon. Friend the Member for High Peak said, is that, by not following a simple process, employers end up tying themselves in more knots and potentially discriminating against individuals because they have not followed what could have been a fair process from the start. That is the point that the Bill seeks to address.
The Bill will not prevent individuals from being dismissed for fair reasons, which include capability, performance and redundancy. We are saying that a fair process should be followed. We have already made provision for the fact that there will be a slightly different process, and rightly so, for individuals in their probation period. It is important that we recognise that and do not scaremonger, because that will put businesses off employing, when there is a simple procedure that they can follow.
Justin Madders
We seem to have lost a few colleagues during the votes; hopefully, they are coming back. It seems a while since they were made, but I will pick up on comments and questions of—[Interruption.]
Justin Madders
Let me sum up the debate. The shadow Minister asked some questions, and there were other contributions to the debate, which I hope to come on to. I think that the shadow Minister’s general position was that he accepted that there should be a reduction in the qualifying period. I am not entirely clear whether that was the case, but certainly his colleague, the hon. Member for Bridgwater, threw out a number of proposals. The question that the shadow Minister asked was, “Why day one?” I will come to that shortly, but I think the other main thrust of his argument was that we are not listening to businesses. Of course we are, and that is why we came up with the concept of a statutory probationary period.
For the information of the Committee, about 140 stakeholders have engaged with us about the Bill since we came into office in July. One of the many issues that have come up is the question of day one rights, and how we balance the risk for employers—giving them the confidence to hire but ensuring that we deliver our policy aim of giving people more certainty and security at work. That is where the statutory probationary period comes in. We believe that that will help businesses focus on their hiring practices, but it should also increase the dialogue between employer and employee in those early days of the employment relationship.
My hon. Friend the Member for Gloucester said that an employer can work out pretty quickly whether someone will be suitable for the workplace. At this point, I quote Professor Dominic Regan, an eminent professor of employment law, who used to quip somewhat tongue in cheek that he could decide whether he liked someone within 10 minutes of meeting them on a train. That was his way of arguing that the two-year time limit for unfair dismissal was set far too high. It is certainly a sentiment that I agree with, although we will not be going as far as to introduce a 10-minutes-on-a-train test.
We are seeking to give employees the security of knowing that they will not be arbitrarily dismissed in the early days of their employment, but to give employers the confidence to hire and the opportunity to use a light-touch process to deal with issues of performance and capability. We believe that will be a positive for employees. Research quoted in the impact assessment suggests that having a job is significant to physical health and personal relationships, as a determinant of one’s wellbeing. The quality of that job and how secure it is are clearly a key part of that.
The point made by my hon. Friend the Member for Birmingham Northfield, and by my hon. Friends the Members for High Peak and for Gloucester, about employees who get dismissed before the qualifying period sometimes looking for a protected characteristic to base a claim on is an interesting one. I do not think that is something that we can model, because we do not know exactly how many claims would have continued anyway, but it is a fair point that when people are dismissed before two years, without any discussion or explanation, they seek answers, and sometimes they might seek those answers by hanging their hat on a statutory peg that may not always fit the case. My hon. Friends all spoke eloquently about how that can be counterproductive not just for the businesses, but for the employees’ general wellbeing.
Business in the Community surveyed 4,000 employees, of whom 66% said that their mental health and wellbeing was affected by their personal job insecurity. In written evidence presented to the Committee, USDAW noted that
“Being dismissed on spurious…grounds, without a fair investigation can have devastating consequences for an employee”
in terms of morale, confidence and living standards. Having worked for employers that had quite a gung-ho approach to employment rights, I welcomed the security of a qualifying period for unfair dismissal. Before that, it really did feel that you were one wrong conversation away from seeing your job go.
Of course, there is significant evidence to suggest that there are advantages for the wider economy. I think there is an acceptance that job insecurity can have a cooling effect on job mobility. The Resolution Foundation noted that the job mobility rate in 2019 was 25% lower than in 2000. As my hon. Friend the Member for Birmingham Northfield said, there is an international context to this: the UK is the fifth least regulated of the 38 OECD countries in terms of the dismissal of individual workers. We should look to correct that, and the Bill will go a long way towards doing so.
The shadow Minister asked about the risk to jobs. The impact assessment states:
“There is limited evidence to suggest that protecting employees from unfair dismissal is associated with lower employment rates.”
Evidence from our OECD counterparts across Europe supports that. The Resolution Foundation gave evidence to the effect that the measure is unlikely to have an impact on employment rates. Professor Deakin’s historical context was important. He said that, over the sweep of history in the past 50 years, increased employment protections have not led to increased unemployment. Of course, all Members will be aware of the messages of doom that we heard during the national minimum wage debate about what implementing that measure would mean for employment rates.
History demonstrates that there is nothing to fear in this legislation, and nothing to fear in giving people greater job security from day one. By providing for a statutory probationary period, we are getting the balance right between security at work and giving employers the opportunity to take a chance on new hires. I commend the clause to the Committee.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Anna McMorrin.)
Armed Forces Commissioner Bill (Second sitting)
Tuesday 10th December 2024
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The Chair
We are now sitting in public and the proceedings are being broadcast. We will now hear oral evidence from Abby Dryden, CEO of the Defence Medical Welfare Service. We have until 2.20 pm for this panel. Before I ask Abby to introduce herself, are there any declarations of interest?
Paul Holmes (Hamble Valley) (Con)
Apologies, Mr Efford, for not announcing it this morning, but I am a trustee of the armed forces parliamentary scheme.
Examination of Witness
Abby Dryden gave evidence.
The Chair
Q
Abby Dryden: Good afternoon, everybody. My name is Abby Dryden. I am the chief executive of the Defence Medical Welfare Service.
Mr Mark Francois (Rayleigh and Wickford) (Con)
Q
Abby Dryden: I have had time to consider the Library paper and look at the Bill, and the position of my organisation, DMWS, is that if there is anything the commissioner could add to the positive experience individuals have of military service, we are supportive of that. We do not really maintain a position on existing service provision; we are quite neutral in our view in general. Our main interest is welfare delivery for service personnel in secondary care settings. If the commissioner was able to support some of the issues we identify and create a situation where armed forces personnel felt better supported, or there was increased or enhanced support for them in those settings, we would be supportive. Beyond that, I do not think we have a particular view one way or the other on the Bill itself.
Mr Francois
Q
Abby Dryden: Since 2018, we have collected detailed evidence on the experience that armed forces personnel have while they are in secondary care settings. We normally monitor the themes and trends that are identified by the people we work closely with. We identify about 10 trends each year, and we look at how we, as an organisation, and our funders can better understand how military personnel can be supported. In terms of the trends that we have identified, we usually find topics such as receiving care that is understanding of the unique position that armed forces personnel can find themselves in, the settings in which they receive care, and understanding that it is a highly mobile population.
We often deal with people who have complex family arrangements or children with special educational needs, for example, and military personnel who are quite badly injured. In those circumstances, it is important to understand that service life is a hugely positive experience for many people, but there are certain times when an enhanced service provision would be beneficial. That could be when admissions to hospital take place or when there is an increased pressure on the family as a whole. In terms of understanding how armed forces personnel could be better supported, that would be very useful. What would also be useful for armed forces personnel is an understanding that creating a positive narrative—or mentioning some of the positives of service life—is important, as much as it is important to identify the negatives.
Mr Francois
Q
We are all constituency MPs here, so we all know how difficult it can be. It is not a partisan point at all. Has there been any progress on that issue at all over the past couple of years, and if not, is it an issue that we should raise on Thursday?
Abby Dryden: I think progress has been made, but there is a need for awareness of the fact that we are dealing with a highly mobile population, which is restricted by procedural requirements. Again, it is probably similar to some of the issues that we deal with in relation to care and treatment for certain medical conditions, which might be at the top of lists, then fall down to the bottom again when families change location. I would say that yes, generally, progress has been made in a moderate fashion. However, a lot of the time, there is nothing that helps people dealing with different bodies, such as NHS trusts or local authorities, which should be talking to one another in a meaningful way and identifying that progress has been made in one area—for example, that an achievement of a special educational needs status has been identified—and porting it over to another area. There is progress to be made.
In our organisation, the welfare officers work predominantly with serving personnel, and a big part of what they do is maintaining the momentum for the family and their progress through systems and processes, in both NHS and educational settings.
Mr Francois
One of the fundamental principles of the armed forces covenant is that there should be no disadvantage as a result of service.
Abby Dryden: Yes, absolutely.
Mr Francois
If you are saying that the situation has got a bit better, that is encouraging, but I think you are also implying that there is more work to be done. We might want to explore that on Thursday under the “General service welfare” part of the Bill.
Michelle Scrogham (Barrow and Furness) (Lab)
Q
Abby Dryden: I do not have any specific concerns about that. I would generally have concerns about any change in process, as the shortcomings of a process can sometimes be identified quite easily, but it can be quite difficult to create something in its place that functions effectively from the start. I would just be concerned about the transition, but I would not have any specific concerns.
Michelle Scrogham
Q
Abby Dryden: Numerous things are probably needed to ensure success. I cannot comment on those things directly, as I do not have enough experience to comment reasonably.
David Reed (Exmouth and Exeter East) (Con)
Q
Abby Dryden: Any process we have to support the raising of complaints would usually occur, and usually quite effectively occur, through the existing chain of command. In the 12 years that I have worked for the Defence Medical Welfare Service, I have not been involved in an issue where we have been required to go to the ombudsman. In that sense, you could say that the current system is working reasonably effectively. Equally, you could say that there are probably issues that require further identification or require the system to be more easily accessible, but usually the kinds of issues we deal with are things that can be resolved by the chain of command, which has a vested interest in resolving issues presented to us for its personnel and is keen to do so.
David Reed
Q
Abby Dryden: Part of our contract with the Ministry of Defence states that we work closely with the chain of command but are independent of the chain of command. I would not say that we are specialists in guiding a family through potentially making a complaint, but we are specialists in understanding the delicate and conflicting interests that might be at work in some of the situations that we deal with. If we feel there is a need to refer beyond the chain of command, or outside it, we have a process for that. Our internal management structure scrutinises that on a monthly and six-monthly basis.
David Reed
Q
Abby Dryden: I think it will be a different process, and we will obviously have to consider revising it, but I do not think our viewpoint and our purpose in very many of the issues we deal with will change significantly.
Graeme Downie (Dunfermline and Dollar) (Lab)
Q
Abby Dryden: I would hope so. The arrangements in the devolved nations, particularly in my experience of healthcare, are different, and it is about being conversant and fully aware of how it works in Scotland, Wales and Northern Ireland. There is a call for a nuanced and different understanding that supports some of the issues that present when personnel move to another devolved nation or another area of the United Kingdom.
Helen Maguire (Epsom and Ewell) (LD)
Q
Abby Dryden: I can only speak about my organisation’s experience of working with the pre-existing welfare structures. The vast majority of the time those structures work very well, and they work well because of the people who are involved; they care about personnel. In my experience, I have only ever encountered a positive approach from military processes, structures and the chain of command side of things in terms of addressing the issues that we present to them. They are very much interested in the quality of life that personnel enjoy.
In terms of how I see the commissioner supporting that, how it could be different and where there might be gaps, there is always room for improvement. For example, younger people joining the military may have a different expectation of what that structure should represent to them, how they should be able to access services and the proximity that that institution has to their quality of life and the quality of their family’s life. I would say that the commissioner should focus on the changing expectation of new recruits and young people. That might be a positive addition.
The Minister for the Armed Forces (Luke Pollard)
Q
Abby Dryden: Lots of services are very much centred around the serving person. That is not a failing of those services, but I think families can sometimes, but not always, feel peripheral to proceedings. I think—[Interruption.]
The Chair
Q
Abby Dryden: Just to say that with families and the commissioner, putting families of all kinds at the centre of everything that goes on is key. The notion of family has changed significantly, so it is about making sure that there is an inclusive understanding of what a family might constitute. For non-UK serving personnel it is important as well.
Pam Cox (Colchester) (Lab)
Q
Abby Dryden: We do that on a regular basis. As for referrals to other charities, there is the Army Families Federation, the Naval Families Federation—that type of organisation—as well as specialist organisations for health conditions or for things that are specific to the individual that we have assessed might be of benefit to them. We also refer to legal advice if we feel that that is something they are asking us to provide them with. That is a regular thing that we undertake organisationally.
David Reed
I have a close family member who works for one of the charities here today.
The Chair
Okay. I am sure that has covered you. For the record, could all the witnesses please introduce themselves?
Col. Darren Doherty: I am Darren Doherty. I am the director of grants and welfare at the Army Benevolent Fund and am representing the Army Benevolent Fund here today. I am a former—well, I have to keep checking myself. I am not a former Army officer; I am still an Army officer. I have just completed 38 years of regular service with the Army and I was reminded just last Friday that I have a reserve liability for the next few years, so I am still part of that organisation as well. I have been in this role with the Army Benevolent Fund since 1 November.
Mandy Harding: Good afternoon. My name is Mandy Harding, and I am head of commissioned grants at the Royal Navy and Royal Marines Charity.
Air Commodore Simon Harper: Good afternoon, everyone. I am Simon Harper. I am director of grants, services and programmes for the Royal Air Force Benevolent Fund and have been since March 2023; I am effectively responsible for the charitable output of the benevolent fund. Prior to that, I served for 34 years in the Royal Air Force and for two years before that in the Royal Navy.
Mr Francois
Q
Col. Darren Doherty: We have rebranded now. The old terminology of ABF The Soldiers’ Charity was what we used for a number of years until last year. We have rebranded again, at a very low cost. It did not cost us very much. We did not go through any hugely expensive marketing routine to do it, but we are now the Army Benevolent Fund.
Mr Francois
Q
Col. Darren Doherty: That is correct.
Mr Francois
Q
Col. Darren Doherty: It is not an area of expertise for me. I think the provision of pensions and advice on pensions—this is from my personal experience of having just gone through it—is adequate, with the support of great institutions such as the Forces Pension Society as an additional advising actor. I am not sure that it is something that would require specifically laying out in the Bill. That is my own opinion.
Mr Francois
Q
Can we switch to the Royal Air Force, please? Air Commodore Harper, you are probably too young to remember, sir, but in the cold war there was what was called the tactical evaluation process, or TACEVAL. It was a bit like a military Ofsted, and a team could turn up at an airbase—for example, RAF Brüggen in West Germany—say that world war three had just broken out and basically put the station through its paces for several days, and they would get an Ofsted-like score at the end.
It is not quite as severe as that, but the Armed Forces Commissioner has an Ofsted-like capability under the Bill to turn up unannounced, certainly within the UK; it is more complicated if it is abroad. Do you think that that power will be valuable in holding people to account and concentrating minds, and how often do you think the commissioner should use it?
Air Commodore Simon Harper: I am old enough to recall TACEVAL, sir, and was part of that way back in the late 1980s.
Mr Francois
I was trying to be nice.
Air Commodore Simon Harper: You are very kind, but I remember it as Ofsted-like. When I was a commanding officer, I remember Ofsted visiting my unit, which was a training unit as well. I will phrase my answer in that respect. I found those inspections to the chain of command hugely beneficial on two grounds: they provided an independent view of the operational output of a given unit, and they allowed me to ensure, with confidence, that I had the appropriate processes and policies in place to deliver my output.
I have not been close to the Air Force in a regular sense for 18 months, but I guess the challenge would be how that is defined either in the Bill or in the roles and responsibilities of the commissioner—what output are you looking for from a particular unit, and what is it you are checking? The Royal Air Force Benevolent Fund will not have a particular view, but my personal view is that, if properly configured, it would be of value to commanding officers. I have no specific view on timescale, but once every 18 months would be the absolute maximum for me, based on my own personal experience in a training establishment.
Mr Francois
Q
We will move to the Royal Navy—apologies for leaving the senior service until last, Ms Harding. On the housing side, in my experience all three services tend to treat service housing slightly differently. From memory, quite a lot of service personnel live off base and tend to commute to their place of work. Quite a few of them actually buy a property rather than live in a quarter. Obviously, housing is one issue that the commissioner will look at. Are you happy that the powers in the Bill are sufficient for the commissioner to investigate that issue? I am thinking particularly about the ability to produce thematic reports, and housing is an obvious issue for an early report. Do you have a particular view on that?
Mandy Harding: From what I have read of the Bill, my understanding is that the Armed Forces Commissioner will have the power to investigate and look at issues that are arising. In our charity’s line of work, we come into contact with beneficiaries and we get reports in through the partners and organisations that we fund. In direct work with the people we have been supporting, particularly on neurodiversity and special educational needs and disabilities, housing does crop up.
That is the exciting part of having an Armed Forces Commissioner—somebody who can hear from different areas and connect the dots to realise what is happening in different places. There is an oversight role there. That is incredibly useful to us as grant funders. We do our grant funding based on need, so if need is identified, that is where we can bring that wraparound support to families.
Mr Francois
Q
Mandy Harding: We realise that a lot of our families have “plus, plus, plus” issues. We know that across the country there are issues with SEND. Getting assessments is very difficult and transferring across local authorities is particularly tricky. The issues were laid out quite well in the “Living in our Shoes” report by Professor Jan Walker, which was commissioned in 2019. She laid out some recommendations, most of which—over 100—were accepted by the Government at the time. We have built on that report. We have continued to investigate need; we have gone out to beneficiaries to find out what is going on and what they need. That is the power of using commissioning principles in our grant-making, which is quite unique. We can then commission with the use of grants, having seen who the best provider is.
One of the big pieces of work we are doing is around neurodiversity. It is a big area of work, and I have already booked to speak to both my colleagues either side of me, because we would like to make this a tri-service piece of work going forward. I think that is what will be required to enable the changes that we can see might need to happen.
Amanda Martin (Portsmouth North) (Lab)
Q
The provision in clause 3 provides that service complaints can be made from people who are not necessarily service personnel, which is different from what happens with the ombudsman now. First, what are your thoughts on that? Secondly, one of the themes that has come through is the need for trust and transparency about the impact from anything that the new role does. How could that change enhance that?
Mandy Harding: I can take the first part of the question. I referred to the “Living in our Shoes” report by Professor Jan Walker. That report was very significant because it identified that when one person serves, the whole family serves. Having access for families is a welcome addition and my colleagues at the Naval Families Federation will be able to speak more effectively on that. It is not my area of expertise, because I am a grant maker, but I am sure that they would have more to say.
Air Commodore Simon Harper: I agree completely. We have a phrase in the Air Force: “Support the family”. You retain the service person by supporting the family. In respect to the question you ask, I would be supportive of the service family having that access. As a charity, it is important that we recognise the offer to the serving person. That offer is effectively a psychological contract that covers many different aspects, whether it be pay, pensions, housing, accommodation, food, or ability to get access to medical and dental care— and, indeed, the charities, too, play a role in that offer. It affects the serving families in different points at different times. It is very difficult to say there is a single issue or a few issues that are causing the level of dissatisfaction reported through the armed forces continuous attitude surveys and the like and through the families continuous attitude survey.
We are a families federation, and provide more detail on certain families. It is a multi-faceted issue, though, and difficult to pinpoint one particular place. It is important to understand that that offer is multifaceted and is a psychological contract at its very heart. It could take a number of things, which begin over time, to wear away the good will of that family, which then leads to dissatisfaction and, ultimately, people leaving the services.
Col. Darren Doherty: I do not think I can add much more to that, or comment on access to the service complaints system from beyond the serving person. I can speak about the wider family context and put it against what we provide.
As the Army Benevolent Fund, we provide a lifetime of support to serving and former soldiers and their immediate families, including the bereaved, when they are in need. That has built up since the Army Benevolent Fund was formed, 80 years ago. Even then, we understood the importance of the family unit and the importance of supporting the continuum of service, not just of the service person but of the whole family as they continue through the journey: joining, leaving and then serving, whether as a reservist, or a regular reservist, as in my case, and as a veteran, with the family that serves alongside them. That person, family or service person might be bereaved as well. It is about that total inclusivity.
Lincoln Jopp (Spelthorne) (Con)
Q
Air Commodore Simon Harper: I am happy to take the question. Yes, I suppose there is that potential. The chain of command still has a vital role. Where I could see the benefit is that, having gone through and made my point about the offer being multifaceted, the response for the serving person and their family is multifaceted as well. The Armed Forces Commissioner can play a key role in that.
There will be times, I suspect, when the legislation will come into conflict—perhaps that is the wrong term—with the chain of command. I still think the chain of command must be the overarching way in which military effect and operational output is delivered. That is the success of how it is done. But I think that, appropriately placed, the Armed Forces Commissioner can support, augment and, in co-operation with the chain of command, improve the lives of the serving person and the family. There is a risk, of course, but I think it can work.
Col. Darren Doherty: I agree with all that. There is potential for the Bill to undermine the chain of command and potential for it to work against the chain of command; much depends on the selection of the right individual to do the role and on the role being developed and there being a framework for operating how the office goes about its business beyond what is laid out in the Bill. This is about building trust and confidence with those it supports, including individuals who might bring things to the attention of the commissioner, and also about the confidence of the wider organisation as well.
To answer your question, there is that potential, but everything that I have read in the Bill, heard in the debates and read in Hansard is in people’s minds. I listened to some of the earlier speakers today comparing it the outwith-the-chain-of-command ways that we have with dealing with issues now. You will well remember dealing with the padre and medical officers as something outside the chain of command.
All those things do not happen overnight. Those need to be built up as individual relationships in terms of trust within organisations. This is something new—a step beyond what the ombudsman provides. It will take time and careful implementation, from a practical perspective, for it to work. But I do see that there is huge benefit in having such an office there for the individual and the organisation and in support of the chain of command as well. They can potentially all work together.
Terry Jermy (South West Norfolk) (Lab)
Q
Col. Darren Doherty: The legislation is certainly strong enough to put them in that position. Again, it goes back to the type of individual selected for the role and the trust and the confidence that they build with the community. I can speak only on behalf of the Army.
It will take a period of time to educate people on what the role is. That is why it is absolutely critical that the Bill is fit for purpose and, more importantly, that the policy and framework that sit beyond it, in terms of implementation, are right as well, and that we are absolutely clear where the boundaries and responsibilities for the office lie, and also the gearing between it and other offices.
That goes back to one of the issues raised a few times in the debate, which is the scope of the role—looking predominantly at the community subject to service law and how that relates to the wider military community, going back to that continuum of service. How that all interlocks with what is currently provided by the Minister for Veterans and People and veterans commissioners, where they exist, is all very important in the messaging and communicating with the community.
It is a wide remit. It is summed up in a few small sentences, but dealing with welfare issues could be incredibly complex and wide-ranging. There are very few welfare issues that do not straddle the serving family and go into the veteran space in a sort of time continuum. Those are all important parts of the messaging of what the role is going to be about.
Helen Maguire
Q
Col. Darren Doherty: The legislation is clear where access is permitted and enabled. It will be a challenge where matters of operational security come into it, but I think all those are manageable. Again, it is about the framework of how the office will operate—it will need to be right where it is needed.
My experience of operations, going back to my previous experience, but close to my heart, is that welfare is a chain-of-command business. It is what officers, senior non-commissioned officers and junior non-commissioned officers get paid to do. I am always minded that they often do that best on operations. I would hope that the commissioner’s role would be less needed in operations, but that is yet to be proved by evidence or experience. I would hope that we get on with that better there than perhaps we do in some of the quieter, peacetime locations.
Helen Maguire
Q
Mandy Harding: It is difficult to know how distinct our challenges are, because I do not know the challenges that the communities of my colleagues face. Somebody told me that the Army tend to work within family groupings and units, whereas the Navy take a village to sea. I thought that was an interesting analogy of the difference. That brings different issues. Lengths of deployment are different. Beyond that, I am not sure I can offer you more because I am not sighted on my colleagues’ areas of expertise.
Helen Maguire
Q
Air Commodore Simon Harper: I would make two points. There is a community and a family around a particular RAF station, of which there are 24 or 26 in the UK and others elsewhere, but there is increasingly a diaspora of families who live elsewhere, separated from that base. You have individuals who are weekend commuting to a different location where there is not the localised support for a family. It varies.
Generally speaking, historically, the support has always been focused around a serving base for the Royal Air Force. Increasingly, we need to reach out into other areas of the UK, where families have now settled for other reasons. That diaspora is UK-wide, in the UK context. It is a different challenge and there are different needs associated with both.
The Minister for the Armed Forces (Luke Pollard)
Q
Could you give us a flavour of the issues coming forward in the cohort that we are talking about in the Bill to your organisations and how you think shining a spotlight on some of those structural issues might be able to address some of the underlying causes? The purpose of the commissioner is, ideally, to assist in removing some of the barriers, obstacles and challenges that our service people and their families face. I would be interested to get your sense as to whether those structural issues have always been here or whether you have seen changes in recent years that need to be addressed by the commissioner.
Col. Darren Doherty: I would start by saying that much of our work is currently done and our support is currently provided to the veteran and family community. Only about 12% of our grants go to the serving community. That is because we base them on need and, thankfully, many in the serving community do not feel that need until they have left. Of that 12%, much is made up of family support in terms of bereavement and those sorts of things.
I think the situation is changing. In the future, I think we are going to look much more towards causation and prevention, which will be more within the serving community. I would highlight a project that we have recently become involved with, which is funding a training and education mechanism that will look at domestic abuse. That is not just treating or helping to support the victims of domestic abuse through a helpline, although that is part of it. The main part, through a charity called SafeLives, is looking at training and education. Much of that is aimed towards our serving community, through their own welfare officers. That initiative was prompted by the work of our trustees identifying that they thought this might be an issue. We cross-checked that with the Army and they believed it was.
That is an example where a thematic study carried out, or a report by the commissioner, could help identify other areas of need in the serving community where the third sector and in the Army’s case, the Army Benevolent Fund, could intervene and try to get at some of the root causes of these issues. That is where we intend to go in the future, while still providing the same degree of support to meet the need that we do now.
Mandy Harding: We are a commissioning charity in the sense that our grant-making uses commissioning principles based on need. We commission through grants to partners to deliver the outcomes. We do that by identifying need. We are very interested in needs, and any identified needs, because where we can identify the need, that is where we can appropriate the right resources and the right investment. From our point of view, anything that helps with that is very useful.
In terms of what is coming up, we have just commissioned some new work around mental health and wellbeing because of the changes we are seeing. Deployments now are to hostile areas, families have less information and the anxiety is harder for them. You cannot shield children so easily from social media and the news. Families have explained to us that they have tried to shield their children from the news in the home, but that changes the moment they go to school—I think HMS Diamond was probably a very good example of what happened, and the distress that those families felt at seeing that on the news and trying to shield their children from what was going on. There is a change and a shift.
From our charity’s position, we are currently looking at need again. We did a piece of need research of our own in 2019. Professor Walker’s work came in, which was incredibly helpful. With colleagues at Greenwich Hospital and at the Armed Forces Covenant Fund Trust, we are all looking at need. We are working with the RAF and with the RAND research project to try to see what need is there. If a commissioner came in, it follows that we would be supportive of a commissioner who might be able to pull themes together for us, and then we can make the appropriate investments.
The only thought that I would offer from our experience of working with beneficiaries and organisations—particularly when I have done research into need and talked with beneficiaries—is to manage expectations. I think managing families’ expectations of this will be a challenge.
Air Commodore Simon Harper: I just have a few points to add. From a Royal Air Force Benevolent Fund perspective, we augment what the service already provides. Much of what we see in the serving community in particular is what the air force has asked us to provide or, indeed, where we have found a specific need that is not being provided for either by the Royal Air Force locally on station or by partner charities.
I would pick up two areas in which we have seen an increase or growth over the last couple of years. The first is in emotional wellbeing support and sub-clinical mental wellbeing. We have a listening and counselling service that is accessed by over 2,000 people a year, of whom 80% are from the serving community. It was originally set up as a veterans’ programme, and it is now dominated by the serving community.
The second area is around children and young people. Increasingly, we have picked up a requirement to support children and young people, not just through after-school clubs or our youth club provision on stations, but through holiday provision as well. Increasingly, we are seeing the need to support serving children. Particularly where both parents are serving—that is increasing—we have picked that up as a requirement, and colleagues from the Royal Air Force Families Federation will be able to help with that.
As far as addressing underlying causes and needs goes, if the commissioner can be part of that solution, as I mentioned earlier, that would be fantastic. Already, it is a multifaceted response, but if the commissioner can come and say, “Here is an issue. This is what we have picked up. Is it being picked up by any other organisations?”—that includes, by the way, local authorities, the NHS and local education authorities—I think that would be of huge benefit.
David Reed
Q
Col. Darren Doherty: I do not know.
Mandy Harding: I am firmly in grants, so I am not the right person to answer that question, I am afraid.
Air Commodore Simon Harper: From what I have seen, it is not clear how that would happen.
David Reed
Q
Air Commodore Simon Harper: Yes, it would.
The Chair
No further questions, so I thank the three of you for giving evidence this afternoon. We will move on to our next panel.
Examination of Witnesses
Collette Musgrave, Sarah Clewes and Maria Lyle gave evidence.
The Chair
Welcome: will each of you introduce yourself for the record?
Collette Musgrave: I am Collette Musgrave, the chief executive of the Army Families Federation.
Sarah Clewes: I am Sarah Clewes, the chief executive of the Naval Families Federation.
Maria Lyle: I am Maria Lyle, director of the RAF Families Federation.
Mr Francois
Q
You represent the families of service personnel and, as at the heart of the Bill are issues of general service welfare, may I give each of you an opportunity to raise your top two or three issues under that heading that you would like to see the commissioner produce early thematic reports on and to give us some idea why you picked those? This time, let us start with the senior service.
Sarah Clewes: “Welfare” is an interesting term. We are not in the welfare space. The Navy is looked after by the Royal Navy families and personnel service—they deal with welfare. However, under what “welfare” might mean to families, at the Naval Families Federation, our top two issues are housing and support to non-UK serving personnel and their families, with visa and immigration, the processes and the ongoing need for support from our qualified caseworkers.
Collette Musgrave: To be frank, I will be boring and raise the same two issues—but I will expand a little on “non-UK”. We have had multiple investigations and reports on the state of housing and accommodation—SLA and SFA—but there has been little investigation into the nature of the challenges that non-UK serving personnel, or family members who might be non-UK, also face in service family life.
Mr Francois
Q
Collette Musgrave: Non-UK serving personnel have been increasing year on year and form a much greater proportion of our armed forces than they once did.
Mr Francois
The Royal Air Force, what about you? It will be interesting to see whether we have a hat trick. Will you give us your top one or two?
Maria Lyle: You nearly have a hat trick. You say that we represent families, which we absolutely do. We represent serving personnel as well, which is why I will mention housing in terms of houses, but also single-living accommodation. We had 650 people who came to us this year on that issue, before we get going on housing itself.
My second one—we have a much smaller non-UK population in the RAF because we recruit differently—would be education and childcare. That is what people come to us about in its various forms and facets.
Mr Francois
Q
Maria Lyle: It does. That is the very sharpest end of the wedge when it comes to challenges for military families. If they are moving, picking up that provision and replicating it in a new area is not always possible. I would say that they are the most vulnerable—the ones who have the biggest challenges to overcome in our systems.
Mr Francois
Q
Collette Musgrave: I would merely echo Maria’s comments. It is very much at the sharp end of things in education provision for service children. SEN is a real concern for us, and significant numbers of people articulate to us that they are going to either leave or serve in separated service, because of the frustrations felt through many years of moving from location to location and having to start the SEN process over again. The transferability of many things that affect service personnel and their families, both for those inside the UK and those moving to and from the UK, is a real challenge and can often be the final tipping point for them making that decision to either leave or serve unaccompanied.
Mr Francois
Q
Collette Musgrave: Indeed you did.
Mr Francois
The pressure on family life, as we have already heard today, is the single biggest reason why people leave, but when we went round a number of military bases, we found it was often an amalgam of reasons. Sometimes there would be a pressure cooker effect over several years, and then one thing might become, in colloquial English, the straw that broke the camel’s back. Sometimes it is that cocktail that just becomes a bit too much. Is that a fair characterisation? [Interruption.] I can see some heads nodding, so that still holds good five years on. Thank you very much. You have been generous with your time, Mr Efford—thank you.
Helen Maguire
Q
Collette Musgrave: The challenges that we see with families getting the support they need can be articulated as both internal and external. Internal services and processes are the ones that Defence offers to families in order to maintain service family life, and then there are those provided by what one might characterise as external agencies—whether that is local authorities, the NHS, educational provision or whatever. The nature of the challenge can be different depending on with whom families are seeking to engage.
The challenges within the internal system can be largely about not being able to access the right information, not being given the right information when asking for it, consistency of the information and guidance that is given, and consistency of the provision. As we have spoken about, Army families in particular are very mobile, and what they are provided with in one location might be very different to what they are provided with in another, both in extent and quality of provision. We would really like to see the Armed Forces Commissioner do something on that in their role.
As the Army Families Federation, we absolutely welcome the introduction of an Armed Forces Commissioner with, as the Secretary of State said, a laser-like focus on the serving experience, which is often lost when talking about the armed forces community—those who are actually serving at the moment. We believe the Armed Forces Commissioner can play a key role in looking at the consistency of provision of both policy and processes within defence. Many of the concerns that come to us are a result of mixed information and mixed messages, and families not being able to access the provision that is there because they simply do not know how to access it or are being blocked in some way.
Externally, the issue is subtly different. There is not an unwillingness from the general UK population to support service personnel and their families. What there is sometimes is a lack of knowledge and understanding. In many of the large organisations that they are interfacing with, whether that is the NHS, a local authority or the Department for Work and Pensions, there is often a lack of understanding of the unique circumstances of service personnel and their families. It is difficult sometimes for those families in particular, who are to an extent slightly outside society—I am not articulating that well, because that is not what I want to say, particularly as a former service family and veteran myself. Often with housing, as well as sometimes healthcare and education—particularly if they are overseas or move back from overseas—their interfaces with external statutory authorities are not always straightforward and can vary hugely as they move around the country. Your experience in Scotland might be very different to your experience in England. Their ability to interface effectively with those services can sometimes be compromised.
Many of these organisations have signed up to the armed forces covenant. The people at the top are very happy to sign up to the armed forces covenant and say, “Yes, we made a great commitment.” The people on the frontline, who are actually dealing with our service personnel and their families, are often not so well-informed and do not necessarily fully understand some of the additional or different provision that has been made under the terms of the armed forces covenant. Those are the big handfuls, and to finally answer your question, those two key areas are where the Armed Forces Commissioner could help.
Helen Maguire
Q
Sarah Clewes: It is about just being mindful that not all naval families live around the base port areas. You would expect that some do, and that is absolutely fine, but others choose to live wherever their support network or employment is. Actually, dispersed families are much more common than you would perhaps think, because there is that assumption that everyone lives in service family accommodation around a base port area, but they absolutely do not.
It is about trying to reach those people who are very happy and thriving in their community of choice, who may not need any support from the Navy. Actually, when they do, hopefully they have a life-changing event or do not know about the free swimming and sailing that is available to them. It is about spreading the net really wide and saying, “If you ever need that support, we are here for you, in whatever guise that may be.” Welfare is absolutely not our part of ship, but it is about actually giving that little nugget of information to take away a little bit of pain. They may be juggling a very successful career and childcare while their partner or spouse is at sea or—worse still—under the water for six months, with absolutely no contact or very limited contact.
When appreciating service life, it is all very well to think that we know what it means, but we really have to understand what it means across a huge range of issues, and family dynamics are huge. We really need to be mindful of who we are talking about when we talk about families, and let’s not just pigeonhole folk and think we know.
Therefore, it is important that the commissioner does what we do on a daily basis. They have to ask, “What does that look like for naval families? VAT on school fees, what does that look like for naval families? Have you given them the information they need to make those informed choices or will they have to half-guess and hope that a hardship fund will become available so that they can get through Christmas?” It could be really impactful, and like Colette, I am absolutely interested to see how this could develop.
Helen Maguire
Q
Maria Lyle: I will not replay what my colleagues have said. Collette articulated a lot of the challenges that RAF families would also face in terms of their mobility. We very much see that. The thing that sums it up for me is the line that says that part of the role is improving public awareness of the welfare issues that serving families and personnel face, which I would wholeheartedly support. My only slight qualm about that is that it works two ways. Having a role that coalesces that understanding and helps us amplify people’s voices could be really powerful.
I would like to put on the record that I think it would be helpful if it is done in a way that supports the role in general, rather than put people off joining our military. Part of the challenge the military has at the moment is the impact of gapping and poor retention. This needs to be a part of bolstering the offer and talking about some of the benefits and challenges of military life. Otherwise we run the risk of making life worse for people because retention falls even lower. I recognise that is straying into a different area, but I would not want an opportunity to become a threat.
Luke Pollard
Q
I am interested to get your perspective on how you think an Armed Forces Commissioner’s office would deal with and seek to build trust with the families, because it is much easier for the commissioner to visit a base. If there is accommodation on site, that might be the case. But we know that not everyone who serves and their families live on bases. We explicitly exclude the commissioner from having a right to inspect someone’s home without notice, for very good and obvious reasons. But how do you think the commissioner should access and seek to get views from and be responsive to the needs of families? I know that will change depending on service and location and the barriers to get there. It is important that we have an understanding about what they are so we can seek to overcome them. Can you expand on that kind of challenge? Shall we go to the Navy first?
Sarah Clewes: That will be the tricky bit—building the trust and giving prompt responses. Doing what the commissioner says he or she is going to do will be really important to build that trust. We know from the covenant, for example, that has been around for 12 years, that if you ask serving personnel and their families, a large percentage of them still do not know what the covenant is, what it does, or how it changes their lives, and that has been around for a long time.
That is just an example of how education is absolutely key, as is building trust and rapport and having really slick processes so that if somebody has been invited to ask a question they get a swift response in plain language. Again, that will be really important when you respond to a serving personnel. You might send them a link to a joint service publication or whatever, but that will not wash with families who probably cannot access the JSP because of the firewall. What good is that? So having those tailored responses and being mindful of the audience that will be new will be absolutely key, and that will be the tricky bit.
Collette Musgrave: I would echo Sarah’s comments. Something that we have grappled with for a long time is how you engage with families. It is really important to understand, as Sarah says, how important trust in the system is. If expectations are not met fairly swiftly, families, on past experience, will simply not engage. But there is a more practical element, which Sarah touched on: access, accessibility and understandability. Too many of the responses that come out of Defence and too much of the communication is in language that is simply not accessible to people who are not wearing uniform. As somebody who used to wear uniform and was an MOD civil servant, I would argue that at times it is not even accessible to me, so it is about making it clear and really easy to access and offering a range of access.
Yes, we are all shifting to digital, and yes, we have seen in our organisations a distinct switch to people wanting to engage with us via email or other digital means, but there is still a large section of families who are not really able or willing to engage with that process. They will need to be able to pick up the phone and speak to somebody, and to have somebody at the other end who understands what they are saying. If I may refer back to the housing issue, the roll-out of the new housing contract and the Pinnacle help desk, one of the biggest issues with that was not having somebody who picked up the phone. When someone did, they had no empathy or sympathy with the issues being raised, let alone an understanding of them. In terms of the physical process of access, that will be absolutely key in ensuring that that works for families, is consistent and delivers what they expect.
Maria Lyle: The only thing I would add is that there is an opportunity to get it right at the beginning. Yes, no one gets everything nailed on the first time—the person in that role needs to develop it—but if the offer is clear at the beginning, it makes it a lot easier. By that, I mean: is this office more strategic or tactical? That is part of the process that we are working out now. By that, I mean that if people are making a series of phone calls to that office, it will have to be staffed to deal with multiple thousands of calls a year. If that is not what the office is set up to do, and if it is more about dealing with and amplifying strategic messaging about what is going wrong, the communications could be based on that. But if families are led to believe, “This is somewhere I can ring and they will get my house sorted,” it is about managing those expectations and nailing those comms.
Therefore, upstream of that, it is about being very clear and coherent about what the office is setting out to do. Is it individual case management for any family who rings up with a problem? That is very different from an office that views the evidence and goes, “The key issues for military families are these three. Here is what my team is going to do about them.” In terms of what you communicate to families, those are quite different beasts. It is really important to get that right.
Pam Cox
Q
“the welfare of persons subject to service law and”—
this is a key phrase—“relevant family members”. That is left deliberately broad. What is your view on how a relevant family member might be defined?
Collette Musgrave: Where to start? This is a problem that we have grappled with for many years. The Army Families Federation is 42 years old, and what a family member looked like back then is very different from what a family member looks like now.
Maintaining that flexibility about what a family member is has been absolutely key for us in being able to properly support families. It may very well be a spouse or civil partner, or it may be a child. It may be a grandparent, if they were involved in caring for or supporting the family in any way. It may be an aunt or uncle. Quite frankly, with many of the people we deal with, some of whom have had quite challenging and difficult upbringings, it may be that they regard their wider friendship network as their family and their support network. It is a real challenge sometimes for us as an organisation to delineate and work this out so that we can best support the individual or the family in question.
Clearly, when it comes to the provision of defence processes and services, there are quite clear rules and regulations about who is in scope. My organisation and I personally might take issue with some of those, but none the less they are quite clearly laid out. One of the key difficulties that families face is often navigating that alongside their expectations, and alongside how wider society and some of the statutory external bodies I referred to earlier regard a family. It is that level of confusion that this process will have to work through quite quickly, referring back to Maria’s point about expectation management.
I note that in the debate and the questions in the House there were quite a lot of comments about bereaved families. There has been a significant amount of work over the last couple of years on identifying and supporting bereaved families, and meeting their actual needs rather than their perceived needs. We would certainly like to see bereaved families being addressed in some way within the scope of the Armed Forces Commissioner’s activities.
That would probably be something of a challenge, because the needs and requirements of a family when they are initially bereaved can be quite different from those of a bereaved family 10 or 20 years down the line. That would most definitely be something of a challenge for the Armed Forces Commissioner to work through. Nevertheless, we feel quite strongly that bereaved families should be included in the scope of the definition of families. Beyond that, it is not straightforward. We would like to see the broadest possible definition, because that is what service personnel and their families need, and it should be responsive to their needs and not to what happens to be in the relevant JSP.
Maria Lyle: I recognise that in the legislation, there may need to be—I do not know; I am not responsible for passing this Bill—a clause about what is applicable overseas and in the UK regarding families, for example, and how they are defined and dealt with.
I will give a live example of why it is important to keep the definition as broad as possible. At the moment, adult children are no longer defined as “dependents”, but many families talk to us about the needs of their young adult children who cannot access bases because they can no longer get a dependent’s pass, perhaps because they are at university or have left university. These days, of course, it is really hard for a young person to get accommodation, so they often stay at home sharing married quarters in a way that they would not have done 10 or 20 years ago. It is that sort of thing—the changing shape of family—and this Bill is an opportunity to allow some of those issues to be voiced and made relevant to an Armed Forces Commissioner.
Sarah Clewes: A family may also constitute a couple who have chosen not to have children or who cannot have children. We may think of them as a couple, but actually they are a family, because they are a couple. Are they within or without scope? It is important to consider every single differing family dynamic so that people are not excluded.
Michelle Scrogham
Q
Maria Lyle: I was thinking about that element beforehand. It depends on how the process pans out, in terms of how strategic or how tactical the role of the commissioner’s office is. We want this Bill to be a really helpful change in how military families and personnel are supported, so we want there to be as useful a working relationship with the Armed Forces Commissioner as possible.
For example, we would be really keen to share with the commissioner on a regular basis the information and evidence that we receive all year. There is a rich pattern of data across the sector—the third sector that deals with families—that could be brought to bear in terms of identifying exactly where the big issues are that the Armed Forces Commissioner could shine a light on, perhaps leaning in with Government Departments.
The change in this Bill is the report to Parliament. The armed forces covenant also provides for a report to Parliament every year. That is not necessarily independent; it is Government reporting on themselves. The legislation gives a layer of independence. If we can use this mechanism and get behind it to help the commissioner to have the evidence they need to enact change, that is certainly how we see our role and work with the commissioner’s office.
Sarah Clewes: Just to add to that, I think evidence is absolutely key. If we were to go for a scattergun approach and ask several charities, they would have an opinion. However, is that helpful? The families federations work very hard to provide evidence so that we can find the themes and find out what matters most. That is not to say that we discount other things that may be in the margin, but I think it is so important to have an evidence base on which to make decisions. Otherwise we could just go for a scattergun approach, tie ourselves up in knots and jump on things that perhaps are important to some, but are they as important for others? We need a certain amount of prioritisation, and that is exactly what we have been doing for a number of years. The opportunity to build on that and funnel some of the information upwards for decision making is most welcome.
Collette Musgrave: Just to build on my colleagues’ comments, I think many—not all, but many—of the issues that face service personnel and their families, and that impact positively or negatively on their decisions about whether to join and stay in the armed forces, are fairly well known and have been looked at in the past from a number of angles. As Sarah and Maria say, there is a rich level of evidence already in place. It is a question of using that, but really trying to understand the scale and depth of the issues.
The issues are all well known, and there are many of us who will get behind a certain one at a certain time, or there will be an external event that prompts examination. But it is a question of understanding, across that broad range, which ones are really impacting rather than being an irritation. What is making a real difference, and what is the depth and scale? Getting in behind those issues is where the Armed Forces Commissioner could bring real value. Galvanising all the various bodies externally, and across defence and across Government, to co-ordinate and co-operate to do that could be quite a significant and positive change.
David Reed
Q
Sarah Clewes: That is a really good question. It is a case of dealing with the frustration. As I mentioned, the issue is the inability to make an informed choice. If people are given the information that they need, they can decide which way to go, but when they do not have that information or it comes late, they feel let down again. It is an erosion of the offer; they are not feeling looked after.
This is in the context of busy serving personnel who are not at home for long periods of time to do admin. That is often left to the spouse, who cannot make the decisions because they, too, do not have the information that they require. Again, this is all about feeling valued and feeling as though, if it is part of the offer, there should be a slick process whereby armed forces personnel have been considered and can get the information that they need to look after their children and give them the continuity of education that they deserve.
It is about the package and making people feel valued. It is also about being mindful that people are very busy when deployed on a ship or a submarine, which is the case for the people that we are looking after. Of course, the Royal Marines’ operational tempo is just constant, so there is not time. If there is time to be at home and do things such as admin for the CEA or whatever, the processes need to be really slick.
We have had instances of people coming to us and saying, “This is just too tricky; it’s too difficult. I’ve tried this, and I’ve tried to speak to that person, and in the end it’s too difficult. Do you know what? I’m going to leave because I’ve had enough. It’s too difficult.” That is where we will come in and say, “Surely you must be able to speak to a human being who understands your frustration and who can get this over the line, so that you can go and deploy without being distracted.” A lot of the time, it falls back to the charity sector to help in those ways. Is that right? I do not know, but it is becoming more prevalent that the charities will pick things up, just to take away a bit of the pain. It really should not be that painful. I am not sure if that answers the question, but slick processes, information and feeling valued are key.
David Reed
Q
Maria Lyle: I do not believe that I have a specific concern that the ombudsman being rolled into the Armed Forces Commissioner will make things more complex, or worse. Any machinery of government change will potentially add some time to a system—I get that. I do think there is an opportunity to look at the complaints system itself, and whether it is fully fit for purpose in that change, but I recognise that that is not what the Bill is focused on. My main concern is about whether the actual ombudsman processes are as effective as they can be when they are moved over, so they do not cause problems.
Collette Musgrave: I echo my colleague’s comments; there is nothing substantive that I can add.
The Chair
If there are no more questions, let us thank our witnesses for coming and giving evidence this afternoon. Thank you very much. The star of the show is now going to take the floor.
Examination of Witnesses
Luke Pollard MP gave evidence.
The Chair
Minister, if you could give us your name, rank and serial number, we will get on.
The Minister for the Armed Forces (Luke Pollard): Hello, my name is Luke Pollard. I am the Minister for the Armed Forces.
Mr Francois
Q
I have a couple of other questions on the Bill. You said something on Second Reading that was not entirely clear—I do not mean that critically; it is just the way that it came out. Is the commissioner still going to take up individual cases that have exhausted the service complaints process, in the way that the Service Complaints Ombudsman currently does, or is the commissioner going to concentrate generally on more thematic issues? If it is the latter and not the former, that is a big change. Could you clarify that?
Luke Pollard: Yes, certainly. On the point about SEND, we have not specified an exhaustive list of precisely what the commissioner should be looking at because the independence of the commissioner allows them to choose which issues they want to address, based on the feedback that they are receiving from armed forces personnel and their families, or that they have identified on their visits. It is not an exhaustive list, and we are happy to look at particular circumstances—thank you for the notice.
When it comes to the role of the commissioner, we are effectively rolling the Service Complaints Ombudsman functions into the commissioner. The additional own initiative powers that will be added to this role, forming the commissioner’s office, will be for them to undertake thematic inquiries. Again, we have not overly specified the process that will happen when someone gets in touch with the commissioner, precisely because we want the commissioner to define what their processes should be and to have the independence to establish the processes, the structures and the ability to listen and feed into their thematic reports.
To the same extent, we have not specified how many thematic reports a commissioner should make. We are working on the assumption that, if they are looking at a range of issues, an annual report would contain a summary of their work throughout the year, as well as the usual annual reporting details about staff levels, volumes and other bits like that.
The Bill also includes the power for the commissioner to publish a separate report on a thematic issue if they choose to. It will be down to the commissioner to decide not only where that comes from, but where the issues are taken up. The commissioner has the ability to look at the service complaints system and the issues coming through that as one measure for deciding what thematic areas to investigate. It will be for the commissioner to decide what recommendations to make to Government via Parliament.
Mr Francois
Q
Luke Pollard: Exactly right—all the SCOAF functions move in their entirety. The only change we are making to the SCOAF functions is a very slight and minor one: at the moment, you need an officer to decide validity or eligibility, but that is being changed to an official. Apart from that, the entire SCOAF system is deliberately unchanged, because the place for any revisions to the functioning of the service complaints system would be the armed forces Bill, which will come in about two years’ time. The Bill gives the commissioner the ability to be informed by the service complaints system, as well as anything else they may receive, when deciding on thematic investigations or areas they want to look at.
Mr Francois
That is pretty clear, so thank you for clarifying. I will stop there because I know you have only limited time for your panel and others will want to ask questions.
Michelle Scrogham
Q
Luke Pollard: The Minister for Veterans and People has been looking at the system and will be taking steps to see what the most appropriate representation or system to put in place is. We inherited a system that has national veterans commissioners in some locations, but not all. Al Carns will look at that in due course.
We have deliberately not specified the interaction between any established commissioner for veterans or veterans group and the commissioner in the Bill, because we want the Armed Forces Commissioner to make an independent judgment. My expectation, however, is that there would be regular meetings between the commissioner and the variety of stakeholder groups that operate in the wider armed forces community, partly to check in on issues, but also, importantly, to check in on the progress of their recommendations and how they are being implemented.
A key part of this process is shining a spotlight on an issue, and in my mind it is not sufficient to say, “Here is an issue,” and just present it to Parliament. There needs to be an understanding of what happens next with it, and that is where that interaction would probably be most found.
Michelle Scrogham
Q
Luke Pollard: When the commissioner’s office is stood up, there will be a ways of working agreement between the commissioner and the single services about how things work. I am not expecting the Armed Forces Commissioner to use their unannounced powers frequently. If you look at the German model, the armed forces commissioner in Germany spends about a third of her year undertaking visits, of which nearly all are planned. The ability to make an unannounced visit in the commissioner’s toolbox makes those powers even more prominent, because if an issue is reaching a certain threshold, they can decide to make an unannounced visit.
The powers on national security that we have included in the Bill come from the importance of making sure that in the proper exercising of their duties, the commissioner is focusing on general service welfare matters. What we do not want to see the commissioner doing, as you heard when the current SCOAF presented earlier, is looking at the secret squirrel elements. I do not want them looking into the intelligence services or secret squirrel locations, such as the operational design of missions. That all sits outside their remit; their remit is solely focused on general service welfare. The ability to define that via secondary legislation is a prudent and proportionate power that we have in the Bill. I suspect what will actually happen in most cases is, once the secondary legislation that details that has been published, a ways of working approach will be established.
I cannot really imagine any Armed Forces Commissioner having a remit or operations that step outside that clearly defined general service welfare lane, but if there are concerns, there is also a power in the Bill for the Secretary of State to exercise that caution on visits, especially if there is a national security consideration. We would not expect that, given the welfare focus, but it is a proportionate safeguarding power, just in case.
Lincoln Jopp
Q
“This Bill will establish an independent Commissioner to serve as a direct point of contact for Armed Forces personnel and their families.”
However, I read the Bill and it does not do that. It takes on the ombudsman’s powers—that is chunk one—but only for service complaints. If someone has a housing problem, it is rarely going to be subject to a service complaint; it will go up the housing route. The second chunk is about more general thematic investigations. The Bill does those two things, but I do not think it provides a place for people to go day to day when they have a problem, because that gets into the jurisdictions of local authorities and local education authorities—there is a series of routes. If you are telling us that we are going to change the service complaints procedure so that—[Interruption.]
Lincoln Jopp
Q
Luke Pollard: Thank you. I do not think that it is necessary to legislate for the ability of the commissioner to have an email address, a website or a postal address. We gave a commitment on Second Reading that the commissioner should be accessible by a range of means. It is up to the commissioner to determine what that range of means is and to flex their resourcing to deliver that. The intent behind the establishment of the three functions as you described them, however, will be to provide a way for people who are serving to contact the commissioner. It might be for the commissioner to decide that, with thematic investigations, they operate a consultation function or a direct stakeholder function, in addition to some of the means of direct contact, but that is not necessary to have in primary legislation, which is the reason why it is not in primary legislation, but in the explanatory note, to explain the different roles that the commissioner will have.
Lincoln Jopp
Q
Luke Pollard: The important thing is to look at the outcome and the focus. The commissioner’s job is not to countermand orders or instructions given by the chain of command. That is not in their remit and they would not be able to undertake that activity. Where they will be support for the chain of command is in delivering a better output for their people.
In recent years, certainly—the situation that the new Government have inherited—we have had morale falling in all our services every year for the past 10 years. For every 100 people who join the armed forces, at the moment 130 leave, and that is not good enough. When we talk about renewing the contract between the nation and those who serve and about the Armed Forces Commissioner being the first legislative pillar to do that—the largest pay rises for 20 years and increasing recruits’ pay by 35% are part of that, fellow travellers on the journey—we are trying to support people to join the armed forces and to stay in them longer.
We are aware that for some of the chain of command, the issues that their people are raising with them are not within their remit. For example, over many years and certainly in the past decade or so, we have contractualised housing out of the responsibility of a base commander. Therefore, the ability of commanding officers to respond to some of the welfare needs of their people has been diminished by changes in contractualisation and operating procedures. We hope to make inroads into looking at what we can do to support that by trusting our people more. As part of that, we want to have a commissioner who can shine a spotlight on the thematic issues—in effect, issues that affect our people and their families.
I do not see that as in any way challenging the chain of command. I see it as an ability for the chain of command to deliver their functions in a more efficient manner by having a greater focus on the welfare needs of their people. That is a complementary function to the many welfare needs already undertaken by the chain of command, but especially in those areas where they otherwise might not have any levers. That is why we suggest that the commissioner report to Parliament—via a necessary sifting of national security scrubbing of reports by the MOD—so we can shine a spotlight on that.
In opposition and in government, I have spoken to many people who are in the chain of command, and they have an absolute focus on improving the welfare of their people, but they do not always have the ability to improve all aspects of it. We therefore hope that the commissioner will assist. That is not the only area, but it is an important area—to ensure that parliamentarians of all parties may scrutinise where there is a deficiency in the welfare provision for our people and their families. That is what we hope to do with the commissioner.
Graeme Downie
Q
Luke Pollard: It is quite normal in legislation of this type for there not to be provision in primary legislation. It is certainly the intent of the Secretary of State and me to ensure that provision is given to that coming back, but I am aware of an amendment tabled by the Liberal Democrats in a similar way. I am happy taking that issue and having a discussion about what we can do to ensure that sufficient attention is given to any recommendations.
When we were drafting the legislation, we tried to ensure that where a Secretary of State who has not been involved with the origin of the Armed Forces Commissioner may be in post, they cannot put in place any obstacles to the proper scrutiny of the welfare needs of armed forces personnel and their people. The expectation is that the Ministry of Defence would respond to those recommendations; what we would need to establish informally, which does not require primary legislation, are the methods for tracking the recommendations.
Certainly, as a new Government, we are very aware that many of the recommendations made by the Defence Committee, for instance, to Government over the past decade sometimes have not even been responded to or had information provided back. As part of renewing the relationship between Parliament and the Ministry of Defence, we believe that enhancing parliamentary scrutiny of what the Ministry of Defence does will produce better outcomes both strategically and for our people, so that we will be able to respond to those recommendations from the Armed Forces Commissioner, HCDC and other bodies that report on the welfare needs of our people.
Graeme Downie
Q
Luke Pollard: The legislation has been drawn so that the decisions on what issues to take up—effectively which priority to look at and which sequencing issue will be looked at, certainly on the thematic side—are decisions for the commissioner to be informed by. Certainly, for a commissioner of this type, the challenge procedure would be via judicial review, which would be similar for other commissioners of this style if there was a serious challenge.
We are not trying to set an expectation that the commissioner will be able to undertake a thematic investigation immediately into every major topic. We have seen from the German model that the annual report may contain a large number of items or areas where they have received a form of representation—the German model calls it a petition, which does not quite work in the English translation—or where someone has written to the commissioner to raise a concern that is then used as a way of inputting feedback for the commissioner to make a decision on what to analyse. Clearly, given the quite considerable breadth of issues that fall under a general service welfare matter, quite a lot could be in there.
I am grateful to colleagues for raising particular concerns, such as housing and SEND. There is a lot that could feature. We have drawn the legislation purposefully so that that decision is made by the commissioner; it is not made by Government Ministers directing where it should be. It is for the commissioner to establish those procedures, and I would expect the first commissioner to do that.
Graeme Downie
Q
Luke Pollard: Defence is a reserved matter. It is appropriate that this legislation legislates for all the United Kingdom, but we are aware that some of the welfare matters are devolved in Scotland, Wales and Northern Ireland. Indeed, across the overseas territories—with the exception of Gibraltar, which has a different legislative set-up from the other OTs—they might be the responsibility of a non-Westminster Administration. In those circumstances, we have chosen not to require those devolved Administrations to report or respond in the same way as we do for the Ministry of Defence to be able to lay the report, but we are using the same kind of principles that SCOAF, who spoke earlier, has, which is effectively an agreement that there will be a conversation with the devolved Administrations on those matters. I expect a constructive relationship, as similar roles have with devolved Administrations, but we have not specified a requirement for them to report back or to respond to the commissioner’s report.
What we are aware of, for instance, are issues around service housing at RAF Lossiemouth. That would be the responsibility of the local council in Scotland, as well as the Scottish Government. In those circumstances, if the commissioner was looking at housing in a Scottish context, you would expect them to make recommendations to the Scottish Government. I would expect them to have a dialogue with the Scottish Government to be able to deliver understanding, but the legislation grips on the Westminster Government, because defence is a reserved matter in that respect.
David Reed
Q
Luke Pollard: When we were in opposition, we were looking at the areas where our people in the armed forces and their families were experiencing difficulties. It fed into the broad question: why are so many people leaving our armed forces? Why is there a challenge on recruitment? Why is morale falling, and why has it been falling for the last decade? Although there is not one single reason for those—in many cases it is an aggregation of lots of different reasons—there was a general sense from the Secretary of State, me and other Members of the then shadow Defence team that there was a problem with the offer, or effectively the contract, between the nation and those who served.
We thought that having an independent person with the ability to articulate and advocate those issues to Government would be beneficial. I think that that reflects a concern that in some cases the issues, which we heard in the evidence today, are quite well known. The ability to shine a spotlight more clearly on those issues to prompt action was something that we were quite keen on.
We worked closely in opposition, along with officials in the Ministry of Defence since forming a Government, with the German Armed Forces Commissioner’s office. Dr Eva Högl has been exceptionally helpful in providing not just advice on the legislative underpinnings—she describes her version of this Bill as “perfect”, so it is quite a high bar for us to hit in scrutinising this—but the implementation of how the Bill works. That has given us an idea of how to ensure, when we are looking at a service welfare matter, that there is adequate scrutiny.
Also, by having those reports ultimately given to Parliament, we can avoid the situation that can sometimes happen in this place—where reports are given to Government and then sat on. That is what we are hoping to avoid by routeing it via the Ministry of Defence through a national security scrub, which I think everyone in this room would expect, then having it laid before Parliament by the Secretary of State within a defined time period. I am pretty confident about that.
We also looked at the SCOAF reports from the past that effectively asked for the own-initiative powers. I think it is quite hard for an independent role like SCOAF, albeit within the Government orbit, to engage directly with the Opposition in that respect, but I have been grateful for Mariette’s engagement since the introduction of this Bill, looking at where it can reflect the objectives that she may have for own-initiative powers and how that would work.
That is effectively the origin of how we got here. We wanted this Bill to be one of the first pieces of legislation that the new Government proposed to Parliament, because we wanted it to be a signpost, signal and statement of intent to our people who serve that we recognise that there has been an erosion of the contract between them and the nation, and we want to do something about it. It will take some time to mobilise this office, assuming a standard journey through parliamentary scrutiny. We are hoping that the Armed Forces Commissioner’s office will be stood up at the start of 2026, which gives some time for procedures and policies to be put in place, as well as a decent appointment process that includes a proper opportunity for the House of Commons Defence Committee to scrutinise anyone who may be selected at the end of that.
On your second question, I am happy to have a chat with you about how complaints would be made. When we held stakeholder events with service charities and veterans organisations around the time of First Reading, when the Bill was published for the first time, there was a question about whether there should be a super-complaint function; that is, charities being able to raise an issue. In legislation, you normally have to define who is able to do that. We did not want to create an insider group of charities and an outsider group of charities, where some would be able to do so and others would not. That did not feel like the right idea here.
However, we would expect the commissioner to have regular dialogue—structured, formal, informal; however they see fit—with the wider armed forces community to listen to their concerns to make sure that it works. The first commissioner will establish those processes and procedures. It is up to them to define what those are, including complaints procedures and the other normal running of an office like this. We have not specified them in legislation, partly because it is unnecessary to do so in primary legislation, but also because they are the minimum requirements for a proper, functioning office, very similarly to how SCOAF, the Information Commissioner, the Children’s Commissioner and other similar roles across Government work now.
Pam Cox
Q
Luke Pollard: You could argue that we are doing both. The SCOAF function has wanted own-initiative powers for quite some time, but there was a sense that simply giving additional powers to the Service Complaints Ombudsman, a system that scrutinises a formalised and legislated-for complaints system, was not quite the way to exercise the own-initiative powers—the thematic investigations. That is why we have created a new office, effectively rolling in the SCOAF, but being clear that there is a change that improves the scrutiny function and provides a massive expansion of the opportunities for service personnel and, for the first time, their families. As a result, it needed to be named accordingly to demonstrate that change. In theory, we have delivered a better SCOAF as part of this function and a broader Armed Forces Commissioner opportunity.
We have not amended the SCOAF legislation at this stage. As I mentioned, if amendments are required there will be an opportunity to make them in the armed forces Bill that will follow. This sets the broad parameter that there should be own-initiative powers and independent persons to advocate on behalf of servicepeople. That is why the legislation has been drawn up as it is.
Pam Cox
Q
Luke Pollard: I think I picked that up in my answer to my hon. Friend the Member for Dunfermline and Dollar. I am happy to have a look at what that could be like. It is not normal for it to be in every piece of legislation that we would respond to reports. The normal process within Government is that there would be a response. But I am happy to include my hon. Friend in the conversations I am having to try to work out whether it is a requirement to add that to primary legislation, or whether a commitment to respond, as would normally be the case, would be sufficient to address those concerns. I am happy to have a conversation.
Helen Maguire
Q
Luke Pollard: We have deliberately drawn the powers to be quite limited. The Secretary of State can restrict access only on national security grounds or where there would be a danger to a person. The example that might work there is visiting the frontline during combat operations. There would clearly be a danger to our people if there were to be a formal visit, and there would probably be a danger to the commissioner in that situation. That gives a prudent safeguard power.
We have deliberately tried to separate the powers that might normally exist for the Secretary of State from this role so that there is more independence for the commissioner. By establishing a novel route to Parliament, we have also provided Parliament with greater ability to raise any concerns. If the commissioner encounters any difficulties with interactions with the Ministry of Defence or other providers of services for our people, they are able to raise that in their reports. Those are then given to Parliament to be able to independently scrutinise, separate from the MOD.
What we have tried to do is to separate those functions out. I think we have succeeded in doing that in the Bill. The style of how that will happen in practice will depend on the person appointed to the office and how that office is established. However the principle of impartiality and independence from the Ministry of Defence—and, importantly, from the single services—is at the heart of this legislation. The legislation is designed to build trust, so that people can go to the commissioner if they want to raise a concern.
Helen Maguire
Q
Luke Pollard: The hon. Lady is a relatively new Member in this House. If she had been here over the last seven years, she would have seen this massive gay over here—me—speaking loudly about equality matters. I feel incredibly strongly about this. From an armed forces point of view, we should value all our people. That is the intent of this Bill: to provide an opportunity for all our service people and their families—a cohort of people absolutely essential for the delivery of our national security who have often been forgotten in legislative and some MOD approaches in the past.
There is already a public sector equality duty under the Equality Act 2010 that would apply to the commissioner. When the commissioner was undertaking their reports, they would be bound by that duty to have due regard to the different minority groups that form the armed forces and families. I would expect that to be present. If looking at some of the equivalent reports we have seen, there would be an opportunity for the commissioner to look at the experience not only of the whole armed forces but groups within it—however those may be defined. There would be an opportunity for the commissioner to make that distinction in experience, not just in determining what issue to raise but also how they investigate it. I would expect that to be front and centre. If it is not included, I would expect Parliament to be able to scrutinise and ask questions of the commissioner in due course.
Helen Maguire
Q
The Chair
Briefly, please.
Luke Pollard: I would expect them to have regular meetings with the chain of command—senior officers, base commanders, and people who form the rank and file of all our services. I think it is important the commissioner has the ability to decide who to interact with, and the ability to not only have interactions but—as set out in the legislation—to request information from the Ministry of Defence. It is not only about the ability to hold conversations, dialogue and engagement but to actually get the information required to inform their recommendations.
Amanda Martin
Q
Luke Pollard: With the exception of the Atherton review, which was a House of Commons Defence Committee report—a very good one—most of those reports have been externally commissioned: often commissioned by the Government to report on an issue they had chosen. The point of the commissioner is that they would not be informed by ministerial priorities or by looking at the areas the Government of the day wanted to look at; they would be informed by the representation that they received from armed forces personnel and their families. I think that is a really important distinction.
In many cases, reports have been commissioned but things have not necessarily been done. This legislation provides a route for parliamentarians to receive the report and to be able to raise questions and concerns. I would expect the commissioner to be a regular attendee of the House of Commons Defence Committee. It would be for that Committee to determine how, when and in what format that would take place, but I would expect there to be a brighter spotlight on those issues, precisely to stop these reports and recommendations being long-grassed, as we might have seen over the last decade.
Terry Jermy
Q
Luke Pollard: I am. The reason we have drafted the legislation as we have is to be absolutely clear about a separation of this commissioner’s office from the Ministry of Defence. I think the point that Mariette was making in her evidence is that the funding has to come from somewhere. However, I think it is the way that the commissioner is appointed, how they operate and how they build trust and confidence with our people that will build the independence in the role.
We can legislate for independence and separation, as we have done, but it is the operation of the role that will build trust with the people. That is why I will expect the commissioner to be on the road, visiting our forces and having those conversations, in order to build the trust. I will expect them to have a robust scrutiny process in terms of their appointment, and to be able to give Ministers a tough ride on the delivery of the issues that matter.
That is the reason we are doing this. If this role did not have any teeth, there would be no point in legislating for it. I want this role to be able to carry a really bright spotlight, to shine on the issues that are affecting our people—because ultimately, if we do that, we recruit more people, we retain more people and more people want to rejoin our armed forces, improving morale and service life. That ultimately improves our operational effectiveness as a military.
Juliet Campbell (Broxtowe) (Lab)
Q
Luke Pollard: The Bill itself is not a stand-alone piece of legislation. It might be useful for hon. Members to understand that, effectively, it inserts legislation into the already existing Armed Forces Act 2021, which includes a section—I think it is section 340—that already includes the armed forces covenant. However, we did not want to specify the relevant family member in primary legislation; we wanted to be able to take more time to have conversations with stakeholders and define that through secondary legislation.
If the definitions were to change in the future, that could change. We have seen that the question of what a family is has changed. For me, a family is the most important unit of society, but what and how it is will be different for every different family. We are trying to find the right definition. I imagine the commissioner will have a view on that, and they can then make recommendations on that basis. That is why there is the option of being able to revise the definition via secondary legislation, which is an easier process than undertaking primary legislation—and the Armed Forces Bill comes round only once every five years.
Andrew Ranger (Wrexham) (Lab)
Q
Luke Pollard: There is an obligation in the Bill for the Secretary of State to co-operate with the commissioner to provide information. “Secretary of State” means that the whole organisation under the Secretary of State also has that obligation placed on them. I expect that, on appointment, the processes and functions will be established, just as they are with the current SCOAF function, in terms of being able to request information—who that goes to, how that should happen, and what the processes and procedures are to enable that to happen.
If there are any obstacles or failure to deliver, which I think is what my hon. Friend is getting at, the Bill allows the commissioner to report that to Parliament in their annual report: effectively to say, “There is a problem here”. That would provide the parliamentary scrutiny, which, for any future Secretary of State, would be a deterrent against failing to provide the necessary information. Equally, we put a power in the Bill for the Secretary of State to have to report to Parliament if they dismiss or remove the Armed Forces Commissioner, to enable that scrutiny function of Parliament as an oversight for the work of the Executive.
Andrew Ranger
Q
Luke Pollard: I would expect the Bill to complete early next year. I would expect the appointment process to take roughly a year, and the office to be stood up as a commissioner’s office at the start of 2026, taking cases and, importantly, ensuring that all SCOAF cases are smoothly transitioned without any detriment to the individuals in that process—from the SCOAF function into the Armed Forces Commissioner function—to make sure there is no loss of any of that provision.