Armed Forces (Flexible Working) Bill [HL]

Lord Craig of Radley Excerpts

2nd reading (Hansard): House of Lords
Tuesday 11th July 2017 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, this is, indeed, a very short Bill and its purpose seems sound. It is, as the noble Earl has explained, expected to help make service in the Armed Forces more attractive to the younger generation and is seen as an aid to recruiting and retention. It has the backing of the senior leadership in the services. In principle, I support the idea of introducing some specific, limited opportunities for individual service personnel to take a break for personal reasons from their 24/7 commitment. However, it will be important not to sacrifice operational effectiveness. Any application of the scheme must seek to strike a balance between operational demands and the reasonable interests of individuals. Ultimately, the former must be the principal consideration.

With such a short piece of primary legislation, the detail of what is intended must be covered by secondary legislation, by DCIs and/or by Queen’s Regulations. It would be helpful to have available, in Committee and at later stages, draft examples of the SIs and DCIs that will support the Bill’s application. I hope that the Minister will arrange that.

The phrase “flexible working” is clear in the Bill’s title but does not appear anywhere in the text. Instead, “part-time service” and “part-time basis” appear in Clause 1. A more general interpretation of “part-time” refers to so many hours in a day, days in a week or even possibly weeks in a month, but less frequently, if at all, to six months or a year or more away from work. Is it intended that the absences to be allowed are day breaks—possibly half-day breaks, for example—with all breaks of whatever length being measured in comparatively short time periods and never as a sabbatical?

The policy statement refers at paragraph 9 to,

“specified periods of time when they are simply not required for duty (and cannot be lawfully”—

I emphasise “lawfully”—“ordered to attend)”. It says elsewhere that a commanding officer is able to terminate an arrangement. Is there not some inconsistency there? “Part-time” also does not seem to cover the limited geographic employment mentioned in the Minister’s letter of 30 June about the second part of these proposals.

Is there a connotation to “part-time” that I am missing? I would prefer to stick with “flexible”, or “flexibly” where appropriate. This would allow for further variations of flex-working if ever required. Alternatively, could these absences be better described as “unpaid leave”? Leave is a well understood service arrangement, whereas part-time working can, albeit mistakenly, imply that the individual’s commitment to their service is just that: part-time. That is altogether different from a 24/7 commitment and might all too easily be misconstrued in a headline describing this Bill, were it to pass, as suggesting that the modern Armed Forces are now part-timers. Would it not be better to avoid any use of the words “part-time” and “part-timers”?

Maybe unpaid leave or short career breaks are already allowed by Queen’s Regulations. If so, this heavyweight but skeletal primary legislation would be unnecessary to cover these alternative career management arrangements. If the breaks were to be grouped as unpaid rather than part-time leave, some of the potentially adverse criticisms could be avoided without any recourse to primary legislation to deal with one specific type of flexible working. If the Minister will nevertheless hold to “part-time”, then there should be a definition of it in Section 374 of the Armed Forces Act 2006, which is entitled “Definitions applying for purposes of whole Act”.

Clause 1(3) inserts the words “A right conferred”, referring to new paragraphs (ha) to (j) of Section 329(2) of the Armed Forces Act 2006. I feel that “right” is a bit strong. Bearing in mind that such so-termed rights may be varied, suspended or terminated by a commanding officer, they are not inalienable. Might it not read better instead as “a term of service conferred on a person”, or alternatively as “a type of service conferred on a person”?

The secondary legislation policy statement sent by the Minister mentions at paragraph 3,

“improving opportunities for Reserves to commit more to make more effective use of all their knowledge, skills and experience”,

but the Bill is about Regular Forces and the reserves do not even get a mention in it. Perhaps the Minister can deal with this in his winding up.

I turn to other points to be dealt with by secondary legislation and instructions. How far will an individual who has taken his or her leave of absence remain subject to Armed Forces law? Are they deemed to be transferring to the reserves pro tem or do they remain regulars? Presumably pay, allowances and pension entitlements will all have to be recalculated. Will service medical and/or dental support be available? It is envisaged, is it not, that individuals will be covered if they are injured while away and will be entitled to the full equivalent compensation as if they were on full-time service? Will continuous occupation of service accommodation be allowed? Paragraph 20 of the Explanatory Notes refers to protecting,

“regulars from being separated from their permanent place of residence for prolonged periods”.

How is a “permanent place of residence” to be defined? To give confidence in approving the Bill, which lacks all such detail, it would be helpful in Committee to have draft examples of the intended further legislation, Defence Council Instructions and/or Queen’s Regulations.

Finally—I say this just to avoid any misunderstandings —the Bill, as I read it, is solely about the entitlement of a Regular Forces individual to apply for and make use of flexible working. It cannot be treated as a sort of Trojan horse that would allow the MoD or a senior budget holder to transfer a number of individuals, or even a unit, on to it as a savings measure to reduce the pressure on the defence budget at a particular moment; or even to defer or delay an individual’s return to full-time service as an economy measure—I stress that I do not read this into the Bill. The initiative about starting and ending this break rests with the individual, not their service. Is that correct? For the avoidance of doubt when it comes to subordinate legislation, an assurance now that the Bill is not a potential Trojan horse would be most welcome.