Armed Forces (Flexible Working) Bill [HL]

Earl Attlee Excerpts

Report stage (Hansard): House of Lords
Wednesday 11th October 2017 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I rise to speak to the amendments, particularly to Amendment 8 in my name and that of my noble friend Lady Jolly. My comments will be very much in line with the words of the noble Lord, Lord Touhig. In Committee, the Minister said:

“I am not in a position today to give any undertakings on the substance of this issue, but I undertake to reflect further on the matter in a constructive way ahead of Report”.—[Official Report, 12/9/17; col. GC 85]


If constructive reflection has occurred, it has not been visible in the form of any government amendment. Could the Minister explain to the House why no government amendment has been forthcoming and, in the absence of that, why noble Lords should not accept either the amendments of the noble Lord, Lord Touhig, or that of my noble friend Lady Jolly?

[Earl Attlee (Con)]

My Lords, to answer the noble Baroness, I suspect we are going to find out very shortly.

An essential characteristic of any good parliamentarian is curiosity, so I can understand why many noble Lords would like to debate the first relevant new Defence Council Instructions before they are implemented. However, in the future it may become apparent that it would be appropriate to make a slight amendment to the regulations concerning flexible working in order to make them work better, be fairer to service personnel or for some other desirable reason. Unfortunately, no such amendment is likely to be made unless it is absolutely essential. The reason is that, thanks to these amendments, an affirmative order will be needed and the MoD will simply not bother with it—it is just too much trouble, unless it is absolutely essential.

Why, then, is my noble friend likely to acquiesce to these amendments? The answer is that he will have told his officials that they have only one shot and they must get the regulations right first time. In short, my noble friend probably thinks that no amendments to the regulations will be needed for a long time, so it does not really matter. Unfortunately, these amendments would make the parliamentary scrutiny of Section 329 of the Armed Forces Act entirely inconsistent, as recognised by your Lordships’ DPRRC’s first report. The fact that a power is novel—in other words, innovative and broad—does not necessarily mean that it should attract the affirmative procedure; what really matters is if there was likely to be any difficulty with it.

The Bill and the subsequent regulations under Section 329 provide flexibility for service personnel, and that can only be positive for them as it will enable certain of them to continue to serve when otherwise they would have to consider leaving the services. However, any of these regulations under the Bill will attract the affirmative procedure.

Contrast the flexible working provisions that we are talking about with, for instance, Section 329(2)(d), which I suspect enables Defence Council regulations to impose golden handcuffs on a service person in exchange for attending a desirable course. For instance, if a soldier has completed his minimum term of service, he or she might want to be considered for training as a helicopter pilot. Quite understandably, the MoD would want to prevent that new pilot from leaving for civvy street immediately after qualification—hence the need for the golden handcuffs. But what if the MoD is experiencing a shortage of helicopter pilots? As far as I can see, the Defence Council could retrospectively increase the period for the golden handcuffs. However, these regulations, which could be very tough, are made under the negative procedure.

If we accept these amendments—as I expect we will—not only will we make the parliamentary scrutiny of Section 329 of the Armed Forces Act entirely inconsistent but we will be getting ourselves deep into the weeds. Apparently, the MoD is considering whether two landing platform docks should be taken out of service, while your Lordships want to look at the minutiae of flexible working for a few service personnel. If we can trust Ministers and the Defence Council to make really difficult strategic or operational decisions, sometimes on a very short timescale, I think that we can safely allow them to amend the original flexible working regulations on their own.

--- Later in debate ---

[Lord Walker of Aldringham (CB)]

My Lords, I strongly support this amendment as well. Life in the military world is divided into two distinct types. The first is when folk are deployed on operations, normally in some far-flung place. Working days are often 18 to 20 hours long, sometimes longer. There are no weekends, no bank holidays, no serious recreational time and very little time for individuals to have to themselves. Focus is on the job in hand, you have to be ready to react at a moment’s notice, and the pressure is on you 24 hours a day. There is no way that could be described as part-time and no way that people could be part-timers in that sort of scene.

The second type is what one might call the routine, more normal life in barracks. This is all about training, career development, ceremonial, military aid to the civil power and similar activities, as well as getting a better work-life balance for service folk with their families. This is much more the sort of life that other professions might recognise. In this style of life, breaks from service are entirely possible, entirely sensible and entirely warranted, and, as we have already heard, it happens on the ground as we speak. But, again, “part-time” is not the right way to describe such breaks.

The very word “part-time” implies a long-term arrangement and, for the Regular Forces, carries a stigma that damages the self-esteem of the individual, makes others question an individual’s commitment and, indeed, damages the self-esteem of the institutions that are the services themselves. Moreover, the word “part-time” could be lighted upon and magnified by the media to further exacerbate a notion that we were indeed a part-time set of forces—to the very dismay of our services and particularly our personnel. If they were so to do, we would have only ourselves to blame by enshrining these words in law. Therefore, I very much support the amendment and hope that it will be accepted.

[Earl Attlee]

My Lords, I have listened carefully to the case presented by the noble and gallant Lord, Lord Craig of Radley, for changing the words of the provision. I agreed with everything that the noble and gallant Lord, Lord Boyce, said, apart from his remarks about the merits of the amendment. I particularly agreed with his comments about morale and funding the Armed Forces.

My first thought is that, if we were in a situation where the Armed Forces were fully funded and recruited, we would probably not be going down this route. However, our current situation gives us the opportunity to give defence HR a good wire-brushing. I strongly agree with the noble and gallant Lord, Lord Walker, that service life is not employment or a job; for me, it is, or was, Her Majesty’s service, which is very different.

If I were the Minister faced with this problem—or, rather, opportunity—my first thought would be to encourage service people who would like some flexibility or stability to go on to the reserve and then make an additional duties commitment. There would have to be some pension considerations and some certainty that the service personnel could get back into regular service, but I do not think that would require primary legislation. During the briefing sessions that the Minister organised, we asked about that, but apparently the Bill route is the optimal solution. Given the well-known difficulties with primary legislation, which we are experiencing now, we can be reasonably confident that this is the best course of action.

The noble and gallant Lord made a very good point about the possible public and service perceptions of part-time Regular Forces. Unfortunately, nothing we can do will stop the media running a story from a negative position. The noble and gallant Lord will also know that it is very hard to get the media to run any good defence news story. If they want to run this particular development negatively, nothing in the drafting of the Bill will prevent that.

I was in a similar position to the Minister when the Opposition Front Bench favoured slightly different drafting for a particular clause in a Bill that I was handling. However, I was in the fortunate position that my officials were able to advise me that I could accept the revised drafting if I wanted to, and of course I did. My noble friend is a much more experienced and, most importantly, much more senior Minister than I was. However, my suspicion is that he is simply unable to change the drafting for legal reasons.

When the noble and gallant Lord comes to decide what to do with his amendment, I think he will be wise to exercise caution. First, I do not expect that he will be carrying that magic slip of paper from the clerk to the Lord Speaker. Secondly, if we make too much of a meal of this Bill, we run the twin risks of, to some extent, deterring the MoD from running a similar small, discrete and desirable Bill and of making the government business managers equally cautious of such a Bill in the future, even if it were one that found favour with noble and gallant Lords.

[Lord Condon (CB)]

My Lords, I rise to support the amendment put forward by the noble and gallant Lords, not only for the reasons that they have articulated but very briefly to mention my experience in my former service, the police. I was able to initiate and help champion flexible working in the police service. We used terms such as career breaks, career development breaks and role sharing. We very carefully avoided any notion of part-time, simply because in my old service in the military and maybe in some other uniformed public services, job description generics carry weight beyond just normal civilian meaning. While it may be feared that the noble and gallant Lords and I are being oversensitive, notions of part-time can be seen to dilute notions of operational prowess, commitment, sense of duty and so on. If there is even the risk that, informally, notions of part-time will dilute how colleagues in the military view people taking advantage of flexible working, the term “part-time” should be avoided. If there is some room here for change, I hope the Minister will listen very carefully to the arguments put forward by the noble and gallant Lords. If there is a necessity to test the opinion of the House, I think this is so important that I will support the noble and gallant Lords.