Armed Forces (Flexible Working) Bill [HL]

Debate between Baroness Jolly and Lord Craig of Radley

Committee: 1st sitting (Hansard): House of Lords
Tuesday 12th September 2017 Grand Committee

[Lord Craig of Radley (CB)]

My Lords, I shall speak also to Amendments 2, 3 and 5, which are in this group. The amendments in this group are tabled in my name and those of my noble and gallant friends Lord Boyce and Lord Walker, neither of whom is able to be present today, but I speak on their behalf.

As I suggested at Second Reading, I question the sense and the potential for misunderstanding and for belittling the reputation of the Armed Forces if the phrase “part-time” is specifically used in the mixed and more flexible working arrangements. Could a better, less questionable word or phrase be used instead? First, let me confirm my acceptance in principle of flexible schemes which are viable, enjoy service support and do not detract from the operational 24/7 capability of the Armed Forces.

The first sub-paragraph of Amendment 1, sub-paragraph (i), seeks to retain the general concept of flexibility without specific reference to “part-time”. As the Minister has explained, the purpose of this short Bill is specifically to sketch out an additional flexible working scheme, described as serving on a part-time basis. Even so, it was notable that in his opening 10-minute speech at Second Reading, the Minister mentioned “part-time” only once, but he used “flexible” and “flexibility” at least 17 times, so it seemed worth reflecting that balance by referring to flexibility in a general way. It could be the basis for introducing further types of flexible working in the future.

The second provision of this amendment is to promote the use of unpaid leave of absence as an alternative approach to part-time. In his letter of 21 July, the Minister made specific reference to existing use of unpaid leave for flexible working. It said:

“Options already available for flexible working include both working patterns and the use of paid and unpaid leave”.


At present I am unclear about what so distances this Bill’s part-time basis from these other examples.

The Minister described “part-time” at Second Reading and in his letter of 21 July. In his speech he said:

“Service personnel will be able to temporarily reduce the time they are required for duty—for example, by setting aside one or two days a week”.—[Official Report, 11/07/2017; col. 1176.]


In his letter, he referred to women starting a family or those who wish to undertake long-term studies. These suggest to me a variety of periods and lengths of approved absences and—in part—appear to be more widely drawn than civilian-style part-time working. Fact sheet 2 also states that periods would be limited,

“to no more than 3 years at any one time”.

Will the request for absence be measured in reducing the 24/7 commitment to, say, 24/6 or 24/5, for example, over a period of weeks or months? A member of the Armed Forces does not sign up to work so many hours in a week. Would it not be confusing to measure “part-time basis” by a reduction in the number of hours worked? The commitment is to be available for service 24/7.

The Minister has stated that “part-time basis” would be of a different order to the existing forms of unpaid leave, but that is difficult to accept given the Minister’s examples of existing flexible working schemes and those in the fact sheets. Indeed, for clarity, a different definition of part-time service in Section 376 of the Armed Forces Act—definitions applying for purposes of the whole Act—would, I believe, be necessary if this subsection (2)(a)(ha) were ever inserted. Does the noble Earl agree?

Whatever the length and periods of absence, the noble Earl suggests that it is unlikely to involve much more than a thousand or two individuals at any one time. The noble Earl says:

“In practice, these new options will be temporary, limited to defined periods”.—[Official Report, 11/7/17; col. 1175.]


Surely this is so small scale; can this new scheme not be brigaded with other unpaid leave of absence arrangements? The Committee is familiar with the problems of unexpected consequences following enactments. Are there foreseen but undisclosed consequences for the Armed Forces Act which this Bill is to amend? The House has been assured that there is no intention to achieve savings in defence expenditure by this measure. Of course I accept that assurance, but it can only be for this Administration. The Armed Forces Act amended by this Bill will be renewed annually and re-enacted quinquennially into the foreseeable future. The Committee needs to be very satisfied that there is no devious hostage to fortune secreted in this Bill. To conclude on Amendment 1, leave is a well-understood and established arrangement for the Armed Forces, whether as a term for a holiday from work or a break from duties. Its meaning and purpose has been expanded to cover other types of absence, both paid and unpaid—even so-called gardening leave. Why complicate matters, and risk disparaging reactions and misleading reporting, by introducing a concept that suits working arrangements for civilian employment, with a working week of, say, 38 or 40 hours, but is alien to the fundamentally different concept of a commitment to 24/7 service? I expect that the noble Earl will try to justify the distinction that he seeks to draw between “part-time basis” and “unpaid leave”. A lot has already been said and written. I hope that other noble Lords will see merit in the “unpaid leave of absence” descriptor for this small addition to flexible serving arrangements and will speak in support of Amendment 1.

I turn to Amendment 2. When checking what was to replace Section 329(2)(i) of the Armed Forces Act, I found that this subsection in the Act provides for,

“enabling a person to restrict his service to service in a particular area”.

This Bill’s replacement submission provides for,

“enabling a person’s service with a regular force to be restricted”.

“To be restricted” to service in a particular area: why is this significant change being proposed? The original wording seemed to be in tune with assurances given at Second Reading which indicated that the flexible initiative lies with the individual, not the Ministry of Defence. I refer to my earlier comment about the risk of untoward outcomes from this legislation. The Committee should learn why the original phrasing has been replaced. Might it become a convenient handle with which to enforce reduced service or as a savings measure at some future date? I commend Amendment 2 to avoid this trap.

Amendment 3 proposes deleting the phrase,

“to be subject to other geographic restrictions”.

It has been suggested that this is to arrange for the individual not to be separated from their normal place of residence. Why cannot this be included in the meaning of the phrase “service in a particular area”? It seems an unnecessary complication. The purpose of this probing is to seek a fuller explanation of the proposed geographical restrictions. How would they assist individuals more easily to combine military and private commitments? Why are they not satisfactorily covered by the existing phrase,

“service in a particular area”,

which, as I suggested, could include location of family accommodation? I also note that the wording of Section 329(2)(j) says that a person may be required,

“to serve outside that area … not exceeding a prescribed maximum”,

but the replacement paragraph makes reference only to serving outside a “geographic restriction”, not a particular area. Why is the latter omitted by the Bill and said to differ from the former?

Finally, on Amendment 5, I questioned the use of the word “right” in new subsection (3A). The only reference to “right” in Section 329 of the Armed Forces Act is in subsection (3), which refers to,

“any right conferred … by … subsection (2)”,

which includes paragraphs (i) and (j), which this Bill seeks to replace. Why is it not satisfactory to rely on this overarching, less-deterministic phrase rather than introduce into Section 329 of the Armed Forces Act subsection (3A) with a specifically identified and explicit right applying to only three of 10 paragraphs in subsection (2)—a right that the noble Earl admits in his letter of 21 July is not absolute? Fact sheet 2 says that personnel will not have the right to work under the new flexible working arrangements. This amendment seeks an alternative approach to the matter of rights conferred while retaining the varied and other circumstances of new subsection (3A). I beg to move.

[Baroness Jolly (LD)]

My Lords, I shall speak to Amendment 14 in my name and that of my noble friend Lady Smith of Newnham, who, because of the Statement immediately after Questions, has got herself in the wrong place at the wrong time and has had to go into the Chamber. It is a very straightforward amendment. It asks for information to be provided by the Defence Council at least a year in advance to all members of the Armed Forces, giving them information about the scheme, how it will operate, how to apply and what alternative forms of flexible working are available.

Armed Forces Bill

Debate between Baroness Jolly and Lord Craig of Radley

Thursday 5th May 2016 Lords Chamber

[Baroness Jolly (LD)]

My Lords, from these Benches I also want to pay tribute to our Armed Forces. It has been a small and not quite perfectly formed Bill, but a very interesting Bill on which to work and I thank the Minister and his team for being ready to talk to us and to listen to our proposals and our views. I also thank the Opposition for a certain amount of joint working and collaboration on some issues. Indeed, it has been a very good-spirited and incredibly well-informed Bill. There will be another Armed Forces Bill in five years, but in this one we looked at the usual government tidying-up, the issue of child soldiers, the issues of courts martial and justice, mental health and sexual offences. The Government resisted the amendments very effectively, but I rather feel that they will be revisited in five years’ time and I look forward to discussing them in future with the noble Earl. In the mean time, we on these Benches are more than happy to support the Bill.

[Lord Craig of Radley (CB)]

My Lords, I join in commending the noble Earl the Minister for the way he has handled the Bill, and the Bill team for supporting him. I have one regret, as I am sure he understands, in that there has been no dealing yet with the problem of the impact of the Human Rights Act on operations. We have had assurances from the noble Earl and from other members of the Government that this is being actively pursued. I hope that it continues to be pursued and that we do not have to wait for the next Armed Forces Bill in five years’ time. I hope that whatever is introduced, by a Bill of Rights or in another way, will be as an amendment to the Armed Forces Act and not standing within its own Act, because the problem we have faced is that the Armed Forces Acts and the Human Rights Act are incompatible. This would have been avoided if we had not treated the problems of the Armed Forces and human rights in the way they have been treated in the past.

Defence Reform Bill

Debate between Baroness Jolly and Lord Craig of Radley

Tuesday 25th February 2014 Grand Committee

[Lord Craig of Radley (CB)]

The noble Lord, Lord Tunnicliffe, has raised in a variety of ways the issue of the independence of the SSRO from government. I raised one further point on that at Second Reading. I got a reply, but I was not absolutely confident that it provided the right answer. The point I made was that the SSRO has an interest in value for money, but so has the Treasury throughout government. I asked to what extent the SSRO stands free of, or is supervised by, the Treasury. For the record, it would be helpful to have that point covered once again. If I remember correctly, I got a very full answer from the Minister, the noble Lord, Lord Astor of Hever, but I was not absolutely happy that it gave a feeling of the pure independence of the SSRO from the Treasury.

[Baroness Jolly (LD)]

My Lords, I thank noble Lords for their comments at the beginning of this fourth day in Committee. In particular, I thank the noble Lord, Lord Tunnicliffe, and commend him for his preparation for the scrutiny in this Committee stage. I apologise in advance to noble Lords because some of my earlier speaking notes are quite lengthy, but they get shorter. The purpose of the length is that we need much of this on record.

Clause 13 is at the heart of the reforms to single-source procurement. It establishes the Single Source Regulations Office, a small, arm’s-length body responsible for keeping the new framework under review, monitoring adherence and providing expert determination between the MoD and single-source suppliers. It is therefore essential to the success of these reforms. Clause 13 also establishes in law the overriding aim of the SSRO to assure that good value for money is obtained in government expenditure on qualifying single-source defence contracts and that defence suppliers are paid a fair and reasonable price under those contracts.

The creation of an independent body is absolutely central to the success and longevity of the framework. I cannot say this too strongly. The purpose of this body is to be independent and transparent, thus giving confidence to both parties who need to play in this area. It was a key recommendation of the independent review conducted by the noble Lord, Lord Currie. The SSRO will replace the existing Review Board for Government Contracts, which, as the noble Lord, Lord Currie, identified, has, through no fault of its own, failed to evolve to reflect changing circumstances, largely because either party can block any change that it regards as contrary to its own interests.

Clause 13 brings into effect Schedule 4, which establishes the governance structure of the SSRO. In this we have closely followed guidance published by the Cabinet Office on executive non-departmental public bodies and have considered existing governance arrangements for similar bodies, such as Monitor. So we have not started with a blank piece of paper and, as the Committee will see, with the following key characteristics of the SSRO, the structure we have created is in common with other similar public bodies. It has a separate chair and chief executive and a board which has a majority of non-executive directors, which is aligned with best practice in the Financial Reporting Council’s UK Corporate Governance Code and Cabinet Office guidelines. Non-executive members of the SSRO should be appointed for a period of between three and six years to assure a staggered process of appointments to the key positions. There will be a process that allows the Secretary of State to remove or suspend a member from office on the grounds of failure to carry out his or her duties, incapacity, such as ill health, or misconduct, which rightly follows Cabinet Office guidance on the creation of public bodies. The SSRO will have the ability to appoint its own employees, which is consistent with Public Bodies: A Guide for Departments, produced by the Cabinet Office; and, in accordance with the Cabinet Office’s guidance on good corporate governance in executive NDPBs, the SSRO’s committee structure will be the body that makes key binding determinations, including where there is an appeal from one of the parties to a qualifying defence contract. We have listened to industry requests in this area, and have agreed that committees can contain members who are not employees or members of the SSRO.

The SSRO will also have separate responsibilities to the Secretary of State, the Auditor-General and Parliament. These, which are set out in Schedule 4, include the provision of annual accounts which are consistent with international finance reporting standards, which will be audited by the National Audit Office. These accounts will be prepared between three to six months of the end of the financial year. An annual report on its activities must be provided by the SSRO to the Secretary of State, who in turn will lay the report before Parliament.

As the sponsoring department of the SSRO, the Secretary of State will make payments to the SSRO to finance its operations. This is in common with Cabinet Office guidance on the funding of ENDPBs. There will be a framework agreement established between the MoD and the SSRO that sets its budget, in accordance with HMT’s guidelines in Managing Public Money and performance targets. The SSRO will be jointly funded by the MoD and industry, but we have agreed with industry that the MoD will pick up its costs over the first three years, as it is established and until we determine its precise annual running costs. The SSRO will be allowed to borrow money only on a temporary basis up to an overdraft limit set by the Secretary of State. There may be occasions where the SSRO has a higher number of adjudications or determinations that it is administering, where it may require additional resources to meet its objectives in a timely fashion.

We have given the SSRO the ability to pay pensions to its non-executive members. This is not because we intend to pay a pension to every non-executive member the SSRO appoints; rather, we have done this to give the Secretary of State the flexibility to recruit non-executive members from both the private and public sectors who may have existing pension arrangements. Other elements of Schedule 4 ensure that the SSRO will be a body that is subject to the Freedom of Information Act 2000, allow the parliamentary commissioner to investigate the SSRO, and ensure that its staff are not civil servants.

This clause is therefore crucial to the overall establishment of the SSRO and the functioning of the new framework. The SSRO will, over time, become an independent expert in defence single-source pricing, ensuring that we do not need to wait another 45 years for this framework to be reviewed again. It is therefore crucial that this clause is retained in the Bill.

Amendments 18G and 18H revolve around a concern, primarily expressed by industry, but also by the noble Lord, about the independence and impartiality of the SSRO. I assure noble Lords that we are committed to ensuring that the SSRO will be both independent and impartial. The credibility of the new single-source framework rests upon this. For example, the SSRO can act as an independent adjudicator in the event of disputes between parties and it is the appeal body to which industry can refer if we apply a civil penalty to it. Perhaps even more significantly, it annually recommends the profit rate and recommends changes to the framework as part of the quinquennial review process. It is the guardian of the new framework and its impartiality is at the core of the dual aims under Clause 13 of ensuring a fair and reasonable price for contractors and value for money for the Government.

If the SSRO was perceived as being partial, this would create great difficulties. If the perception was that it was too biased towards the Government, shareholders could decide that the defence sector was no longer worth investing in and our suppliers could be driven to leave it. If the perception was the other way—as too biased towards our suppliers—we would seek to change the framework entirely or we would exempt our contracts from it and thus lose the protections we are establishing in this Bill. Neither of these outcomes serves either the MoD or our single-source suppliers. It is the need for independence and impartiality that has led to our desire to set up the SSRO in the first place. The current framework requires consensus to change. This has meant that for 45 years, any change that one side has felt puts them at a disadvantage has been blocked. This is the principal reason why the old system has remained frozen in time for so long. Consensus will not serve us. The alternative, a statutory framework determined entirely by the MoD, would always be resisted by industry. There would be a risk that over time the framework would become steadily more one-sided and that industry would be driven out of the sector, so this option is also not desirable. What we need is an independent body, namely the Single Source Regulations Office.