Armed Forces Commissioner Bill
(3 days, 9 hours ago)
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18:42 - Division on Amendment 3 - Ayes: 245 / Noes: 157 - Amendment 3 agreed.
Baroness Smith of Newnham
Baroness Smith of Newnham (LD)
My Lords, noble Lords will be very pleased to hear that I intend neither to speak for very long nor to divide the House on my amendment. However, I will press the Government for some clarity about a group of people whose interests are extremely important: those going through the recruitment process to become members of His Majesty’s Armed Forces. The amendment therefore seeks to expand very slightly the scope of the Armed Forces commissioner to include not people who wander into an Army recruitment centre and say, “I am interested in joining”, but people who have submitted applications and might be going through the recruitment process.
My understanding, from my honourable friend in the other place, Helen Maguire, is that it is still possible that people going through the recruitment process might be required to stay overnight. In those circumstances, there may be times when people feel that they are subject to abuse, bullying or the sorts of issues that they might need to complain about. On the face of it, it would appear to be appropriate that such people would come under the purview of the Armed Forces commissioner.
If the Minister cannot accept my amendment, would he be able to explain to the House what recourse people going through the recruitment process might have? If it is not through the commissioner, are there other ways for people to raise concerns? If they can do so, is it made clear to people how they can put in complaints? A frequent concern is that individuals do not necessarily know how to make representations. That is obviously a matter for people going through the recruitment process, as well as a wider issue that members of the Armed Forces face, and we may well come back to it when we discuss other amendments. With that, I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, I have attached my name to Amendment 6 in the name of the noble Baroness, Lady Smith, to which Amendment 1 is linked; I will speak only extremely briefly because she has made the case very well.
I will link this amendment to my Amendment 8, which we will get to later. As the Minister well knows, it relates to my concern about 16 and 17 year-olds—or even 15 year-olds—being recruited into the Armed Forces. The noble Baroness spoke about people in residential situations, but if a 15, 16 or 17 year-old, who has decided that their whole future is in the military, finds that the assessment process operates in a way that is—we would hope that this would not happen, but we need to consider the possibility—abusive or inappropriate in some way, it is important that that person has protection.
I am particularly thinking of—although not solely—those 15, 16 or 17 year-olds who are vulnerable people, and who pin their whole future life on what happens to them in those few days or during a specific test. It is really important that they have the protection that we all want the Armed Forces commissioner to be able to provide to members of the military. I believe that these prospective members of the military should fall within—an often-used phrase—the military family.
Lord Lancaster of Kimbolton (Con)
My Lords, I oppose Amendments 1 and 6. While I have enormous sympathy with their intent, when I heard the noble Baroness say that this would expand the role of the commissioner a little bit, I am afraid I thought it would do anything but. If we consider that there are some 160,000 to 170,000 members of the Armed Forces, including reserves, who would be able to have access to the commissioner because they are subject to service law, and that there are over 100,000 applications—the word used by the noble Baroness—to join the British Army alone, never mind the two other services, we would in effect be doubling the aperture for those who could potentially submit a complaint to the commissioner. The commissioner’s office is already under enormous strain. It is a tiny office because much of the service complaints system is done through the single services. The Bill already suggests that the budget for the commissioner is going to have to double. I simply do not understand how the commissioner could cope, but I am sympathetic to what the noble Baroness is trying to achieve.
Equally, Amendment 6 is slightly confused, because in Committee we established that attestation is the point at which someone joins the Armed Forces, and that is when they become subject to service law. Yet, where the noble Baroness seeks to extend it to those engaged in training as well, those people by definition have been attested and, if they are conducting military training, have already joined the military and so will be subject to service law.
While I am on my feet, I want to address a general point with the Minister in my capacity—and I declare my interest—as director of Army Reserve, on the test for whether someone is subject to service law. As a humble reservist, I am subject to service law, but only when I am claiming a reserve service day or wearing a uniform. For much of my time, like other reservists, I am not subject to service law. The problem is that, just because I and my fellow reservists are not subject to service law, that does not mean that the military is not doing things in my name which may warrant a service complaint. For example, I could be subject to a promotions board which I wish to contest; or I could be on a leave of absence, which then could be misinterpreted as a long-term absence and I could be dismissed from the Army Reserve. Indeed, I could be posted while I am on a leave of absence but not technically subject to service law at that point. If we look at this from a purely technical point of view and if we look at the Bill precisely, for all those actions happening while I am not subject to service law, I would not be able to submit a service complaint. I am not suggesting that it needs an amendment, but it would be useful if the Minister could reassure your Lordships’ House that the intent is that, when it comes to the reserves, they will be able to submit a complaint to the commissioner whether or not they are technically subject to service law at that moment.
The Earl of Minto (Con)
My Lords, I begin by reaffirming our support for the Bill and the creation of the Armed Forces commissioner. There are noble aims contained within its pages, and we will always welcome efforts to improve the lives of our service personnel.
When they introduced this Bill, the Government were clear that they intended the Bill to focus on serving members of the Armed Forces. The amendment tabled by the noble Baroness, Lady Smith of Newnham, would give access to the commissioner to a recruit from the moment they attended an assessment centre until the moment they were attested, after which they become subject to service law and will have access to the commissioner anyway.
I am highly sympathetic to the intent behind these amendments. The noble Baroness makes an excellent point: there are ongoing concerns about the recruitment process generally, and there are well-known welfare issues facing recruits. In fact, I believe that the Chief of the Defence Staff, Sir Tony Radakin, said on Monday that the Armed Forces are shrinking by around 300 personnel per month and that it would take up to three years to reverse that decline, especially given the Government’s proposed coalition of the willing and the recent reports that European nations would struggle to put 25,000 troops on the ground to protect Ukraine should that become necessary at some point. Against that backdrop, it seems right that action is taken to improve the recruitment process. I am pleased that the Secretary of State has acknowledged that this must be a priority. Given the challenges the Ministry of Defence is facing, will the Minister comment on further action that the Government are taking to drive improvements in recruitment?
Finally, I wish to make a brief point about the potential expansion of those who will have access to the commissioner. As I said, and as we said in Committee, we have sympathy with proposals to include recruits and veterans, but we also accept that the commissioner must not be overburdened by having to deal with an ever-growing number of people, which may limit the effectiveness of the commissioner—which would be regrettable. I look forward to the Minister’s response.
The Minister of State, Ministry of Defence (Lord Coaker) (Lab)
I thank all noble Lords who have come to the Report stage of the Bill and thank the noble Earl, Lord Minto, again for the support of His Majesty’s Opposition—I know that there is general support across the House as well. Notwithstanding that, there have been some interesting and important discussions around the application and clarifications.
Let me deal first with the question from the noble Lord, Lord Lancaster, in relation to the reserves. The answer is yes, they are able to submit a complaint, as long as it is related to their ongoing service. There is no time limit for that, but they cannot be veterans. I hope that helps. Obviously, there will be particular circumstances, but I think that clarifies in general terms the point that the noble Lord, Lord Lancaster, was making around reserves.
Lord Lancaster of Kimbolton (Con)
It does, apart from the clarification of what defines a veteran, on the basis that when a regular member of the Armed Forces leaves, they still have a reserve liability. We like to call them veterans, but they become part of the regular reserve and, subsequently, the recall reserve, so these things are complicated.
Lord Coaker (Lab)
They certainly are, but I hope that there is some clarification from what I said to the noble Lord. No doubt that conversation will continue.
More generally, on the point that the noble Earl, Lord Minto, made on recruitment, the Government have been very clear about trying to improve the recruitment and retention process, and various changes have been made. We honoured all the Armed Forces pay review board recommendations. We have made some changes to childcare arrangements to try to improve those, and some of the recruitment processes have been changed—to have a new direct entry route into cyber, for example. There is the change of contract as well. We are trying to take on board some of the criticisms and challenges there have been to address the more general point about recruitment, but also retention. Let us see where the figures get to over the next period, because we all want to see recruitment into our Armed Forces—and, indeed, retention—improve.
I thank the noble Baroness, Lady Smith of Newnham, for her Amendments 1 and 6—I know that she has the support of noble Baroness, Lady Bennett, for Amendment 6. I acknowledge the noble Baroness’s genuine and well-founded concerns about the experience of those applying to join the military. During Committee, we discussed the importance of a recruitment process that is fit for purpose, as I outlined to the noble Earl, Lord Minto, and easy to navigate—a process that will enable as many people as possible to join their preferred service in a timely fashion and provide sufficient protections for those going through it. The noble Lord, Lord Lancaster, noted the number of candidates. The figure I have is that up to 150,000 candidates are applying to join the military at any one time. Bringing them into scope would obviously vastly increase the workload of the commissioner. I note the noble Baroness’s revised amendments, which attempt to narrow the numbers by defining at what point in the process an applicant would come under the commissioner’s scope. When we discussed this, the noble Baroness made it clear, as she has in the Chamber today, that she wanted to understand how the process works and what people can do if they are unhappy with how they are treated. I shall now make some remarks that I hope address some of her concerns.
The Navy, Army and RAF have different requirements and processes for recruitment. These differ depending on whether the candidate is joining as an enlisted person or as an officer. Each service has a clear complaints process for candidates. All complaints are dealt with by a qualified officer, with any medical complaints being sent to trained medical staff. To further reassure the noble Baroness and other noble Lords, there are protections in place to ensure the welfare of candidates completing Armed Forces selection or assessment activities on defence establishments. The Armed Forces have in place appropriate safeguarding measures which are regularly reviewed and updated as appropriate in support of these activities. These measures cover, but are not limited to, staff selection, training, background checks, candidate accommodation—a point raised by the noble Baroness and by the noble Baroness, Lady Smith—and the conduct of activities.
I absolutely agree that we must look after those going through the application process. However, these processes are already in place and the commissioner would not be the right avenue to replace them. I hope that, with those remarks, the noble Baroness now has the necessary reassurance. Important as they are, I ask her not to press her amendments.
Baroness Smith of Newnham (LD)
I am grateful to all noble Lords who have contributed. As I said in my opening remarks, Amendment 1 was, in many ways, intended as a probing amendment. I am grateful to the noble Lord, Lord Lancaster, for pointing out the slightly sloppy redrafting of the amendment since Committee and that the last line should not have been there. I am happy at this stage to withdraw Amendment 1. Amendment 6 is consequential, so I shall not be moving it.
Lord Coaker
Member's explanatory statement
This amendment is consequential on my amendments of clause 4.
Lord Coaker (Lab)
My Lords, in moving government Amendment 2, I will speak to government Amendments 7, 9 and 11 and to Amendment 12, tabled by the noble Baroness, Lady Smith of Newnham. They all focus on the importance of the definition of “relevant family members” in the context of the Bill. Before explaining the Government’s amendments, I will address Amendment 12 and explain why the Government have decided not to include it in the Bill but rather to create an affirmative delegated power, so that the definition may be brought forward in secondary legislation.
The definition of “family members” and their access to the commissioner has been at the forefront of the Government’s mind throughout. It has always been our intention to future-proof our inclusion of family members. Including the definition in secondary legislation allows it to be updated quickly, to account for changes in society, without needing to create new primary legislation. Our intent is to encompass all family units and not pre-judge this by having a full definition in the Bill—though I have to say that the definition that the noble Baroness seeks to put in the Bill is very good, as it is our definition. However, as I have made clear, the definition can be changed at some future point.
As noble Lords will be aware, the draft regulations covering the definition of “family members” for the purposes of this Bill have been distributed to all interested Peers for consideration. The Delegated Powers and Regulatory Reform Committee has thoroughly scrutinised this power in its report. These government amendments fully implement the committee’s only recommendation, by changing the regulation-making power in the Bill to define relevant family members from the negative to the affirmative procedure. The proposed amendments would ensure that there is a debate on the Government’s definition of a “relevant family member” in both Houses when the secondary legislation is brought forward, which, based on the discussions so far, I am sure would be welcomed by noble Lords.
I hope that this provides the necessary reassurance to the noble Baroness, Lady Smith, on the importance placed on the definition of “family members” in the Bill and the opportunity that the Government are trying to give to debate this further in due course. On this basis, I ask the noble Baroness not to press her amendment that seeks to place the definition in the Bill.
Lord Craig of Radley (CB)
My Lords, I firmly support the Government in these amendments. There has been a tendency in the Bill to combine in one’s mind the specific complaints that the ombudsman used to deal with and the more general approach which the Bill is encouraging the commissioner to have. I think one wants to keep those two issues clear in one’s mind.
The other point, which I made in Committee, is that the Bill will get added to the Armed Forces Act 2006. Those not familiar with the Act should know that it has close to 400 sections, 17 schedules and goodness knows how many pages—more than 500. Every page of this Bill, when it is enacted, will get added to that. It makes absolute sense that, when we are trying to identify a range of individuals who may have access to the commissioner, it should be in secondary legislation and not on the face of the Armed Forces Act.
Viscount Stansgate (Lab)
My Lords, I support the Bill and my noble friend the Minister’s amendments. We had an interesting discussion about the phrase “relevant family members” in Committee. I declared an interest at that stage. I retain an interest, certainly until 20 September.
In view of the comment made by the Minister on the content of Amendment 12, I would like to know whether, in proposed new subsection (3)(a), the reference to
“a person whose relationship with A is akin to a relationship between spouses or civil partners”
covers someone engaged to a member of the Armed Forces, rather than a spouse or a civil partner at that time. I hope the Minister might tell me that, when it comes to the secondary legislation, that will be set out more explicitly than it is in Amendment 12.
Baroness Smith of Newnham (LD)
My Lords, I will speak to my Amendment 12 and respond to the Government’s amendments.
One of the issues that we raised in Committee was precisely the need for a definition of “family member” and, in particular, a concern that kinship care should be taken into consideration. Between Second Reading and Committee, we had a government proposal for the sort of definition of “family” that His Majesty’s Government might bring forward.
On another of my amendments in Committee, the noble and gallant Lord, Lord Craig, pointed out that the legislation was already far too voluminous and asked whether we could please rein back a bit. I am happy to be corrected about the appropriateness of having long descriptions in the Bill. I think the suggestion of moving to the affirmative procedure for the definition of “family” in secondary legislation is acceptable.
I have one question for the Minister, but it might also be a wider one for His Majesty’s Government. We have talked about the definition, and the fact that the Government put forward some proposed wording in Committee suggests that there is a need for such a definition. However, if we already have 400 pages of legislation on the Armed Forces, do we not already have some definitions of what a family is? Do we actually need to go through the Armed Forces code—not on the Floor of the House today—to make sure that everything hangs together and we have one agreed definition that we might look at when we are at the level of secondary legislation?
For the moment, I am happy to say that, at the appropriate point, I will not be testing the opinion of the House on Amendment 12.
The Earl of Minto (Con)
My Lords, I thank the Minister for setting out the case for the Government’s amendments. We on these Benches are pleased that they have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee that regulations to define the term “relevant family member” should be subject to the affirmative procedure.
At Second Reading, the Minister said:
“it matters that this Bill represents the first time that the families of service personnel will have a mechanism by which they can raise issues about how their life as a relative of a member of the Armed Forces impacts their welfare”.—[Official Report, 3/3/25; col. 302.]
This demonstrates that the Government clearly envisage a significant role for the family members of service personnel. It therefore always seemed slightly bizarre that not only were family members not defined in the Bill but the regulations that determined who will be included would not permit parliamentary scrutiny. The Government have now rectified that issue with these amendments and have published the draft regulations. Having looked over those, I do not have any objection to the proposed definition of “relevant family member”, and it appears to do a thorough job in capturing the complexities and, at times, vagaries of relationships in service life.
Amendment 12 from the noble Baroness, Lady Smith of Newnham, inserts the content of those draft regulations into the Bill itself, so that the primary legislation contains a definition of “relevant family member”. It is a good principle that, wherever possible, as much detail should lie in primary legislation rather than be left to delegated powers. Having listened to the Minister, and given the deployment of the affirmative procedure for the delegated powers, I am on this occasion satisfied with the Government’s response.
Lord Coaker (Lab)
I thank the noble Earl, Lord Minto, and the noble and gallant Lord, Lord Craig, for their support. I do not want to restart the debate about defining a relevant family member, because that would be an interesting but long and complicated debate.
I start with a couple of points, hoping not to generate the debate that I just said I hope we do not have. Are engaged couples included? My noble friend Lord Stansgate declared his interest with respect to that. He asked the same question in Committee; I am glad that it is still the same question now, just a few weeks later, on Report. The answer to my noble friend is, yes, that is our intention. We look forward to debating further the other points that noble Lords have raised when we come to the secondary legislation.
I will speak in general terms on the point the noble Baroness, Lady Smith, raised—again, this debate will take place when the secondary legislation comes forward —concerning why we do not simply use the covenant definition. It states:
“section 343B(4) Armed Forces Act 2006 … provides … the definition of ‘relevant family member’ … for the Armed Forces Covenant. The principles under the Covenant and the remit of the Commissioner will operate in a similar policy space (the welfare/ effect of service on service persons and their families)”.
However, they are separate policy backed by different legislation for different purposes. For example, the commissioner’s scope is solely for current service personnel and their families, while the covenant’s remit, as the noble Baroness knows, will also include veterans and their families. In a sense, we are trying to ensure that the definitions we use are fit for the different policy objectives they have.
With those few remarks, I thank noble Lords for their scrutiny of the amendments we have put forward and I restate the importance we placed on fulfilling the recommendation of the Delegated Powers and Regulatory Reform Committee that the delegated power for the regulation be made affirmative. That is an important change we have made and offers both Houses of Parliament, including your Lordships’, an effective and important opportunity to debate the contents of the “relevant family member” definition without compromising our ability to reflect changes in society in the future. With that, I hope that noble Lords will support the Government’s amendments.
Baroness Goldie
“(aa) to investigate concerns raised by a whistleblower in relation to the welfare of persons subject to service law and relevant family members, and” Member’s explanatory statement
This amendment would introduce a whistleblowing function into the functions of the Commissioner.
Baroness Goldie (Con)
My Lords, in moving Amendment 3, I will also speak to Amendment 5. Both are in my name and that of my noble friend Lord Minto and are on the issue of whistleblowing. Close followers of this Bill will know that I raised this matter at Second Reading and by amendment in Committee.
Let me put a little perspective around this. This is a good Bill. The creation of such a visibly independent office as the Armed Forces commissioner is a very positive development. The powers and functions conferred by the Bill on the commissioner are extremely important. The Minister’s willingness to engage throughout the Bill’s progress has been genuine and constructive, and is much appreciated.
To keep this as brief as possible, in Committee I argued, in essence, that the commissioner should be empowered to investigate any concern raised by a whistleblower and should protect the anonymity of the whistleblower. I was grateful for the support that I received across different Benches, and there was a very useful discussion. I inferred that there was indeed a consensus around the broad thrust of what I was trying to achieve but a divergence of view on the part of the Government about how to achieve it. The Government’s response in Committee was that there was already
“a comprehensive whistleblowing system, for military and civilians alike, and it includes robust policy, procedural investigation teams and a confidential hotline, so the amendment is not required”.—[Official Report, 24/3/25; col. GC 453.]
This response refers to the improved complaints system, which I do not deny is there and operating to improved effect. The Government were also concerned about the breadth of my amendment, which they felt could reach a range of issues beyond general service welfare matters.
Dealing with the first response, I was not persuaded by the “a whistleblowing system already exists, so nothing more is required” argument. I will explain why. Notwithstanding the creation of an Armed Forces commissioner to deal with general welfare issues, many of these issues will continue to be addressed through the existing complaints system, but that is not an argument for no commissioner. As accepted by the Government, this creation is an enhanced protection for service personnel and an additional route for complainers or victims to use. As I argued in Committee, whatever support and protection we can give to our service personnel, particularly women, we should provide it.
Given the Minister’s willingness to engage further, I withdrew the amendment in Committee. Subsequently, I had a constructive meeting with him and his officials when we explored the issue further. I had sympathy with the point about the breadth of issues that could be encompassed by my amendment. I did not intend whistleblowing with respect to the commissioner’s role to extend beyond welfare and general welfare issues as defined in the Bill, so Amendments 3 and 5 have been drafted accordingly to reflect that. A whistleblower as defined in Amendment 5 is within the parameters of the Bill.
The Minister helpfully shared with me the MoD’s further thinking on the issue and the advice from his officials. Anticipating that he will wish to cover that in his wind-up speech, I will address what may arise. I hope that will assist him in his response.
The Government consider that whistleblowing is not a legally recognised term and does not have a clear, agreed meaning. I have no difficulty in understanding what whistleblowing means, and from the contributions in Committee it is clear that neither do your Lordships. Much more importantly, service personnel will have no difficulty in understanding what whistleblowing means. The simplicity of being given a simple central point of access to the Armed Forces commissioner under the widely understood umbrella of whistleblowing, regardless of what service you are in, to voice your whistleblowing concern anonymously is manifestly attractive. That a friend in the services or a relevant family member can do the same with anonymity will have a compelling appeal.
Given the reputational damage done to the MoD, with a catalogue of dreadful stories over a period of years, particularly in relation to servicewomen, why would the MoD not want to do this? Indeed, just this morning BBC Wiltshire reported horrific accounts of alleged rape and sexual assault from three women, one of whom served in the Navy and another in the RAF. The third is still serving in the Army. What a message this amendment would send to those women—women who feel they are being ignored and that their concerns are being overlooked. My amendment is specifically designed to offer such women a widely understood and simple route to seek help, regardless of what other procedures may exist.
The Government claim that whistleblowing is not a legally recognised term. However, it features in Section 340Q of the Armed Forces Act 2006—the very Act of Parliament that this Bill amends—and in the Police Reform Act 2002. Those Acts confer the power to investigate whistleblowing complaints to the Service Police Complaints Commissioner and the Independent Office for Police Conduct respectively. In fact, Section 340Q of the Armed Forces Act 2006 is even entitled
“Investigation of concerns raised by whistle-blowers”,
and the Police Reform Act has an entire part with that same title. It is therefore evident that there is statutory precedent for whistleblowing provisions. It appears that we are dancing on the head of a pin here.
I have dealt with, and I hope rebutted, the Government’s argument that whistleblowing is superfluous and that a specific addition is not needed to this Bill. The Government then came up with an imaginative diversion. Whereas my previous amendment was too wide, now that I have confined it to the parameters of the Bill the Government now argue that the amendment is too constraining. There is now so much dancing on the head of a pin by the Government that the pin is about to buckle.
I understand that the Government will undertake to give reassurance about anonymity and confidentiality in respect of the commissioner’s activity and any report prepared by the commissioner. That merely reaffirms what I think we all assumed was there already, regardless of any whistleblowing function. Otherwise, how could the commissioner do the job without those protections? I understand further that there will be an undertaking to engage in a comprehensive communications campaign for the benefit of Armed Forces personnel and their families about the role of the commissioner and what can be raised with the commissioner. Again, that is necessary, but it is not a substitute for what I want to achieve.
Indeed, that communications campaign might wish to begin with Ministers. The Minister recently repeated the Written Statement by his honourable friend the Minister for Veterans and People in the other place laying before Parliament the Service Complaint Ombudsman’s annual report for 2024. In that Statement, he says that the Armed Forces commissioner
“will have the power to investigate any issues raised directly by Serving personnel and their families”.
That is not what the Bill says. The Minister, whom I respect greatly, was merely the hapless intermediary. I suggest that the Government get their own house in order before they take issue with others.
I think where we have got to is that the Government are saying, with some bells and whistles, that we are doing enough. I say we are not. My amendments will deliver more. I shall listen with great interest to the debate and in particular to the Minister’s wind-up remarks. If he can give me an undertaking that he will return at Third Reading with an amendment that specifically covers whistleblowing, I will be content to withdraw this amendment so that we can explore the Government’s proposal further. However, if he is unable to do so and he cannot go further than he has already proposed, then I will be left with no choice but to test the opinion of the House. I beg to move.
Lord Beamish (Lab)
I welcome this amendment because it is trying to get to a point that I do not think any of us could disagree with, which is that we want people to be able to raise issues affecting not just them but colleagues and members of their family. What the noble Baroness said about the legal definition is right. It is in other legislation, and I think it was raised when I was on Armed Forces Act 2006, but I am not sure what it adds to the powers of the commissioner.
The commissioner has quite wide powers under the Bill as drafted, including being able to do thematic inquiries. I am sure that if he or she received complaints—the noble Baroness mentioned the appalling treatment of women in certain parts of the Armed Forces—the commissioner could, without any interference from outside, take it on himself or herself to conduct an investigation. I would support this inclusion if it added anything to what is already there, but I am struggling to understand what additional powers it would give to the commissioner. Obviously, it would be down to the tenacity of whoever is appointed as to whether they try to take up some of these individual complaints.
Baroness Carberry of Muswell Hill (Lab)
My Lords, I commend the noble Baroness, Lady Goldie, on her tenacious championing of the interests of Armed Forces personnel. I know that that commitment long predates my arrival in this House, so I step with some trepidation on to the noble Baroness’s territory. But, together with my noble friend Lord Beamish, I hope she can explain and help us to understand better what the proposal in the two amendments adds to the powers that the Bill already gives to the new commissioner.
I have been trying to approach this question from the point of view of the ordinary member of the Armed Forces who, as it is, is faced with different channels to take concerns through. When the Armed Forces commissioner is in place, there will be yet another channel, and it is unclear to me, if I were put in that position, when I would consider myself to be someone who was availing themselves of the existing channels and when I might consider myself to be a whistleblower, and what the difference would be.
I confess that I am not totally clear about the array of routes that someone in that situation might be able to take, and I wonder how the average member of Armed Forces personnel already navigates their way through the possible routes. As I understand it, the existing channels—forgive me if I have got this wrong—include the Ministry of Defence complaints procedure, a facility whereby people can report serious matters confidentially and, in some cases, anonymously; so that is similar to being a whistleblower. Another route appears to be the MoD’s serious concerns reporting facility: another confidential mechanism for raising serious concerns, which can be done online, on the phone or through an app. There also appear to be internal MoD policies that are already committed to protecting whistleblowers from retaliation or other detriments. The support available to people includes nominated officers outside the chain of command and a confidential hotline team.
On top of that, as the noble Baroness, Lady Goldie, referred to in her introduction, there is the reformed complaints system, which will introduce a new specialist tri-service team for taking the most serious complaints—which will include bullying, discrimination and harassment —outside the single service chain of command. As I understand it, that has been welcomed by the family of Gunner Jaysley Beck, who always remains in our thoughts when we are discussing these matters. A spokesman for the family said that those running the new system need to be truly independent, properly trained and committed to real accountability and transparency. I suggest that those are all our aspirations for the new Armed Forces commissioner.
On top of the channels that I have already mentioned will be added the Armed Forces commissioner. Will the noble Baroness take the opportunity to explain to us again, so that we better understand it, what adding a whistleblowing facility to what already exists would achieve? I also invite my noble friend the Minister to give us further assurance that anyone who in future has recourse to the services of the Armed Forces commissioner will be able to do so anonymously, in the same way that anyone designated as a whistleblower under any other system would be able to do. If the Minister could give us that reassurance, that might go a long way towards meeting the concerns the noble Baroness outlined in moving the amendment.
Baroness Kramer (LD)
My Lords, I apologise for not taking part in the Bill earlier. As the House will know, this is not my usual territory, but I am grateful to the noble Baroness, Lady Goldie, and my noble friend Lady Smith of Newnham for drawing my attention to the whistleblowing issue in it. I very much support the amendments in the names of the noble Baroness, Lady Goldie, and the noble Earl, Lord Minto, which would add a whistleblowing function to the Bill and to the role of the commissioner.
Amendment 3 seeks to make it clear that someone who speaks out on the issues covered in the Bill—essentially, welfare issues—can take their concerns directly to the commissioner regardless of the service they are attached to, and will have the status of a whistleblower, with the respect and protections that come with that role, as established under our current whistleblowing law, the Public Interest Disclosure Act 1998, which include confidentiality. The commissioner will then be empowered to investigate again if the issues meet the criteria set out in the Bill—and investigation, as any survey of whistleblowers will tell you, is more important to those who speak out than even protection.
There is a distinction between someone who makes a complaint and someone who chooses to blow the whistle. A complainant is looking for very specific redress and quite rightly—there is nothing wrong with that; it is entirely appropriate—but a whistleblower, as we know from whistleblowers generally, is someone who has realised, recognised or seen the potential for something going seriously wrong. They are not looking for personal redress; they are raising the issue in order to achieve investigation. The commissioner can then make that decision, but that is a very different process and a very different aspect from making a complaint about an experience that you or a family member directly had. You may end up complaining and whistleblowing, but whistleblowing has to be recognised as a tool which directs investigators.
I spent part of this morning with the director of the Serious Fraud Office, who underscored the fact to an all-party parliamentary group that when you are an investigator, knowing where to investigate requires a flow of information. He said that the biggest help Parliament could give the Serious Fraud Office would be to empower whistleblowers, because that is where he finds the information and the direction that guide the investigation he needs to do. It seems to me that that applies just as much in the armed services—even if it is under the limited welfare umbrella—as it does anywhere else.
I will concede that the current whistleblowing law which frames whistleblower protections, the Public Interest Disclosure Act, is deficient and many of us are seeking to upgrade or replace it. But it is all we have today and at the very least, its protections should extend to the armed services. The Government have responded that they can simply put the protections into their policy document. Why does anybody think a policy document is legal protection? The Government also suggested, as the noble Baroness, Lady Goldie, mentioned, that they could introduce an anonymity clause for the reports the commissioners publish, but I cannot see that anything in this amendment rules that out.
I could suggest further changes within the scope of the Bill to enable a whistleblowing process for the Armed Forces, but I think we have something very powerful in front of us today. The Bill creates something really exceptional and valuable—a truly independent commissioner whose future career does not depend on any of the armed services or on the Civil Service. He or she in that role has the potential to be a real game-changer when it comes to speaking out.
Again, if what we had in place was perfectly adequate, would we have had that report today from BBC Wiltshire of three more members of the armed services coming forward with the most extraordinary and shocking experiences? We have to recognise that what we have in place is not achieving what we want it to. That is why this amendment and the change it proposes is so important.
As we get legislative improvements—in this area and in other areas—for whistleblowing, protections will be more effective. We will avoid not just the scandals we have seen within the services but those in other areas—for example, the Post Office. We have a real chance, then, that wrongdoing can be tackled. If we want to enhance the morale of the armed services, show people that they are genuinely valued and encourage recruitment into the services, we can make it clear that there is a simple channel to a trusted individual—someone people can go to with a whistleblowing issue, not necessarily a personal complaint. There are few things that would do more to encourage people to hold our services in the very high regard that service members deserve than to provide someone with investigatory powers who is aware of the situation and has the detail and background to allow an investigation.
The Lord Bishop of Norwich
My Lords, I support Amendments 3 and 5 in the names of the noble Baroness, Lady Goldie, and the noble Earl, Lord Minto. I am also very grateful to the noble Lord, Lord Coaker, for the way in which he has engaged with us on the Bill and, in particular listened well in the scrutiny stages.
These amendments are important because whistleblowing provides an important safety valve, especially for those who are vulnerable or whose experiences of poor behaviour from others make them vulnerable. Armed Forces chaplains regularly hear concerns in their pastoral work, but I am told that those bringing these concerns can often fear reporting them. A whistleblowing function would reduce that fear of making a complaint or fear of the impact on one’s future career, or enable a family member to have a voice they might not otherwise have.
As your Lordships have already heard, Amendment 3 keeps the function within the definition and boundaries of the Bill while not overstretching the commissioner. It should be noted that the German armed forces commissioner has a whistleblowing function within their role, and that German model has been upheld in your Lordships’ House as an example of good practice. If, as part of this Bill, we want to ensure a positive culture, positive attitudes and positive behaviours within the Armed Forces, these amendments will support that endeavour.
Viscount Stansgate (Lab)
My Lords, I will be brief, not least because the points made by my noble friends Lord Beamish and Lady Carberry of Muswell Hill are ones with which agree.
When my noble friend the Minister replies to this debate—which is worth having, without a doubt, and raises serious issues—can he reassure the House, first, that the commissioner will have the powers she or he needs to investigate, whether in individual or thematic investigations? Secondly, can he confirm that the amendment we are considering, however well-intentioned, which it clearly is, does not in fact add anything to the powers the commissioner already has under the Bill? Thirdly, can he say something about the role of anonymity in relation to these matters? I think there is a common concern around the House that people should feel able to raise matters in that way.
Lord Dannatt (CB)
My Lords, I welcome this Bill and congratulate the Government on bringing it forward to this point. I will speak in support of Amendments 3 and 5. I believe that there is a distinction between a complaint that an individual wants to see resolved and the challenging of something that is wrong in the system. It is the challenging of something someone perceives to be wrong in the system that is at the heart of whistleblowing.
In order not to risk engaging your Lordships’ House any longer, I would like to say that, as a former Chief of the General Staff, I support this. I believe it would strengthen the chain of command and strengthen the role of the commissioner, and I urge support for Amendments 3 and 5.
Lord Wrottesley (Con)
My Lords, I briefly rise to support the amendments laid by my noble friends Lady Goldie and Lord Minto, and congratulate them on their principled work on matters defence and, in particular, on this Bill. I wholeheartedly wish to commend all noble Lords who have engaged with this legislation and the constructive contributions from across the House. I also declare an interest as a veteran.
I add my support for Amendments 3 and 5, as at the forefront of all our minds is supporting those men and women who serve, and their families who, in turn, support them. It is an honour and often a sacrifice to wear the uniform, and it is precisely because service personnel do serve for us and our freedoms that we enjoy these deeply cherished and fought-for freedoms. The very least we can do is strengthen protections around their welfare and well-being, formally safeguarding their voices and those of their nearest and dearest under whistleblowing regulations, so that they are always heard and their welfare is never taken for granted.
The whistleblowing provisions and clarifications sought by several contributors to this debate—those provisions inherent in these amendments—are vital to providing further support and protection to our service personnel and their families. As my noble friend mentioned, this Bill is stronger because of cross-party collaboration and the shared respect that we all have for those who serve. I put on record my support for these amendments. I hope they become part of this Bill and sincerely commend the work done by all involved in bringing the Bill before Parliament.
Baroness Smith of Newnham (LD)
My Lords, I am grateful to noble Lords for such an interesting and illuminating debate. I am particularly grateful to my noble friend Lady Kramer for answering some of the questions from the noble Lord, Lord Beamish, and the noble Baroness, Lady Carberry, on the government Benches on what difference a whistleblowing function would have compared with other complaints that might be brought to the Armed Forces commissioner.
We have heard from across the House, including from the right reverend Prelate and the noble Lords, Lord Dannatt and Lord Wrottesley, on the importance of the whistleblowing function that the noble Baroness, Lady Goldie, has proposed putting in the Bill. Like other noble Lords, I am grateful to the Minister for his assiduous attention in talking to those of us who have been involved at various stages of this Bill and for seeking to find ways of responding to the amendments that we have been bringing forward. I look forward to hearing what he is able to say to the House today. In particular, the anonymity aspect is important. Unless the Minister is able to bring something forward that the noble Baroness, Lady Goldie, feels able to support, these Benches will be supporting Amendments 3 and 5.
Lord Coaker (Lab)
My Lords, I thank everyone for their contributions to this debate and for the ongoing discussions we have had in Committee, outside of it and now back here on Report.
Let us be clear about this: there is no difference in our policy objectives. Nobody wants to read about the things the noble Baroness, Lady Goldie, outlined, or about the sexism and other behaviours that we see in the Armed Forces. There is no difference between any of us on that. There is nobody here who supports that. We all want that to be exposed and we all want people to feel able to come forward, through the complaints procedure or through the new body we are setting up.
People say that we still see these things happening today, and of course that is true. I say to the noble Baroness, Lady Goldie, that, when the First Sea Lord went to a recent Defence Select Committee, he spoke about the number of Navy personnel who had been dismissed from the service using the legislation that the previous Government brought in. They quite commendably and rightly brought that in to deal with some of the appalling and unacceptable behaviour.
Noble Lords asked whether that legislation goes far enough and whether more needs to be done. Of course more needs to be done, which is why we have an Armed Forces Commissioner Bill. We understand that the legislation is still not sufficient and that more needs to be done. Therefore, we are bringing forward this Bill.
I understand perfectly that the intention behind the amendments is for people to feel able to approach the commissioner without fear of repercussions from their identity being made public. I wholeheartedly agree with that—who is going to disagree with that? There is nobody who would disagree with that. We all want people to trust the process and the commissioner, and feel confident that their issue will be addressed and that they will not face any negative consequences from coming forward.
What is proposed in the amendments that the noble Baroness has brought forward, quite commendably, and in the arguments that have been made, is—as my noble friends Lord Beamish and Lady Carberry have said in their remarks—available to those who come forward now. As the Bill is currently drafted, the various policy intentions are being met. Let me go through some of the technical reasons again, because they are important.
Lord Beamish (Lab)
The noble Baroness, Lady Kramer, raised the difference between an individual complaint and whistleblowing, and I accept that there is a difference. Is there anything in the Bill to stop a whistleblower going to the commissioner and the commissioner undertaking an investigation in one of their thematic reviews?
Lord Coaker (Lab)
There is not. My noble friend is quite right to point that out.
The term whistleblower is not a universally recognised term in law. That may be irrelevant to us in considering the debate, but it is of relevance to us as a legislature. There is some limited precedence for its use, there is no single meaning, and it requires additional context to explain what the term means in each case. The amendment seeks to define the term in reference to certain people and topics, but it would not create any additional protections for those people, because, as I have said, the commissioner can already investigate everything that the amendment lists—as my noble friend Lord Beamish has pointed this out—whether it involves a whistleblowing-type situation to expose a general service issue or a personal issue that somebody wants to raise individually. The commissioner can already investigate any general service welfare matters that they choose. Anyone can raise such an issue with the commissioner, including the class of person defined in the amendments.
Once established, the Armed Forces commissioner and their office will automatically be bound by data protection legislation. This means that, for all individuals who contact the commissioner, the information and details they provide will be subject to stringent protections under the existing legislation. That includes the principle of protecting the integrity and confidentiality of their personal data.
None the less, as noble Lords know, to try to address the continuing concerns, the Government considered what more they might do. In considering this amendment, noble Lords should remember that the holy grail of all this is anonymity. People will not have trust and confidence in a system if they do not believe that, if they wish it, there is anonymity; they will be frightened of the consequences, whether of whistleblowing or of raising an issue on a personal level.
We are looking at this and, in addition to the substantial protections afforded by data protection legislation, we undertake to bring forward an amendment at Third Reading that would go further in respect of reports prepared by the commissioner to preserve the anonymity of individuals who make complaints. This will prevent a complainant’s details coming into the hands of the Secretary of State or the general public without the consent of the complainant, but it will not interfere with the commissioner’s ability to use the information in connection with an investigation. In other words, the Government have conceded that anonymity is an issue and commit to bringing forward an amendment at Third Reading that will put that in the Bill, to ensure that anonymity is protected in legislation.
I say again, because it is so important, that trust and confidence are everything. Who will come forward—whatever the legislation says—without trust and confidence in that system? At the heart of that is anonymity. That is the legislative proposal that we are seeking to bring forward at Third Reading, should we be in a position procedurally to do so.
There is a further issue that is not legislative— I think the noble Baroness, Lady Goldie, raised it. The Government commit to update our current “raising a concern” policy, which includes replicating the protections available to civilians under the Public Interest Disclosure Act 1998. This update will outline the role of the commissioner and ensure that similar protections for people under this policy are applied to disclosures made to the commissioner. This will include provisions relating to anonymity and confidentiality, ensuring that anyone who raises a genuine concern in line with the policy will be protected from unfair or negative treatment due to raising the concern.
Baroness Kramer (LD)
I ask the Minister for clarification. All those things will be in a policy document, as I understand it. Can he explain to me the legal standing of a policy document? That would be so helpful.
Lord Coaker (Lab)
The legal standing works with respect to the way whistleblowing policy works. If the noble Baroness would like to have a look, she will see that armed services personnel are not covered by the Public Interest Disclosure Act now. The “raising a concern” policy is how the Ministry of Defence ensures that whistleblowers are protected. Unless the noble Baroness feels that there needs to be an amendment to the Public Interest Disclosure Act to include Armed Forces personnel within its remit, the Government are saying that we can quickly look at the “raising a concern” policy document, which exists with respect to the Ministry of Defence, and by doing so can ensure that whistleblowers have the confidence to come forward.
Baroness Goldie (Con)
My Lords, this has been a most useful debate, and I hope it has been helpful. I thank all who contributed, whatever their point of view, not least those who felt able to support my amendments. I thank the Minister for his continued engagement, and I know his sincere desire to explore the possibility of a point of mutual agreement.
It was clear that some contributors considered my amendments to have merit, and that there were questions from other contributors. I will deal with the questioners first. I express my personal thanks to the noble Lord, Lord Beamish, and the noble Baroness, Lady Carberry, for their kind remarks. I very much appreciated the vein in which they made their observations and asked their questions.
In essence, a theme ran through the points raised by the noble Lord, Lord Beamish, the noble Baroness, Lady Carberry, and the noble Viscount, Lord Stansgate, not to mention the Minister. The theme I picked up on was: the powers are already there. The noble Lord, Lord Beamish, said that this is not a game-changer. The noble Baroness, Lady Carberry, asked whether I could help the House to understand better what the amendments achieve on top of the existing routes. The noble Viscount, Lord Stansgate, said that the commissioner has the powers, so nothing additional has been created by the amendments—that was very much the tone of the Minister’s response.
My response to that is twofold. It really depends on the lens through which we look at all this. We can look at it through the lens of parliamentarians and technical legal draftspersons and we can say, “No, you don’t need these amendments because everything that we need is already in there”. I would tend to advocate looking at this through the lens of service personnel—not least servicewomen—which is why I am emphatic that it is not a question of not being able to have any more routes because we already have some. It is a question of reassurance to our Armed Forces, particularly our servicewomen, that we are providing routes the best way we can, because we want to give notice that we care about them and do the best we can for them.
The noble Baroness, Lady Kramer, said that what really matters is that there is confidence about the investigation part—I will come to her useful distinction between a complaint and whistleblowing in a moment. But, looking at it through the lens of what service personnel may feel, I go back to the original argument I adduced in my opening speech: we have to give something simple that is easy to understand. There may be a number of routes that people can currently follow, but, if you say that one route is that the commissioner can investigate whistleblowing complaints, that certainly sends out a signal to an awful lot of people in our Armed Forces. They get that and they understand it. They want a simple point of access; they know they can do that in confidence, the process is trustworthy and the investigation will be robust.
The Minister said that more needs to be done, which is why we have the Armed Forces Commissioner Bill—I entirely agree with that. My response would be: I want more to be done too. I want to improve the Bill in law—not by way of policy but in law, hence my amendments. The Minister kindly indicated that the Government will, at Third Reading, introduce their own amendment to deal with the question of anonymity. I welcome that and, depending on the text of it, I am sure that this side of the House will be able to support it. But is that a sufficient substitute for what I want to achieve? No, I regret that it is not.
I will deal with the other contributions, beginning with the noble Baroness, Lady Kramer. She is an acknowledged expert: her reputation goes before her, and I think we all know that she is a woman you would not readily tangle with. I will not tangle with her; I will listen to her. I am grateful for her support. I noted her distinction: a complaint seeks redress, whereas whistle- blowing is not necessarily looking for personal redress but is rather looking for investigation and action—whistleblowing is an empowering function. Her contribution was powerful, particularly when she explained how she perceived these amendments as improving morale for our service personnel in a simple manner.
The right reverend Prelate the Bishop of Norwich made a very helpful contribution, when he referred to a safety valve. From his experiences as a chaplain, he referred to the fear that people have of reporting, which he feels is assuaged by a whistleblowing function, which is something that I have always intrinsically felt. He also pointed out that the comparable model of the German armed forces commissioner has that function.
The noble Lord, Lord Dannatt, said very simply that there needs to be a way of challenging when something has gone wrong in the system, which is exactly what I am trying to achieve with these amendments.
My noble friend Lord Wrottesley, whose support I welcome, talked about strengthening protections, and I think that that is at the heart of all this. We have a variety of routes. I said earlier that, if we felt that there was only one way in which to do something, we would not be having an Armed Forces commissioner. We would be saying that our vastly improved service complaints system was brilliant, so let us leave it at that—we can tweak it and do bits and pieces as and when we require. I think that we all accept that that is absolutely not an argument for not having an Armed Forces commissioner. However, if you accept that, I think that you should also accept that there is more than one way in which to provide conduits and access for our service personnel.
I was very grateful to the noble Baroness, Lady Smith of Newnham, for her contribution and the support of her Benches in associating herself with the powerful comments from her colleague, the noble Baroness, Lady Kramer.
I have done my best to address the main points that arose in the debate. I thank the Minister for his courtesy and his personal endeavours to keep—
Lord Coaker (Lab)
I am sorry to interrupt, but I do not want to mislead anyone. On the Third Reading point and the Government bringing an amendment back, obviously the noble Baroness is going to divide the House—and then it will have to be brought back another way. I could not bring those amendments back at Third Reading, if we were defeated. It would need to be changed elsewhere. I just wanted to make that clear so that I did not mislead anyone.
Baroness Goldie (Con)
I understand the technical point that the Minister is making, and I appreciate his desire to clarify that to the House. I understand the position, but it does not detract from my desire to try to do something substantive here. I thank him for his courtesy and his personal endeavours, as he has kept me fully informed of the Government’s thinking, which I appreciate.
I am not going to prolong the discussion, as I think that we have now reached a crystallisation point, which is that the Government believe in their way and I believe in my way and, encouraged by the support that I have received, I wish to test the opinion of the House.
Baroness Smith of Newnham
“(5A) The Commissioner must— (a) uphold and give due regard to the principles and commitments of the Armed Forces Covenant when carrying out its functions;(b) monitor and report on compliance with the principles and commitments of the Armed Forces Covenant in all areas of its responsibility.”Member’s explanatory statement
This amendment would require the Commissioner to uphold and abide by the principles of the Armed Forces Covenant when carrying out its functions.
Baroness Smith of Newnham (LD)
My Lords, I am aware that debate is taking a little longer and that we have more groups of amendments that are single amendments than many people had hoped. I therefore propose to be incredibly brief. This amendment raises the issue of the Armed Forces covenant and to what extent the Armed Forces commissioner would be subject to that covenant.
It might sound axiomatic—to use the phrase that the noble Earl, Lord Minto, used in Committee— that the Government are bound by the Armed Forces covenant but, technically, the Government are not bound by it. The covenant relates to businesses and the providers of housing and of the health service, but it does not apply to the Government per se. This amendment seeks to ask to what extent the Armed Forces commissioner will be required to look at the Armed Forces covenant. It may be that the Minister says that that is left entirely to legislation on the Armed Forces covenant, but I think it would be helpful to understand whether the commissioner would or could be bound by the legislation.
The Earl of Minto (Con)
My Lords, we visited the issue of the Armed Forces covenant during our deliberations in Committee. During that debate, the noble Baroness, Lady Smith of Newnham, raised the importance of the covenant and how vital it is that the commissioner be fully able to investigate covenant issues relating to the welfare of service personnel and their families. I was grateful, as I think were all noble Lords present, for the Minister’s response. It was welcome to receive clarification that the commissioner will be able to investigate such matters.
As I noted in Committee, the duty to have regard to the principles of the covenant was established in statute by the Armed Forces Act 2021. That was a significant step forward and we have seen much progress since then. I also note the Government’s intention to embed the covenant fully into law, which is indeed a welcome step. Again, I think it is already a given that the commissioner should have due regard to the covenant, and the comments from the Minister have given me the certainty that they will indeed do so.
Lord Coaker (Lab)
My Lords, I thank the noble Baroness for moving her amendment and the noble Earl, Lord Minto, for the comments that he has made. I also thank the noble Baroness for bringing the important topic of the Armed Forces covenant to our attention and for the valuable engagement that we have had ahead of this debate.
As we discussed in Committee, and as the noble Earl, Lord Minto, pointed out, this amendment would place a requirement on the commissioner to have due regard to the Armed Forces covenant principles as part of their general functions. It would also require them to monitor and report on compliance with the covenant in all areas of their responsibilities. I will say again for the record that this Government are fully supportive of the Armed Forces covenant. The covenant recognises the unique obligations and sacrifices made by those who serve in the Armed Forces, whether regular or reserve; those who have served in the past; and their families, including the bereaved. Our election manifesto included a commitment to place it fully into law, which the noble Earl, Lord Minto, referenced, and which we will do.
However, as noble Lords are aware, and I will stress again, the covenant applies to both serving and former members of the Armed Forces. The Government believe that there is a separate and pressing need to address the welfare matters affecting our serving community, and that is where the Armed Forces commissioner will have the powers to make a real impact. As I have stated before, it will of course be perfectly proper that the commissioner considers covenant issues where they relate to serving members of the Armed Forces and their families—I would imagine that these issues will be within the remit of the commissioner to investigate.
With that, I hope that I have been able to reassure the noble Baroness and others that, as the commissioner will be fully able to investigate covenant issues where they apply to the welfare of serving personnel and their families, it is neither necessary nor appropriate to specify this in the Bill. I therefore hope that the noble Baroness will withdraw her amendment.
Baroness Smith of Newnham (LD)
My Lords, I am thankful to the noble Lords for responding to this small amendment. Of course, it may be possible that the whistleblower will be able to bring matters that could link to the Armed Forces covenant, if the amendment that has just been agreed is kept in the other place. With that, I beg leave to withdraw.
Baroness Goldie
“(7) For the purposes of this section a person (“P”) is a “whistleblower” if—(a) P is subject to service law or is a relevant family member,(b) P raises a concern that is about another person subject to service law,(c) the concern raised by P relates to general service welfare matters (as defined by section 340IA(2)), and(d) the concern raised by P does not relate to the conditions of service of persons subject to service law.”Member’s explanatory statement
This amendment defines whistleblowers for the purposes of the other amendment in Baroness Goldie’s name to Clause 1.
Lord Coaker
“(3A) “Relevant family members” means such descriptions of persons connected with a person subject to service law as may be specified.”Member’s explanatory statement
This amendment and my other amendments of clause 4 provide for regulations which specify the meaning of “relevant family members” for the purposes of the Commissioner’s work to be subject to the affirmative Parliamentary procedure.
“(7A) The Commissioner must where relevant, with particular reference to service people and relevant family members under the age of 18, consult with the Children’s Commissioner and other relevant departments, bodies and individuals with particular responsibility for child welfare.”
Baroness Bennett of Manor Castle (GP)
My Lords, I will be brief, as I am aware of the desire of the House to progress. The amendment goes back to what we discussed in Committee, raising the issue of under-18s in the Armed Forces, which the Minister knows is a particular concern of mine. At that point, I jumped on the back of an amendment tabled by the noble Baroness, Lady Smith. She listed a number of areas of concern and I added under-18s to that list.
Lord Beamish (Lab)
I welcome the amendment, in the sense that the noble Baroness is trying to ensure that those in the Armed Forces who are aged under 18 are protected, which I think we would all wish. I disagree with her about recruiting those aged under 18, because I suggest that the Army Foundation College in Harrogate does a fantastic job of helping and developing young people from some of the most disadvantaged communities in the country. Having taken a passing-out parade there as a Minister, I have to say that it is quite emotional to see the change that some of those individuals have gone through in the time they were at Harrogate.
In saying that, the noble Baroness is correct that there have been incidents at Harrogate that should not have happened, and it is important that the commissioner is able to look at them, particularly concentrating on under-18s. I understand that Ofsted already inspects Harrogate, but I accept that is only one part of what the noble Baroness is trying to get at with this amendment.
It is important to have this debate, because whoever becomes the commissioner should look at this. When they look at particular cases, or even hold a thematic inquiry into under-18s provision, then, as the noble Baroness quite rightly says in her amendment, drawing on expertise from the Children’s Commission and others will be important. As she quite rightly says, the Armed Forces commissioner, no matter how good he or she is, will not have the specialist knowledge that the Children’s Commission and others do. So I welcome the debate: if we are to attract people to our Armed Forces, it is going to be very important that the experience they have is of the utmost quality and does not lead to some of the issues that have, sadly, arisen at Harrogate.
Baroness Smith of Newnham (LD)
My Lords, I am grateful to the noble Lady Baroness, Lady Bennett, for bringing this amendment. As she pointed out, we had an amendment in Committee that listed a whole set of different groups to which we suggested the Armed Forces commissioner should pay particular attention. It was not intended to be something that would ever be brought to a vote. In the light of the Atherton report and the Etherton report, it is important for the commissioner to think about groups that have faced particular problems within His Majesty’s Armed Forces, so exploring who the commissioner should take into consideration and where there might be a need for particular inquiries or reports seemed to be worth discussing.
Although I agree with the noble Lord, Lord Beamish, that recruiting under-18s is something that we accept, it is important to bear in mind that people aged under 18 are still technically children. It is important that the commissioner, in looking at their welfare, looks to other bodies that deal with that. In this regard, mentioning family members is also important, because if we are talking about recruitment, as the noble Lord has just done, it is not simply whether a 16 or 17 year-old wants to sign up but whether their parents feel comfortable in that as well. This is an important issue for us to discuss, but obviously not to push to a vote on this occasion.
The Earl of Minto (Con)
My Lords, the noble Baroness, Lady Bennett of Manor Castle, raises an important point. The welfare of service personnel who are aged under 18 is a matter that all noble Lords wish to guarantee. I personally have fond memories of training junior leaders. They were, despite their age, some of the keenest, most determined and, at times, most fearless individuals, certainly in relation to trying out new skills, that I had the honour of serving with.
I think it right, therefore, that the Government give serious consideration to the treatment of young people recruited into the Armed Forces. They are part of the future of our Armed Forces, and it is in all our interests to provide an environment that allows them both to thrive and to flourish. When we face recruitment and retention issues, as has been discussed already, we cannot have a situation in which young people are deterred from joining up or encouraged to leave prematurely. I would be grateful if the Minister would update the House on efforts His Majesty’s Government are taking to deal with the concerns of young people serving in our Armed Forces.
The amendment from the noble Baroness also mentions the children of service personnel. They are impacted in a unique way by their parents’ service, and this can easily get forgotten or overlooked. They often have to move home when the military requires their family to relocate, which can be to different and disparate parts of the country, or indeed overseas. Moving so frequently is by no means an easy thing to ask of anyone, let alone a child. Leaving friends behind, losing a sense of normality and becoming accustomed to an entirely new way of living would be challenging for even the most adventurous of us. I mentioned in Committee that 62% of those who left the Armed Forces reported family concerns as one of their core reasons for leaving. We must address this issue head-on if we are to deal with the crisis of retention.
In direct response to the amendment from the noble Baroness, which mentions the Children’s Commissioner, I say that there must be clear delineation of responsibility for the welfare of service personnel. The Armed Forces commissioner must be responsible for investigations regarding general service welfare matters from service personnel, regardless of age. The Children’s Commissioner and the Armed Forces commissioner are two very distinct roles, and for good reasons. To conflate the two could risk confusion over responsibility. If a person under 18 has an issue regarding their welfare, as part of their military service, they should go to the Armed Forces commissioner only.
Lord Coaker (Lab)
My Lords, I thank everyone for the discussion on this important matter. I thank the noble Baroness, Lady Bennett, for her views on the Bill and I acknowledge her concerns about the protection of young soldiers, which is something we all wish to see, as the noble Lord, Lord Beamish, the noble Earl, Lord Minto, and the noble Baroness, Lady Smith, pointed out.
We anticipate that the commissioner will wish to work closely with several organisations, committees and groups. As the commissioner will be an independent body, it will ultimately be up to them to decide how they choose to exercise their powers, and it will be for both parties to decide how best to work together effectively. It is likely, however, that the commissioner will implement a series of formal and informal working arrangements with various groups, organisations and committees, including the Children’s Commissioners from each nation in the UK. In answer to the noble Earl, Lord Minto, the two roles are distinct but—while respecting the difference between them—it is important that the Children’s Commissioner works, where appropriate, with the Armed Forces commissioner.
I reassure noble Lords that my officials, who are focused on the successful implementation of the commissioner, have already visited AFC Harrogate to understand the unique needs of our young soldiers, and are engaging with other interested groups who are both internal and external to the MoD. I reiterate that the Government are very supportive of the recruitment of young people under 18, while also recognising that it brings with it particular responsibilities which we wish to ensure are properly considered.
I hope this provides the necessary reassurance to the noble Baroness and, with that, I ask her to withdraw her amendment.
Lord Cromwell (CB)
I will make a very brief comment. We are the only army in Europe that recruits at 16, even though we do not put them in the front line; that is worth putting on the record. The noble Lord, Lord Beamish, referred to the people he has seen in passing out parades and I totally agree with him. You will meet many people who joined the Army at 16 and say it was the making of them. The people you do not meet are the ones who joined the Army at 16 and it was the breaking of them: those who did not stand up to the culture they had to get to, to be the right sort of person to be a soldier.
It is good that we have had this debate and highlighted an issue for the commissioner to think about. I am very encouraged by the Minister’s last remarks in that regard and I am glad that we are not going to vote on it. I just wanted to make those points.
Baroness Bennett of Manor Castle (GP)
I thank the noble Lord, Lord Cromwell, for making those points. It is crucial that there is public and general understanding of the situation. I thank the Minister for his response; I heard what I wanted to hear in what he said, and that is now on the record in Hansard for future reference, which is really why I brought this amendment. I appreciate the acknowledgement of the importance of this issue from around the House, and I thank all noble Lords who contributed.
In response to the noble Earl, Lord Minto, I confess that this is my personal drafting and I do not make any great claims about my legal capacities. What I intended it to say—and I think what it does say—is that the commissioner must, where relevant, consult with the Children’s Commissioner. It remains within the hands of the Armed Forces commissioner and they will then choose to engage when they judge it relevant.
These are issues I have no doubt we will return to, but, while I still do not believe we should be recruiting 16 and 17 year-olds, it is my hope that we ensure they have the best possible experience they can. As the noble Lord, Lord Cromwell, said, the young people who do not make it through the system—and about one-third of them either leave or are thrown out—immediately become NEETs, not in employment, education or training. Those figures really have to come down, for the well-being of young people. In the meantime, I beg leave to withdraw the amendment.
Lord Coaker
Member’s explanatory statement
See the explanatory statement to my amendment of clause 4, page 3, line 3.
Baroness Goldie
“(7A) Nothing in this section negates the authority of the Commanding Officer of service premises in relation to access to such service premises.”Member’s explanatory statement
This amendment seeks to ensure that the Commanding Officers of service premises retain ultimate authority relating to access to those premises.
Baroness Goldie (Con)
My Lords, this amendment covers an issue concerning access to service premises, about which both myself and the noble and gallant Lord, Lord Stirrup, who is not in his place, expressed concern and on which I tabled an amendment in Committee.
I thank the Minister for his positive engagement both in Committee and at a subsequent meeting with his officials. That led to a helpful letter from the Minister, dated 23 April 2025, which clarified the position in relation to access by the commissioner and the overall authority of the commanding officer or head of establishment of service premises to refuse access on grounds of national security.
I tabled this amendment to keep the issue live pending clarification by the Government of the position. I have no desire to prolong our proceedings with unnecessary debate and I shall simply use this opportunity to put on the record the relevant part of the letter to which I referred:
“The Secretary of State’s power to restrict access is available in a particular case or more generally. We therefore anticipate that in practice the Secretary of State could provide the commissioner and heads of establishment with information in advance regarding specific sites (or parts of sites), activities, or broader criteria to which they will be preventing or restricting access. In addition to the military, the Secretary of State will consult with the Foreign Secretary and the Home Secretary to ensure all matters which infringe upon national security interests are assessed.
This mechanism will be broad enough to cover instances where, for example, a specific classified event is happening at a site that did not have any restricted areas. In these instances, should the commissioner wish to visit without notice, the head of establishment will still be able to prevent the commissioner from entering either all or part of the site. Although the Bill provides that this power resides with the Secretary of State, the application of broader criteria provided by the Secretary of State in relation to these matters will also function to allow heads of establishment to assess concerns relating to national security or personal safety and restrict access on those grounds.
In practice, heads of establishment and relevant security staff will therefore have the authority to conduct their own, fact-specific due diligence in line with these concerns, including delaying access while enquiries are made. Should disagreements arise, either party would be able to escalate this to the office of the Secretary of State”.
Unless the Minister, in his wind-up speech, seeks to amend the position, I am content. I shall listen with interest to the other contributions to the debate, but anticipate that at the end I shall seek your Lordships’ leave to withdraw the amendment.
Lord Craig of Radley (CB)
My Lords, I shall be very brief. It was very helpful for the noble Baroness to repeat what was said by the Government on this particular issue. My concern most generally is that the chain of command is respected, and if you were to introduce arrangements which reduced the authority of the chain of command, that would be unsatisfactory.
The only other issue on this is if the inquiry that the commissioner was making involved the commanding officer himself or herself. How would that be dealt with? It needs to be quite clear that there are arrangements, and what the noble Baroness read out covers that, but I should just like to be absolutely certain that, if the commanding officer himself or herself is part of the inquiry of the commissioner, then that can be dealt with.
Lord Coaker (Lab)
First, I thank the noble Baroness, Lady Goldie, for reading out the letter that I sent. I have placed a copy in the Library, and I will just check that this has happened, to make sure that is available to everyone. I thank the noble and gallant Lord, Lord Craig, for his remarks. The letter covers the points that he has raised as well.
It would be helpful for further clarification just to read a couple of remarks into the record, which will help the deliberations of all of us on Report. I thank the noble Baroness and other noble Lords for the conversations we have had about the no-notice power of the commissioner and the authority of the commanding officer of a site. We will make sure that commanding officers and others are aware of what they are able to do under the letter and under the Bill.
As highlighted in the letter I sent on 15 April, to fulfil their investigatory function, the commissioner will have wide-ranging powers including access to certain defence sites. The commissioner must give the Secretary of State notice of intent to visit those sites, unless—and for sites in the UK only—it is considered that giving notice would defeat the object of exercising the power. This matters, as it will help to ensure that malpractice cannot be covered up, for example—
Baroness Goldie (Con)
My Lords, on a purely technical matter, the Minister referred to a letter of 15 April; I think it is the letter of 23 April.
Lord Coaker (Lab)
I thank the noble Baroness for her brilliant observation. It says “15 April” on here, but I have just been reliably informed by pigeon post that it was 23 April—so thank you very much.
I cannot remember where I got to now—I will start again on that paragraph. As highlighted in the letter I sent on 23 April, to fulfil their investigatory function the commissioner will have wide-ranging powers, including access to certain defence sites. The commissioner must give the Secretary of State notice of intent to visit those sites, unless—and for sites in the UK only—it is considered that giving notice would defeat the object of exercising that power. This matters, as it will help to ensure that malpractice cannot be covered up, for example by painting over mouldy accommodation or ensuring certain personnel are off the premises.
The Secretary of State’s power to restrict access is available in a particular case or more generally. We therefore anticipate that, in practice, the Secretary of State could provide the commissioner and heads of establishment with information in advance regarding specific sites, or even parts of sites, activities or broader criteria to which they will be preventing or restricting access. In addition to the military, the Secretary of State will consult with the Foreign Secretary and the Home Secretary to ensure all matters which infringe upon national security interests are assessed.
This mechanism will be broad enough to cover instances where, for example, a specific classified event is happening at a site that did not have any restricted areas. In these instances, should the commissioner wish to visit without notice, the head of establishment will still be able to prevent the commissioner from entering either all or part of the site. Although the Bill provides that this power resides with the Secretary of State, the application of broader criteria provided by the Secretary of State in relation to these matters will also function to allow heads of establishment to assess concerns relating to national security or personal safety and restrict access on those grounds.
In practice, heads of establishment and relevant security staff will therefore have the authority to conduct their own due diligence in line with these concerns, including delaying access while inquiries are made. Should disagreements arise, either party would be able to escalate this to the office of the Secretary of State.
With those comments, I hope this provides the necessary reassurance to the noble Baroness, Lady Goldie, and on those grounds, I ask her to withdraw her amendment.
Baroness Goldie (Con)
I am very grateful to the Minister and am satisfied that there are not too many letters flying around—there is only one. I am very happy to withdraw my amendment, and I beg leave of the House to do that.
Lord Coaker
Member's explanatory statement
See the explanatory statement to my amendment of clause 4, page 3, line 3.
Lord Beamish
“3A “(1) The Secretary of State must not make a recommendation to His Majesty under paragraph 3 unless the recommendation has been laid before and approved by the relevant Parliamentary Committee in both Houses.(2) References in this paragraph to the relevant Parliamentary Committees are references to—(a) both the Defence Committee in the House of Commons and the Committee charged with this responsibility in the House of Lords, or(b) the Joint Committee of both Houses which—(i) is charged with responsibility by those Houses for the purposes of this paragraph, and(ii) has notified the Secretary of State that it is a relevant Parliamentary Committee for those purposes.”Member's explanatory statement
This amendment would mean the Secretary of State could not recommend a candidate to be appointed Armed Forces Commissioner to His Majesty until relevant select committees in both Houses of Parliament have approved that candidate.
Lord Beamish (Lab)
Amendment 13 is another attempt to ensure that there is parliamentary scrutiny over the individual who is appointed as the Armed Forces commissioner. As I raised in Committee, there has been a lot of play made by the Government that the Armed Forces commissioner is being based on the German model. However, as we debated in Committee, the parliamentary oversight in this Bill is nothing like that of the German system. In the German system, the German armed forces commissioner is appointed by and answerable to the Bundestag. In the Bill before us today, the Secretary of State for Defence is the individual who recommends the appointment to His Majesty the King.
In Committee, I moved Amendment 3, which would have given powers to both Houses to have a vote on the individual’s name before it went to His Majesty, therefore giving Parliament a direct say in, and scrutiny over, who is appointed Armed Forces commissioner. Even though in Committee I raised a number of examples of where this is already practised in appointments, the Government sought to reject my amendment. The old tradition is that God loves a trier, so here is my second attempt to try and get some parliamentary scrutiny of the process of the appointment of the Armed Forces commissioner.
Amendment 13 would not allow the Secretary of State to recommend to His Majesty the King the individual to be the Armed Forces commissioner before the individual had been before the Defence Select Committee and the relevant committee in your Lordships’ House, which I think would be the International Relations and Defence Committee. This is a watered-down version of my previous Amendment 3, but it would at least ensure that both Houses of Parliament were scrutinising the individual as a fit and proper person to be appointed as commissioner. It would also give some confidence that the two parliamentary committees which oversee defence issues had had an opportunity to look at the individual who is being put forward.
Many people would ask: why is this important and why should Parliament be involved? Over many years, we have seen scandals affecting our Armed Forces—at Second Reading, we discussed many of them—and we have all agreed, I think, that this is the third attempt to get right the oversight of complaints and other issues to do with our Armed Forces. This is an attempt, through the Bill, to ensure that Parliament has a say.
The other issue, which we should not ignore, is that the individuals affected by the complaints and scandals, as well as campaigners, have—quite rightly—very little respect for or confidence in the ability of the MoD or the chain of command. Giving parliamentary oversight of the commissioner’s appointment would help them know, at least, that it is not just the Secretary of State and the MoD putting forward the necessary person. It is important not only that Parliament should have a say in these matters, which I personally believe is right, but that campaigners, and individuals who use the service of the Armed Forces commissioner, have the confidence that it will be not just the Secretary of State making the recommendation.
Viscount Stansgate (Lab)
My Lords, I shall not detain the House for long. When my noble friend Lord Beamish moved his amendment in Committee, I strongly supported it—and I support it again today. I am sure that Machiavelli would be pleased to know that his name still comes up in discussions centuries after his death.
When my noble friend the Minister introduced the Bill at Second Reading, he made the very good point that its purpose was to provide statutory authority for the new Armed Forces commissioner—it is a new role that we have not had before. My noble friend’s amendment seeks to convey the same sense of authority, this time on behalf of Parliament, because she or he will have been confirmed by the relevant committee—or committees —of either House.
My second point has nothing to do with this Bill. What my noble friend is suggesting is a very good point of principle on all such appointments. In the wider context of the relations between the Executive and the legislature, an amendment such as this strongly seeks to improve the authority of Parliament—not necessarily against the Executive, but, nevertheless, it would improve the importance and role of Parliament. Otherwise, what is the point of our being here if Parliament does not play a role?
I strongly support the amendment. It will not be pressed to a vote, and I do not know what my noble friend the Minister will say in reply, but I hope that he will convey an element of agreement with my noble friend Lord Beamish’s argument.
Baroness Smith of Newnham (LD)
My Lords, the amendments in the name of the noble Lord, Lord Beamish, seek to do what amendments that I tabled in Committee also sought to do, albeit rather less elegantly. My amendment on having parliamentary scrutiny for the Armed Forces commissioner was the source of considerable concern to the noble and gallant Lord, Lord Craig of Radley, who said that it was far too detailed to put in the Bill. Therefore, I am extremely glad that the noble Lord, Lord Beamish, has decided to bring back this amendment, because it is important that we have a parliamentary role, and he has phrased that elegantly both in the formulation of his amendment and in what he has just said.
If we want to have an independent Armed Forces commissioner appointed by the Secretary of State, it would be appropriate that the way of appointing that person stands up to scrutiny—and both Houses of Parliament playing a role would be an effective way of doing that. I look forward to hearing what the Minister has to say about that and what role His Majesty’s Government feel able to grant to Parliament in this regard.
On Amendment 14, the change of those minor words—from “may” to “must”—suggests something rather important. As with so much legislation, if you have not read the Bill, the change from “may” to “must” makes very little sense. But this is about adequate resourcing of the Armed Forces commissioner. It was pointed out earlier in today’s debate that we are already looking at considerably increasing the funding for the Armed Forces commissioner, compared with the current ombudsperson. If work needs to be done, it is vital that the role of the Armed Forces commissioner be adequately resourced, because if not, and the Armed Forces commissioner is unable fully to fulfil the job given to them, what message does that send to the Armed Forces and their families? If cases are brought and the Armed Forces commissioner does not have time to deal with the complaints or to undertake the reports needed, that will undermine the commissioner’s prestige and credibility.
If “may” cannot be converted to “must”, can the Minister explain to the House how funding will be provided and give us some guarantees that, in the longer term, the Armed Forces commissioner will be adequately resourced? As his noble friend Lord Beamish said, we might be happy that this Government will give adequate resources, but we are legislating not just for this Government but for future ones as well.
The Earl of Minto (Con)
My Lords, I, too, thank the noble Lord, Lord Beamish, for his Amendment 13, which addresses the highly significant matter of the appointment process and the independence of the commissioner.
My noble friend Lord Courtown, in winding for the Official Opposition at Second Reading, raised the differences between the proposed commissioner and the German armed forces commissioner, as we have heard today. One of the main differences is the method of appointment, as the noble Lord, Lord Beamish, rightly raised. The German commissioner is elected by the Bundestag, with nominations coming from the different party groups. That role establishes a significant role for the German Parliament in the appointment process.
The commissioner here shall be appointed by the Secretary of State and not elected by Parliament. The Government have indicated that their successful candidate will appear, I believe, before the Defence Select Committee in the other place. I have two questions. First, how will the Government ensure that the person they appoint remains entirely independent? Secondly, would the Minister be amenable to the commissioner also undergoing pre-appointment scrutiny before the International Relations and Defence Committee of this House too?
On Amendment 14, I look forward to hearing the Minister’s views on financing what we all agree is a most positive initiative.
Lord Coaker (Lab)
My Lords, I thank all noble Lords who have participated in this important debate, including my noble friend Lord Stansgate, the noble Baroness, Lady Smith, and the noble Earl, Lord Minto. Their questions will be answered as I go through my remarks. I also thank my noble friend Lord Beamish for his views on the Bill and his engagement on the subject to date. As he knows from the discussions he has had with me and the Minister for the Armed Forces, I understand and fully appreciate his concerns and views about the scrutiny of the commissioner’s appointment and the importance of properly funding the commissioner.
We are confident there will be the right balance of independent scrutiny in place, in line with other, similar public appointments. Parliament will have a clear and important role in the process. The public appointments process and the rigorous pre-appointment scrutiny will be the mechanism to address any concerns that the House of Commons Defence Select Committee may have about a candidate. We will be able fully to take account of the Select Committee’s views before making the recommendation to His Majesty.
Furthermore, as was clarified in Committee, the House of Commons Defence Committee will be involved in the recruitment process and will consider the candidate before their appointment. The Secretary of State will then carefully consider the view of the chair of the Defence Select Committee. I can confirm that we have also discussed this issue with the chair of the House of Commons Defence Committee, Tanmanjeet Singh Dhesi, and the noble Lord, Lord De Mauley, the chair of the International Relations and Defence Committee, and make it clear—in answer to the points made by the noble Earl, Lord Minto, the noble Baroness, Lady Smith, and my noble friend Lord Beamish in his amendment—that, should the IRDC wish to provide a view on the appointment to the HCDC, it would be very welcome to do so.
As with the House of Commons Defence Committee’s opinion, any views provided by the International Relations and Defence Committee will be a matter for consideration by the Secretary of State. However, I hope that the confirmation that the mechanism exists to feed in views from this place, should Parliament wish to do so, will alleviate the concerns expressed by my noble friend Lord Beamish. His amendment has caused us to further consider how the IRDC may be involved. Because the Executive cannot dictate to Parliament, I emphasise that it is if that Select Committee wishes and chooses to do so.
On Amendment 14, I fully agree that it is crucial that the commissioner has the tools, including the financial assistance, they need. The Bill has been designed to ensure that this is the case. I again thank my noble friend Lord Beamish for taking the time to meet with me and the Minister for the Armed Forces to discuss this matter. I can reassure my noble friend Lord Beamish and others that this Government—I would like to clearly state and put this on the record—will commit to providing sufficient funding to the office of the commissioner.
Noble Lords have asked about a future Government; it is difficult to commit future Governments to particular policies, but I would assume and expect that, even if the noble Baroness, Lady Smith, was the Secretary of State for Defence, or the noble Baroness, Lady Goldie, was back in office, all of us, including myself, would ensure that the commissioner’s office was properly funded. I believe that would be the case. The amendment from my noble friend Lord Beamish is particularly important because it forces us to put on record that the funding of the commissioner’s office is crucial and fundamental to the successful delivery of this important reform.
If the commissioner feels that their funding is insufficient to carry out their functions effectively, the Bill has been designed to ensure that they will have the opportunity to raise this in their annual reports. The Secretary of State in the other place and the Minister for Defence here—whoever that is—would find it more than a little uncomfortable to have to defend themselves against the charge that an Armed Forces commissioner, regarded as a crucial reform, believes that they have been insufficiently funded to undertake the requirements legally expected of them.
With that, I thank my noble friend Lord Beamish for Amendments 13 and 14. I hope that I have been able to provide him and other noble Lords with the necessary reassurance. On those grounds, I ask him to withdraw his amendment.
Lord Beamish (Lab)
I will take that as a win. I look forward to the International Relations and Defence Committee of this House—I have been involved in the process. As I said when moving the amendment, for the campaigners, it is not to be underestimated that the individual selected has at least had the experience and been scrutinised by somebody other than the Secretary of State before the nomination. I welcome that. With the leave of the House, I beg leave to withdraw my amendment.
Lord Coaker
“21A In section 340N—(a) in subsection (1)—(i) in the words before paragraph (a), after “the communication” insert “(“P”)”; (ii) in each of paragraphs (a) and (b), for “his or her” substitute “P’s”;(iii) in paragraph (b), for “the person” substitute “P”;(iv) in the words after paragraph (b), for “officer” substitute “person”;(b) in subsection (2)—(i) for “officer”, in each place, substitute “person”;(ii) for “by the person” substitute “by P”;(c) in subsection (3)—(i) in the words before paragraph (a), for “officer” substitute “person”;(ii) in each of paragraphs (a), (b) and (c), for “the person” substitute “P”.”Member’s explanatory statement
This amendment makes provision that is consequential on clause 3.
Lord Coaker (Lab)
My Lords, government Amendment 15 makes a provision that is consequential on Clause 3. As your Lordships are aware following our discussions in Committee, Clause 3 amends Section 340B of the Armed Forces Act 2006, to specify that a specified “person” may decide whether a service complaint is admissible, rather than for that function having to be carried out by a specified “officer”. An admissibility decision is an administrative decision on whether to accept or exclude a complaint from the service complaints system. The future Armed Forces commissioner will retain the power to review admissibility decisions and make a final decision about whether the complaint should be accepted into the system.
To offer some reassurance that what we are discussing is simply an administrative decision which does not require the dedicated attention of an officer, I outline the factors considered part of these decisions: whether the complaint has been made within the prescribed time limits; whether the complainant is currently serving, which includes both regular and reserve personnel; whether the complaint is a duplicate or repeat complaint; and whether the subject matter of the complaint relates to a service matter or not. There are some limited subject matter exclusions relating, for example, to matters already subject to legal proceedings or operational decisions in combat. We do not consider that this administrative decision requires military expertise—hence the inclusion of Clause 3 in the Bill, which allows a suitably qualified “person”, rather than an “officer”, to make that decision.
The Armed Forces (Service Complaints) Regulations 2015 set out in more detail what a specified “person” would be for these purposes, as they currently do for a specified “officer”. The regulations will be brought forward in due course and will continue to preclude the specified “person” from being anyone who is the subject of, or in any way implicated in, the statement of complaints. Thus, the effect of Clause 3 is to allow certain civilians, in addition to military personnel, to make assessments of whether a complaint made by a member of the Armed Forces is admissible in the service complaints system.
However, Section 340N of the Armed Forces Act 2006 similarly provides for the current Service Complaints Ombudsman to refer certain allegations to be considered as service complaints to an appropriate “officer” in the single services. Therefore, we also need the language in Section 340N of the Armed Forces Act to be updated from “officer” to “person” so that there is not any inconsistency in the legislation. This was an oversight in our initial drafting and is what my amendment to Schedule 2 seeks to address.
This amendment would ensure that, in cases where the Armed Forces commissioner may refer complaints into the service complaints system, the references in the legislation are consistent with the fact that civilians will now be able to make admissibility decisions by virtue of Clause 3 of the Bill. With that, I beg to move the amendment in my name.
Baroness Smith of Newnham (LD)
My Lords, noting that this is a consequential amendment, I simply have one question relating to what the Minister has just said. He said that there was an issue about duplicate or repeat complaints. If there were duplicate complaints—an equivalent complaint from two different people—would that not be admissible, or have I misunderstood what he said?
Baroness Goldie (Con)
My Lords, I will respond to the Government’s consequential Amendment 15. In Committee, the Government brought forward this amendment, claiming that it was minor and technical. At the time, I argued that it was neither minor nor technical. It sought to introduce a substantive change to the service complaints process, and I asked the Minister for clarification, which he and his officials have helpfully provided.
The effect of these changes would mean that the current process—whereby the decision as to whether a service complaint is admissible is made by an officer—could now be made by a civilian, and the Armed Forces commissioner would be able to refer a complaint to a relevant person, as opposed to a relevant officer. Permitting a civilian to undertake these roles, even if an officer could undertake them as well, means that the decisions will, to some extent, now be taken out of the chain of command. The Explanatory Notes explicitly mention that these roles would be undertaken by a civilian, and the Minister confirmed such in Committee. The Government intend for these two roles in the complaints process to be undertaken by civilians as well as by officers, if that is necessary.
In Committee, I expressed concern about this approach, but, after meetings with the Minister—for which I thank him—I am now reassured that the decisions regarding admissibility of service complaints and the referral of complaints is much more of an administrative task than I had understood, as enlarged upon by the Minister earlier in his remarks. I accept that that is not necessarily an efficient use of an officer’s time. Given this clarification, my concerns have been assuaged, my opposition has dissipated and I am content with the position.
Lord Coaker (Lab)
Very briefly, given the time, I thank the noble Baroness for that. I am pleased that the conversations and discussions that we have had have clarified this.
I am not sure of the answer to the question from the noble Baroness, Lady Smith—I am not even totally sure I fully understood what she was asking about what I had said. If she will allow me, I will write to her, and put a copy of that letter in the Library, if that is convenient and satisfactory to her. With that, I commend my amendment to the House.