Armed Forces (Flexible Working) Bill [HL]

Debate between Lord Boyce and Lord Craig of Radley

3rd reading (Hansard): House of Lords
Wednesday 25th October 2017 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, when the noble Earl responded to my Amendment 3 on Report, he began with a frank and gracious apology to the House and to me for saying in his letter of 29 September that it would not be possible to remove the word “part-time” from the Long Title of the Bill. As he said, this was incorrect but given in good faith. To my embarrassment and regret, I failed, when I spoke again, to thank him for his apology—which of course I fully accept. I have spoken and written to the noble Earl to apologise for this discourtesy but would like to put the record straight.

In the same letter the noble Earl sought to allay concern by saying that the use of “part-time” was not unprecedented: it had been, he said, in previous Armed Forces legislation. So far, it has been found but once in all such Acts, going back over 60 years—and that once was in a 1955 Act, long repealed, and with a totally different meaning from contemporary usage. Both of these were weak—and, indeed, inaccurate—claims. The noble Earl would have done better to note that our objection to introducing “part-time” into the Bill was not that it would be unprecedented but that it should be there at all. The noble Earl said that he did not agree with my analysis, but a dozen speakers sympathised and agreed with the noble and gallant Lords and myself. More than 50 unwhipped Peers supported us in the Lobby.

The noble Earl said that the purpose of this novel type of flexible working was to enable individuals to take breaks from their 24/7/52 commitment to their service. Both in Grand Committee and on Report, our amendments were aimed at providing for just that, with appropriate subordinate legislation. We were being direct, not devious, as the noble Earl chided us. The Government’s approach—that the individual must first commit to serving on a part-time basis before becoming eligible to apply for breaks—is far less straightforward.

The arrangements for time away are all to be set out in subordinate legislation—but, we are told, cannot be guaranteed unless individuals are formally released from full-time duty to the Crown. But are they released? They are still beholden to the Crown because they remain under the Armed Forces Act. Would the military or civil police be responsible for investigating a crime committed by an individual while on a break? As a law tutor might say to his class of students, “discuss”.

I hope that the Government noted that the noble and learned Baroness, Lady Butler-Sloss, strongly suggested that phraseology other than “part-time” could be adapted for the armed services in legislation—as did the police, with detail in subordinate legislation to guarantee arrangements. However, the noble Earl said that what was intended was,

“distinctly different … and therefore the way we describe it needs to be very clear”.—[Official Report, 11/10/17; col. 249.]

I have since seen the noble Earl’s response to criticism by the Delegated Powers and Regulatory Reform Committee. He wrote:

“There is no intention at present to enable part-time service for all enlisted regulars”.


“No intention at present” really does make it distinctly different from just providing compassionate flexibility. Is this the intended direction of travel? Do the Government want this primary legislation to spawn part-time service in further and wider applications than those proposed now?

A statutory door is being primed to spring open—a far cry from the assurance given by the noble Earl in that letter of 29 September in which he wrote:

“The amendments to primary legislation simply provide us with the power to make regulations to enable these particular forms of flexible working”.


The Bill will enable far greater powers than that. There is no place in the Armed Forces Act 2006 for such an untrammelled, undefined, catch-all “part-time basis” phrase, unless Governments want a broad statutory power to recruit and re-muster our armed services little by little into becoming a force of part-timers. Perhaps, having reviewed all that has been said during the passage of the Bill in your Lordships’ House, wiser counsel will prevail in the other place. I certainly hope so.

[Lord Boyce (CB)]

My Lords, I remain to be convinced about the need for the Bill. The services already have an ability to operate flexible working. I lament, and certainly remain dismayed by, the continued use of the expression “part-time” to characterise the nature of what the Bill entails.

I recognise the amendment on this point was defeated on Report, but it required a Government three-line Whip to defeat the many excellent arguments by protagonists in favour. It was hardly a moral victory for the Government. Since Report, the senior and junior servicepeople I have spoken to have been equally appalled. Dislike for the expression “part-time” will be felt in particular by those who have requested no geographic separation yet who continue to work full-time. They will also be called “part-time” people even though they are working full-time. How does the Minister explain that? I really believe that a mistake has been made here and I would be grateful if the Minister could confirm that the Chiefs of Staff explicitly support the use of the expression “part-time”.

On a separate subject, I would be grateful if the Minister could comment on whether the ceilings for manpower numbers will take into account the provisions of the Bill. In other words, if the full scope and feasibility of flexible working for serving members of the Armed Forces is to be realised, there must presumably come a point where the current mechanism for accounting for liability—headcount—gives way to full-time equivalence.

The Bill’s implementation will have to be handled very carefully if the expectations of service men and women are not to be falsely raised. As the Minister said on Report:

“We are not talking about large numbers: we expect only a modest number of our people to either work part-time or restrict their absence from their home bases”.—[Official Report, 11/10/17; col. 250.]


In the case of the Royal Navy—which is extremely tautly manned and, constrained by the government-imposed headcount, short of people anyway—that is likely to be very modest indeed. For example, we need to bear in mind that 80% of junior ranks are in seagoing billets. It is difficult to see many applications for time away being approved. I therefore urge the Minister to ensure that the Bill is launched most carefully, and without fanfare and overpromising.

Armed Forces (Service Complaints and Financial Assistance) Bill [HL]

Debate between Lord Boyce and Lord Craig of Radley

Wednesday 9th July 2014 Lords Chamber

[Lord Boyce (CB)]

My Lords, at Second Reading the Minister gave us reassuring words about the importance he attaches to the command chain, and that was good to hear. However, I believe that new Section 340K undermines this principle and could be seen to be violating the integrity of the command chain. I have particular difficulty with the argument that this power is necessary because ombudsmen in other organisations have it. The Armed Forces are different, and the Minister does not need reminding about the emphasis given to this in the Armed Forces covenant, especially because other organisations do not have an equivalent of the Armed Forces Act and its inherent disciplinary processes.

If the ombudsman detects obstruction, the Defence Council and the command chain on his or her instruction can issue an order to any person deemed to be obstructing to comply. The failure of that person to comply would be an offence. New Section 340K may be a safety net or a last resort in case such a procedure does not deliver what the ombudsman wants. If so, it might be helpful if that were stated. I welcome the Minister’s comments on this. I beg to move.

[Lord Craig of Radley (CB)]

My Lords, I have added my name to this amendment—as the noble and gallant Lord, Lord Boyce, has explained, it is a probing amendment—because of the importance that must be vested in, and allowed to, the chain of command. I do not need to rehearse in this Committee that importance. The chain must run, and be allowed to run, seamlessly from the highest legal authority, the Defence Council, down through the ranks to the most junior serviceperson.

Since the major part of this Bill is to amend the Armed Forces Act 2006, this should ensure that service personnel involved in a complaint are to be subject to a single disciplinary statute, and are not, as in matters considered to be human rights, dealt with by separate and potentially conflicting legislation. I welcome that.

However, my concern with new Section 340K is that it allows the ombudsman to opine that a serviceperson is in contempt for some obstruction or act, to certify the obstruction or act, and to refer the person directly to a civilian court for investigation. In other words, the ombudsman is given a power of command over the individual even though he—the ombudsman—is not, as the Minister stated, within and does not form any part of the chain of command. It is argued that this contempt-dealing power is normally vested in an ombudsman, although not invariably. Be that as it may, the Armed Forces are, as the noble and gallant Lord, Lord Boyce, has said, dealt with differently in legislation. No other public servant is treated in the same statutory way as are members of the Armed Forces.

Surely a better approach, which would cover the issue of contempt and retain the position of the chain of command, would be for the ombudsman to report the individual and the perceived contempt to the Defence Council. The council would then instruct the individual to comply with the ombudsman’s requirement and, if the individual did not, it would be a blatant case of failing to obey a lawful command and could be dealt with accordingly.

Allowing the issue of contempt to be taken direct to a civilian court could lead, because of the lack of detailed knowledge of the Armed Forces by the court, to protracted, time-consuming and more expensive consideration of the issue. Surely it is important to the legislation’s aim to speed up resolution of complaints that steps are taken, where possible, to avoid delay and not slavishly to insert and rely on drawn-out procedures, as would be the case with new Section 340K. Bearing in mind the authority invested by new Section 340M in the position of the Defence Council to an ombudsman’s report about a complaint, it would seem acceptable and a more timely solution to the problem faced by an ombudsman of a potential contempt of his authority if that contempt were dealt with through the Defence Council. I urge the Minister to consider this approach and be minded to offer an alternative to the current new Section 340K on Report along the lines that I and the noble and gallant Lord, Lord Boyce, are suggesting.